North Carolina General Statutes § 1-277(a) says that “an appeal may be taken from every judicial order or determination of a judge of a superior or district court…[that] grants or refuses a new trial.” Thus, under the plain reading of this statute, the denial of a motion for a new trial made by a party pursuant to Rule 59 of the North Carolina Rules of Civil Procedure is immediately appealable.

What, then, to make of the unpublished Court of Appeals opinion released yesterday in Carter Neighbors Ltd. v. The Edwin Rector 1995 Charitable Trust, in which the Court dismissed as impermissibly interlocutory the appeal of a trial court order denying the appellants’ Rule 59 motion for new trial? Shouldn’t that order have been immediately appealable based on N.C.G.S. § 1-277(a)? The answer, according to the decision in Carter, is “no.” And while the Court did not even reference § 1-277(a) in its opinion, much less explain why it did not provide appellants an appeal as of right in this instance, here is the likely reason for that answer: appellant’s Rule 59 motion for new trial was a Rule 59 motion for a new trial in name only.

The tortured procedural history of the case, which takes up more than half of the Court’s 23 page opinion, reveals that there was never an actual trial in the superior court. Rather, the appellants “filed a motion for new trial and/or relief from judgment pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure.” That motion sought relief from a trial court order dismissing claims and counterclaims pursuant to Rule 41(b) for failure to prosecute and from a trial court order entering partial summary judgment against them pursuant to Rule 56. Thus, although the appellants had labelled their motion as one for a new trial under Rule 59, and the trial court addressed it as such, the substance of the motion was simply one for relief from judgment pursuant to Rule 60. There had been no trial in the trial court that would have allowed for a proper Rule 59 motion for a new trial; at most, the substance of appellants’ motion implicated only Rule 59(e), which allows for motions “to alter or amend a judgment.” As the Court has said in other cases and in other contexts, the substance of the motion, not the label, controls. See, e.g., Poret v. State Personnel Com’n, 74 N.C. App. 536, 328 S.E.2d 880 (1985) (“Merely making a motion to dismiss for lack of such jurisdiction will not ipso facto make an otherwise interlocutory order appealable; substance, not form, controls.”), overruled on other grounds by Batten v. N. Carolina Dept. of Correction, 326 N.C. 338, 343, 389 S.E.2d 35, 39 (1990). As the substance of appellants’ motion was not one for a new trial, N.C.G.S. § 1-277(a) was inapplicable to the appeal in Carter and the Court properly disregarded the statute entirely in its analysis.

An interesting sidenote to this issue. The appellants in Carter apparently failed to comply with North Carolina Appellate Procedure Rule 28(b)(4), which requires that an appellant clearly state the statutory grounds for the Court to consider the appeal. That left the Court of Appeals to determine of its own accord whether the appellants had the right to appeal. As the appellants made no argument as to the Court’s jurisdiction, that allowed the Court to sidestep (at least in the written opinion) the potentially confusing interplay between a Rule 59 new trial motion and N.C.G.S. § 1-277(a). If appellants had argued that they had a statutory right to an immediate appeal pursuant to § 1-277(a), I suspect that the end result would have been the same, but that the Court would have felt compelled to explain why that statute did not apply.

–Patrick Kane