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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
MARK BLEVINS D/B/A RAINBOW RECYCLING, Petitioner, v. TOWN OF WEST
JEFFERSON and TOWN OF WEST JEFFERSON BOARD OF ADJUSTMENT,
Filed: 17 April 2007
Appeal and Error--appellate rules violations--record on appeal
Respondent town's appeal from the trial court entering an order reversing its zoning
decision is dismissed, because: (1) the record on appeal does not show respondents' purported
notice of appeal was filed with the Ashe County Clerk of Superior Court as required by N.C. R.
App. P. 3; (2) the record does not contain a stamped or filed copy of a notice of appeal from the
superior court decision as required by N.C. R. App. P. 9 but contains a notice of appeal from the
Board of Adjustment; and (3) respondents' failure to include proof of service of petitioner in the
record on appeal is a fatal defect under N.C. R. App. P. 3 and 26 that requires dismissal.
Judge GEER dissenting.
Appeal by respondents from order entered 26 April 2006 by
Judge Michael E. Helms in Ashe County Superior Court. Heard in the
Court of Appeals 21 February 2007.
Kilby & Hurley Attorneys, by John T. Kilby, for petitioner-
Vannoy & Reeves, PLLC, by Jimmy D. Reeves and John Benjamin
Jak Reeves, for respondents-appellants.
Town of West Jefferson and Town of West Jefferson Board of
Adjustment (respondents) purports to appeal from order entered
reversing respondents' decision. We dismiss.
On 26 April 2006, the trial court entered an order reversing
the decision of the Town of West Jefferson Board of Adjustment.
The trial court concluded: (1) Mark Blevins d/b/a Rainbow
Recycling's (petitioner) business activity whether a 'junkyard'or 'recycling facility' is an activity that is both expressly and
implicitly allowed under Sections 40.7 and 55.1 of the Town Zoning
Ordinance on property that is zoned as M-1
(Manufacturing/Industrial); and (2) [i]n light of this ruling the
Court does not find it necessary to address the other issues raised
by the Petitioner.
On 6 July 2006, respondents filed a stipulated record on
appeal with this Court. Respondents' record on appeal does not
contain a filed notice of appeal from the decision of the Superior
Court. The heading on the notice in the record on appeal contains
a notice of appeal from the BOARD OF ADJUSTMENT. Respondents'
notice of appeal from the Board of Adjustment also does not
contain a file stamp or other indication to show it was filed with
the Clerk of Superior Court. The record on appeal does not include
any certificate of service or other documentation to show
respondents' purported notice of appeal was properly served on
II. Appellate Jurisdiction
Rule 3 of the North Carolina Rules of Appellate Procedure
[a]ny party entitled by law to appeal from a
judgment or order of a superior or district
court rendered in a civil action or special
proceeding may take appeal by filing notice of
appeal with the clerk of superior court and
serving copies thereof upon all other parties
within the time prescribed by subdivision (c)
of this rule.
N.C.R. App. P. 3(a) (2007) (emphasis supplied). The notice of appeal required to be filed and
served by subdivision (a) of this rule shall
specify the party or parties taking the
appeal; shall designate the judgment or order
from which appeal is taken and the court to
which appeal is taken; and shall be signed by
counsel of record for the party or parties
taking the appeal, or by any such party not
represented by counsel of record.
N.C.R. App. P. 3(d). Service of copies of the notice of appeal
may be made as provided in Rule 26 of these rules. N.C.R. App. P.
In order to confer jurisdiction on the state's appellate
courts, appellants of lower court orders must comply with the
requirements of Rule 3 of the North Carolina Rules of Appellate
Procedure. Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313,
322 (2000) (citations omitted). Appellate Rule 3 is jurisdictional
and if not complied with the appeal must be dismissed. Currin-
Dillehay Bldg. Supply v. Frazier, 100 N.C. App. 188, 189, 394
S.E.2d 683, 683 (citing Giannitrapani v. Duke University, 30 N.C.
App. 667, 228 S.E.2d 46 (1976)), 327 N.C. 633, 399 S.E.2d 326
(1990); Bailey, 353 N.C. at 156, 540 S.E.2d at 322 (Failure to
comply mandates dismissal of the appeal.).
This Court cannot waive the jurisdictional requirements of
Rule 3 if they have not been met. Guilford Co. Dept. of Emer.
