BFW&H represented White in a personal injury matter on a
contingency fee basis. A jury ultimately found against White andshe recovered no damages. Subsequently, BFW&H mailed White a
"Statement For Legal Services Rendered," seeking reimbursement in
the amount of $9,321.16 for expenses incurred in the course of the
personal injury representation. After receiving no response from
White, BFW&H filed a complaint for money owed on 8 October 2002.
In her answer dated 14 November 2002, White claimed that BFW&H had
never informed her that she would be responsible for legal costs
even if she did not prevail in the personal injury case. White
also counterclaimed for professional malpractice.
On 3 September 2003, BFW&H filed a motion for summary judgment
that was denied by Judge Richard Chaney following a hearing on 15
September 2003 (with the order filed 4 December 2003). The case
was tried in a bench trial before Judge Marcia H. Morey on 23
October 2003. In its order filed 27 October 2003, the court denied
BFW&H's claim for money owed and dismissed White's malpractice
claim. BFW&H filed a notice of appeal from the orders of Judge
Chaney and Judge Morey on 25 August 2004.
When an appeal is filed belatedly, "the appellate court
obtains no jurisdiction in the matter and the appeal must be
dismissed."
Cochrane v. Sea Gate,
Inc., 42 N.C. App. 375, 377, 256
S.E.2d 504, 505 (1979). We are, therefore, required as an initial
matter to determine whether BFW&H filed a timely appeal.
The time and manner for appealing civil cases is set forth in
Rule 3(c) of the Rules of Appellate Procedure:
In civil actions and special proceedings, a
party must file and serve a notice of appeal:
(1) within 30 days after entry of
judgment if the party has been served with a
copy of the judgment within the three-day
period prescribed by Rule 58 of the Rules of
Civil Procedure; or
(2) within 30 days after service upon
the party of a copy of the judgment if service
was not made within that three-day period;
provided that
(3) if a timely motion is made by any
party for relief under Rules 50(b), 52(b), or
59 of the Rules of Civil Procedure, the 30-day
period for taking appeal is tolled as to all
parties until entry of an order disposing of
the motion and then runs as to each party from
the date of entry of the order or its untimely
service upon the party, as provided in
subsections (1) and (2) of this subdivision
(c).
N.C.R. App. P. 3(c). If a party does not comply with the
requirements of Rule 3, this Court has no choice but to dismiss the
appeal.
Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C.
App. 188, 189, 394 S.E.2d 683, 683 ("Appellate Rule 3 is
jurisdictional and if the requirements of this rule are not
complied with, the appeal must be dismissed."),
appeal dismissed
and disc. review denied, 327 N.C. 633, 399 S.E.2d 326 (1990).
In this case, the record on appeal indicates that the trial
court's order finally resolving the case was entered on 27 October
2003, while the notice of appeal was not filed until 25 August
2004. The appeal was, therefore, untimely unless the 30-day time
limitation was tolled under Rule 3(c)(2) or (c)(3). The only
explanation in the record for the lateness of the filing of the
notice of appeal is contained in the record on appeal's Statement
of Organization of Trial Court, which asserts: "The order wasentered and filed October 27, 2003, in favor of Defendant-Appellee.
Due to the court administrator's policy of rotating judges bi-
annually, an extended period of time followed before Plaintiff-
Appellant filed and served written notice of appeal on August 25,
2004." This statement, without more, does not demonstrate that
BFW&H's appeal was timely under either Rule 3(c)(2), because of
belated service of the order, or under Rule 3(c)(3), because of the
filing of a motion under Rules 50(b), 52(b), or 59 of the Rules of
Civil Procedure.
BFW&H states in its brief on appeal that "Plaintiff-Appellant
timely filed a motion for reconsideration, which tolled the time
requirements for filing the notice of appeal until the motion for
reconsideration was denied[.] N.C. Gen. Stat. § 1A-1, Rule 59."
The record on appeal, however, does not include the motion or the
order denying the motion. We cannot determine whether the motion
qualified as a proper motion under Rules 50(b), 52(b), or 59 or
whether it was timely filed. Nor can we determine whether the
notice of appeal was in fact timely filed following a denial of the
motion. In short, BFW&H asks this Court to accept on faith its
assertion in its brief that this appeal was timely. We are not,
however, permitted to do so.
Matters discussed in a brief that are outside of the record
"will not be considered since the record certified to the Court
imports verity and we are bound by it."
State v. Hedrick, 289 N.C.
232, 234-35, 221 S.E.2d 350, 352 (1976). It was BFW&H's
responsibility to ensure that the record contained a copy of anypost-trial motion and the court's order regarding that motion.
Tucker v. Gen. Tel. Co. of the Southeast, 50 N.C. App. 112, 118,
272 S.E.2d 911, 915 (1980) ("It is the duty of the appellant to see
that the record is properly prepared and transmitted."). This
Court is bound by the record as filed. "If it fails to disclose
the necessary jurisdictional facts we have no authority to do more
than dismiss the appeal."
Mason v. Moore County Bd. of Comm'rs,
229 N.C. 626, 629, 51 S.E.2d 6, 8 (1948).
The record on appeal contains a stipulation that "[t]he
appellate court has jurisdiction over the Defendant-Appellee and
subject matter jurisdiction of this action." Even if this general
stipulation is construed to relate to the timeliness of the appeal,
it is not sufficient to vest jurisdiction in this Court. As this
Court has previously held with respect to a stipulation that a
notice of appeal was timely, "'[j]urisdiction cannot be conferred
by consent, waiver, or estoppel; . . . [j]urisdiction rests upon
the law and the law alone. It is never dependent on the conduct of
the parties.'"
Von Ramm v. Von Ramm, 99 N.C. App. 153, 158, 392
S.E.2d 422, 425 (1990) (quoting
Feldman v. Feldman, 236 N.C. 731,
734, 73 S.E.2d 865, 867 (1953)).
See also Sillery v. Sillery, __
N.C. App. __, __, 606 S.E.2d 749, 751 (2005) ("'Without proper
notice of appeal, the appellate court acquires no jurisdiction and
neither the court nor the parties may waive the jurisdictional
requirements even for good cause shown under Rule 2.'" (quoting
Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483
(1994),
disc. review denied in part, 339 N.C. 609, 454 S.E.2d 246,
aff'd in part on other grounds, 341 N.C. 702, 462 S.E.2d 219
(1995))).
Because, according to the record on appeal as filed with this
Court, BFW&H's notice of appeal was not filed in compliance with
N.C.R. P. 3(c), we are required to dismiss BFW&H's appeal.
Dismissed.
Judges HUNTER and HUDSON concur.
Report per Rule 30(e).
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