Opinion
NO. COA14-1078
04-07-2015
IN THE MATTER OF THE FORECLOSURE by Philip A. Glass, Substitute Trustee, of a Deed of Trust Executed by Richard Phillip Brittain, dated June 29, 2006 and recorded in Book 180 at Page 755, of the Henderson County Public Registry.
Horack, Talley, Pharr & Lowndes, P.A., by Amy P. Hunt and Robert B. McNeill for Petitioner-appellee. Charles R. Brewer for Respondent-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Henderson County
No. 12 SP 513
Appeal by Respondent from order entered 21 April 2014 by Judge Mark E. Powell in Henderson County Superior Court. Heard in the Court of Appeals 5 February 2015. Horack, Talley, Pharr & Lowndes, P.A., by Amy P. Hunt and Robert B. McNeill for Petitioner-appellee. Charles R. Brewer for Respondent-appellant. DILLON, Judge.
Richard Phillip Brittain ("Respondent") appeals from the trial court's order authorizing the substitute trustee to proceed with the foreclosure arguing that (1) the trial court lacked jurisdiction to review the clerk of court's order because the Petitioner's notice of appeal and certificate of service were defective, and (2) the trial court erred in denying his motion to dismiss based on N.C. R. Civ. P. 41.
I. Trial Court's Jurisdiction
Respondent argues that the trial court lacked jurisdiction to review the clerk of court's 2 May 2014 order dismissing the foreclosure because Petitioner's notice of appeal from the clerk of court's order to the trial court was defective. Specifically, Respondent notes that Petitioner had ten (10) days to notice an appeal from the clerk's order. Respondent contends that though the written notice of appeal was filed and served on 9 May 2013 - only seven (7) days after the clerk's order, Petitioner did not file the certificate of service relating to the notice of appeal until 15 May 2013 - thirteen (13) days after the clerk's order. We disagree.
We review issues of subject matter jurisdiction de novo. Harris v. Matthews, 361 N.C. 265, 271, 643 S.E.2d 566, 570 (2007).
Generally, the trial court does not obtain jurisdiction until proper appeal from the clerk's order is made. Spalding Div. of Questor Corp. v. DuBose, 46 N.C. App. 612, 613, 265 S.E.2d 501, 503 (1980). If, as Respondent argues, Petitioner did not perfect its appeal from the clerk of court to the trial court, then the clerk's order dismissing the foreclosure is binding. See Phil Mechanic Const. Co. v. Haywood, 72 N.C. App. 318, 322, 325 S.E.2d 1, 3 (1985).
Turning to the relevant statutes, N.C. Gen. Stat. § 45-21.16(d1) (2013) states that a clerk of court's ruling in a foreclosure proceeding "may be appealed to the judge of the district or superior court having jurisdiction at any time within 10 days after said act." A foreclosure by sale is a special proceeding, see Phil Mechanic Const. Co., 72 N.C. App. at 321, 325 S.E.2d at 2, and the statute for appeal of special proceedings also provides for ten (10) days to appeal from the clerk of court's decision to the trial court for a trial de novo and further states that "[n]otice of appeal shall be in writing and shall be filed with the clerk." N.C. Gen. Stat. § 1-301.2(e)(2013).
As a "special proceeding," the Rules of Civil Procedure apply to a foreclosure unless the governing statutes set out different procedures. Charns v. Brown, 129 N.C. App. 635, 638, 502 S.E.2d 7, 9 (1998). N.C. R. Civ. P. 5(a) states that "every written notice . . . shall be served upon each of the parties[.]" N.C. Gen. Stat. § 1A-1, Rule 5(a) (2013). N.C.R. Civ. P. 5(b1) states that "[a] certificate of service shall accompany . . . every paper required to be served on any party . . . . The certificate shall show the date and method of service or the date of acceptance of service and shall show the name and service address of each person upon whom the paper has been served." Id.
As to filing, N.C. R. Civ. P 5(d) states that certain "papers shall be filed with the court, either before service or within five days after service" which include pleadings, motions, notices of appearance, those "required by rule or statute[,]" and orders but "[a]ll other papers regardless of whether these rules require them to be served upon a party, should not be filed with the court unless . . . . the papers are submitted to the court in relation to a motion or other request for relief[.]"
