Opinion
No. 07-418.
Filed March 4, 2008.
Onslow County No. 06CVS714.
Appeal by Plaintiff from order entered 3 October 2006 by Judge W. Allen Cobb, Jr. in Onslow County Superior Court. Heard in the Court of Appeals 11 February 2008.
Rose Rand Attorneys, P.A., by Jeffrey P. Gray and Jason R. Page, for Plaintiff-Appellant. Shanklin Nichols, LLP, by Kenneth A. Shanklin and Matthew A. Nichols, for Defendants-Appellees Teresa Minshew DeMarco and Mary Elizabeth Ratliff.
On 28 February 2006, Ink Pen Retreat Corporation ("Plaintiff") filed a complaint against The Hunter Heath Trust, Marshall F. Dotson, Jr., Trustee, Susan Barnes Thomas, Trustee, Bruce Rhoads, Trustee, and Ernest W. Darby, Trustee; the Estate of Bradley B. Minshew, Mary Nell Minshew, (deceased), Executor; the Estate of Mary Nell Minshew, Teresa Minshew DeMarco and Mary Elizabeth Ratliff, Co-Executors; and Ashe Island Farm Property Owners Association, Inc., seeking declaratory, monetary, and injunctive relief relating to certain residential lots conveyed by defendant The Hunter Heath Trust. On 14 June 2006, Plaintiff filed an amended complaint, removing the Estate of Mary Nell Minshew, Teresa Minshew DeMarco and Mary Elizabeth Ratliff, Co-Executors, as a defendant, and adding Teresa Minshew DeMarco and Mary Elizabeth Ratliff as defendants in their individual capacities. Thereafter, Plaintiff voluntarily dismissed the Estate of Bradley B. Minshew, Mary Nell Minshew, (deceased), Executor, as a defendant.
On 11 August 2006, defendants Teresa Minshew DeMarco and Mary Elizabeth Ratliff filed a motion to dismiss the amended complaint. In an order entered on 28 September 2006 and filed on 3 October 2006, the trial court granted the motion to dismiss as to the moving defendants.
Now before us is Plaintiff's appeal of the trial court's order dismissing defendants Teresa Minshew DeMarco and Mary Elizabeth Ratliff.
Rule 3(c) of the North Carolina Rules of Appellate Procedure provides: 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[.]
N.C. R. App. P. 3(c) (2006).
Plaintiff filed its notice of appeal on 3 November 2006, thirty-one days after the trial court filed the order at issue on 3 October 2006. The record before this Court fails to disclose any delay in service of the trial court's order on Plaintiff. Accordingly, Plaintiff's notice of appeal was filed after the thirty days permitted for filing notice of appeal pursuant to Rule 3(c)(1) of the North Carolina Rules of Appellate Procedure.
"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." Booth v. Utica Mut. Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100 (1983). Although Rule 21(a)(1) of the North Carolina Rules of Appellate Procedure allows a writ of certiorari to be issued to permit this Court to review judgments and orders of trial courts "when the right to prosecute an appeal has been lost by failure to take timely action," N.C. R. App. P. 21(a)(1) (2006), Plaintiff has failed to petition this Court for a writ of certiorari. Therefore, because Plaintiff failed to file timely notice of appeal, we must dismiss Plaintiff's appeal for lack of jurisdiction.2
As noted earlier, the order entered 3 October 2006 from which Plaintiff appeals bears an incorrect caption. We remand to the trial court with instructions to modify the following incorrect caption:
THE HUNTER HEATH TRUST, MARSHALL F. DOTSON, JR., TRUSTEE, SUSAN BARNES THOMAS, TRUSTEE, BRUCE RHOADS, TRUSTEE, and ERNEST W. DARBY, TRUSTEE; the ESTATE OF BRADLEY B. MINSHEW, MARY NELL MINSHEW, (deceased), EXECUTOR; the ESTATE OF MARY NELL MINSHEW, TERESA MINSHEW DEMARCO and MARY ELIZABETH RATLIFF, CO-EXECUTORS; and ASHE ISLAND FARM PROPERTY OWNERS ASSOCIATION, INC. Defendants.
to the following caption:
THE HUNTER HEATH TRUST, MARSHALL F. DOTSON, JR., TRUSTEE, SUSAN BARNES THOMAS, TRUSTEE, BRUCE RHOADS, TRUSTEE, and ERNEST W. DARBY, TRUSTEE; TERESA MINSHEW DEMARCO, Individually; MARY ELIZABETH RATLIFF, Individually; and ASHE ISLAND FARM PROPERTY OWNERS ASSOCIATION, INC., Defendants.
in order to correctly reflect the parties to the suit on the date of the order.
Dismissed and Remanded with instructions. Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).