Appeal by defendant from an order entered 26 August 2004 by
Judge Ola M. Lewis in Brunswick County Superior Court. Heard in
the Court of Appeals 27 February 2006.
Stuart L. Egerton and Hedrick & Morton, L.L.P., by G.
Grady Richardson, Jr., for plaintiff-appellee.
Peter C. Curnin, pro se, for defendant-appellant.
BRYANT, Judge.
Peter Charles Curnin (“Curnin”) appeals from an order
dismissing his appeal from an order granting summary judgment in
favor of Bald Head Association (“BHA”). We dismiss Curnin's appeal
and deny Curnin's petition for writ of certiorari seeking review of
the order granting summary judgment. We also deny BHA's motion for
sanctions.
Facts and Procedural History
The background of this case is as follows: BHA was
established pursuant to the Amended and Restated Declaration of
Covenants and Restrictions filed on 5 May 1982 in Book 498, Page260, Brunswick County Registry (the “1982 Covenants”). BHA is a
non-profit corporation that exists to preserve the aesthetic
integrity of Phase I of Bald Head Island. Curnin owns real
property located in Phase I of Bald Head Island known and referred
to as “Lot 333, Stage One, Bald Head Island,” as shown in Book
1002, Page 509 and Book 1409, Page 741, Brunswick County Registry
(the “Property”).
On 5 April 2001, BHA filed suit against Curnin, seeking to
recover unpaid homeowner's dues, assessments and fines. The
majority of the fines and assessments imposed on Curnin were for
violations relating to the construction of Curnin's home and for
his failure to complete construction within a twenty-four month
period of time as required by the “Amended and Restated Declaration
of Covenants, Conditions and Restrictions for Bald Head
Association” filed on 14 February 2000 in Book 1359, Page 1,
Brunswick County Registry (the “2000 Covenants”). Pursuant to the
2000 Covenants, if construction was delayed beyond twenty-four
months, BHA had the authority to levy and collect a fine “in the
minimum amount of $500.00 per month.”
Curnin filed an answer and counterclaims against BHA alleging
the 1982 Covenants are void because they were not properly amended
or adopted due to an irregularity in the voting procedure which was
used by the affected landowners to create the BHA in 1982. As
such, Curnin contended any actions taken by BHA pursuant to the
authority granted to it by the 1982 Covenants are
ultra vires,
including,
inter alia, the adoption and implementation of designguidelines. Curnin further denied he was bound by the 2000
Covenants.
On 23 February 2004, Judge D. Jack Hooks granted summary
judgment in favor of BHA, awarding it damages in the sum of
$13,511.01 plus interest and ordering Curnin to pay attorney's fees
and costs totaling $34,086.14. On 25 March 2004, Curnin filed a
notice of appeal from the judgment. Thereafter, on 29 April 2004,
he filed a purported record on appeal with this Court under docket
number COA04-592, which was actually a proposed record on appeal.
On BHA's motion, this Court dismissed Curnin's appeal “without
prejudice to file a properly settled record on appeal” by order
dated 8 June 2004.
On 8 July 2004, 30 days after the dismissal order was issued
by this Court, Curnin filed a second notice of appeal from Judge
Hooks' judgment purportedly to “bring the case back into the Court
of Appeals.” On 30 July 2004, Curnin's counsel served what he
“hope[d] [was] a final version of the record.” The last page of
this record was titled “Certificate of Service” and indicated
Curnin's counsel was serving the “Proposed Record.”
On 13 August 2004, BHA filed a motion to dismiss Curnin's
appeal on the grounds Curnin failed to timely serve a proposed
record on appeal and the second notice of appeal filed by Curnin
did not trigger a new 35-day period of time to serve a proposed
record on appeal. After a hearing on BHA's motion, Judge Ola M.
Lewis granted the motion and dismissed Curnin's appeal by order
entered 26 August 2004. From the order entered, Curnin appeals. On 2 August 2005, Curnin filed a petition for writ of certiorari
seeking review of Judge Hooks' judgment. BHA subsequently moved
for sanctions against Curnin pursuant to N.C. R. App. P. 34.
_________________________
We first address whether Curnin's appeal is properly before
this Court. It is well-settled that “[n]o appeal lies from an
order of the trial court dismissing an appeal for failure to
perfect it within apt time, the proper remedy to obtain review in
such case being by petition for writ of certiorari.”
State v.
Evans, 46 N.C. App. 327, 327, 264 S.E.2d 766, 767 (1980) (citations
omitted). Here, Curnin is appealing from the trial court's order
dismissing his appeal for failure to timely perfect the record on
appeal. As such, we dismiss Curnin's appeal.
Curnin also petitions this Court to issue its writ of
certiorari to review the underlying summary judgment. Curnin
presents two primary arguments in his petition: (1) he challenges
the validity of the 1982 Covenants authorizing the formation of
BHA; and (2) he argues he was not bound by the 2000 Covenants
because they were not in effect at the time he obtained his
building permit. He asserts the record and appendix filed in this
appeal “already contains
most of the documents regarding the merits
of the underlying appeal.” (emphasis added).
Rule 21 of the North Carolina Rules of Appellate Procedure
provides in relevant part:
The writ of certiorari may be issued in
appropriate circumstances . . . to permit
review of the judgments and orders of trial
tribunals when the right to prosecute anappeal has been lost by failure to take timely
action, or when no right of appeal from an
interlocutory order exists, or for review
pursuant to G.S. 15A-1422(c)(3) of an order of
the trial court denying a motion for
appropriate relief.
N.C. R. App. P. 21(a)(1) (2006). Here, Curnin does not argue his
petition falls within any of the “appropriate circumstances” set
forth in N.C. R. App. P. 21(a)(1). The only basis on which
Curnin's petition could possibly be allowed is that his right to
prosecute his appeal has been lost by failure to take timely
action.
Assuming,
arguendo, Curnin has shown his right to prosecute
his appeal has been lost by failure to take timely action, Curnin
makes no proffer of excusable neglect justifying the loss of his
appeal of right from the judgment, as is required to obtain a writ
of certiorari under N.C. R. App. P. 21(a)(1).
See, e.g.,
In re
Snelgrove, 208 N.C. 670, 672, 182 S.E. 335, 336 (1935) (requiring
applicant to show both “diligence in prosecuting the [lost] appeal”
and merit to the appeal). Indeed, this Court gave Curnin a second
chance to file a properly settled record on appeal and Curnin still
failed to do so. Further, Curnin has failed to present to this
Court the evidence necessary to establish merit to his lost appeal.
Accordingly, we deny Curnin's petition for writ of certiorari.
Finally, BHA requests this Court impose sanctions against
Curnin pursuant to N.C. R. App. P. 34, primarily because Curnin has
made efforts to “back door” the appeal from Judge Hooks' judgment
into the current appeal through his petition for writ of certiorari
and his motion for leave to file a brief in support of hispetition. As set forth above, Curnin does not have a right to
appeal from an order dismissing an appeal and, thus, the proper
method to obtain review is through a petition for writ of
certiorari. Therefore, we deny BHA's motion for sanctions.
In conclusion, Curnin's appeal from the trial court's order
dismissing his appeal is dismissed. Curnin's petition for writ of
certiorari is denied and BHA's motion for sanctions is denied.
Appeal dismissed; petition denied; motion denied.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***