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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1358


Filed: 19 June 2007



v .                             Durham County
                                No. 06 CVS 00770


    Appeal by plaintiff from orders entered 12 May 2006 and 2 June 2006 by Judge Abraham P. Jones in Durham County Superior Court. Heard in the Court of Appeals 9 May 2007.

    Bugg & Wolf, P.A., by William J. Wolf, for plaintiff- appellant.

    No Brief Filed, for defendant-appellees.


    Intec USA, LLC (“plaintiff”) appeals from orders quashing its subpoena duces tecum and granting attorney's fees against plaintiff's counsel entered 12 May 2006 and 2 June 2006, respectively. Plaintiff, however, filed notice of appeal from both orders on 24 July 2006 , after the thirty days permitted for taking appeal pursuant to Rule 3(c) of the North Carolina Rules of Appellate Procedure. See N.C. R. App. P. 3(c) (2006).    As our Supreme Court has held, “[f]ailure 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.” Booth v. Utica Mut. Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99.100 (1983) (per curiam). In its notice of appeal, plaintiff merely alleged that the order granting attorney's fees was not properly served on plaintiff, and in its brief, plaintiff contends that it was unaware of the order awarding attorney's fees until 7 July 2006. The record is devoid of any affidavit, evidence, or documents asserting anything related to how or when plaintiff obtained notice of the order. Although “Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner,” Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997), plaintiff has failed to petition this Court for a writ of certiorari, and 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) of the Rules of Appellate Procedure. See N.C. R. App. P. 3(c)(2) (2006); see also Johnson v. Rowland Motor Co., 168 N.C. App. 237, 238, 606 S.E.2d 711, 712 (2005) (dismissing the appeal and noting that “[n]o motion that would toll the time for taking an appeal under Rule 3(c) was filed.”). Because plaintiff failed to file timely notice of appeal, we dismiss the appeal for lack of jurisdiction.
    Panel consisting of: Judges McGEE, LEVINSON, and JACKSON.
    Report per Rule 30(e).

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