Opinion
No. COA09-945.
Filed February 16, 2010.
Anson County No. 09CVS263.
Appeal by plaintiff from order entered 5 May 2007 by Judge Tanya Wallace in Anson County Superior Court. Heard in the Court of Appeals 4 November 2009.
Joseph Michael Griffith, pro se, plaintiff-appellant. Attorney General Roy Cooper, by Assistant Attorney General Peter A. Regulski, for defendant-appellees.
On 23 April 2009, Joseph Michael Griffith ("plaintiff") filed a complaint against the North Carolina Department of Corrections, Mr. Boyd Bennett, and Mr. Alvin W. Keller, Jr., (collectively "defendants"). Plaintiff is a ward of the Department of Corrections, and in his complaint, he argues that defendants exceeded their statutory authority under N.C. Gen. Stat. § 12-3.1 (2009) by charging a co-payment for prisoners seeking to see a physician.
On 4 May 2009, plaintiff's complaint was dismissed as frivolous under N.C. Gen. Stat. §§ 1-110 and 7A-228 (2009), and the Honorable Tanya Wallace entered the order of dismissal in accordance with Rule 58 of the Rules of Civil Procedure. The clerk of Superior Court of Anson County served the dismissal on 8 May 2009 by depositing a copy of the order in a "post-paid properly addressed envelope in a post office or official depository under the exclusive care and custody of the United States Postal Service." See N.C.R. Civ. P. 5 (2009). Plaintiff received the order on 1 June 2009, and thereafter filed a Notice of Appeal on 23 June 2009.
Rule 3 of the North Carolina Rules of Appellate Procedure provides in part:
(c) Time for taking appeal. In civil actions and special proceedings, a party must file and serve a notice of appeal:
(1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure; or
(2) within thirty days after service upon the party of a copy of the judgment if service was not made within that three day period[.]
N.C.R. App. P. 3(c)(1)-(2) (2009).
In this case, the order was not served within three days from the entry of judgment by the Clerk of Superior Court, which means that plaintiff was required to serve notice of appeal by 8 June 2009 given that 7 June 2009 was a Sunday. N.C.R. Civ. P. 6 (2009). Plaintiff's filing of the notice of appeal on 23 June 2009 was therefore untimely.
Failure to comply with the requirements of Rule 3 is a jurisdictional rules violation, and without jurisdiction this Court lacks the authority to address plaintiff's appeal on the merits. Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197-98, 657 S.E.2d 361, 365 (2008). Plaintiff asks this Court to apply Rule 2; however, Rule 2 may not be applied in order to supply jurisdiction for a Rule 3 violation. Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990).
Though we are constrained to dismiss plaintiff's appeal, we note that neither the trial court's order nor sections 1-110 and 7A-228 provide that plaintiff's complaint has been dismissed with prejudice. Accordingly, plaintiff is free to re-file, and may attempt to present his substantive claims in another forum; or he may seek appellate review by petitioning this Court for a writ of certiorari pursuant to Rule 21 of the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. 21 (2009) (procedures to apply for writ); Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) ("[W]e conclude that Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner.").
Based on the foregoing, plaintiff's appeal is
Dismissed.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).