Browne6/7/2005
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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 wasentered 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 BFW&H'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.
BFW&H 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. ยง 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, BFW&H 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 BFW&H'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 " 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, "' urisdiction cannot be conferred by consent, waiver, or estoppel; . . . 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. 60
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