Appeal by plaintiff from order and judgment entered 7 December
2000 by Judge Robert H. Hobgood in Chatham County Superior Court.
Heard in the Court of Appeals 22 January 2002.
Bradshaw, Vernon, & Robinson, L.L.P., by Patrick E. Bradshaw,
for plaintiff-appellant.
Sharpless & Stavola, P.A., by Frederick K. Sharpless and
Joseph P. Booth, III, for defendant-appellee.
TYSON, Judge.
Henlajon, Inc., a North Carolina Corporation (“plaintiff”)
appeals from the trial court's entry of summary judgment in favor
of Branch Highways, Inc., a Virginia Corporation (“defendant”) on
plaintiff's breach of contract claim. We affirm the trial court's
order and judgment.
I. Facts
The State of North Carolina contracted with defendant to
improve portions of U.S. Highway 64 in Chatham County (“road
project”). Plaintiff owned real property in Chatham County, North
Carolina and was contacted by defendant in September 1996
concerning the placement of excess dirt from the road project as
fill material onto plaintiff's land. No dirt was ever placed onplaintiff's property.
On 18 December 1996 and on 20 December 1996, plaintiff sent
defendant two letters contending that a contract existed.
Defendant responded by letter on 23 December 1996 stating:
“Accordingly, we state in no uncertain terms that there is no
contract (verbal, written, or otherwise) between Branch Highways
and Henlajon, Inc. regarding the placement of excess construction
soils onto your lands from any existing or pending NCDOT
construction project.” John Blair (“Blair”), plaintiff's
representative, acknowledged receipt of the letter, and testified
in his deposition that the letter denied the existence of a
contract. Plaintiff's attorney sent defendant a letter on 12 March
1997 stating that plaintiff believed that a contract existed, and
that plaintiff expected defendant to perform. Defendant did not
respond further.
Plaintiff filed suit against defendant 10 March 2000 alleging
breach of contract. Defendant filed motions to dismiss pursuant
to Rule 12(b)(6) and for summary judgment. The trial court granted
defendant's motion for summary judgment on 7 December 2000. The
judgment was served on plaintiff on 12 December 2000. Plaintiff
filed his notice of appeal at 3:43 p.m. on Friday, 5 January 2001,
and served it on defendant Monday, 8 January 2001 by mail.
II. Motion to Dismiss
Defendant has moved to dismiss plaintiff's appeal. Defendant
argues that plaintiff did not file and serve its notice of appeal
in accordance with Rules 3 and 26 of the North Carolina Rules ofAppellate Procedure, and that we lack jurisdiction to hear the
appeal and must dismiss. We disagree.
Rule 3(a) provides:
Any party entitled by law to appeal from a
judgment or order of a superior or district
court rendered in a civil action or special
proceeding may take appeal
by filing notice of
appeal with the clerk of superior court
and
serving copies thereof upon all other parties
within the time prescribed by subdivision (c)
of this rule.
N.C.R. App. P. (3)(a) (2001) (emphasis added). Subdivision (c)
states that “[a]ppeal from a judgment or order in a civil action or
special proceeding must be taken within 30 days after its entry.”
N.C.R. App. P. 3(c).
“In order to confer jurisdiction on the state's appellate
courts, appellants of lower court orders must comply with the
requirements of Rule 3 of the North Carolina Rules of Appellate
Procedure.”
Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313,
322 (2000) (citations omitted). “Appellate Rule 3 is
jurisdictional and if the requirements of this rule are not
complied with, the appeal must be dismissed.
Currin-Dillehay Bldg.
Supply, Inc. v. Frazier , 100 N.C. App. 188, 189, 394 S.E.2d 683
(1990) (citing
Giannitrapani v. Duke Univ., 30 N.C. App. 667, 228
S.E.2d 46 (1976));
Bailey, 353 N.C. at 156, 540 S.E.2d at 322
(
failure to comply “mandates” dismissal of the appeal). This Court
“cannot waive the jurisdictional requirements of Rule 3 if they
have not been met.”
Guilford County Dep't of Emergency Servs. v.
Seaboard Chem. Corp., 114 N.C. App. 1, 9, 441 S.E.2d 177, 181
(citing
Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 101 L.Ed.2d 285, 291 (1988);
Von Ramm v. Von Ramm, 99 N.C. App. 153, 156,
392 S.E.2d 422, 424 (1990)). “Under Rule 3(a) of the Rules of
Appellate Procedure, a party . . . may take appeal by filing notice
of appeal with the clerk of superior court and serving copies
thereof upon all other parties in a timely manner. This rule is
jurisdictional.”