Serv. v. Seaboard Chemical Corp., 114 N.C. App. 1, 9, 441 S.E.2d
177, 181 (citing Torres v. Oakland Scavenger Co., 487 U.S. 312,
317, 101 L. Ed. 2d 285, 291 (1988)), 336 N.C. 604, 447 S.E.2d 390
(1994). Without proper notice of appeal, this Court acquires no
jurisdiction. Brooks, Com'r of Labor v. Gooden, 69 N.C. App. 701,707, 318 S.E.2d 348, 352 (1984). [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. Feldman v. Feldman, 236 N.C. 731, 734, 73
S.E.2d 865, 867 (1953). The appellant has the burden to see that
all necessary papers are before the appellate court. Crowell
Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563, 402
S.E.2d 407, 408 (1991) (citing State v. Stubbs, 265 N.C. 420, 144
S.E.2d 262 (1965)).
A. Notice of Appeal From the Superior Court
The record on appeal does not contain a notice of appeal from
the Superior Court's order that was filed with the Clerk of
Superior Court. The record on appeal only contains an unfiled
notice of appeal to this Court from the Town of West Jefferson
Board of Adjustment and does not contain a Certificate of Service
of the notice on petitioner.
Appellate Rule 3 states that respondents may take appeal by
filing notice of appeal with the clerk of superior court.
Respondent failed to show they filed a notice of appeal of the
Superior Court's order with the Clerk of Superior Court. Without
proper notice of appeal, this Court acquires no jurisdiction.
Brooks, 69 N.C. App. at 707, 318 S.E.2d at 352. This Court does
not possess jurisdiction to address respondents' purported appeal
and is dismissed.
B. Filed Notice of Appeal
The purported notice of appeal does not show it was either
filed with or stamped by the Clerk of Superior Court of Ashe
County. Rule 9 of the North Carolina Rules of Appellate Procedure
requires [t]he record on appeal in civil actions . . . shall
contain: i. a copy of the notice of appeal[.] N.C.R. App. P.
9(a)(1)(i). Every pleading, motion, affidavit, or other paper
included in the record on appeal shall show the date on which it
was filed and, if verified, the date of verification and the person
who verified. N.C.R. App. P. 9(b)(3). Respondent failed to
provide a stamped copy of a notice of appeal filed with the Clerk
of Superior Court. Respondent failed to comply with the
jurisdictional requirements in Appellate Rule 3.
C. Service of Process for Notice of Appeal
Respondents' record on appeal also failed to contain any
certification to show respondents served a copy of the purported
notice of appeal on petitioner. Recently, this Court addressed the
consequence of an appellant's failure to include proof of service
of process of a notice of appeal. This Court stated:
[T]he dissent adopted by our Supreme Court in
Hale holds that where a party has waived
service of the notice of appeal, the failure
to include the proof of service in the Record
is inconsequential. Hale, 110 N.C. App. at
626, 430 S.E.2d at 460. However, under the
subsequent holdings of our Supreme Court in
Viar v. N.C. Dep't of Transp., 359 N.C. 400,
610 S.E.2d 360, reh'g denied, 359 N.C. 643,
617 S.E.2d 662 (2005) and Munn v. N.C. State
Univ., 360 N.C. 353, 626 S.E.2d 270 (2006),
the failure to include the certificate of
service as a violation of the North Carolina
Rules of Appellate Procedure is no longer
inconsequential. See Viar, at 401, 610
S.E.2d at 360 (The North Carolina Rules ofAppellate Procedure are mandatory and failure
to follow these rules will subject an appeal
to dismissal. (citation and quotations
omitted)); Munn v. N.C. State Univ., 173 N.C.
App. 144, 151, 617 S.E.2d 335, 339 (2005)
(Jackson, J., dissenting) (stating that
dismissal for rule violations is warranted
"even though such violations neither impede
our comprehension of the issues nor frustrate
the appellate process (citation and
quotations omitted)), rev'd per curiam for the
reasons stated in the dissent, 360 N.C. 353,
626 S.E.2d 270 (2006).
The record before this Court contains a copy
of the notice of appeal filed by defendant;
however, there is no certificate of service of
the notice of appeal as required by our
Appellate Rules 3 and 26 and plaintiff has not
waived defendant's failure to include proof of
service of his notice of appeal. Therefore,
we must dismiss this appeal.
Ribble v. Ribble, 180 N.C. App. 341, 342-43, 637 S.E.2d 239, 240
Further holdings of this Court apply Ribble to issues
identical to those at bar. In Ribble . . . this Court held that
in light of Viar . . . and Munn . . . the failure to include the
certificate of service as a violation of the North Carolina Rules
of Appellate Procedure is no longer inconsequential. In re C.T.
