Although filing a notice of appeal generally divests the trial court of jurisdiction, an appellant may still move for a new trial while an appeal is pending. Doing so, however, is wrought with procedural traps for the unwary. For example, as previously blogged, a motion brought under Rule 60 will not toll the time for appeal.
Yesterday, the North Carolina Court of Appeals reminded us of another procedural trap in an unpublished decision. The appellant in the case filed a Rule 60(b) motion with the trial court after he filed his notice of appeal. That in itself was not the problem. The problem was that the appellant did not follow the procedure set out in Bell v. Martin, 43 N.C. App. 134, 258 S.E.2d 403 (1979), rev’d on other grounds, 299 N.C. 715, 264 S.E.2d 101 (1980). Specifically, he forgot to notify the North Carolina Court of Appeals of his Rule 60(b) motion, an essential step under Bell v. Martin. As a result, the trial court had no jurisdiction, limited or otherwise, to hear his motion and properly declined to do so.
The takeaway here is that we all need to check, double check, and triple check matters of procedure whenever post-trial motions are at play.
–Corinne Berry Jones