Crowell Constructors, Inc. v. State ex rel.
Cobey, 328 N.C. 563, 402 S.E.2d 407, 408 (1991) (citing
Booth v.
Utica Mutual Ins. Co., 308 N.C. 187, 301 S.E.2d 98 (1983)).
Defendant contends that plaintiff's failure to serve the notice
of appeal “at or before the time of filing” mandates dismissal
because Rule 3(e) makes reference to the service requirements of
Rule 26(b).
Rule 3(e), entitled “Service of notice of appeal,” provides
that “[s]ervice of copies of the notice of appeal
may be made as
provided in Rule 26 of these rules.” (emphasis supplied). Rule 26
(b), states that “[c]opies of all papers filed by any party . . .
shall, at or before the time of filing, be served on all other
parties to the appeal.” N.C.R. App. P. 26(b)(2001). Defendant's
interpretation would constructively rewrite and shorten the time
requirements for service of the notice of appeal. Under
defendant's construction, a party would have thirty days from entry
of judgment, or within thirty days of the judgment's service where
service was not perfected within three days of entry of judgment as
required by N.C. Gen. Stat. § 1A-1, Rule 58, to serve the notice of
appeal,
unless
the notice is
filed before the thirty day period
expires in which case the notice of appeal must be
served on orbefore that date.
The rules do not compel this result.
Rule 26(b) is a general provision that is broad in scope and
covers all documents filed. Rule 3 is a specific provision that
applies only to the time to file and serve a notice of appeal in
superior court. If “one statute deals with a particular subject or
situation in specific detail, while another statute deals with the
subject in broad, general terms, the particular, specific statute
will be construed as controlling, absent a clear legislative intent
to the contrary."
Nucor Corp. v. Gen. Bearing Corp., 333 N.C. 148,
154-55, 423 S.E.2d 747, 751 (1992). Rule 3 explicitly provides a
party thirty days from the entry of judgment to file and serve a
notice of appeal. Our appellate courts have consistently held that
the thirty days is a jurisdictional requirement that can neither be
waived nor extended by this Court. We have no authority to extend
nor reduce the jurisdictional time frames established by Rule 3.
Had the Supreme Court intended Rule 26(b) to shorten the time for
service of the notice of appeal as expressly set out in Rule 3, it
could have provided for it in the rules.
See e.g. Rule 21
“Certiorari . . . . The petition shall be filed without
unreasonable delay
and shall be accompanied by proof of service
upon all other parties.
” N.C.R. App. P. 21 (2001)
; Rule 22
“Mandamus and prohibition . . . . The petition shall be filed
without unreasonable delay . . .
and shall be accompanied by proof
of service . . . .” N.C.R. App. P. 22 (2001); Rule 23 “Supersedeas
. . . . The petition shall be filed with the clerk of the court .
. .
and shall be accompanied by proof of service upon all otherparties. N.C.R. App. P. 23 (2001) (emphasis supplied).
In
Hale v. Afro-Am. Arts Int'l, Inc., 335 N.C. 231, 436 S.E.2d
588 (1993), our Supreme Court addressed the issue of whether
compliance with the service requirements of Rule 26(b) were
required to confer jurisdiction on the Court of Appeals. The
Supreme Court reversed
per curiam the Court of Appeals' majority
opinion
, 110 N.C. App. 621, 430 S.E.2d 457 (1993) (Greene, J.), for
the reasons set forth in the dissent.
In
Hale, the record on appeal contained a “notice of appeal”
but “[n]othing in the notice . . . shows that plaintiff was given
notice of the appeal through service as required by Rule 26(b).”
Id. at 623, 430 S.E.2d at 458
. “The [Court of Appeals] majority
concluded that this was a jurisdictional defect which both the
parties and the court were powerless to remedy,”
Hale, 335 N.C. at
232, 436 S.E.2d at 589, and held that our Court lacked jurisdiction
to hear the appeal.
Hale, 110 N.C. App. at 623, 430 S.E.2d at 459.
The dissent and our Supreme Court disagreed. The Supreme Court
approved Judge Wynn's reasoning and concluded that “a party upon
whom service of notice of appeal is required may waive the failure
of service by not raising the issue by motion or otherwise and by
participating without objection in the appeal . . . .”