& B.T., 182 N.C. App. ___, ___, ___ S.E.2d ___, ___ (6 March 2007)
(No. COA06-1272) (quotations and citations omitted).
Failure to file a certificate of service to the notice of
appeal is a fatal defect that requires dismissal. Id. This Court
has held that one panel of the Court of Appeals may not overrule
the decision of another panel on the same question in the same
case. In the Matter of Appeal from Civil Penalty, 324 N.C. 373,
384, 379 S.E.2d 30, 36 (1989). Where a panel of the Court ofAppeals has decided the same issue, albeit in a different case, a
subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court. Id. at 384, 379
S.E.2d at 37.
Respondents failed to include proof of service of their
purported notice of appeal on petitioner in the record on appeal.
Respondents failed to follow the jurisdictional requirements set
forth in Appellate Rule 3 and Appellate Rule 26. Respondents'
failure to include a certificate of service to the notice of appeal
is a fatal defect that requires dismissal. Id. This Court has not
acquired jurisdiction and respondents' purported appeal must be
The record on appeal does not show respondents' purported
notice of appeal was filed with the Ashe County Clerk of Superior
Court. The record also does not contain a stamped or filed copy of
a notice of appeal. Respondents' failure to include proof of
service on petitioner in the record on appeal is a fatal defect
that requires dismissal. Ribble
, 180 N.C. App. at 343, 637 S.E.2d
at 240; In re C.T. & B.T.
, 182 N.C. App. at ___, ___ S.E.2d at ___.
For either of these reasons, this Court has not acquired
jurisdiction to hear respondents' appeal. Respondents' appeal is
Judge ELMORE concurs.
Judge GEER dissents by separate opinion.
GEER, Judge, dissenting.
After reviewing the record on appeal, I cannot agree with the
majority opinion's conclusion that respondents-appellants failed to
include a proper notice of appeal in the record on appeal. I,
therefore, respectfully dissent.
The majority opinion states that the notice of appeal
contained in the record is from the Board of Adjustment decision.
Apart from the fact that the appellant Board of Adjustment would
not file a notice of appeal from its own decision, I believe the
notice of appeal properly appeals from the superior court order.
The notice of appeal states: "Defendants give notice of their
appeal to the Court of Appeals of North Carolina of the judgement
in this action which was entered on 26 April 2006." The order of
the superior court was entered on 26 April 2006. This notice of
appeal complies with N.C.R. App. P. 3(d) because it "specif[ies]
the party or parties taking the appeal; . . . designate[s] the
judgment or order from which appeal is taken and the court to which
appeal is taken; and [is] signed by counsel of record for the party
or parties taking the appeal . . . ."
Although the caption of the notice of appeal does, for reasons
unknown, refer to the "BOARD OF ADJUSTMENT" in the upper right hand
corner under "IN THE GENERAL COURT OF JUSTICE," I cannot see how
that error transforms a notice of appeal that appeals "the
judgement in this action which was entered on 26 April 2006" into
a notice of appeal by the Board of Adjustment from its own ordersigned on 16 February 2006. I would, therefore, hold that the
notice of appeal properly appeals from the decision of the superior
The majority opinion next states that the notice of appeal
does not show that it was filed with the Clerk of Superior Court of
Ashe County. The record on appeal, however, contains a Rule
9(a)(1)(b) statement specifically stating that the notice of appeal
was "filed on 3 May 2006 with the Clerk for the Superior Court for
Ashe County." Petitioner-appellee stipulated to the record on
appeal and thus stipulated to this statement. The record on
appeal, therefore, contains an adequate statement as to the date
that the notice of appeal was filed, as required by N.C.R. App. P.
Finally, the majority opinion relies upon Ribble v. Ribble,
180 N.C. App. 341, 637 S.E.2d 239 (2006), and In re C.T. & B.T.,
182 N.C. App. __, 641 S.E.2d 414 (2007), to hold that the appeal
must be dismissed for failure to include the certificate of service
for the notice of appeal. This issue, however, has been
specifically addressed and resolved by our Supreme Court contrary
to the position taken by the majority opinion in this case.
