In re Harts

• Decision Date: 05 August 2008
• Docket Number: No. COA07-1523.,COA07-1523.
• Citation: 664 S.E.2d 411
• Court: North Carolina Court of Appeals
• Parties: In re Will of Fannie J. HARTS.

664 S.E.2d 411

In re Will of Fannie J. HARTS.

No. COA07-1523.

Court of Appeals of North Carolina.

August 5, 2008.

Appeal by caveator from judgment and order entered 17 May 2007 and order entered 24 July 2007 by Judge Russell J. Lanier, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 14 May 2008.

Terry B. Richardson, Wilmington, for caveator-appellant.

Carter & Carter, P.A., by James Oliver Carter, Wilmington, for propounder-appellee.

JACKSON, Judge.

Fannie Harts (decedent) died testate 19 March 2004. In her will, she left a few minor specific bequests, then disposed of the remainder of her estate through a residuary clause. Fifty percent of her residuary went to Vernie and Woodruff Allen (propounders), ten percent went to decedent's sister, Julia Thompson (Thompson), and the remainder was divided equally among four churches. Decedent's will was executed on 5 February 2004, and served to revoke an earlier will, executed on 20 March 1999, which would have left decedent's entire estate to Thompson. Thompson filed a caveat to decedent's will, executed on 16 August 2004, alleging the 5 February 2004 will was procured through the undue influence of the propounders, and that decedent lacked the testamentary capacity to legally execute it. Thompson died 4 September 2005, and by order filed 6 September 2006, the trial court ordered Robert Pugh ("caveator") to be substituted as caveator. By motion filed 24 May 2006, propounders moved for summary judgment. Summary judgment was denied by order filed 6 June 2006. The instant cause was heard before a jury at the 30 April 2007 civil session of New Hanover County Superior Court. At the close of caveator's evidence, propounders moved in open court for directed verdict, and the trial court granted the directed verdict on the issues of testamentary capacity and undue influence. The sole remaining issues for the jury were whether the contested will had been executed according to the requirements of North Carolina law, and whether the document presented by propounders was the will of decedent.

The jury answered "yes" to both these issues on 3 May 2007. The trial court entered its judgment and order 21 May 2007, including both its directed verdict and the jury verdict, but the trial court did not address the issues of costs and attorneys fees at that time. The parties motions for costs and attorney's fees was heard 25 June 2007. By order filed 24 July 2007, the trial court awarded propounders costs in the amount of $6,228.05, and attorney's fees in the amount of $25,000.00. On 10 August 2007 caveator filed his notice of appeal for both the 21 May 2007 judgment and order, and the 24 July 2007 order.

The dispositive issue for the majority of caveator's issues on appeal is whether this Court has jurisdiction to consider his purported appeal from the judgment and order filed 21 May 2007. We are constrained to hold that we do not.

Subject matter jurisdiction may not be waived, and this Court has the power and the duty to determine issues of jurisdiction ex mero motu, and to dismiss an appeal if we find it lacking. Reece v. Forga, 138 N.C.App. 703, 704-05, 531 S.E.2d 881, 882 (2000). Rule 3 of the North Carolina Rules of Appellate Procedure states in relevant part:

Appeal in civil cases—How and when taken.

(a) Filing the notice of appeal. 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.

....

(c) Time for taking appeal. In civil actions and special proceedings, a party must file and serve a notice of appeal:

(1) within 30 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....

There is nothing in the record on appeal indicating that caveator was not properly served with a copy of the judgment within the prescribed three-day period. Failure to adhere to the dictates of Rule 3 requires dismissal of the appeal:

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. Appellate Rule 3 is jurisdictional and if the requirements of this rule are not complied with, the appeal must be dismissed. This Court cannot waive the jurisdictional requirements of Rule 3 if they have not been met. 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.

Henlajon, Inc. v. Branch Hwys., Inc., 149 N.C.App. 329, 331, 560 S.E.2d 598, 600-01 (2002) (internal citations and quotations omitted); see also Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197-98, 657 S.E.2d 361, 365 (2008).

Because caveator did not file notice of appeal until 10 August 2007-over two months after the 21 May 2007 judgment this notice of appeal is in violation of Rule 3 and requires dismissal of the appeal insofar as it relates to that 21 May 2007 judgment. Because the trial court's order taxing caveator with costs and attorney's fees was entered on 24 July 2007, caveator's notice of appeal did not violate the thirty day mandate for that order, and this Court has jurisdiction to decide those issues.

We note that in the recent case of McClure v. County of Jackson, ___ N.C.App. ___, 648 S.E.2d 546 (2007), this Court addressed the apparent confusion at the trial level as to whether an appeal from a judgment of the...