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Appeal and Error_motion to certify interlocutory order for appeal_time of notice of appeal_not tolled
An appeal was dismissed where notice of appeal was not timely filed and no motion was filed that would toll the time for taking an appeal. There is no provision for tolling the time for taking an appeal when a motion to certify an interlocutory order for immediate review has been made.
The Anderson Law Firm, P.L.L.C., by Richard J. Hollar, for
Law Office of Robert E. Price, by Robert E. Price for defendant-appellee.
On 16 June 2003, Judge Robert Frank Floyd, Jr. filed a
judgment granting partial summary judgment in favor of defendant on
plaintiff's claim for fraud and unfair trade practices and
reserving for trial plaintiff's claim for breach of contract. On
the same date, the judgment was served by defendant on plaintiff by
first class mail. On 21 October 2003, Judge Gary L. Locklear
entered an order certifying the order for immediate review pursuant
to Rule 54(b) of the Rules of Civil Procedure. On 19 November
2003, plaintiff filed notice of appeal from the judgment entered by
Judge Floyd on 16 June 2003. To confer jurisdiction on an appellate court of this state, a
party appealing from a lower court order 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). This rule requires that notice of appeal from a judgment
or order in a civil action be given within thirty days after its
entry. N.C.R. App. P. 3(c). This rule further provides that the
running of the time for giving notice of appeal is tolled under the
following circumstances: (1) the duration of any period of
noncompliance with the service requirement of Rule 58 of the Rules
of Civil Procedure; (2) a motion under Rule 50(b) for judgment
notwithstanding the verdict; (3) a motion under Rule 52(b) to amend
or make additional findings of fact; (4) a motion under Rule 59 to
alter or amend a judgment; and (5) a motion under Rule 59 for a new
trial. Id. There is no provision for tolling of the time for
taking an appeal when a motion to certify an interlocutory order
for immediate review has been made. When timely notice of appeal
in accordance with Rule 3(a) is not given, the appellate court must
dismiss the appeal. Booth v. Utica Mutual Ins. Co., 308 N.C. 187,
189, 301 S.E.2d 99, 100 (1983).
In the case at bar, the order from which appeal is taken was filed on 16 June 2003 and served on plaintiff on the same date by first class mail. However, the notice of appeal was not filed until 19 November 2003. No motion that would toll the time for taking an appeal under Rule 3(c) was filed. Because notice of appeal was not timely given, we must dismiss the appeal.
Judges ELMORE and STEELMAN concur.
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