Here, Petitioner's written notice of appeal was filed 9 May 2013, within ten days of the clerk's 2 May 2013 order, meeting the statutory requirements. The certificate of service states that notice of appeal was served on Respondent also on 9 May 2013. However, the certificate of service itself, though, was filed on 15 May 2013, within five business days after the notice of appeal was served on 9 May 2013, meeting the requirements of Rule 5(d). See also N.C. R. Civ. P. 6(a). There is nothing in the record showing that the certificate of service was not served with the notice of appeal and, otherwise, the certificate of service meets the requirements of Rule 5(b1), as it gives dates of service, method, and the names of those it was served on. Accordingly, we find no merit in Respondent's argument, and the trial court had jurisdiction to hear Petitioner's appeal from the clerk of court.
II. Motion to Dismiss
In his second argument on appeal, Respondent argues that the trial court erred in denying his motion to dismiss. However, we must dismiss this appeal as Respondent did not appeal from this order.
The trial court entered two orders on 21 April 2014: The first order overruled the clerk of court's order dismissing the foreclosure and authorized the substitute trustee to proceed with the foreclosure. The second order denied Respondent's motion to dismiss pursuant to N.C. R. Civ. P 41. However, Respondent's notice of appeal only refers to the first order entered on that date:
NOW COMES Richard Phillip Brittain, by and through counsel, giving notice of appeal to the North Carolina Court of Appeals from the order of the Honorable Mark E. Powell, Superior Court Judge, entered on April 21, 2014, authorizing the Substitute Trustee to proceed with foreclosure under the terms of the deed of trust and overruling the order entered by the Clerk on May 9, 2013.North Carolina Rule of Appellate Procedure 3(d) states in pertinent part that "[t]he notice of appeal . . . shall designate the judgment or order from which appeal is taken and the court to which appeal is taken[.]" Here, Respondent failed to designate the trial court's order denying his motion to dismiss in his notice of appeal. The provisions of N.C. R. App. P. 3 are jurisdictional, and, without compliance with its provisions, the appellate court acquires no jurisdiction and the appeal must be dismissed. Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, 683 (1990).
We have stated as follows with regard to determining whether a notice of appeal has conferred jurisdiction on this Court:
We may liberally construe a notice of appeal in one of two ways to determine whether it provides jurisdiction . . . . First, a mistake in designating the judgment or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake. Second, if a party technically fails to comply with procedural requirements in filing papers with the court, the court may determine that the party complied with the rule if the party accomplishes the functional equivalent of the requirement.Dafford v. JP Steakhouse LLC, 210 N.C. App. 678, 681, 709 S.E.2d 402, 405 (2011). However, even given the liberal construction, certain errors prevent the Court from obtaining jurisdiction. In Barfield v. Matos, this Court determined that it did not have jurisdiction to consider an appeal from an order because no notice of appeal from that particular order had ever been given, even though several of the defendant's proposed issues on appeal mentioned this order. 215 N.C. App. 24, 36-37, 714 S.E.2d 812, 821 (2011). In Von Ramm v. Von Ramm, this Court determined that even given a liberal interpretation of the notice of appeal, a "reader cannot 'fairly infer' from the language of the notice of appeal that appellant intended also to appeal" the underlying order because general language in the notice "clearly directs this court's review to the portion of" another order and "it is not the 'functional equivalent' of designating" the underlying order. 99 N.C. App. 153, 157, 392 S.E.2d 422, 425 (1990).
Here, Respondent fails to specifically include at all in his notice of appeal any mention of the order denying his motion to dismiss. The notice of appeal only states that Respondent is appealing from the order reversing the clerk of court's dismissal of the foreclosure and authorizing the substitute trustee to proceed. There is nothing in the language of the notice of appeal to this Court that could be "fairly inferred from" to show that Respondent was appealing the order denying his motion to dismiss based on Rule 41. The proposed issues on appeal do mention the motion to dismiss, but this would still be insufficient to give this Court jurisdiction, especially since the motion to dismiss is not mentioned in the notice of appeal. See Barfield, 215 N.C. App. at 36-37, 714 S.E.2d at 821.
We do not address the issue of whether Petitioner was misled by Respondent's mistaken notice of appeal, since we reach that inquiry only if we can infer that Respondent intended to appeal from an order not specifically designated. Failure to appeal from this order is not a technical filing error but a procedural jurisdictional error. Accordingly, we have no jurisdiction to consider Respondent's issues regarding the trial court's order denying his motion to dismiss based on Rule 41.
AFFIRMED IN PART, DISMISSED IN PART.
Judges GEER and STEPHENS concur.
Report Per Rule 30(e).