Savvy practitioners know that some post-trial motions toll the deadline for filing a notice of appeal, but motions brought under Rule 60 of the Rules of Civil Procedure do not. So what happens when a trial court rules on a Rule 60 motion after the final judgment’s appellate deadline? If the final judgment was not appealed, can a party appeal from the Rule 60 decision?
The Court of Appeals recently said no, at least in some circumstances. In Smith v. Taylor, the third-party defendant filed a Rule 60 motion after a bench trial and argued that the judgment was void for lack of subject matter jurisdiction. The trial court denied the Rule 60 motion, and the third-party defendant sought appellate review of that decision. By that point, the 30-day deadline to appeal from the underlying judgment had already expired.
The Court of Appeals dismissed the Rule 60 appeal. Because the notice of appeal did not include the underlying orders that created the final judgment, and because the appellant’s arguments were based on those underlying orders, the Court found that it did not have jurisdiction to hear the appeal. Further, the Court stated that even if it construed the notice of appeal to include the underlying orders, any appeal from those underlying orders would have been untimely.
So how far does this result extend? Consider, for example, a motion brought under Rule 60(b)(2) for newly discovered evidence that is uncovered more than 30 days after a final judgment is entered and when no appeal from the final judgment was taken. If the trial court denies the motion, can the party appeal? If not, why not? If so, what exactly would be reviewed?
There are, of course, many cases that have reviewed decisions made under Rule 60—including Rule 60(b)(4). See, e.g., Chen v. Zou, — N.C. App. –, 780 S.E.2d 571 (2015) (affirming the grant of a Rule 60(b)(4) motion); In re Powell, — N.C. App. –, 768 S.E.2d 133 (2014) (affirming the denial of a Rule 60(b)(4) motion). Are those somehow different? Let us know what you think in the comments below.