Ruben L. York v. Taylor Book Reviews

Ruben L. York v. Taylor by Court of Appeals of North Carolina No. 8521DC828 Book Summary

[79 NCApp Page 654] The notice of appeal from the default judgment for defendants with respect to plaintiff's claim and defendants' counterclaim against plaintiff was filed at the same time as plaintiff's Rule 52(b) motion for amended and additional findings of fact and Rule 60(b) motion for relief from judgment. The trial court is not divested of [79 NCApp Page 655] jurisdiction to hear and rule on a Rule 52(b) motion even though notice of appeal has been given. Parrish v. Cole, 38 N.C. App. 691, 248 S.E.2d 878 (1978). The trial court does not have jurisdiction, however, to rule on motions pursuant to Rule 60(b) where such motion is made after the notice of appeal has been given. Wiggins v. Bunch, 280 N.C. 106, 184 S.E.2d 879 (1971), reh. denied, 281 N.C. 317 (1972). From our research, we have discovered no cases with respect to whether the trial court has jurisdiction to rule on Rule 60(b) motions that are filed contemporaneously with the notice of appeal. We do have, however, precedent holding that the appellate court is the proper place to file Rule 60(b) motions while the case is pending appeal. Swygert v. Swygert, 46 N.C. App. 173, 264 S.E.2d 902 (1980). Moreover, in Swygert this Court remanded a Rule 60(b) motion filed in this Court pending appeal to the trial court for a hearing and determination on the questions and issues raised by the motion. It would be incongruous for us to say that the trial court had jurisdiction to rule on a Rule 52(b) motion but was divested of jurisdiction to hear a Rule 60(b) motion filed at the same time. This is especially true since we have the authority to remand the Rule 60(b) motion to the trial court for a hearing and determination pending appeal. Id. Therefore, under the circumstances of this case, we hold that the trial court had jurisdiction to rule on plaintiff's Rule 60(b) motion.

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