An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1308


Filed: 1 July 2003


         v.                        Robeson County
                                No. 98 CVS 03084
B.C. MOORE & SONS, INC.,    

    Appeal by defendant from order entered 10 July 2002 by Judge Robert Frank Floyd, Jr. in Robeson County Superior Court. Heard in the Court of Appeals 30 June 2003.

    Musselwhite, Musselwhite, Musselwhite & Branch, by James W. Musselwhite, for plaintiff-appellee.

    Barber & Wilson, P.A., by Timothy C. Barber and Sean T. Partrick, for defendant-appellant.

    Tyson, Judge.

    B.C. Moore & Sons, Inc. (“defendant”) purports to appeal from a “final adverse Judgment and/or Order” pursuant to G.S. 7A-27(b) (2001). This appeal is not properly before the Court. We dismiss.

I. Background
    This appeal arises out of a premise liability action filed by Flora Deese (“plaintiff”) alleging an acoustical ceiling tile fell and injured her while she was shopping in a store of defendant. This matter was initially tried during the 4 October 1999 term of Robeson County Superior Court. A judgment was entered against defendant on 27 October 1999. Upon defendant's motion, thesuperior court granted defendant a new trial as to the issue of damages only.
    Defendant appealed to this Court on or about 20 December 1999. This Court dismissed defendant's appeal as interlocutory. See Deese v. B.C. Moore, 144 N.C. App. 448, 548 S.E.2d 583 (2001) (unpublished).
    A second trial on the issue of damages was held during the 25 February 2002 term of superior court. A judgment was again entered against defendant on 12 March 2002. All of defendant's post-trial motions were denied. On 22 April 2002, defendant noticed appeal from the 27 October 1999 and 12 March 2002 judgments, and certain orders on motions made during and after both trials.
    On 23 April 2002, defendant entered into a contract with court reporter James Palmer to prepare a transcript of certain portions of the 25 February 2002 trial. By letter dated 29 April 2002, Palmer informed defendant that upon payment of estimated costs of $810.00, he would begin preparation of the February 2002 trial transcript. Palmer also informed defendant that because he was a court reporter in a capital case, the time to prepare the requested transcript would be sixty days from the date he received a check from defendant for the estimated cost of the transcript. Defendant requested a check from its insurer to pay for the transcript on or about 30 April 2002. The insurer did not forward the check until 3 June 2002. Defendant forwarded the check to Palmer on 7 June 2002. Palmer received the check on or about 10 June 2002. When defendant contacted Palmer to confirm his receipt of the check,Palmer requested that defendant seek from the court an additional thirty days for his preparation of the February 2002 trial transcript.
    On 14 June 2002, defendant moved for an extension of time to prepare the transcript. Plaintiff filed an objection to defendant's motion contending that defendant's own delay in forwarding payment for the transcript necessitated the need for additional time. On 10 July 2002, the trial court denied defendant's motion for extension of time, and dismissed defendant's second appeal pursuant to N.C.R. App. P. 25.
II. Issue
    Our threshold issue is whether defendant can properly appeal from an order dismissing his appeal.
III. Order Dismissing Appeal
    This appeal is not properly before this Court. A party may not appeal from an order dismissing an appeal. See Sanford v. Oil Co., 244 N.C. 388, 390, 93 S.E.2d 560, 562 (1956). Instead, the party must seek review by writ of certiorari. Id.
    The order from which defendant seeks relief both denied defendant's motion for extension of time and dismissed its appeal. The incidental issue of whether the trial court abused its discretion in denying defendant's motion for extension of time may be severable and appealable. Review of that issue does not ultimately address the merits of the underlying orders and judgments from which defendant originally appealed. The better course for defendant is to petition our Court for a writ ofcertiorari to review the underlying matters in accordance with the standard set forth in Oil Co., supra.
IV. Conclusion
    We dismiss this appeal without prejudice to defendant's right to file a petition for writ of certiorari to seek review of the judgments entered upon the two jury verdicts on 27 October 1999 and 12 March 2002, and the court's denial of defendant's various motions made during and after the trials in this case.
    Dismissed without prejudice.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

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