Opinion
No. COA05-639
Filed 21 March 2006 This case not for publication
Appeal by defendant from an order entered 26 August 2004 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 27 February 2006.
Stuart L. Egerton and Hedrick Morton, L.L.P., by G. Grady Richardson, Jr., for plaintiff-appellee. Peter C. Curnin, pro se, for defendant-appellant.
Brunswick County No. 01 CVS 695.
Peter Charles Curnin ("Curnin") appeals from an order dismissing his appeal from an order granting summary judgment in favor of Bald Head Association ("BHA"). We dismiss Curnin's appeal and deny Curnin's petition for writ of certiorari seeking review of the order granting summary judgment. We also deny BHA's motion for sanctions.
Facts and Procedural History
The background of this case is as follows: BHA was established pursuant to the Amended and Restated Declaration of Covenants and Restrictions filed on 5 May 1982 in Book 498, Page 260, Brunswick County Registry (the "1982 Covenants"). BHA is a non-profit corporation that exists to preserve the aesthetic integrity of Phase I of Bald Head Island. Curnin owns real property located in Phase I of Bald Head Island known and referred to as "Lot 333, Stage One, Bald Head Island," as shown in Book 1002, Page 509 and Book 1409, Page 741, Brunswick County Registry (the "Property").
On 5 April 2001, BHA filed suit against Curnin, seeking to recover unpaid homeowner's dues, assessments and fines. The majority of the fines and assessments imposed on Curnin were for violations relating to the construction of Curnin's home and for his failure to complete construction within a twenty-four month period of time as required by the "Amended and Restated Declaration of Covenants, Conditions and Restrictions for Bald Head Association" filed on 14 February 2000 in Book 1359, Page 1, Brunswick County Registry (the "2000 Covenants"). Pursuant to the 2000 Covenants, if construction was delayed beyond twenty-four months, BHA had the authority to levy and collect a fine "in the minimum amount of $500.00 per month."
Curnin filed an answer and counterclaims against BHA alleging the 1982 Covenants are void because they were not properly amended or adopted due to an irregularity in the voting procedure which was used by the affected landowners to create the BHA in 1982. As such, Curnin contended any actions taken by BHA pursuant to the authority granted to it by the 1982 Covenants are ultra vires, including, inter alia, the adoption and implementation of design guidelines. Curnin further denied he was bound by the 2000 Covenants.
On 23 February 2004, Judge D. Jack Hooks granted summary judgment in favor of BHA, awarding it damages in the sum of $13,511.01 plus interest and ordering Curnin to pay attorney's fees and costs totaling $34,086.14. On 25 March 2004, Curnin filed a notice of appeal from the judgment. Thereafter, on 29 April 2004, he filed a purported record on appeal with this Court under docket number COA04-592, which was actually a proposed record on appeal. On BHA's motion, this Court dismissed Curnin's appeal "without prejudice to file a properly settled record on appeal" by order dated 8 June 2004.
On 8 July 2004, 30 days after the dismissal order was issued by this Court, Curnin filed a second notice of appeal from Judge Hooks' judgment purportedly to "bring the case back into the Court of Appeals." On 30 July 2004, Curnin's counsel served what he "hope[d] [was] a final version of the record." The last page of this record was titled "Certificate of Service" and indicated Curnin's counsel was serving the "Proposed Record."
On 13 August 2004, BHA filed a motion to dismiss Curnin's appeal on the grounds Curnin failed to timely serve a proposed record on appeal and the second notice of appeal filed by Curnin did not trigger a new 35-day period of time to serve a proposed record on appeal. After a hearing on BHA's motion, Judge Ola M. Lewis granted the motion and dismissed Curnin's appeal by order entered 26 August 2004. From the order entered, Curnin appeals. On 2 August 2005, Curnin filed a petition for writ of certiorari seeking review of Judge Hooks' judgment. BHA subsequently moved for sanctions against Curnin pursuant to N.C.R. App. P. 34.
We first address whether Curnin's appeal is properly before this Court. It is well-settled that "[n]o appeal lies from an order of the trial court dismissing an appeal for failure to perfect it within apt time, the proper remedy to obtain review in such case being by petition for writ of certiorari." State v. Evans, 46 N.C. App. 327, 327, 264 S.E.2d 766, 767 (1980) (citations omitted). Here, Curnin is appealing from the trial court's order dismissing his appeal for failure to timely perfect the record on appeal. As such, we dismiss Curnin's appeal.
Curnin also petitions this Court to issue its writ of certiorari to review the underlying summary judgment. Curnin presents two primary arguments in his petition: (1) he challenges the validity of the 1982 Covenants authorizing the formation of BHA; and (2) he argues he was not bound by the 2000 Covenants because they were not in effect at the time he obtained his building permit. He asserts the record and appendix filed in this appeal "already contains most of the documents regarding the merits of the underlying appeal." (emphasis added).
Rule 21 of the North Carolina Rules of Appellate Procedure provides in relevant part:
The writ of certiorari may be issued in appropriate circumstances . . . to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.
N.C.R. App. P. 21(a)(1) (2006). Here, Curnin does not argue his petition falls within any of the "appropriate circumstances" set forth in N.C.R. App. P. 21(a)(1). The only basis on which Curnin's petition could possibly be allowed is that his right to prosecute his appeal has been lost by failure to take timely action.
Assuming, arguendo, Curnin has shown his right to prosecute his appeal has been lost by failure to take timely action, Curnin makes no proffer of excusable neglect justifying the loss of his appeal of right from the judgment, as is required to obtain a writ of certiorari under N.C.R. App. P. 21(a)(1). See, e.g., In re Snelgrove, 208 N.C. 670, 672, 182 S.E. 335, 336 (1935) (requiring applicant to show both "diligence in prosecuting the [lost] appeal" and merit to the appeal). Indeed, this Court gave Curnin a second chance to file a properly settled record on appeal and Curnin still failed to do so. Further, Curnin has failed to present to this Court the evidence necessary to establish merit to his lost appeal. Accordingly, we deny Curnin's petition for writ of certiorari.
Finally, BHA requests this Court impose sanctions against Curnin pursuant to N.C.R. App. P. 34, primarily because Curnin has made efforts to "back door" the appeal from Judge Hooks' judgment into the current appeal through his petition for writ of certiorari and his motion for leave to file a brief in support of his petition. As set forth above, Curnin does not have a right to appeal from an order dismissing an appeal and, thus, the proper method to obtain review is through a petition for writ of certiorari. Therefore, we deny BHA's motion for sanctions.
In conclusion, Curnin's appeal from the trial court's order dismissing his appeal is dismissed. Curnin's petition for writ of certiorari is denied and BHA's motion for sanctions is denied.
Appeal dismissed; petition denied; motion denied.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).