An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-611


Filed: 1 February 2005


         v.                                Watauga Coun ty
                                        No. 02-CvS-29 HIGHLANDE BUILDERS, LLC,

    Appeal by defendant from order entered 29 January 2004 by Judge Ronald K. Payne in Watauga County Superior Court. Heard in the Court of Appeals 17 January 2005.

    Turner & Yates, P.A., by David W. Yates, for plaintiff- appellee.

    McElwee Firm, P.L.L.C., by R. Tyson Ferrell, for defendant- appellant.

    HUNTER, Judge.

    On 1 October 2003, Judge Penn Dameron entered an order denying a motion to set aside entry of default and default judgment. On 30 October 2003, defendant filed notice of appeal from this order in the Office of the Clerk of this Court. On 5 November 2003, defendant filed notice of appeal from this same order in the Office of the Clerk of Superior Court of Watauga County. On 20 November 2003, plaintiff filed a motion to dismiss the appeal on the ground defendant failed to file the notice of appeal in the office of the clerk of superior court within thirty days after entry of judgment as required by Rule 3(c) of the Rules of Appellate Procedure. On29 January 2004, Judge Ronald K. Payne entered an order allowing plaintiff's motion to dismiss the appeal.
    Defendant has filed and docketed a record on appeal contending Judge Payne erred in dismissing the appeal. No notice of appeal from Judge Payne's order appears in the record on appeal. Without a notice of appeal in the record on appeal, we do not acquire jurisdiction and we are required to dismiss the appeal. Crowell Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563-64, 402 S.E.2d 407, 408 (1991).
    Appeal dismissed.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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