ESTATE OF CHARLES MICHAEL
EPLEY, BY JOSHUA G. EPLEY,
No. 05 CVS 226
BOARD OF TRUSTEES OF THE
TEACHERS' AND STATE EMPLOYEES'
RETIREMENT SYSTEM DIVISION,
Todd, Vanderbloeman & Brady, PA, by Charles A. Brady, III, for
Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for respondent-appellee.
Petitioner Joshua G. Epley, administrator of the Estate of Charles Michael Epley, purports to appeal an order of the superior court affirming a final decision of respondent Board of Trustees of the Teachers' and State Employees' Retirement System. The Board has filed a motion to dismiss petitioner's appeal, arguing in part that petitioner failed to include the notice of appeal in the record on appeal.
Under the North Carolina Rules of Appellate Procedure, an appellant must "fil[e] notice of appeal with the clerk of superiorcourt . . . ." N.C.R. App. P. 3(a). In order to establish this Court's jurisdiction, a copy of that notice of appeal must be included in the record on appeal. N.C.R. App. P. 9(a)(2)(g). "It is the duty of the appellant to ensure that the record is complete." Hicks v. Alford, 156 N.C. App. 384, 389, 576 S.E.2d 410, 414 (2003).
It is well established that "[w]hen the record does not include a notice of appeal, the appellate courts are without jurisdiction." In re Hudson, 165 N.C. App. 894, 898, 600 S.E.2d 25, 28, appeal dismissed and disc. review denied and cert. denied, 359 N.C. 189, 607 S.E.2d 271 (2004). See also Crowell Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563-64, 402 S.E.2d 407, 408 (1991) ("The notice of appeal must be contained in the record. Since the record does not contain a notice of appeal in compliance with Rule 3, the Court of Appeals had no jurisdiction of the appeal. The appeal should have been dismissed." (internal citations omitted)). As respondent points out and petitioner concedes, the record on appeal in this case does not include the notice of appeal.
Further, petitioner has not moved to amend the record, and nothing in his response to the motion to dismiss can be construed to be a request that we amend the record on appeal. See In re Baker, 158 N.C. App. 491, 492, 581 S.E.2d 144, 145 (2003) (granting motion to amend record on appeal to include notice of appeal so that this Court had jurisdiction). Petitioner simply argues that the cases cited by respondent are distinguishable. Becausepetitioner neither included the notice of appeal in the record on appeal nor moved to amend the record to achieve compliance, we are compelled to dismiss his appeal.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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