An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
No. 02 CVS 2186
SPORTS AUTHORITY, INC., WARREN &
SWEAT MANUFACTURING, INC.,
FLORIDA HUNTING SUPPLIES, INC.,
and CART PRODUCTS, INC.,
Appeal by plaintiff from order entered 12 May 2004 by Judge
Yvonne M. Evans in Gaston County Superior Court. Heard in the
Court of Appeals 22 March 2005.
Klein & Freeman, PLLC, by Paul I. Klein and Katherine Freeman,
Templeton & Raynor, P.A., by Kenneth R. Raynor and Matthew G.
Pruden, for defendants-appellees.
Vergil Skeen (plaintiff) and Sports Authority, Inc., Warren
& Sweat Manufacturing, Inc., Florida Hunting Supplies, Inc., and
Cart Products, Inc. (collectively, defendants) submitted briefs
and a record on appeal to this Court. Due to a fatal defect in the
record on appeal, we dismiss this appeal for lack of jurisdiction.
I. Notice of Appeal
N.C. Gen. Stat. § 1-279.1 (2003) provides:
[a]ny party entitled by law to appeal from a
judgment or order rendered by a judge in
superior or district court in a civil action .
. . may take appeal by giving notice of appealwithin the time, in the manner, and with the
effect provided in the rules of appellate
Rule 3(a) of the North Carolina Rules of Appellate Procedure states
in part, Filing the notice of appeal. Any party entitled by law
to appeal from a judgment or order of a superior or district court
rendered in a civil action . . . may take appeal by filing notice
of appeal with the clerk of superior court . . . . N.C.R. App. P.
Appellate Rule 3 is jurisdictional. Crowell Constructors,
Inc. v. State ex rel. Cobey, 328 N.C. 563, 402 S.E.2d 407 (1991)
(citing Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 301 S.E.2d 98
(1983)), rev'd on other grounds, 342 N.C. 838, 467 S.E.2d 675
(1996). [I]f the requirements of this rule are not complied with,
the appeal must be dismissed. Currin-Dillehay Bldg. Supply v.
Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683 (1990) (citing
Giannitrapani v. Duke University, 30 N.C. App. 667, 228 S.E.2d 46
(1976)), disc. rev. denied and appeal dismissed, 327 N.C. 633, 399
S.E.2d 326 (1990); see Abels v. Renfro Corp., 126 N.C. App. 800,
802, 486 S.E.2d 735, 737, disc. rev. denied, 347 N.C. 263, 493
S.E.2d 450 (1997); see also Smith v. Smith, 43 N.C. App. 338, 339,
258 S.E.2d 833, 835 (1979), cert. denied, 299 N.C. 122, 262 S.E.2d
Rule 9(a)(1) of the North Carolina Rules of Appellate
Procedure requires in part:
Composition of the record [on appeal] in civil
actions and special proceedings. The record
on appeal in civil actions and special
proceedings shall contain: . . . .
i. a copy of the notice of appeal . . . .
N.C.R. App. P. 9(a)(1)(i) (2004). The notice of appeal must be
contained in the record. Crowell Constructors, Inc., 328 N.C. at
563, 402 S.E.2d at 408 (citing Brady v. Town of Chapel Hill, 277
N.C. 720, 178 S.E.2d 446 (1971)). 'Without proper notice of
appeal, this Court acquires no jurisdiction.' Von Ramm v. Von
Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990) (quoting
Brooks, Com'r of Labor v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d
348, 352 (1984)).
Our Supreme Court and this Court have dismissed appeals for
lack of a notice of appeal in the record. Failure to include the
notice of appeal within the record on appeal precludes an appellate
court's jurisdiction to hear the case. Crowell Constructors, Inc.,
328 N.C. at 563-64, 402 S.E.2d at 408 (Since the record does not
contain a notice of appeal in compliance with Rule 3, the Court of
Appeals had no jurisdiction of the appeal. The appeal should have
been dismissed. Therefore, we vacate the decision of the Court of
Appeals and remand to that court for dismissal of the appeal.).
This Court has held that if the record on appeal does not
contain a notice of appeal filed with the clerk of superior court
and served upon the appellees, we are required to dismiss this
appeal. Melvin v. St. Louis, 132 N.C. App. 42, 43, 510 S.E.2d
177, 177-78 (1999) (citing Crowell Constructors, Inc., 328 N.C. at
563-64, 402 S.E.2d at 407) (emphasis supplied), cert. denied, 350
N.C. 309, 534 S.E.2d 594 (1999). This Court has also dismissed cases for defects in the notice
of appeal. In Chee v. Estes, we held this Court lacked
jurisdiction to hear a case where the notice of appeal was
incomplete. 117 N.C. App. 450, 452-53, 451 S.E.2d 349, 350-51
(1994). A court may not waive the jurisdictional requirements of
[federal appellate] Rules 3 and 4, even for good cause shown under
Rule 2, if it finds that they have not been met. Von Ramm, 99
N.C. App. at 156, 392 S.E.2d at 424 (internal citations and
quotations omitted). In Atchley Grading Co. v. West Cabarrus
Church, we dismissed the case due to the appellant assigning error
to orders not appealed from as designated in its notice of appeal.
148 N.C. App. 211, 212, 557 S.E.2d 188, 188-89 (2001) ('Proper
notice of appeal requires that a party shall designate the judgment
or order from which appeal is taken . . . [.] Without proper notice
of appeal, this Court acquires no jurisdiction.') (quoting Von
Ramm, 99 N.C. App. at 156, 392 S.E.2d at 424).
The appellant has the burden to see that all necessary papers
are before the appellate court. Crowell Constructors, Inc., 328
N.C. at 563, 402 S.E.2d at 408 (citing State v. Stubbs, 265 N.C.
420, 144 S.E.2d 262 (1965)); Tucker v. Telephone Co., 50 N.C. App.
112, 118, 272 S.E.2d 911, 915 (1980) (it is the appellant's duty
and responsibility to ensure the record on appeal is in proper form
and complete) (citing Hill v. Hill, 13 N.C. App. 641, 642, 186
S.E.2d 665, 666 (1972)).
A copy of the notice of appeal was not included in the record
on appeal. Without inclusion of the notice of appeal in the
record, this Court is without jurisdiction to hear the case or make
a decision on the merits. This appeal is dismissed for lack of
Judge ELMORE concurs.
Judge WYNN concurs in the result only.
Report per Rule 30(e).
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