An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 October 2006
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 03 CR 244454 - 244457
RAMON EDUA RAMIREZ-MARCIANO a/k/a
RAMON RAMIREZ-MARCIANO a/k/a
RAMON EDUARD RAMIREZ-MARLIO
Appeal by Harco National Insurance Company, Surety from orders
entered 14 September 2005 by Judge Phillip F. Howerton, Jr., in
Mecklenburg County District Court. Heard in the Court of Appeals
29 September 2006.
James, McElroy & Diehl, P.A., by Adam L. Horner and Sarah M.
Brady, for appellee Mecklenburg County Board of Education.
Andresen & Associates, by Kenneth P. Andresen, for surety-
Harco National Insurance Company (Harco) appeals from orders
rendered in open court. We dismiss the appeal.
On 15 September 2003, Ramon Edua Ramirez-Marciano a/k/a Ramon
Ramirez-Marciano a/k/a Ramon Eduard Ramirez-Marlio (defendant)
was charged with two counts of hit and run causing property damage,
assault with a deadly weapon, and reckless driving. Defendant's
total bond for these four citations was set at $13,500.00. On 20
September 2003, Harco, through its bondsman, posted four appearance
bonds as surety for defendant in the total amount of $13,500.00 anddefendant was released.
Defendant did not appear at his scheduled court date on 16
October 2003 and the trial court issued bond forfeiture notices on
20 October 2003 in each of the cases. Each of the bond forfeiture
notices stated the forfeitures would become final judgments on 18
On 28 December 2004, an agent of Harco surrendered defendant
to the Mecklenburg County Jail. On 17 February 2005, the State
voluntarily dismissed the charges against defendant.
On 3 August 2005, Harco filed motions for relief from the
final judgments pursuant to N.C. Gen. Stat. § 15A-544.8. It
appears the trial court conducted a hearing on Harco's motions on
14 September 2005. At the conclusion of the hearing, the trial
court rendered an oral judgment granting Harco's motions for relief
in part and awarding Harco a total of $3,000.00 plus interest in
relief from the forfeited bonds. Written orders reflecting the
trial court's rendered judgments were not entered at that time.
Harco filed notices of appeal on 11 October 2005 from the trial
court's oral rulings.
On 9 June 2006, Mecklenburg County Board of Education (the
Board) filed with this Court a motion to dismiss the appeal on
the ground the appeal is frivolous. Because we dismiss the appeal
for lack of jurisdiction, we deny both of the Board's motions to
dismiss and for reasonable expenses as moot.
The dispositive issue is whether this Court has jurisdictionto hear the appeal. We conclude that it does not.
III. Entry of Judgment
We first note the record on appeal does not include any
judgments of the trial court, and failure to include them in the
record on appeal subjects the appeal to dismissal. N.C.R. App. P.
9(a)(1) (2005); see Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314
S.E.2d 566, 567-68 (1984).
The announcement of judgment in open court is the mere
rendering of the judgment, not the entry of the judgment. Kirby
Bldg. Sys. v. McNiel, 327 N.C. 234, 393 S.E.2d 827 (1990).
Although appeal of a rendered order or judgment may be timely
filed, jurisdiction will not vest with this Court if judgment in
substantial compliance with the judgment rendered is not
subsequently entered. Abels v. Renfro Corp., 126 N.C. App. 800,
804, 486 S.E.2d 735, 738, disc. rev. denied, 347 N.C. 263, 493
S.E.2d 450 (1997); see Worsham v. Richbourg's Sales & Rentals, 124
N.C. App. 782, 784, 478 S.E.2d 649, 650 (1996).
Entry of an order occurs when an order is reduced to writing,
signed by the judge, and filed with the clerk. Abels, 126 N.C.
App. at 803, 486 S.E.2d at 738. The absence of such written order
giving this Court jurisdiction mandates that an appeal be
dismissed. Searles v. Searles, 100 N.C. App. 723, 725-27, 398
S.E.2d 55, 56-57 (1990).
Although the trial court in this case announced its decision
in open court, no written orders that are signed by the judge and
filed with the clerk appear in the record on appeal. Harco refersto the trial court's orders as orders made in open court, both in
its notices of appeal and in its brief.
No evidence shows the orders from which Harco purports to
appeal from have been entered. This appeal must be dismissed. Id
Because we dismiss the appeal for lack of jurisdiction, we deny
both of the Board's motions to dismiss and for reasonable expenses
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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