An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA 02-1185


Filed: 19 August 2003


v .                         Transylvania County
                            No. 00 CVD 353

    Appeal by defendants from order entered 13 February 2002 by Judge C. Dawn Skerrett in Transylvania County District Court. Heard in the Court of Appeals 21 May 2003.

    Michael C. Byrne, for plaintiff-appellee.

    Charles W. McKeller, for defendant-appellants.

    HUDSON, Judge.

    On 31 July 2000, plaintiff filed a complaint seeking injunctive relief and an order quieting title with respect to the boundaries and use of disputed areas of real property. The matter came on to be heard during the 3 December 2001 term of the Civil District Court in Transylvania County.
    After taking evidence and hearing arguments from counsel, Judge C. Dawn Skerret ruled in favor of plaintiff that (1) the true boundary line between the parties property was as shown on certain deeds and in certain surveys; and (2) defendants were ordered by means of an injunction to remove certain items, including a speed bump and a chain link fence, from plaintiff's property. Defendants appeal.
    Plaintiff filed a motion to dismiss the appeal on two grounds: (1) defendants failed to file their brief in a timely manner; and (2) defendants failed to follow the format requirements for appellate briefs. Defendants filed no response to this motion.
    N.C. R. App. P. 13(a)(1) (2003) provides that an appellant must file its brief “[w]ithin 30 days after the clerk of the appellate court has mailed the printed record to the parties.” Further, Rule 13(c) states that “[i]f an appellant fails to file and serve his brief within the time allowed, the appeal may be dismissed on motion of an appellee or on the court's own initiative.” Here, the Clerk of the Court of Appeals mailed the printed record to the parties on 24 September 2002. Defendants filed their brief on 28 October 2002, several days after the deadline. Thereafter, on 4 November 2002, defendants filed a motion for an extension of time to file their brief, or alternatively to have their brief deemed timely filed. However, defendants have not, to this day, provided a reason for the delay in filing their brief. Therefore, we deny defendants' motion and allow plaintiff's motion.
    Judges TIMMONS-GOODSON and STEELMAN concur.
    Report per Rule 30(e).

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