An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1348


Filed: 6 December 2005


v .                         Durham County
                            No. 04 CVS 422

    Appeal by defendants from order and judgment entered 28 June 2004 by Judge Abraham P. Jones in Superior Court in Durham County. Heard in the Court of Appeals 20 April 2005.

    Kennon, Craver, Belo, Craig & McKee, P.L.L.C., by Erin M. Locklear, for plaintiff-appellee.

    The Peake Law Firm, P.A., by Thomas R. Peake, II, for defendant-appellants.

    HUDSON, Judge.

    On 22 June 2000, defendants executed a promissory note as managers of Colonial Acquisitions, L.L.C., promising to repay $25,000.00 plus interest to plaintiff Branch Banking & Trust (“BB & T”)on 22 November 2000. The defendants each signed separate guaranty agreements, providing for joint and several liability of the signors/guarantors. The parties executed several modification agreements extending the time for payment, with the final modification extending the payment date to 15 May 2003. On 12 June 2003, the North Carolina Secretary of State administrativelydissolved Colonial Acquisitions, L.L.C. In January 2004, BB & T commenced action against defendants to collect payment on the note. On 28 June 2004, the superior court granted summary judgment to BB & T. Defendants appeal. For the reasons discussed below, we dismiss the appeal.
    On appeal, defendants contend that the trial court abused its discretion in denying its motion to continue the summary judgment hearing and that the trial court erred in granting summary judgment to BB & T. We conclude that defendants failed to properly preserve these issues for appeal.
    In civil actions, 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 . . .
N.C.R. App. P. 3(c) (2004). Here, the court entered judgment on 30 June 2004, and nothing in the record indicates that proper service did not occur, nor have the defendants objected on this ground. On 30 July 2004, thirty days after judgment was entered, the parties signed a “stipulation extending deadline to appeal,” attempting to extend the deadline for notice of appeal to 13 August 2004. However, the requirements of Rule 3 cannot be waived or extended by consent:
        Jurisdiction is the power of a court to decidea case on its merits. Appellate Rule 3 requirements for specifying judgments are jurisdictional in nature. [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) (holding that parties' stipulation that notice of appeal was timely could not supplant Rule 3 designation requirements) (citations omitted, ellipses in original). “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.” Sillery v. Sillery, 168 N.C. App. 231, 234, 606 S.E.2d 749, 751 (2005) (citation and quotation marks omitted). Accordingly, we dismiss the appeal.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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