Opinion
No. 07-776.
Filed March 4, 2008.
Carteret County No. 03CVS1214.
Appeal by Defendant from order entered 26 February 2007 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals 11 February 2008.
Williams Mullen Maupin Taylor, by Kevin W. Benedict, for Plaintiffs-Appellees. Ralph T. Bryant, Jr., P.A., by Ralph T. Bryant, Jr., for Defendant-Appellant.
On 10 May 2006 following a bench trial, the trial court entered a judgment in favor of Plaintiffs Carolina Tailors, Inc., and Promotional Products Plus, Inc. ("Plaintiffs") in which it ordered that Plaintiffs have and recover $37,584.00 from Defendant Deborah Wagner ("Defendant") and that Defendant take any action necessary to restore a trademark to Plaintiffs. Defendant timely filed a notice of appeal from that judgment on 9 June 2006.
On 13 July 2006, Defendant filed a "Notice of Ordering of Transcript." On 16 October 2006, Superior Court Judge John E. Noble entered an order extending the time Defendant had to serve her proposed record on appeal to 15 November 2006. On 16 November 2006, this Court entered an order extending the time Defendant had to serve her record on appeal to 27 November 2006. Defendant served Plaintiffs with her proposed record on appeal on 27 November 2006. On 21 December 2006, Plaintiffs mailed Defendant their amendments and objections to the proposed record on appeal. Defendant filed a motion with the trial court to settle the record on appeal on 16 January 2007.
On 19 January 2007, Plaintiffs moved the trial court to dismiss Defendant's appeal, arguing that Defendant (1) failed to timely serve her proposed record on appeal after failing to timely file her notice of transcript arrangement in violation of Rules 7(a)(1), 11(a), and 11(b) of the Rules of Appellate Procedure, and (2) failed to timely file a settled record on appeal with this Court after failing to timely file a motion to settle the record on appeal with the trial court in violation of Rules 11(c) and 12 of the Rules of Appellate Procedure. By order entered 26 February 2007, the trial court dismissed Defendant's appeal, finding that (1) Defendant's notice of transcript arrangement "was untimely and thus insufficient to extend [Defendant's] deadline for serving her proposed Record on Appeal[,]" (2) the two orders which had extended Defendant's time to serve the proposed record on appeal were based on misrepresentations by Defendant, and (3) Defendant failed "to timely file her Motion to Settle the Record on Appeal" and "did not file the settled Record on Appeal within the time allowed by N.C.R. App. P. 11 and 12." From the 26 February 2007 order dismissing her appeal, Defendant appeals.
Relying on Parris v. Light, 146 N.C. App. 515, 553 S.E.2d 96 (2001), disc. review denied, 355 N.C. 349, 562 S.E.2d 283 (2002), Defendant asserts that we review the trial court's order dismissing her appeal de novo. In Parris, the trial court dismissed the plaintiff's complaint after the plaintiff failed to comply with the court's discovery orders. After the action was dismissed, the plaintiff filed a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b), asking the trial court to set aside the order dismissing the action. The trial court denied the plaintiff's Rule 60(b) motion, and the plaintiff appealed that denial to this Court.
On appeal, we stated that "[a]ppellate review of a trial court's ruling pursuant to Rule 60(b) is limited to determining whether the trial court abused its discretion." Id. at 518, 553 S.E.2d at 97 (quotation marks and citation omitted). We then applied that standard of review and affirmed the trial court's ruling. Parris is inapplicable to the case at bar.
Defendant's appeal in this case is from the trial court's order dismissing her appeal from the 10 May 2006 judgment for failure to timely perfect her appeal. It is well-settled that "[n]o appeal lies from an order of the trial court dismissing an appeal for failure to perfect it within apt time, the proper remedy to obtain review in such case being by petition for writ of certiorari." State v. Evans, 46 N.C. App. 327, 327, 264 S.E.2d 766, 767 (1980) (citations omitted). Accordingly, Defendant's appeal must be dismissed.
Furthermore, although Defendant does not ask us to issue our writ of certiorari to review the trial court's order dismissing her appeal, we have examined both of Defendant's arguments and find them to be without merit. Thus, we decline ex mero motu to treat her purported appeal as a petition for the writ of certiorari.
Dismissed.
Judges TYSON and GEER concur.
Report per Rule 30(e).