Opinion
No. 07-1008.
Filed January 15, 2008.
Randolph County No. 06 JT 94.
Appeal by respondent from judgment entered 4 June 2007 by Judge Scott C. Etheridge in Randolph County District Court. Heard in the Court of Appeals 10 December 2007.
Erica Glass for petitioner-appellee. Mercedes O. Chut for respondent-appellant. Pamela Newell Williams for Guardian ad Litem-appellee.
On 16 March 2005, the Randolph County Department of Social Services ("petitioner") filed a juvenile petition alleging that D.C.H. was a neglected and dependent juvenile. The petition stated that D.C.H. had been born to mother S.H. ("respondent") three days earlier with cocaine present in the juvenile's system. The trial court entered a nonsecure custody order that same day. Petitioner filed a petition to terminate respondent's parental rights on 10 May 2006. Following a hearing on 19 October 2006, the trial court declared in open court that it was terminating respondent's parental rights in and to D.C.H.
On 4 June 2007, the trial court entered its order which terminated respondent's parental rights. Respondent filed a notice of appeal in Randolph County District Court on 18 June 2007 and filed a record on appeal with this Court on 21 August 2007. On 30 August and 8 October 2007, Guardian ad Litem and petitioner, respectively, filed motions to dismiss respondent's appeal.
In their motions to dismiss, both petitioner and Guardian ad Litem argue that respondent failed to personally sign her 18 June 2007 Notice of Appeal, as required by Rule 3A of the North Carolina Rules of Appellate Procedure. In her 11 September and 18 October 2007 Responses to Motions to Dismiss Appeal, respondent contends that her notice of appeal was timely filed and her failure to "comply fully" with Rule 3A does not deprive this Court of its jurisdiction to hear this matter. Alternatively, respondent contends that the order from which she attempts to appeal was never properly served upon her pursuant to N.C.G.S. § 7B-1001(b) or N.C.G.S. § 1A-1, Rules 5 and 58. Thus, respondent argues that the running of the jurisdictional time limitation for giving notice of appeal is tolled for the period of noncompliance with the statutory service requirements. Respondent contends that the tolling of the time for giving notice of appeal allows her to file an amended notice of appeal. Consequently, on 6 September 2007, respondent filed an amended notice of appeal which complied with the signature requirement of Appellate Rule 3A. For the reasons discussed below, we must dismiss respondent's purported appeal.
I.
The Rules of Appellate Procedure "govern procedure in all appeals from the courts of the trial division to the courts of the appellate division." N.C.R. App. P. 1(a) (2008). Appellate Rule 3A(a) provides, in part:
Any party entitled by law to appeal from a trial court judgment or order rendered in a case involving termination of parental rights and issues of juvenile dependency or juvenile abuse and/or neglect, appealable pursuant to G.S. 7B-1001, may take appeal by filing notice of appeal with the clerk of superior court. . . . If the appellant is represented by counsel, both the trial counsel and appellant must sign the notice of appeal, and the appellant shall cooperate with counsel throughout the appeal.
N.C.R. App. P. 3A(a) (2008) (emphasis added). Rule 3A(a) "expressly requires that the trial counsel and appellant sign the notice of appeal and that the appellant cooperate with counsel throughout the appeal." In re H.M.W., No. COA07-202, 2007 WL 1747036, at *2 (N.C.Ct.App. June 19, 2007). This signature requirement "serves to indicate respondent's participation in an appeal as well as an awareness of the nature of the appeal and cooperation with counsel in the appeal." Id.
In the present case, on 18 June 2007, respondent filed a notice of appeal from the 4 June 2007 order that terminated her parental rights. However, respondent failed to sign this notice of appeal in violation of "the letter and purpose" of the signature requirement of Appellate Rule 3A(a). See id. In the absence of respondent's "signature, there is no evidence within the record to indicate that she desired to pursue the appeal, understood the nature of the appeal, or cooperated with counsel in filing the notice of appeal." Id. Since "the rules of the Supreme Court that regulate appeals . . . are mandatory and must be observed," Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000), we must dismiss respondent's attempt to appeal.
II.
In the alternative, respondent argues that the thirty-day jurisdictional time limitation for giving notice of appeal was tolled because the 4 June 2007 order from which she attempted to appeal was never properly served upon her pursuant to N.C.G.S. § 7B-1001(b) or N.C.G.S. § 1A-1, Rules 5 and 58. Thus, respondent filed an amended notice of appeal on 6 September 2007 which complied with the signature requirement of Appellate Rule 3A. Because we conclude that respondent waived the tolling period, the issues of whether respondent may (1) amend her notice of appeal generally, or (2) amend her notice of appeal almost 80 days after its original filing date are not properly before this Court.
With limited exception, N.C.G.S. § 7B-1001(b) provides, in part, that "notice of appeal . . . shall be made within 30 days after entry and service of the order in accordance with G.S. 1A-1, Rule 58." N.C. Gen. Stat. § 7B-1001(b) (2007) (emphasis added).