Hale, 335
N.C. at 232, 436 S.E.2d at 589. “Judge Wynn [and the Supreme
Court] concluded that . . . the Court of Appeals had jurisdiction
of the appeal and should consider the case on its merits.”
Id. If
a party may waive the requirements of Rule 26(b), Rule 26(b) cannot
be jurisdictional. Failure to serve the notice of appeal on orbefore the date of filing pursuant to Rule 26(b) does not
automatically mandate dismissal.
Defendant contends that
Smith v. Smith, 43 N.C. App. 338, 258
S.E.2d 833 (1979) and
Shaw v. Hudson, 49 N.C. App. 457, 271 S.E.2d
560 (1980) necessitate dismissal of the appeal because plaintiff
failed to comply with the requirements of Rule 26(b).
We do not read either
Smith or
Shaw to hold that Rule 26(b) is
jurisdictional. Both cases were decided under former Rule 3 and
prior to our Supreme Court's decision in
Hale. Although some
language in both cases implies that the service requirements of
Rule 26(b) are jurisdictional, a proper analysis of the holdings in
those cases does not support that proposition, and any language to
that effect is
obiter dictum. “Language in an opinion not
necessary to the decision is
obiter dictum and later decisions are
not bound thereby."
Trustees of Rowan Tech. College v. Hammond
Assocs., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985) (citations
omitted).
In
Smith, we held that serving a notice of appeal on the same
day, but after the filing of the notice, is equivalent to serving
“at or before the time of filing” as required by Rule 26(b). Any
discussion in that case suggesting that Rule 26(b) or (c) is
jurisdictional was unnecessary to decide that case. The notice of
appeal was filed with the clerk of superior court and served upon
all parties within ten days, as required by former Rule 3, from the
trial court's entry of judgment.
In
Shaw, we held that “plaintiff's service of notice of appealwas not timely made . . . .”
Shaw, 49 N.C. App. at 459, 271 S.E.2d
at 561. The defendant did not serve his notice of appeal within
ten days from the date the trial court entered judgment as required
by former Rule 3. A review of the applicable dates in
Shaw reveals
that judgment was entered on 19 October. The plaintiff filed
notice of appeal on 26 October. The plaintiff did not serve the
notice of appeal until 5 November, seventeen days after filing the
notice of appeal. Plaintiff did not comply with the jurisdictional
requirements of former Rule 3 that the notice of appeal be filed
and
served within ten days from entry of judgment. Our court
lacked jurisdiction pursuant to former Rule 3. Any suggestion that
Rule 26(b) and 26(d) were jurisdictional requirements was
unnecessary to decide that case and is
obiter dicta.
We hold that Rule 3 sets the time at thirty days from entry of
judgment, or within thirty days of the judgment's service where
service was not perfected within three days from entry of judgment
as required by N.C. Gen. Stat. § 1A-1, Rule 58, for filing and
serving a notice of appeal; and failure to serve the notice of
appeal “at or before the time of filing” is not a jurisdictional
requirement that automatically requires dismissal. Rule 26 is
obligatory and failure to comply with its requirements, like all
other obligatory provisions of the Rules of Appellate Procedure,
may subject an appeal to dismissal. We do not encourage “sand
bagged” service, particularly where, as here, the certificate of
service in the record shows service the same date as filing. The
better practice is to serve on or before the filing date. Here, plaintiff filed and served his notice of appeal within
thirty days from entry of judgment as required by Rule 3.
Defendant has failed to argue or show any prejudice from being
served on the Monday after filing the previous Friday afternoon.
Our Court has jurisdiction to hear the appeal. Defendant's motion
to dismiss plaintiff's appeal is denied.
III. Summary Judgment
Plaintiff assigns as error the trial court's granting of
defendant's motion for summary judgment arguing that genuine issues
of material fact exist regarding: (1) when the statute of
limitations began to run, (2) whether a contract was formed, and
(3) the time of defendant's performance of the contract. We
disagree.
A. Standard of Review
We review a grant of summary judgment using “a two-part
analysis: '(1) the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine issue as to any material
fact; and (2) the moving party is entitled to judgment as a matter
of law.'”
Bradley v. Hidden Valley Transp. Inc., ___ N.C. App.
___, ___ 557 S.E.2d 610, 612 (2001) (citations omitted). The
burden of proof is on the movant to show that summary judgment is
appropriate.
Id. The record is reviewed in the light most
favorable to the non-movant.
Id.
