Henlajon, Inc. v. Branch Highways, Inc., COA01-445.

• Citation: 560 S.E.2d 598,149 NC App. 329
• Decision Date: 19 March 2002
• Docket Number: No. COA01-445.,COA01-445.
• Court: Court of Appeal of North Carolina (US)
• Parties: HENLAJON, INC., a North Carolina Corporation, Plaintiff, v. BRANCH HIGHWAYS, INC., a Virginia Corporation, Defendant.

560 S.E.2d 598

149 NC App. 329

HENLAJON, INC., a North Carolina Corporation, Plaintiff, v. BRANCH HIGHWAYS, INC., a Virginia Corporation, Defendant.

No. COA01-445.

Court of Appeals of North Carolina.

March 19, 2002.

Bradshaw, Vernon, & Robinson, L.L.P. by Patrick E. Bradshaw, Pittsboro, for plaintiff appellant.

Sharpless & Stavola, P.A. by Frederick K. Sharpless and Joseph P. Booth, III, Greensboro, for defendant-appellee. TYSON, Judge.

Henlajon, Inc., a North Carolina Corporation ("plaintiff") appeals from the trial court's entry of summary judgment in favor of Branch Highways, Inc., a Virginia Corporation ("defendant") on plaintiff's breach of contract claim. We affirm the trial court's order and judgment.

I. Facts

The State of North Carolina contracted with defendant to improve portions of U.S. Highway 64 in Chatham County ("road project"). Plaintiff owned real property in Chatham County, North Carolina and was contacted by defendant in September 1996 concerning the placement of excess dirt from the road project as fill material onto plaintiff's land. No dirt was ever placed on plaintiff's property.

On 18 December 1996 and on 20 December 1996, plaintiff sent defendant two letters contending that a contract existed. Defendant responded by letter on 23 December 1996 stating: "Accordingly, we state in no uncertain terms that there is no contract (verbal, written, or otherwise) between Branch Highways and Henlajon, Inc. regarding the placement of excess construction soils onto your lands from any existing or pending NCDOT construction project." John Blair ("Blair"), plaintiff's representative, acknowledged receipt of the letter, and testified in his deposition that the letter denied the existence of a contract. Plaintiff's attorney sent defendant a letter on 12 March 1997 stating that plaintiff believed that a contract existed, and that plaintiff expected defendant to perform. Defendant did not respond further.

Plaintiff filed suit against defendant 10 March 2000 alleging breach of contract. Defendant filed motions to dismiss pursuant to Rule 12(b)(6) and for summary judgment. The trial court granted defendant's motion for summary judgment on 7 December 2000. The judgment was served on plaintiff on 12 December 2000. Plaintiff filed his notice of appeal at 3:43 p.m. on Friday, 5 January 2001, and served it on defendant Monday, 8 January 2001 by mail.

II. Motion to Dismiss

Defendant has moved to dismiss plaintiff's appeal. Defendant argues that plaintiff did not file and serve its notice of appeal in accordance with Rules 3 and 26 of the North Carolina Rules of Appellate Procedure, and that we lack jurisdiction to hear the appeal and must dismiss. We disagree.

Rule 3(a) provides:

Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.

N.C.R.App. P. (3)(a) (2001) (emphasis added). Subdivision (c) states that "[a]ppeal from a judgment or order in a civil action or special proceeding must be taken within 30 days after its entry." N.C.R.App. P. 3(c).

"In order to confer jurisdiction on the state's appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure." Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) (citations omitted). "Appellate Rule 3 is jurisdictional and if the requirements of this rule are not complied with, the appeal must be dismissed." Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C.App. 188, 189, 394 S.E.2d 683 (1990) (citing Giannitrapani v. Duke Univ., 30 N.C.App. 667, 228 S.E.2d 46 (1976)); Bailey, 353 N.C. at 156,540 S.E.2d at 322 (failure to comply "mandates" dismissal of the appeal). This Court "cannot waive the jurisdictional requirements of Rule 3 if they have not been met." Guilford County Dep't of Emergency Servs. v. Seaboard Chem. Corp., 114 N.C.App. 1, 9, 441 S.E.2d 177,181 (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285, 291 (1988); Von Ramm v. Von Ramm, 99 N.C.App. 153, 156, 392 S.E.2d 422, 424 (1990)). "Under Rule 3(a) of the Rules of Appellate Procedure, a party ... may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties in a timely manner. This rule is jurisdictional." Crowell Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 402 S.E.2d 407, 408 (1991) (citing Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 301 S.E.2d 98 (1983)).

Defendant contends that plaintiff's failure to serve the notice of appeal "at or before the time of filing" mandates dismissal because Rule 3(e) makes reference to the service requirements of Rule 26(b).