In Hale v. Afro-Am. Arts Int'l, Inc., 110 N.C. App. 621, 623,
430 S.E.2d 457, 458, rev'd per curiam, 335 N.C. 231, 436 S.E.2d 588
(1993), the majority held, precisely like the majority in this
case: "Without proper service of notice of appeal on the other
party as required by Rule 26(b), and proof pursuant to Rule 26(d)
in the record before this Court that such notice was given, thisCourt obtains no jurisdiction over the appeal." Judge Wynn,
dissenting, wrote: "[W]here the appellee failed, by motion or
otherwise, to raise the issue as to service of notice [of appeal]
in either the trial court or in this Court and has proceeded to
file a brief arguing the merits of the case, I vote to hold that he
has waived service of notice and, thus, the failure to include the
proof of service in the Record is inconsequential." Id. at 626,
430 S.E.2d at 460 (Wynn, J., dissenting).
Our Supreme Court issued a per curiam opinion reversing, in
which it wrote:
Judge Wynn, dissenting, concluded that
failure to serve the notice of appeal was a
defect in the record analogous to failure to
serve process. Therefore, a party upon whom
service of notice of appeal is required may
waive the failure of service by not raising
the issue by motion or otherwise and by
participating without objection in the appeal,
as did the plaintiff here. Judge Wynn
concluded that plaintiff had thereby waived
service of the notice of appeal and that the
Court of Appeals had jurisdiction of the
appeal and should consider the case on its
For the reasons given in Judge Wynn's
dissenting opinion, we reverse the decision of
the Court of Appeals dismissing defendants'
appeal and remand the case to that court for
consideration on the merits.
Hale, 335 N.C. at 232, 436 S.E.2d at 589.
In this case, petitioner-appellee stipulated to the record on
appeal, did not raise any issue as to service of the notice of
appeal in the superior court or in this Court, and filed a brief in
this Court addressing the merits of the appeal. The issue
regarding the notice of appeal was raised sua sponte by this Court. This case cannot meaningfully be distinguished from Hale. Hale
requires that we hold that the appellee has waived the issue, and
the failure to include a certificate of service in the record on
appeal does not warrant dismissal. 110 N.C. App. at 626, 430
S.E.2d at 460 (Wynn, J., dissenting).
Neither Ribble nor C.T. leads to a different conclusion. In
Ribble, the Court found "plaintiff in the instant case has not
filed a brief or any other document with this Court or otherwise
participated in this appeal. This record does not indicate
plaintiff had notice of this appeal and plaintiff has not waived
defendant's failure to include proof of service in the record
before this Court." 180 N.C. App. at 343, 637 S.E.2d at 240
In C.T., DSS and the guardian ad litem filed a motion in the
trial court to dismiss the appeal for failure to timely file the
notice of appeal and for failure to properly serve the notice of
appeal. 182 N.C. App. at __, 641 S.E.2d at 414-15. On appeal,
the two parties also filed a motion to dismiss in this Court
asserting the same grounds. Id. at __, 641 S.E.2d at 415. This
Court specifically noted that neither DSS nor the guardian ad litem
had waived the failure to include proof of service and, based on
that lack of waiver, concluded that Ribble was "indistinguishable
from the case before us, and therefore dismiss[ed] Respondent's
appeal." Id. at __, 641 S.E.2d at 415.
Thus, there was no waiver of the certificate of service issue
by the appellee in either Ribble or C.T. Those two cases weredistinguishable from Hale, while this case is not. The majority is
not applying Ribble and C.T., but rather is seeking to extend them
so as to completely overrule Hale. To the extent that the majority
argues that Ribble and C.T. hold that Viar v. N.C. Dep't of
Transp., 359 N.C. 400, 610 S.E.2d 360 (2005) (per curiam),
overruled Hale, any such discussion is at most dicta and not
controlling in this case in which the appellee has waived any issue
regarding the certificate of service.
Moreover, Viar does not specifically address the issue at
hand. Hale is directly on point. I am not comfortable broadly
assuming that the Supreme Court has sub silentio overruled its own
prior decisions _ or in construing as controlling authority mere
dicta suggesting such a possibility. It is inconsistent with the
concept of precedent to dismiss an appeal that fully complies with
a prior Supreme Court decision on the basis that a subsequent
opinion of the Supreme Court _ not specifically addressing the
issue _ silently overruled that prior opinion. It is particularly
inappropriate to do so sua sponte without notice to the appellant
and without any opportunity to correct the purported error by
moving to amend the record on appeal.
In sum, the record on appeal contains a notice of appeal from
the superior court order and states the date upon which that notice
of appeal was filed. Hale holds that a failure to include a
certificate of service for the notice of appeal does not support
dismissal of the appeal if, as here, the appellee has waived theissue. Accordingly, I would not dismiss the appeal, but rather, as
the Supreme Court mandated in Hale, would address the merits.
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