Opinion
No. COA10-368
Filed 15 February 2011 This case not for publication
Appeal by Plaintiff from orders entered 30 September 2008 and 21 December 2009 by Judge W. Allen Cobb, Jr., in Pender County Superior Court. Heard in the Court of Appeals 13 October 2010.
Donald Sullivan, pro se. Pender County Attorney, Carl W. Thurman III, for Defendants-Appellees.
Pender County No. 06 CVS 282.
Plaintiff Donald Sullivan appeals from (1) an order denying his request that certain provisions of the North Carolina General Statutes and the Pender County Zoning Ordinance be construed so as to exempt him from any obligation to obtain certain permits otherwise required in connection with the construction and occupation of a residence located on a certain tract of property, ordering Plaintiff to comply with the applicable statutory and ordinance provisions as construed by the trial court, and imposing civil penalties upon Plaintiff for his failure to comply with the applicable statutory provisions and zoning ordinances and from (2) an order denying Plaintiff's motion to amend the trial court's initial order. After careful consideration of the record in light of the applicable law, we conclude that Plaintiff's appeal should be dismissed because he failed to note an effective appeal from the trial court's orders in a timely manner.
Aside from the fact that Plaintiff failed to note a timely appeal from the trial court's orders, we note that the 30 September 2008 order required Plaintiff to pay attorneys fees to Defendant in an "amount to be determined at a later hearing." The record before us does not reflect that the trial court ever resolved the attorneys fee issue. However, we need not address the extent to which the absence of any order resolving the attorneys fee issue renders Plaintiff's attempted appeal subject to dismissal as having been taken from an unappealable interlocutory order, see, e.g., Bumpers v. Community Bank of Northern Virginia, 364 N.C. 195, 203, 695 S.E.2d 442, 447-48 (2010), because Plaintiff's appeal is subject to dismissal on other grounds.
I. Factual Background
Plaintiff is a resident of Pender County, North Carolina, and owns a tract of property near Hampstead, North Carolina. Between 1996 and 2003, Plaintiff constructed several buildings, including a residence, on that tract. Plaintiff did not obtain the required zoning and building permits prior to constructing the residence. After construction of the residence had been completed, Plaintiff failed to obtain the required certificate of occupancy. In April 2005, Plaintiff made application to Progress Energy for the purpose of obtaining electrical service at the residence and was informed that, according to N.C. Gen. Stat. § 143-143.2, Progress Energy could not provide electrical service to the residence until Plaintiff obtained an electrical inspection from the relevant Pender County officials. On 7 November 2005, Pender County notified Plaintiff that he would need to obtain all required planning, zoning and building permits before an electrical inspection would be performed.
On 30 July 2007, Plaintiff filed an "Amended Complaint and Petition for Declaratory Judgment" in which he requested the trial court to interpret N.C. Gen. Stat. § 143-143.2 in such a manner as to absolve him from the necessity for obtaining the inspections and permits required by Pender County based on his interpretation of the relevant statutory provision and to order certain Pender County officials to perform an electrical inspection at the residence without requiring him to obtain a building and zoning permit or a certificate of occupancy first. On 30 August 2007, Defendants filed an answer, a motion to dismiss Plaintiff's claim, and a counterclaim seeking the entry of an order requiring Plaintiff to comply with the Pender County Zoning Ordinance and imposing a civil penalty stemming from Plaintiff's failure to obtain the required permits.
After hearing the case without a jury on 28 July 2008, the trial court entered an order on 30 September 2008 in which it found facts and made conclusions of law, determined that Plaintiff was not exempt from the requirements of the applicable statutory and ordinance provisions, ordered Plaintiff to obtain the necessary permits or cease occupying the residence, denied Plaintiff's request that Pender County be required to provide the requested electrical inspection notwithstanding the Plaintiff's failure to obtain the required permits, imposed a civil penalty upon Plaintiff for failing to obtain the required permits, and ordered Plaintiff to pay Defendants' attorneys fees. On 17 October 2008, Plaintiff filed a Motion to Amend Order in which he requested the trial court "to amend its order of September 30, 2008, regarding the counterclaims of the defendants." On 17 November 2008 and 15 June 2009, respectively, Plaintiff filed a Memorandum in Support of Motion to Amend Order and a Supplemental Brief. On 21 December 2009, the trial court denied Plaintiff's motion to amend the 30 September 2008 order. On 19 January 2010, Plaintiff filed a notice of appeal in which he attempted to appeal both the trial court's 30 September 2008 order and its 21 December 2009 order.