Rule 3(e), entitled "Service of notice of appeal," provides that "[s]ervice of copies of the notice of appeal may be made as provided in Rule 26 of these rules." (emphasis supplied). Rule 26(b), states that "[c]opies of all papers filed by any party ... shall, at or before the time of filing, be served on all other parties to the appeal." N.C.R.App. P. 26(b)(2001). Defendant's interpretation would constructively rewrite and shorten the time requirements for service of the notice of appeal. Under defendant's construction, a party would have thirty days from entry of judgment, or within thirty days of the judgment's service where service was not perfected within three days of entry of judgment as required by N.C. Gen.Stat. § 1A-1, Rule 58, to serve the notice of appeal, unless the notice is filed before the thirty day period expires in which case the notice of appeal must be served on or before that date. The rules do not compel this result.

Rule 26(b) is a general provision that is broad in scope and covers all documents filed. Rule 3 is a specific provision that applies only to the time to file and serve a notice of appeal in superior court. If "one statute deals with a particular subject or situation in specific detail, while another statute deals with the subject in broad, general terms, the particular, specific statute will be construed as controlling, absent a clear legislative intent to the contrary." Nucor Corp. v. Gen. Bearing Corp., 333 N.C. 148, 154-55, 423 S.E.2d 747, 751 (1992). Rule 3 explicitly provides a party thirty days from the entry of judgment to file and serve a notice of appeal. Our appellate courts have consistently held that the thirty days is a jurisdictional requirement that can neither be waived nor extended by this Court. We have no authority to extend nor reduce the jurisdictional time frames established by Rule 3. Had the Supreme Court intended Rule 26(b) to shorten the time for service of the notice of appeal as expressly set out in Rule 3, it could have provided for it in the rules. See e.g. Rule 21 "Certiorari.... The petition shall be filed without unreasonable delay and shall be accompanied by proof of service upon all other parties." N.C.R.App. P. 21 (2001); Rule 22 "Mandamus and prohibition.... The petition shall be filed without unreasonable delay ... and shall be accompanied by proof of service...." N.C.R.App. P. 22 (2001); Rule 23 "Supersedeas.... The petition shall be filed with the clerk of the court ... and shall be accompanied by proof of service upon all other parties." N.C.R.App. P. 23 (2001) (emphasis supplied).

In Hale v. Afro-Am. Arts Int'l, Inc., 335 N.C. 231, 436 S.E.2d 588 (1993), our Supreme Court addressed the issue of whether compliance with the service requirements of Rule 26(b) were required to confer jurisdiction on the Court of Appeals. The Supreme Court reversed per curiam the Court of Appeals' majority opinion, 110 N.C.App. 621, 430 S.E.2d 457 (1993) (Greene, J.), for the reasons set forth in the dissent.

In Hale, the record on appeal contained a "notice of appeal" but "[n]othing in the notice... shows that plaintiff was given notice of the appeal through service as required by Rule 26(b)." Id. at 623, 430 S.E.2d at 458. "The [Court of Appeals] majority concluded that this was a jurisdictional defect which both the parties and the court were powerless to remedy," Hale, 335 N.C. at 232, 436 S.E.2d at 589, and held that our Court lacked jurisdiction to hear the appeal. Hale, 110 N.C.App. at 623, 430 S.E.2d at 459.

The dissent and our Supreme Court disagreed. The Supreme Court approved Judge Wynn's reasoning and concluded that "a party upon whom service of notice of appeal is required may waive the failure of service by not raising the issue by motion or otherwise and by participating without objection in the appeal...." Hale, 335 N.C. at 232,436 S.E.2d at 589. "Judge Wynn [and the Supreme Court] concluded that ... the Court of Appeals had jurisdiction of the appeal and should consider the case on its merits." Id. If a party may waive the requirements of Rule 26(b), Rule 26(b) cannot be jurisdictional. Failure to serve the notice of appeal on or before the date of filing pursuant to Rule 26(b) does not automatically mandate dismissal.

Defendant contends that Smith v. Smith, 43 N.C.App. 338, 258 S.E.2d 833 (1979) and Shaw v. Hudson, 49 N.C.App. 457, 271 S.E.2d 560 (1980) necessitate dismissal of the appeal because plaintiff failed to comply with the requirements of Rule 26(b).

We do not read either Smith or Shaw to hold that Rule 26(b) is jurisdictional. Both cases were decided under former Rule 3 and prior to our Supreme Court's decision in Hale. Although some language in both cases implies that the service requirements of Rule 26(b) are jurisdictional, a proper analysis of the holdings in those cases does not support that proposition, and any language to that effect is obiter dictum. "Language in an opinion not necessary to the decision is obiter dictum and later decisions are...