JOHNNY BENTON FLETCHER
v. Surry County
No. 03 CVS 293
LOIS NISTON VERNON
Johnny Benton Fletcher, pro se plaintiff-appellant
Bowden & Laws, P.C., by Robert B. Laws, for defendant- appellee.
Johnny Benton Fletcher (plaintiff) filed a negligence action
against Lois Niston Vernon (defendant) in Surry County Superior
Court on 6 March 2003, seeking damages for personal injuries
allegedly sustained in an automobile collision. A jury awarded
plaintiff $2,000.00, and judgment was entered upon the verdict on
1 April 2005. On 8 April 2005, plaintiff filed a motion for a new
trial, which was denied by an order entered on 1 July 2005.
Plaintiff dated and served his notice of appeal on 8 August 2005,
thirty-eight days after entry of the order.
Pursuant to North Carolina Rule of Appellate Procedure 3(c), notice of appeal must be filed within 30 days of entry of the orderfrom which the appeal is taken. This requirement is mandatory and jurisdictional. See Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983) (Failure to give timely notice of appeal in compliance with . . . Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and an untimely attempt to appeal must be dismissed.). Here, plaintiff's notice of appeal was filed more than thirty days after entry of the order. In addition, the record on appeal fails to disclose any delay in service of the order upon plaintiff which might extend the thirty day filing deadline pursuant to Rule 3(c)(2). Because the record before this Court does not demonstrate plaintiff's timely filing of notice of appeal, we dismiss the appeal for lack of jurisdiction. Id.
We note defendant has filed a motion to dismiss plaintiff's appeal based upon plaintiff's additional violations of the Rules of Appellate Procedure. However, having dismissed plaintiff's appeal ex mero motu on jurisdictional grounds, we dismiss defendant's motion as moot.
Appeal dismissed; motion dismissed.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***