[Appellate Rule 3(c) also] requires that notice of appeal from a judgment or order in a civil action be given within thirty days after its entry[, and] . . . further provides that the running of the time for giving notice of appeal is tolled . . . [for] the duration of any period of noncompliance with the service requirement of Rule 58 of the Rules of Civil Procedure.
Johnson v. Rowland Motor Co., 168 N.C. App. 237, 238, 606 S.E.2d 711, 711-12 (2005) (emphasis added). Rule 58 requires that "the party who prepares the judgment . . . shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5 [of the Rules of Civil Procedure]." N.C. Gen. Stat. § 1A-1, Rule 58 (2007).
Rule 5(b) provides, in part, that "service upon the attorney or upon a party may . . . be made by delivering a copy to the party." N.C. Gen. Stat. § 1A-1, Rule 5(b) (2007). "Delivery of a copy within [Rule 5] means handing it to the attorney or to the party, leaving it at the attorney's office with a partner or employee, or by sending it to the attorney's office by a confirmed telefacsimile transmittal. . . ." Id. Alternatively, "[s]ervice by mail shall be complete upon deposit of the . . . paper enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service." Id.
In the present case, in an affidavit, respondent's trial counsel stated that she received a copy of the 4 June 2007 order when it was placed in the folder she maintains at the courthouse in Asheboro. Respondent included a copy of the 4 June order in the record on appeal she filed with this Court. However, respondent's trial counsel averred that she had not received or seen a certificate of service for the 4 June order prepared by petitioner or any party to this action.
Delivery of the 4 June order to counsel's courthouse folder or mailbox did not comply with the Rule 5 requirements for service upon a party or attorney, since it was not hand-delivered to respondent or to trial counsel's partner or employee, or sent by "confirmed telefacsimile transmittal." This delivery also failed to comply with the Rule 5 requirements for service by mail. While an attorney's courthouse mailbox is customarily the daily repository for communications from the courthouse clerk's office and from other attorneys and associates, it is not "a post office or official depository under the exclusive care and custody of the United States Postal Service." For these reasons, the 4 June 2007 order was not properly served upon respondent or respondent's trial counsel, thus tolling the thirty-day jurisdictional time limitation specified in Appellate Rule 3 for respondent to file a notice of appeal. However, by filing her 18 June 2007 Notice of Appeal, we conclude that respondent waived the tolling provision of Appellate Rule 3(c).
"[T]he purposes of the requirements of Rule 58 are to make the time of entry of judgment easily identifiable, and to give fair notice to all parties that judgment has been entered." Durling v. King, 146 N.C. App. 483, 494, 554 S.E.2d 1, 7 (2001) (emphasis added); see also Stachlowski v. Stach, 328 N.C. 276, 282, 401 S.E.2d 638, 642 (1991) ("The comment [to Rule 58] emphasizes easy identification and fair notice to all parties as factors critical to the determination of when judgment is entered.").
In the present case, respondent's trial counsel filed notice of appeal on 18 June 2007. In this notice of appeal, trial counsel designated that the appeal was being taken from the "Consolidated Judgment and Order of Adjudication and Disposition in Termination of Parental Rights Proceeding entered October 19, 2006, and filed June 4, 2007." Since counsel specifically identified the 4 June filing date of the trial court's judgment in the notice of appeal, and also signed the notice of appeal on 14 June, counsel must have personally received or seen a copy of the court's order sometime between 4 June and 14 June 2007. This Court has previously found that a party " clearly had notice of the entry of judgment, as shown by his filing notice of appeal from the judgment." Durling, 146 N.C. App. at 494, 554 S.E.2d at 7 (emphasis added). Because respondent's counsel "clearly" had fair notice of both the fact of the entry of judgment and that judgment's actual date of entry, as evidenced by her "filing notice of appeal from the judgment," see id., the purposes of Rule 58 were not frustrated by the delivery of the order to trial counsel's courthouse folder in this case. Because the notice of appeal referenced both the actual title and filing date of the trial court's 4 June order terminating her parental rights, respondent waived her argument of improper service and lack of notice of the 4 June order. Therefore, respondent may not now seek the benefit of the tolling provision of Appellate Rule 3(c). Without the benefit of the tolling provision, we find that respondent's notice was timely filed within thirty days of the 4 June order in accordance with N.C.G.S. § 7B-1001(b) and Appellate Rule 3(c). However, since we have already concluded that respondent's 18 June Notice of Appeal was defective, this matter must be dismissed.
III.
Respondent has not petitioned this Court to review this matter pursuant to a writ of certiorari. However, this Court is permitted to treat an appeal as a petition for writ of certiorari where one of the following "appropriate circumstances" is applicable: "[1] when the right to prosecute an appeal has been lost by failure to take timely action, or [2] when no right of appeal from an interlocutory order exists, or [3] 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) (2008). Since respondent's "right to prosecute [her] appeal has been lost" by her failure to file a timely notice of appeal that fully complies with Appellate Rule 3A, we treat respondent's purported notice of appeal as a petition for writ of certiorari. After careful consideration of respondent's arguments, we conclude that her arguments are without merit and we therefore deny her petition.
Accordingly, the motions to dismiss respondent's appeal filed by petitioner and Guardian ad Litem are granted.
Dismissed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).