Opinion
No. COA12–347.
2012-10-2
Maxine Lemay HARDY, Ella Marable Bryant, Bessie Bullock, Hilda Joyner Delbridge, Clara M. Foster, Barry N. Horton, John L. Pecora Jr., Robert Charles West, M. Francheskia Williams, Citizens and Residents of Durham, Granville, Vance, and Warren Counties, N.C., Plaintiffs, v. VANCE COUNTY BOARD OF EDUCATION, A Public Body and its Members, in their official capacities, Dr. Norman Shearin, Jr., Superintendent, Vance County Schools, In His Official and Individual Capacities, North Carolina Department of Public Instruction, North Carolina State Board of Education, A Public Body and Its Members, in their official capacities, Defendants.
Sandra J. Polin for plaintiff-appellants. Tharrington Smith, L.L.P. by Neal A. Ramee for defendant-appellees Vance County Board of Education and Dr. Norman Shearin, Jr.
Appeal by plaintiffs from order entered 7 October 2011 by Judge A. Robinson Hassell in Vance County Superior Court. Heard in the Court of Appeals 29 August 2012. Sandra J. Polin for plaintiff-appellants. Tharrington Smith, L.L.P. by Neal A. Ramee for defendant-appellees Vance County Board of Education and Dr. Norman Shearin, Jr.
Attorney General Roy Cooper by Assistant Attorney General Laura E. Crumpler for defendant-appellees North Carolina Department of Public Instruction and North Carolina State Board of Education.
STEELMAN, Judge.
I. Factual and Procedural History
On 30 September 2010, plaintiffs filed a complaint against Vance County Board of Education, Dr. Norman Shearin, Jr., North Carolina Department of Public Instruction (Department of Public Instruction), and North Carolina State Board of Education (State Board of Education) for breach of contract, misrepresentation, and breach of implied covenant of good faith and fair dealing arising out of the non-renewal of their teaching contracts with the Vance County Schools.
On 7 December 2010, defendants Vance County Board of Education and Dr. Shearin answered and moved to dismiss plaintiffs' complaint. On 26 January 2011, defendants State Board of Education and Department of Public Instruction moved to dismiss plaintiffs' complaint. On 27 April 2011, Judge R. Allen Baddour dismissed plaintiffs' complaint with prejudice. On 9 May 2011, plaintiffs moved for reconsideration of the order. On 14 June 2011, Judge Baddour denied that motion.
On 12 July 2011, plaintiff, Maxine Hardy, filed a pro se notice of appeal. This Court heard her appeal and affirmed the trial court's denial of her motion to reconsider in Hardy v. Vance County Bd. of Educ., ––– N.C.App. ––––, –––S.E.2d –––– (June 19, 2012).
On 25 July 2011, defendants moved to dismiss the appeal as to all plaintiffs, except Maxine Hardy. On 1 August 2011, plaintiffs filed an amended notice of appeal, which all plaintiffs, pro se, executed. On 4 September 2011, defendants filed an amended motion to dismiss plaintiffs' appeal as untimely. On 7 October 2011, Judge Hassell entered an order dismissing with prejudice the appeal of all plaintiffs, except Maxine Hardy.
Plaintiffs appeal.
II. Notice of Appeal
In their first argument, plaintiffs contend that the trial court erred in dismissing their appeal. We disagree.
Judge Hassell held that plaintiffs' appeal of the 27 April 2011 order was untimely; that with the exception of plaintiff Maxine Hardy, plaintiffs' appeal of the denial of their motion for reconsideration was untimely; that Maxine Hardy, acting pro se had no authority to file a notice of appeal on behalf of the other plaintiffs; and that her purported notice of appeal on behalf of the other plaintiffs was a legal nullity. This order further held that the motion for reconsideration of the dismissal order of 27 April 2011 did not toll the time for filing notice of appeal.
A notice of appeal must be filed within thirty days after entry of judgment. N.C.R.App. P. 3(c). The notice “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).
The provisions of N.C.R.App. P. 3 are jurisdictional. Dogwood Dev. and Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197–98, 657 S.E.2d 361, 365 (2008). A jurisdictional default requires dismissal. Dogwood, 362 N.C. at 197, 657 S.E.2d at 365.
Plaintiffs argue that the amended notice of appeal cured the failure of plaintiffs other than Maxine Hardy to sign the notice of appeal, citing Livesay v. Livesay, ––– N.C.App. ––––, 723 S.E.2d 772 (2012). In Livesay, the attorney filed a lawsuit, “signed the General Civil Action Cover Sheet but failed to sign, date, or verify the complaint.” Livesay, ––– N.C.App. at ––––, 723 S.E.2d at 773. We held that the trial court erred in dismissing the complaint. Prior to any responsive pleading or motion, plaintiff's counsel recognized his error, and filed an amended complaint that was signed. We held that this was permitted under the portion of Rule 11 that provided that: “if a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.” Livesay, ––– N.C.App. at ––––, 723 S.E.2d at 774. Livesay is not dispositive of the instant case.
There was no question in Livesay concerning the authority of the attorney to sign the complaint on behalf of his client. In the instant case, the notice of appeal filed on 12 July 2011 was signed only by Maxine Hardy as pro se appellant. It bears no blank signature lines indicating an inadvertant omission of the other plaintiffs to execute the notice of appeal. Maxine Hardy was not an attorney, and had no authority to file a notice of appeal on behalf of the other plaintiffs. N.C. Gen.Stat. § 84–4 (2011). The amended notice of appeal, signed by all of the plaintiffs, was filed on 1 August 2011, and was not timely. Further, this case is controlled by the provisions of N.C.R.App. P. 3 and not by N.C.R. Civ. P. 11. The trial court did not err in dismissing this appeal.
This argument is without merit.
III. Due Process Argument
In their second argument, plaintiffs contend that the trial court deprived plaintiffs of due process and the right to a fair and impartial hearing under the North Carolina and United States Constitutions. We disagree.
Plaintiffs cite no authority for the proposition that an appellant's failure to comply with the North Carolina Rules of Appellate Procedure affords the appellant greater due process protections than those protections afforded other appellants. Our research reveals no case so holding.
This argument is without merit.
IV. Conclusion
Because we hold that the trial court did not err in dismissing plaintiffs' appeal, we do not address plaintiffs' remaining arguments.
AFFIRMED. Judges HUNTER, Robert C. and BRYANT concur.
Report per Rule 30(e).