MAMIE L. DAVIS,
Plaintiff
v. Columbus Cou
nty
No. 97 CVS 1134
GENERAL MOTORS,
Defendant
William L. Davis, III, for plaintiff appellant.
Young Moore and Henderson P.A., by Reed N. Fountain, for
defendant appellee.
McCULLOUGH, Judge.
On 14 July 1999, the trial court entered an order of dismissal
in this case. Plaintiff Mamie L. Davis attempted to give notice of
appeal pro se on 26 July 1999. Plaintiff sought an extension of
time from this Court on 9 December 1999 which was “dismissed
without prejudice to file an amended notice of appeal with the
clerk of superior court . . . provided the time for giving notice
of appeal has not elapsed. See N.C.R. App. P. 3.” She
subsequently filed an amended notice of appeal with the trial court
on 7 January 2000.
Defendant General Motors filed a motion to dismiss plaintiff'samended notice of appeal and appeal, which the trial court allowed
by its order entered 5 October 2000. Plaintiff gave notice of
appeal on 30 October 2000 from the “Order entered in this action on
October 2, 2000 in the Superior Court of Columbus County dismissing
the Plaintiff's appeal to the North Carolina Court of Appeals by
the Honorable Wiley Bower [sic], Superior Court Judge presiding.”
By order entered 19 March 2001, the trial court settled the record
on appeal. Plaintiff appealed.
Although plaintiff attempts to argue three assignments of
error in this purported appeal, those issues are not properly
before this Court. Plaintiff gave notice of appeal on 30 October
2000 from Judge Wiley F. Bowen's “Order entered in this action on
October 2, 2000 . . . dismissing the Plaintiff's appeal to the
North Carolina Court of Appeals . . . .” However, “[n]o appeal
lies from an order of the trial court dismissing an appeal for
failure to perfect it within apt time, the proper remedy to obtain
review in such case being by petition for writ of certiorari.”
State v. Evans, 46 N.C. App. 327, 327, 264 S.E.2d 766, 767 (1980);
see also Lightner v. Boone, 221 N.C. 78, 84, 19 S.E.2d 144, 148
(1942). We therefore dismiss plaintiff's purported appeal.
After examining plaintiff's arguments, we decline to exercise
our discretion to treat this purported appeal as a petition for
writ of certiorari. This Court's 9 December 1999 order did not
extend the time for plaintiff to file an amended notice of appeal.
See N.C.R. App. P. 27(c) (2001) (“Courts may not extend the time
for taking an appeal . . . .”). Plaintiff's amended notice ofappeal on 7 January 2000 was entered more than thirty days after
entry of the trial court's order of dismissal on 14 July 1999 and
was therefore untimely. See N.C.R. App. P. 3(c) (2001) (“Appeal
from a judgment or order in a civil action . . . must be taken
within 30 days after its entry.”).
Thus, only the trial court's order of 5 October 2000 was
subject to this Court's review pursuant to plaintiff's notice of
appeal filed on 30 October 2000. While there are two means by
which a party's notice of appeal may be liberally construed to
determine whether this Court has jurisdiction over an unspecified
portion of the judgment, see Von Ramm v. Von Ramm, 99 N.C. App.
153, 156-57, 392 S.E.2d 422, 424 (1990), neither is applicable here
to extend the scope of review to the trial court's order of 14 July
1999.
A trial court's settlement of the record on appeal is not
reviewable on appeal except by petition for writ of certiorari.
State v. Johnson, 298 N.C. 355, 372, 259 S.E.2d 752, 763 (1979).
Furthermore, because the materials excluded by the trial court were
unnecessary to an understanding of errors assigned in the 5 October
2000 order, plaintiff would have been unable to show a manifest
abuse of discretion even if she had properly sought review of the
judicial settlement by a petition for writ of certiorari. See
State v. Little, 27 N.C. App. 467, 478, 219 S.E.2d 494, 501, disc.
review denied, 288 N.C. 732, 220 S.E.2d 621 (1975). Accordingly,
plaintiff's appeal is dismissed.
Dismissed.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***