II. Legal Analysis
N.C.R. App. P. 3 provides, in pertinent part, that:
(a) Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action . . . 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 subsection (c) of this rule.
. . . .
(c) In civil actions and special proceedings, a party must file and serve a notice of appeal:
(1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure; or
(2) within thirty days after service upon the party of a copy of the judgment if service was not made within that three day period; provided that
(3) if a timely motion is made by any party for relief under Rules 50(b), 52(b) or 59 of the Rules of Civil Procedure, the thirty day period for taking appeal is tolled as to all parties until entry of an order disposing of the motion[.]
"`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.'" Huebner v. Triangle Research Collaborative, 193 N.C. App. 420, 425-26, 667 S.E.2d 309, 313 (2008) (quoting Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983)), disc. rev. denied, 363 N.C. 126, 673 S.E.2d 132 (2009). "It is well-established that the issue of a court's jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte." State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622 (2008) (citing Reece v. Forga, 138 N.C. App. 703, 704, 531 S.E.2d 881, 882, disc. rev. denied, 352 N.C. 676, 545 S.E.2d 428 (2000)). Accordingly, we must first determine the extent, if any, to which this Court has jurisdiction over Plaintiff's appeal.
As we have already noted, the trial court's 30 September 2008 order declined to provide Plaintiff with any relief and ordered Plaintiff to comply with the relevant statutory and ordinance provisions, imposed a civil penalty on Plaintiff, and ordered Plaintiff to pay Defendants' attorneys fees. For that reason, Plaintiff would ordinarily have been required to note his appeal to this Court by no later than 30 October 2008. N.C.R. App. P. 3(c). Plaintiff did not note an appeal from the 30 September 2008 order until 19 January 2010, more than fourteen months after the required 30 day period had elapsed. As a result, Plaintiff's appeal from the 30 September 2008 order was not noted in a timely manner.
Although N.C. Gen. Stat. § 1A-1, Rule 58 and N.C.R. App. P. 3 deem the entry of judgment to have occurred at a later date for purposes of both filing post-judgment motions and noting an appeal to the appellate division in the event that service of the judgment is delayed, the record contains no indication that the trial court's judgment was not properly served. The only information contained in the record concerning service of the 30 September 2008 order is the trial court's instruction that the judgment be delivered to the Sheriff of Pender County for service on the parties. In view of the fact that the record on appeal must contain "a showing of the jurisdiction of the appellate court," Love v. Moore, 305 N.C. 575, 582, n. 1, 291 S.E.2d 141, 147, n. 1 (1982), and the fact that Plaintiff has failed to provide any indication that any of the otherwise-applicable times for filing either a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 59 or a notice of appeal were extended as the result of delayed service of the trial court's order, we have no basis for concluding that Plaintiff's appeal is not subject to dismissal on the grounds that service of the trial court's judgment occurred sufficiently after 30 September 2008 to give this Court jurisdiction over Plaintiff's appeal.
The fact that Plaintiff filed a Motion to Amend Order on 17 October 2008 does not operate to salvage Plaintiff's right to appeal. As we have already noted, N.C.R. App. P. 3(c)(3) does provide that, "if a timely motion is made . . . [under Rule] 59 of the Rules of Civil Procedure, the thirty day period for taking appeal is tolled . . . until entry of an order disposing of the motion." However, N.C. Gen. Stat. § 1A-1, Rule 59 requires that "[a] motion to alter or amend the judgment under section (a) of [Rule 59] shall be served not later than 10 days after entry of the judgment." "The trial court has no authority to alter or amend a judgment under this rule pursuant to a motion made more than 10 days after entry of the judgment sought to be altered or amended." Coats v. Coats, 79 N.C. App. 481, 482, 339 S.E.2d 676, 676 (1986). In addition, "[N.C. Gen. Stat. § 1A-1,] `Rule 6(b) specifically prohibits enlargement of the time for serving a motion for a new trial either by order of the court or by agreement of the parties.'" Fallis v. Watauga Med. Ctr., Inc., 132 N.C. App. 43, 54, 510 S.E.2d 199, 207 (quoting Howell's Shuford, N.C. Civ. Prac. Proc. (5th Ed) § 59-13, and citing Coats, 79 N.C. at 492, 339 S.E.2d at 676), disc. rev. denied, 350 N.C. 308, 534 S.E.2d 589 (1999). Simply put, "[t]he appropriate remedy for errors of law committed by the court is either appeal or a timely motion for relief under N.C. [Gen. Stat. § ] 1A-1, Rule 59(a)(8).'" Scarvey v. First Fed. Savings Loan Ass'n, 146 N.C. App. 33, 36, 552 S.E.2d 655, 657 (2001) (quoting Hagwood v. Odom, 88 N.C. App. 513, 519, 364 S.E.2d 190, 193 (1988)).
