Blevins v. Town of West Jefferson , 182 N.C. App. 675 ( 2007 )

TYSON, Judge.

Town of West Jefferson and Town of West Jefferson Board of Adjustment (“respondents”) purports to appeal from order entered reversing respondents’ decision. We dismiss.

I. Background

On 26 April 2006, the trial court entered an order reversing the decision of the Town of West Jefferson Board of Adjustment. The trial court concluded: (1) Mark Blevins d/b/a Rainbow Recycling’s (“petitioner”) “business activity whether a ‘junkyard’ or ‘recycling facility’ is an activity that is both expressly and implicitly allowed under Sections 40.7 and 55.1 of the Town Zoning Ordinance on property that is zoned as M-l (.Manufacturing/Industrial);” and (2) “[i]n light of this ruling the Court does not find it necessary to address the other issues raised by the Petitioner.”

On 6 July 2006, respondents filed a stipulated record on appeal with this Court. Respondents’ record on appeal does not contain a filed notice of appeal from the decision of the superior court. The heading on the notice in the record on appeal contains a “notice of appeal” from the “BOARD OF ADJUSTMENT.” Respondents’ “notice of appeal” from the Board of Adjustment also does not contain a file stamp or other indication to show it was filed with the clerk of superior court. The record on appeal does not include any certificate of service or other documentation to show respondents’ purported “notice of appeal” was properly served on petitioner.

II. Appellate Jurisdiction

Rule 3 of the North Carolina Rules of Appellate Procedure states:

[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.

N.C. R. App. P. 3(a) (2007) (emphasis supplied).

The notice of appeal required to be filed and served by subdivision (a) of this rule shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record.

N.C. R. App. P. 3(d). “Service of copies of the notice of appeal may be made as provided in Rule 26 of these rules.” N.C.R. App. P. 3(e).

“In order to confer jurisdiction on the state’s appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure.” Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) (citations omitted). Appellate Rule 3 is jurisdictional and if not complied with the appeal must be dismissed. Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, 683 (citing Giannitrapani v. Duke University, 30 N.C. App. 667, 228 S.E.2d 46 (1976)), 327 N.C. 633, 399 S.E.2d 326 (1990); Bailey, 353 N.C. at 156, 540 S.E.2d at 322 (failure to comply “mandates” dismissal of the appeal.).

This Court “cannot waive the jurisdictional requirements of Rule 3 if they have not been met.” Guilford Co. Dept. of Emer. Serv. v. Seaboard Chemical Corp., 114 N.C. App. 1, 9, 441 S.E.2d 177, 181 (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 101 L. Ed. 2d 285, 291 (1988)), 336 N.C. 604, 447 S.E.2d 390 (1994). “Without proper notice of appeal, this Court acquires no jurisdiction.” Brooks, Com’r of Labor v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984). “ [Jurisdiction cannot be conferred by consent, waiver, or estoppel. . . [¡Jurisdiction rests upon the law and the law alone. It is never dependent on the conduct of the parties.” Feldman v. Feldman, 236 N.C. 731, 734, 73 S.E.2d 865, 867 (1953). “The appellant has the burden to see that all necessary papers are before the appellate court.” Crowell Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563, 402 S.E.2d 407, 408 (1991) (citing State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262 (1965)).

A. Notice of Appeal From the Superior Court

The record on appeal does not contain a notice of appeal from the superior court’s order that was filed with the clerk of superior court. The record on appeal only contains an unfiled “notice of appeal” to this Court from the “Town of West Jefferson Board of Adjustment” and does not contain a Certificate of Service of the notice on petitioner:

Appellate Rule 3 states that respondents may take appeal “by filing notice of appeal with the clerk of superior court.” Respondent failed to show they filed a notice of appeal of the superior court’s order with the clerk of superior court. “Without proper notice of appeal, this Court acquires no jurisdiction.” Brooks, 69 N.C. App. at 707, 318 S.E.2d at 352. This Court does not possess jurisdiction to address respondents’ purported appeal and is dismissed.

