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Browne6/7/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Plaintiff Browne, Flebotte, Wilson, & Horn, P.L.L.C. ("BFW&H") appeals from the trial court's order, following a bench trial, finding defendant White not liable to BFW&H for expenses incurred in the course of BFW&H's representation of White in a personal injury matter. Because BFW&H 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
BFW&H represented White in a personal injury matter on a contingency fee basis. A jury ultimately found against White andshe recovered no damages. Subsequently, BFW&H 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, BFW&H filed a complaint for money owed on 8 October 2002. In her answer dated 14 November 2002, White claimed that BFW&H 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, BFW&H 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 BFW&H's claim for money owed and dismissed White's malpractice claim. BFW&H 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 BFW&H 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).
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