The proper application of these fundamental principles of civil and appellate procedure to the facts of this case is relatively simple. The record clearly establishes that judgment was entered on 30 September 2008, the time within which Plaintiff was authorized to file a timely motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 59 expired on 10 October 2008, and Plaintiff did not file any sort of motion seeking alteration or amendment of the 30 September 2008 order until 17 October 2008. "Clearly Rule 59 does not apply to the facts of this case since the motion for new trial was not made within the period of time specified by that rule." Wiggins v. Bunch, 280 N.C. 106, 109, 184 S.E.2d 879, 880 (1971). "Although a timely motion made pursuant to Rule 59 will toll the time for taking an appeal, N.C.R. App. P. 3(c)(3) (2005), when a party makes a motion pursuant to Rule 59 that is not a proper Rule 59 motion, the time for filing an appeal is not tolled. In the present case, since the time for filing an appeal was not tolled by the improper Rule 59 motion, [Plaintiff's] notice of appeal on [19 January 2010] was not a timely appeal of the [30 September 2008] order[.]" N.C. Alliance for Transp. Reform, Inc. v. N.C. Dep't of Transp., 183 N.C. App. 466, 470, 645 S.E.2d 105, 108-09, (citing Smith v. Johnson, 125 N.C. App. 603, 607, 481 S.E.2d 415, 417, disc. rev. denied, 346 N.C. 283, 487 S.E.2d 554 (1997)), disc. rev. denied, 361 N.C. 569, 650 S.E.2d 812 (2007). As a result, since Plaintiff's amendment motion was not filed within ten days of the entry of judgment, it did not constitute a timely Rule 59 motion and failed, for that reason, to toll the time within which Plaintiff was authorized to note an appeal from the 30 September 2008 order.
Our conclusion that Plaintiff's amendment motion was not filed in a timely manner obviates the necessity for us to determine whether the amendment motion otherwise constituted a proper Rule 59 motion, so we express no opinion concerning that issue.
"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. The provisions of Rule 3 are jurisdictional, and failure to follow the rule's prerequisites mandates dismissal of an appeal." Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) (citing Crowell Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 402 S.E.2d 407 (1991), and Abels v. Renfro Corp., 126 N.C. App. 800, 486 S.E.2d 735, disc. rev. denied, 347 N.C. 263, 493 S.E.2d 450 (1997)) (additional citation omitted). "A jurisdictional default . . . precludes the appellate court from acting in any manner other than to dismiss the appeal." Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008) (citing Bailey, 353 N.C. at 156, 540 S.E.2d at 322). Since Plaintiff's notice of appeal was filed more than a year after the entry of judgment and since Plaintiff has offered no valid basis for utilizing any other date as the date upon which judgment was entered for purposes of N.C.R. App. P. 3, that notice of appeal did not suffice to confer jurisdiction over this case on this Court, necessitating the dismissal of Plaintiff's appeal from the 30 September 2008 order.
Plaintiff did note a timely appeal from the trial court's denial of his motion to amend the 30 September 2008 order. However, given that Plaintiff's amendment motion was not filed in a timely manner, it should not have been treated as a valid vehicle for reconsideration of the 30 September 2008 order. As a result, we dismiss Plaintiff's appeal from the trial court's 21 December 2009 order as well.
APPEAL DISMISSED.
Judges BRYANT and STEELMAN.
Report per Rule 30(e).