B. Filed Notice of Anneal

The purported notice of appeal does not show it was either filed with or stamped by the Clerk of Superior Court of Ashe County. Rule 9 of the North Carolina Rules of Appellate Procedure requires “[t]he record on appeal in civil actions . . . shall contain: i. a copy of the notice of appeal[.]” N.C. R. App. P. 9(a)(l)(i). “Every pleading, motion, affidavit, or other paper included in the record on appeal shall show the date on which it was filed and, if verified, the date of verification and the person who verified.” N.C. R. App. P. 9(b)(3). Respondent failed to provide a stamped copy of a notice of appeal filed with the Clerk of Superior Court. Respondent failed to comply with the jurisdictional requirements in Appellate Rule 3.

C. Service of Process for Notice of Anneal

Respondents’ record on appeal also failed to contain any certification to show respondents served a copy of the purported notice of appeal on petitioner. Recently, this Court addressed the consequence of an appellant’s failure to include proof of service of process of a notice of appeal. This Court stated:

[T]he dissent adopted by our Supreme Court in Hale holds that where a party has waived service of the notice of appeal, “the failure to include the proof of service in the Record is inconsequential.” Hale, 110 N.C. App. at 626, 430 S.E.2d at 460. However, under the subsequent holdings of our Supreme Court in Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 610 S.E.2d 360, reh’g denied, 359 N.C. 643, 617 S.E.2d 662 (2005) and Munn v. N.C. State Univ., 360 N.C. 353, 626 S.E.2d 270 (2006), the failure to include the certificate of service as a violation of the North Carolina Rules of Appellate Procedure is no longer “inconsequential.” See Viar, at 401, 610 S.E.2d at 360 (“The North Carolina Rules of Appellate Procedure are mandatory and failure to follow these rules will subject an appeal to dismissal.” (citation and quotations omitted)); Munn v. N.C. State Univ., 173 N.C. App. 144, 151, 617 S.E.2d 335, 339 (2005) (Jackson, J., dissenting) (stating that dismissal for rule violations is warranted “even though such violations neither impede our comprehension of the issues nor frustrate the appellate process” (citation and quotations omitted)), rev’d per curiam, for the reasons stated in the dissent, 360 N.C. 353, 626 S.E.2d 270 (2006).

The record before this Court contains a copy of the notice of appeal filed by defendant; however, there is no certificate of service of the notice of appeal as required by our Appellate Rules 3 and 26 and plaintiff has not waived defendant’s failure to include proof of service of his notice of appeal. Therefore, we must dismiss this appeal.

Ribble v. Ribble, 180 N.C. App. 341, 342-43, 637 S.E.2d 239, 240 (2006).

Further holdings of this Court apply Ribble to issues identical to those at bar. “In Ribble . . . this Court held that in light of Viar . . . and Munn . . . the failure to include the certificate of service as a violation of the North Carolina Rules of Appellate Procedure is no longer inconsequential.” In re C.T. & B.T., 182 N.C. App. —, —, — S.E.2d —, — (6 March 2007) (No. COA06-1272) (quotations and citations omitted).

Failure to file a certificate of service to the notice of appeal is a fatal defect that requires dismissal. Id. “This Court has held that one panel of the Court of Appeals may not overrule the decision of another panel on the same question in the same case.” In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). “Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” Id. at 384, 379 S.E.2d at 37.

Respondents failed to include proof of service of their purported notice of appeal on petitioner in the record on appeal. Respondents failed to follow the jurisdictional requirements set forth in Appellate Rule 3 and Appellate Rule 26. Respondents’ failure to include a certificate of service to the notice of appeal is a fatal defect that requires dismissal. Id. This Court has not. acquired jurisdiction and respondents’ purported appeal must be dismissed.

III. Conclusion

The record on appeal does not show respondents’ purported notice of appeal was filed with the Ashe County Clerk of Superior Court. The record also does not contain a stamped or filed copy of a notice of appeal. Respondents’ failure to include proof of service on petitioner in the record on appeal is a fatal defect that requires dismissal. Ribble, 180 N.C. App. at 343, 637 S.E.2d at 240; In re C.T. & B.T., 182 N.C. App. at —, — S.E.2d at —.

For either of these reasons, this Court has not acquired jurisdiction to hear respondents’ appeal. Respondents’ appeal is dismissed.

Dismissed.

Judge ELMORE concurs. Judge GEER dissents by separate opinion.