COA Says Rule 59 Motions for a New Trial May Be Filed Before Entry of Judgment

Yesterday the COA addressed an issue of first impression for North Carolina courts – whether a trial court can hear a Rule 59 motion for new trial filed before the entry of judgment. The case is Xiong v. Marks. Rule 59 says that a motion for a new trial shall be served no later than 10 days after entry of the judgment, but does not specify whether a motion for new trial may be filed before entry of judgment. The COA concluded in Xiong that a Rule 59 motion can be filed before entry of judgment, and based this holding on various federal cases and what it described as “practice in our trial courts.” The Court held that language in Watson v. Dixon, 130 N.C. App. 47, 51, 502 S.E.2d 15, 19 (1998), stating that “Rules 50 and 59 of our Rules of Civil Procedure implicitly provide that these post-trial motions cannot be filed until after entry of judgment,” was dicta because the relevant issue in Watson was when the tolling of the 30-day time period for filing a notice of appeal begins. Judge McGee wrote a separate concurrence to reiterate that the holding in Xiong is not inconsistent with Watson because the seemingly relevant language in Watson is nonbinding dicta.