HEDGEPETH v. SMOKY MOUNTAIN COUNTRY CLUB PROPERTY OWNERS ASSOCIATION INC SMCC LLC (2023)

Court of Appeals of North Carolina.

Shira L. HEDGEPETH and Ronnie C. Hedgepeth, Plaintiffs, v. SMOKY MOUNTAIN COUNTRY CLUB PROPERTY OWNERS ASSOCIATION, INC., a North Carolina Corporation, SMCC Clubhouse, LLC, a North Carolina Corporation, Conleys Creek Limited Partnership, a North Carolina Limited Partnership, Marshall Cornblum, In his individual and legal capacity, Michael Cornblum, In his individual and legal capacity, Shirley Schubert, In her individual and legal capacity, Terry Walters, In his individual and legal capacity, Ray Sharp, In his individual and legal capacity, Bill Chew, In his individual and legal capacity, Ed Lawson, In his individual and legal capacity, and Sanford Steelman, Defendants.

No. COA22-773

Decided: March 21, 2023

The Law Office of Shira Hedgepeth, PLLC, by Shira Hedgepeth, and McLean Law Firm, P.A., by Russell L. McLean, III, for plaintiffs-appellants. Rayburn Cooper & Durham, PA, by Ashley B. Oldfield & Ross R. Fulton, and by Sanford L. Steelman, Jr., for defendants-appellees.

Plaintiffs seek appeal from an order of dismissal. Plaintiffs filed suit against defendants raising multiple claims. Defendants filed motions to dismiss plaintiffs’ complaint. Plaintiffs voluntarily dismissed their complaint without prejudice and then filed an amended complaint. Defendants filed another motion to dismiss plaintiffs’ amended complaint. After a hearing on 25 April 2022, an Order of Dismissal with prejudice was signed by the trial judge on 30 June 2022. The signed Order of Dismissal lacks any file stamp. Plaintiffs filed a notice of appeal on 3 August 2022, and an amended notice of appeal on 8 August 2022. For the following reasons we dismiss the appeal for lack of jurisdiction.

This Court acquires jurisdiction through compliance with Rule 3 of the North Carolina Rules of Appellate Procedure. See Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197–98, 657 S.E.2d 361, 365 (2008). Rule 3 sets out the requirements for appellate jurisdiction in this Court, including the requirements of “filing notice of appeal with the clerk of superior court” and timeliness of that filing. N.C.R. App. P. 3(a). “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) (per curiam).

Without a file stamp on the Order of Dismissal in this matter, we are unable to establish appellate jurisdiction through timeliness of appeal. We may not rely on the bare assertion of a filing date that fits within the required 30-day time frame for appeal. See N.C.R. App. P. 3(c)(1) (“[A] party must file and serve a notice of appeal: (1) within thirty days after entry of judgment ․”). According to the dates available on the record, the trial judge signed the Order of Dismissal on 30 June 2022, plaintiffs filed a notice of appeal on 3 August 2022, and an amended notice of appeal on 8 August 2022. Both of these dates are more than thirty days from the date signed on the final order. Accordingly, it appears plaintiffs failed to give timely notice of appeal and therefore, we lack jurisdiction and must dismiss the appeal.

DISMISSED.

Report per Rule 30(e).

GORE, Judge.

Judges TYSON and ZACHARY concur.

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