Summary
In Hale v. Afro-American Arts International, 110 N.C.App. 621, 430 S.E.2d 457, rev'd per curiam, 335 N.C. 231, 436 S.E.2d 588 (1993), this Court stated that “[w]ithout proper service of notice of appeal on the other party as required by Rule 26(b) [of the North Carolina Rules of Appellate Procedure], and proof pursuant to Rule 26(d) in the record before this Court that such notice was given, this Court obtains no jurisdiction over the appeal."
Summary of this case from McQuillin v. PerezOpinion
No. 9218SC475
(Filed 15 June 1993)
Appeal and Error 10 (NCI4th) — notice of appeal — no indication of service of notice — appeal dismissed An appeal was dismissed where the record contained a notice of appeal but nothing in the notice showed that plaintiff was given notice through service as required by App. R. 26(b). The notice of appeal contains no acknowledgement of service, nor is there affixed to the notice any proof of service in the form of a statement of the date and manner of service and of the names of the persons served as required by Rule 26(d). The Court of Appeals obtains no jurisdiction over the appeal 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 the Court that such notice was given.
Am Jur 2d, Appeal and Error 316 et seq.
Appeal by defendants from judgment signed 28 March 1991 and order signed 24 February 1992 in Guilford County Superior Court by Judge W. Douglas Albright. Heard in the Court of Appeals 15 April 1993.
Lee D. Andrews for plaintiff-appellee.
James W. Swindell for defendant-appellants.
Judge WYNN dissenting.
Defendants Afro-American Arts International, Inc. (Afro-American) and Rick Slade (Slade) appeal from judgment signed 28 March 1991, in favor of plaintiff Edward L. Hale (Hale), and from order signed 24 February 1992, denying defendants' motions for amended findings of fact and for a new trial.
Slade and Hale formed Afro-American on 15 January 1988. Hale was named president and Slade chairman. Hale believed that he was to serve a two-year term of employment as president of Afro-American. Slade believed that there was no agreement as to the length of Hale's employment. In August, 1988, Hale was hospitalized and was unable to work until October, 1988. Hale then attempted to return to work, but Slade refused to allow him to resume his duties, and terminated his employment on 7 October 1988.
Hale filed a complaint against defendants on 19 April 1988, alleging that he was terminated without just cause; that defendants wrongfully refused to sell Hale's artwork subsequent to his termination, resulting in lost profits to Hale; and that defendants refused to redeem Hale's stock in Afro-American despite a clause in the corporation's shareholder agreement requiring that the stock be redeemed upon Hale's leaving the company.
Defendants answered, denying Hale's allegations and counter-claiming that Hale had used Afro-American funds for personal gain and failed to reimburse Afro-American.
Hale served interrogatories on defendants, which were answered. Hale served a second set of interrogatories on defendants on 16 February 1990, and defendants partially answered on 21 March 1990. Because of defendants' failure to fully answer the second set of interrogatories, Hale filed a motion to compel. A hearing on the motion was held 23 May 1990, at which time the trial court ordered defendants to fully answer the interrogatories and to produce all documents requested by Hale. Defendants did not comply with this order. A second hearing was held on the matter on 6 August 1990, at which time the trial court again ordered defendants to provide documents and answer interrogatories. Again defendants did not comply. Due to defendants' willful failure to comply with the trial court's orders, the trial court filed an order that defendants' answer be stricken and a default entered on 1 February 1991. The trial court conducted a hearing to determine the amount of damages due Hale, at which time the trial court made findings of fact and conclusions of law. The trial court found as a fact that the stock which defendants should have redeemed was worthless, that Hale had incurred no lost profits, that Hale had a two-year term of employment with Afro-American, and that Hale had been wrongfully terminated. Based on the foregoing findings of fact, the trial court awarded Hale $26,672.00 for wrongful discharge. Defendants made a motion to amend findings of fact and a motion for a new trial, both of which were denied in an order signed 24 February 1992. Defendants filed notice of appeal 9 March 1992.
The dispositive issue is whether this court has jurisdiction to entertain this appeal absent proof of service of defendants' notice of appeal on plaintiff.
Our Rules of Appellate Procedure require that notice of appeal must, "at or before the time of filing, be served on all other parties to the appeal." N.C. R. App. P. 26(b) (1993); Smith v. Smith, 43 N.C. App. 338, 339, 258 S.E.2d 833, 835 (1979), disc. rev. denied, 299 N.C. 122, 262 S.E.2d 6 (1980). Rule 26(d) further requires that
[p]apers presented for filing [in this Court] shall contain an acknowledgement of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Proof of service shall appear on or be affixed to the papers filed.
N.C. R. App. P. 26(d) (1993). 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, this Court obtains no jurisdiction over the appeal. See Mason v. Moore County Bd. of Comm'rs, 229 N.C. 626, 628, 51 S.E.2d 6, 7 (1948). This Court is bound by the record on appeal, and "[i]f [the record] fails to disclose the necessary jurisdictional facts we have no authority to do more than dismiss the appeal." Id. at 629, 51 S.E.2d at 8 (citation omitted); Giannitrapani v. Duke Univ., 30 N.C. App. 667, 670, 228 S.E.2d 46, 48 (1976) ("timely filing and service of notice of appeal are jurisdictional matters requiring dismissal for noncompliance"); Smith, 43 N.C. App. at 339, 258 S.E.2d at 835 ("timely filing and service of notice of appeal is jurisdictional, and unless the requirements of . . . Rules of Appellate Procedure are met, the appeal must be dismissed"); Shaw v. Hudson, 49 N.C. App. 457, 459, 271 S.E.2d 560, 561 (1980).
The record on appeal contains a notice of appeal, which was filed 9 March 1992. Nothing in the notice, however, shows that plaintiff was given notice of the appeal through service as required by Rule 26(b). The notice of appeal contains no acknowledgement of service from Hale, nor is there affixed to the notice of appeal any proof of service in the form of a statement of the date and manner of service and of the names of the persons served as required by Rule 26(d).
Accordingly, because proof of service which would vest this Court with jurisdiction does not appear in the record, the appeal is
Dismissed.
Judge WELLS concurs.
Judge WYNN dissents with separate opinion.