ERIC J. COFFEY,
Plaintiff-Appellant,
v
.
Forsyth County
No. 98 CVS 6848
SAVERS LIFE INSURANCE COMPANY,
Defendant-Appellee.
Herman L. Stephens for plaintiff-appellant.
Adams, Kleemeier, Hagan, Hannah & Fouts, by Margaret Shea
Burnham, for defendant-appellee.
McGEE, Judge.
Plaintiff initiated this breach of contract claim against
defendant by filing an application and order extending time to file
a complaint on 27 July 1998. Plaintiff subsequently filed an
amended complaint. Savers Life Insurance Company (defendant) filed
an answer and counterclaim, and plaintiff filed a reply. Defendant
filed a motion to dismiss and motions for summary judgment on 1
November 1999. Plaintiff filed a motion for partial summary
judgment seeking to dismiss defendant's counterclaim. The partiesfiled affidavits and other discovery materials in support of their
motions for summary judgment.
Following a hearing on 15 November 1999, the trial court
granted in part defendant's motion for summary judgment, dismissing
all plaintiff's claims except two paragraphs of count one of
plaintiff's complaint. The trial court certified the order for
immediate appeal and both parties entered notice of appeal;
however, neither party perfected their appeal.
The remaining two issues were calendered for the trial court
session beginning 4 December 2000. Defendant filed a motion for
sanctions against plaintiff on 16 November 2000, and the trial
court granted the motion by dismissing one of the remaining two
claims of plaintiff's complaint on 1 December 2000. The sole
remaining issue of plaintiff's complaint was dismissed in an order
entered 13 December 2000. Plaintiff filed a second notice of
appeal on 16 January 2001.
N.C.R. App. P. 3(c) requires that an "[a]ppeal from a judgment
or order in a civil action or special proceeding must be taken
within 30 days after its entry." In the case before us, plaintiff
was required to file his notice of appeal not later than 12 January
2001 in order to timely appeal from the last order entered in this
matter. Plaintiff filed his appeal on 16 January 2001, making his
notice of appeal four days late pursuant to N.C.R. App. P. 3(c).
Plaintiff's notice of appeal from the prior two orders consequently
was also untimely.
Compliance with N.C.R. App. P. 3(c) is jurisdictional, andfailure to file timely notice of appeal requires dismissal of the
appeal. Crowell Constructors, Inc. v. State ex rel. Cobey, 328
N.C. 563, 402 S.E.2d 407 (1991); see Bailey v. State, 353 N.C. 142,
540 S.E.2d 313 (2000). We are cognizant of our Supreme Court's
determination in Anderson v. Hollifield, 345 N.C. 480, 480 S.E.2d
661 (1997), that our Court has the authority under N.C.R. App. P.
21(a)(1) to exercise our discretion to review the merits of an
appeal, even if the party has failed to file timely notice of
appeal, by treating the appeal as a writ of certiorari. There is,
however, no compelling reason to do so after a careful review of
the record in this case. We dismiss plaintiff's appeal for
violation of N.C.R. App. P. 3(c).
Appeal dismissed.
Judges McCULLOUGH and SMITH concur.
Report per Rule 30(e).
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