B. Statute of Limitations
Plaintiff contends that a jury could have concluded that
defendant did not breach the alleged contract when it sent the 23
December 1996 letter arguing that defendant was continuing to work
on the construction project and had time to perform until some time
after 12 March 1997.
The statute of limitations for a breach of contract action is
three years. The claim accrues at the time of notice of the
breach. N.C. Gen. Stat. § 1-52(1) (2000);
Abram v. Charter Med.
Corp., 100 N.C. App. 718, 398 S.E.2d 331 (1990). Once the statute
of limitations is properly pled and the facts are not in conflict,
summary judgment is appropriate.
Soderlund v. Kuch, 143 N.C. App.
361, 546 S.E.2d 632 (2001). The burden of proof shifts to the
plaintiff to show that the action was filed within the statute of
limitations.
Id.
Presuming that a contract existed between plaintiff and
defendant, plaintiff has failed to produce any evidence that
defendant's 23 December 1996 letter was not a breach. Mr. Blair
testified in his deposition that upon receipt of defendant's
letter, he understood that defendant denied the existence of a
contract. We hold, presuming a contract existed, that defendant's
letter expressly denied the existence of a contract and
sufficiently informed plaintiff of defendant's intent not to
perform. “The statute begins to run on the date the promise is
broken.”
Glover v. First Union Nat'l Bank, 109 N.C. App. 451, 455,
428 S.E.2d 206, 208 (1993). Plaintiff did not file suit until 10March 2000, more than three years after receipt of defendant's
letter. Plaintiff's claim is barred by the statute of limitations.
Alternatively, plaintiff argues that defendant's letter dated
23 December 1996 was an anticipatory repudiation of the alleged
contract rather than a breach. After carefully reviewing the
entire record, we find no merit to this argument. Plaintiff has
not produced any evidence that defendant's letter was anything
other than either notice that no contract existed or a breach of an
alleged contract. This assignment of error is overruled. The
trial court properly entered summary judgment against plaintiff.
We affirm the judgment of the trial court.
Affirmed.
Judge HUNTER concurs.
Judge GREENE dissents.
========================
GREENE, Judge, dissenting.
Because I believe Rule 26 of the North Carolina Rules of
Appellate Procedure mandates the proper procedure for service of a
Rule 3 notice of appeal, I dissent.
Rule 3 mandates the
filing of a notice of appeal, as a general
proposition, to be within 30 days after entry of judgment. N.C.R.
App. P. 3(c)(1).
Service of the notice of appeal must be made on
all other parties to the appeal pursuant to Rule 26.
(See footnote 1)
N.C.R. App.P. 3(e);
Shaw, 49 N.C. App. at 459, 271 S.E.2d at 561 (rejecting
argument that notice of appeal is timely served if done so after
filing the notice of appeal);
Smith v. Smith, 43 N.C. App. 338,
339, 258 S.E.2d 833, 835 (1979) (Rule 26 “prescribes the proper
procedure for service of the notice of appeal”),
disc. review
denied, 299 N.C. 122, 262 S.E.2d 6 (1980). Rule 26(b) has been
construed to require the notice of appeal to be served “on the same
day as” it is filed.
Smith, 43 N.C. App. at 340, 258 S.E.2d at
835. These filing and service requirements are jurisdictional and
failure to follow them requires dismissal of the appeal.
Crowell
Constructors, Inc. v. State, 328 N.C. 563, 563, 402 S.E.2d 407, 408
(1991) (per curiam).
I do not believe that
Hale v. Afro-American Arts Int'l, Inc.,
335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993) (
per curiam)
overrules this long-established relationship between Rule 3 andRule 26. The single issue in
Hale was whether the appeal must be
dismissed when the record on appeal did not show the notice of
appeal had been served on the other parties to the appeal. The
Hale Court held this defect in the record on appeal should have
been raised prior to settling the record on appeal and the failure
to timely raise the issue constituted a waiver. I do not read
Hale
to hold that service of the notice of appeal may be waived by the
party entitled to the service. Indeed, I do not read the majority
opinion in this case to hold that service of the notice of appeal
can be waived.
(See footnote 2)
In this case, the record on appeal shows the filing of the
notice of appeal occurred within the thirty-day period prescribed
in Rule 3(c) and that service of the notice of appeal did not occur
at or before the time of the filing, as required by Rule 26(b).
Defendant moved to dismiss the appeal on this basis in the trial
court and also in this Court. Accordingly, as the service defect
appears on the face of the record, I would dismiss plaintiff's
appeal for failure to comply with Rules 3 and 26.
Footnote: 1