WATER DAMAGE EXPERTS OF HILLSBOROUGH LLC v. MILLER FBO IRA (2022)

¶ 1 Defendants, Karl W. Miller and Equity Trust Company as Custodian FBO the Karl Miller IRA, appeal the trial court's Judgment and Order granting summary judgment in favor of plaintiff Water Damage Experts of Hillsborough, LLC, and denying defendants’ motion for leave to amend their answer. Defendant Ashley Miller is no longer party to the underlying case or this appeal. Upon review, this Court lacks appellate jurisdiction to consider defendants’ arguments.

¶ 2 When appeal is taken to this Court, the burden is on appellant “to produce a record establishing the jurisdiction of the court from which appeal is taken, and his failure to do so subjects th[e] appeal to dismissal.” Bradley v. Cumberland Cnty., 262 N.C. App. 376, 382, 822 S.E.2d 416, 421 (2018), (alteration in original) (quotation marks and citation omitted), rev. denied, 372 N.C. 360, 828 S.E.2d 156 (2019).

¶ 3 Here, defendants’ notice of appeal is dated “September 27, 2021”, but this document does not have a file-stamp affixed or other notation from the trial court. “[T]his Court has held the appellant's failure to include a file-stamped copy of the notice of appeal in the record on appeal is a jurisdictional defect, because this Court cannot determine if the notice of appeal was timely filed.” Erickson v. N.C. Dep't of Pub. Safety, 264 N.C. App. 700, 703, 826 S.E.2d 821, 824 (2019) (citation omitted); see also N.C.R. App. P. 3. “We will not assume the notice of appeal was timely filed solely based upon [appellant's] unverified notice of appeal.” Bradley, 262 N.C. App. at 382, 822 S.E.2d at 420. “Without proper notice of appeal, the appellate court acquires no jurisdiction and neither th[is] [C]ourt nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2.” Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994) (citations omitted); see also Hart v. Thomasville Motors, Inc., 244 N.C. 84, 88, 92 S.E.2d 673, 676 (1956) (Subject matter jurisdiction “cannot be obtained by consent of the parties, waiver, or estoppel.”).

¶ 4 We must therefore dismiss this appeal for lack of appellate jurisdiction. See, e.g., Bradley, 262 N.C. App. at 382, 822 S.E.2d at 421.

DISMISSED.

Report per Rule 30(e).

GORE, Judge.

Chief Judge STROUD and Judge MURPHY concur.