Opinion
No. COA04-1299
Filed 7 June 2005 This case not for publication
Appeal by plaintiff from orders entered 27 October 2003 by Judge Marcia H. Morey and 4 December 2003 by Judge Richard Chaney in Durham County District Court. Heard in the Court of Appeals 20 April 2005.
Browne, Flebotte, Wilson Horn, P.L.L.C., by Martin J. Horn, for plaintiff-appellant. Daphney White, pro se, defendant-appellee.
Durham County, No. 02 CVD 5175.
Plaintiff Browne, Flebotte, Wilson, Horn, P.L.L.C. ("BFWH") appeals from the trial court's order, following a bench trial, finding defendant White not liable to BFWH for expenses incurred in the course of BFWH's representation of White in a personal injury matter. Because BFWH has failed to include in the record on appeal documentation necessary to demonstrate that its notice of appeal was timely filed, we dismiss the appeal.
Facts
BFWH represented White in a personal injury matter on a contingency fee basis. A jury ultimately found against White and she recovered no damages. Subsequently, BFWH mailed White a "Statement For Legal Services Rendered," seeking reimbursement in the amount of $9,321.16 for expenses incurred in the course of the personal injury representation. After receiving no response from White, BFWH filed a complaint for money owed on 8 October 2002. In her answer dated 14 November 2002, White claimed that BFWH had never informed her that she would be responsible for legal costs even if she did not prevail in the personal injury case. White also counterclaimed for professional malpractice.
On 3 September 2003, BFWH filed a motion for summary judgment that was denied by Judge Richard Chaney following a hearing on 15 September 2003 (with the order filed 4 December 2003). The case was tried in a bench trial before Judge Marcia H. Morey on 23 October 2003. In its order filed 27 October 2003, the court denied BFWH's claim for money owed and dismissed White's malpractice claim. BFWH filed a notice of appeal from the orders of Judge Chaney and Judge Morey on 25 August 2004.
Discussion
When an appeal is filed belatedly, "the appellate court obtains no jurisdiction in the matter and the appeal must be dismissed." Cochrane v. Sea Gate, Inc., 42 N.C. App. 375, 377, 256 S.E.2d 504, 505 (1979). We are, therefore, required as an initial matter to determine whether BFWH filed a timely appeal.
The time and manner for appealing civil cases is set forth in Rule 3(c) of the Rules of Appellate Procedure:
In civil actions and special proceedings, a party must file and serve a notice of appeal:
(1) within 30 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 30 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 30-day period for taking appeal is tolled as to all parties until entry of an order disposing of the motion and then runs as to each party from the date of entry of the order or its untimely service upon the party, as provided in subsections (1) and (2) of this subdivision (c).
N.C.R. App. P. 3(c). If a party does not comply with the requirements of Rule 3, this Court has no choice but to dismiss the appeal. Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, 683 ("Appellate Rule 3 is jurisdictional and if the requirements of this rule are not complied with, the appeal must be dismissed."), appeal dismissed and disc. review denied, 327 N.C. 633, 399 S.E.2d 326 (1990).
In this case, the record on appeal indicates that the trial court's order finally resolving the case was entered on 27 October 2003, while the notice of appeal was not filed until 25 August 2004. The appeal was, therefore, untimely unless the 30-day time limitation was tolled under Rule 3(c)(2) or (c)(3). The only explanation in the record for the lateness of the filing of the notice of appeal is contained in the record on appeal's Statement of Organization of Trial Court, which asserts: "The order was entered and filed October 27, 2003, in favor of Defendant-Appellee. Due to the court administrator's policy of rotating judges bi-annually, an extended period of time followed before Plaintiff-Appellant filed and served written notice of appeal on August 25, 2004." This statement, without more, does not demonstrate that BFWH's appeal was timely under either Rule 3(c)(2), because of belated service of the order, or under Rule 3(c)(3), because of the filing of a motion under Rules 50(b), 52(b), or 59 of the Rules of Civil Procedure.
BFWH states in its brief on appeal that "Plaintiff-Appellant timely filed a motion for reconsideration, which tolled the time requirements for filing the notice of appeal until the motion for reconsideration was denied[.] N.C. Gen. Stat. § 1A-1, Rule 59." The record on appeal, however, does not include the motion or the order denying the motion. We cannot determine whether the motion qualified as a proper motion under Rules 50(b), 52(b), or 59 or whether it was timely filed. Nor can we determine whether the notice of appeal was in fact timely filed following a denial of the motion. In short, BFWH asks this Court to accept on faith its assertion in its brief that this appeal was timely. We are not, however, permitted to do so.
Matters discussed in a brief that are outside of the record "will not be considered since the record certified to the Court imports verity and we are bound by it." State v. Hedrick, 289 N.C. 232, 234-35, 221 S.E.2d 350, 352 (1976). It was BFWH's responsibility to ensure that the record contained a copy of anypost-trial motion and the court's order regarding that motion. Tucker v. Gen. Tel. Co. of the Southeast, 50 N.C. App. 112, 118, 272 S.E.2d 911, 915 (1980) ("It is the duty of the appellant to see that the record is properly prepared and transmitted."). This Court is bound by the record as filed. "If it fails to disclose the necessary jurisdictional facts we have no authority to do more than dismiss the appeal." Mason v. Moore County Bd. of Comm'rs, 229 N.C. 626, 629, 51 S.E.2d 6, 8 (1948).
The record on appeal contains a stipulation that "[t]he appellate court has jurisdiction over the Defendant-Appellee and subject matter jurisdiction of this action." Even if this general stipulation is construed to relate to the timeliness of the appeal, it is not sufficient to vest jurisdiction in this Court. As this Court has previously held with respect to a stipulation that a notice of appeal was timely, "`[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.'" Von Ramm v. Von Ramm, 99 N.C. App. 153, 158, 392 S.E.2d 422, 425 (1990) (quoting Feldman v. Feldman, 236 N.C. 731, 734, 73 S.E.2d 865, 867 (1953)). See also Sillery v. Sillery, ___ N.C. App. ___, ___, 606 S.E.2d 749, 751 (2005) ("`Without proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2.'" (quoting Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994), disc. review denied in part, 339 N.C. 609, 454 S.E.2d 246, aff'd in part on other grounds, 341 N.C. 702, 462 S.E.2d 219 (1995))).
Because, according to the record on appeal as filed with this Court, BFWH's notice of appeal was not filed in compliance with N.C.R.P. 3(c), we are required to dismiss BFWH's appeal.
Dismissed.
Judges HUNTER and HUDSON concur.
Report per Rule 30(e).