Food Service Specialists v. Atlas Restaurant Management, Inc.

431 S.E.2d 878 (1993)

111 N.C. App. 257

FOOD SERVICE SPECIALISTS, Plaintiff, v. ATLAS RESTAURANT MANAGEMENT, INC. & H. Ray Martinat, & Roger Seagle, & James R. Simpson, II., Defendants. James R. SIMPSON, II., & Roger L. Seagle, Third-Party Plaintiffs, v. J.C. FAW, Third-Party Defendant.

No. 9225SC690.

Court of Appeals of North Carolina.

July 20, 1993.

*879 J. Stephen Gray, Salisbury, for plaintiff-appellant.

Simpson, Aycock, Beyer & Simpson, P.A. by Louis E. Vinay, Jr., Morganton, for defendant/third party plaintiff-appellee James R. Simpson, II.

Bell, Davis & Pitt, P.A. by D. Anderson Carmen, Winston-Salem, for defendant/third party plaintiff-appellee Roger L. Seagle.

Greeson and Grace, P.A., by Michael R. Greeson, Jr., Winston-Salem, for defendant-appellee J.C. Faw.

WELLS, Judge.

In a motion before this Court, defendants contend that plaintiff's appeal should be dismissed because plaintiffs failed to give a timely notice of appeal. We agree.

In the case at bar, the trial court made a clerical error as to the date of judgment. The judgment which was entered on 13 December 1991 was dated 2 October 1991. In an attempt to correct this clerical error, ostensibly pursuant to N.C.Gen.Stat. § 1A-1, Rule 60(a) of the North Carolina Rules of Civil Procedure, the trial court modified its judgment by changing the 2 October 1991 entry of judgment date to 21 January 1992. Rule 60 reads, in pertinent part, as follows:

Rule 60. Relief from judgment or order.

(a) Clerical mistakes.Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate division, and thereafter while the appeal is pending may be so corrected with leave of the appellate division.

While Rule 60 allows the trial court to correct clerical mistakes in its order, it does not grant the trial court the authority to make substantive modifications to an entered judgment. In Hinson v. Hinson, 78 N.C.App. 613, 337 S.E.2d 663 (1985), review denied, 316 N.C. 377, 342 S.E.2d 895 (1986), this Court wrote:

The court's authority under Rule 60(a) is limited to the correction of clerical errors or omissions. Courts do not have the power under Rule 60(a) to affect the substantive rights of the parties or correct substantive errors in their decisions. *880 Ward v. Taylor, 68 N.C.App. 74, 314 S.E.2d 814, disc. rev. denied, 311 N.C. 769, 321 S.E.2d 157 (1984); Vandooren v. Vandooren, 27 N.C.App. 279, 218 S.E.2d 715 (1975). We have repeatedly rejected attempts to change the substantive provisions of judgments under the guise of clerical error. . . . . . The relief granted on plaintiff's motion here clearly was substantive in nature and therefore not available under Rule 60(a).

More recently, in Edwards v. Edwards, 102 N.C.App. 706, 403 S.E.2d 530, review denied, 329 N.C. 787, 408 S.E.2d 518 (1991), this Court stated that Rule 60(a) "allows correction of clerical errors, but does not permit errors of a serious or substantial nature. Rivenbark v. Southmark Corp., 93 N.C.App. 414, 378 S.E.2d 196 (1989)."

By changing the incorrect date of entry of judgment (2 October 1991) to a date other than 13 December 1991, the actual date judgment was entered, the trial court improperly altered the substantive rights of the parties by extending the period in which the parties could file a timely notice of appeal. Rule 60(a) does not vest the trial court with such authority.

A proper application of Rule 60(a) would allow amendment to show a 13 December 1991 date of entry. Rule 3(c) of the North Carolina Rules of Appellate Procedure reads in pertinent part:

(c) Time for Taking Appeal. Appeal from a judgment or order in a civil action or special proceeding must be taken within 30 days after its entry.

Because the trial court lacked the authority to modify its judgment to reflect a date of entry other than 13 December 1991, plaintiff's 19 February 1992 notice of appeal was not timely. Therefore, plaintiff's appeal must be dismissed.

Dismissed.

COZORT and JOHN, JJ., concur.