An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA14-301
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
LINDA G. BROUSARD,
Plaintiff,
v. Pitt County
No. 13 CVS 87
DONALD V. BROUSARD,
Defendant.
Appeal by plaintiff from order entered 2 December 2013 by
Judge Alma L. Hinton in Pitt County Superior Court. Heard in
the Court of Appeals 21 July 2014.
Teresa DeLoatch Bryant for plaintiff-appellant.
Rouse & Gasch, PLLC, by Robert D. Rouse, III, and DeeDee
Rouse Gasch, for defendant-appellee.
HUNTER, JR., Robert N., Judge.
Plaintiff Linda G. Brousard appeals from an order granting
summary judgment in favor of defendant Donald V. Brousard. For
the reasons stated herein, we dismiss this appeal as untimely.
Plaintiff and defendant were married in July 1986 and
divorced in September 2007. The marital home was awarded to
defendant in the divorce proceedings. In January 2008,
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plaintiff and defendant reconciled and, in July 2008, plaintiff
moved from her residence into the former marital home now owned
by defendant. Plaintiff continued to pay the mortgage on her
residence until she sold the house in December 2009. Starting
in January 2010, plaintiff wrote a check payable to defendant
each month in the amount of $1,000. Plaintiff wrote her last
$1,000 check to defendant in July 2012 and moved out of
defendant’s home in September 2012.
Plaintiff filed a complaint against defendant on 15 January
2013 alleging that she was entitled to: (1) a refund of the
$1,000 per month she paid to defendant based upon breach of
fiduciary duty, fraud, and breach of contract; (2) recovery of
money she spent for improvements made to defendant’s house based
upon quantum meruit; and (3) a writ of possession to retrieve
her furniture and personal property from the home. On 18
September 2013, defendant filed a motion for summary judgment
seeking dismissal of plaintiff’s claims. Plaintiff took a
voluntary dismissal of the writ of possession claim on 15
November 2013.
The trial court held a hearing on the summary judgment
motion on 18 November 2013. By order filed 2 December 2013, the
trial court granted summary judgment in favor of defendant.
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Plaintiff was served with the order on 4 December 2013 and
noticed appeal on 6 January 2014.
Although neither party has addressed this issue, we must
first consider whether this Court has jurisdiction to consider
this appeal. North Carolina Rule of Appellate Procedure 3(c),
entitled “Time for Taking Appeal,” states, in pertinent part:
[i]n civil actions and special proceedings,
a party must file and serve a notice of
appeal: (1) within thirty 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; or (2) within
thirty days after service upon the party of
a copy of the judgment if service was not
made within that three day period[.]
N.C. R. App. P. 3(c)(1)–(2) (2013). The provisions of N.C. R.
App. P. 3 are jurisdictional. Dogwood Dev. & Mgmt. Co. v. White
Oak Transp. Co., 362 N.C. 191, 197–98, 657 S.E.2d 361, 365
(2008). A jurisdictional default requires dismissal. Id. at
197, 657 S.E.2d at 365.
Here, plaintiff was served with a copy of the order within
the three day period prescribed by Rule 58. However,
plaintiff’s notice of appeal was filed on 6 January 2014, more
than thirty days after entry of the order. Thus, plaintiff’s
notice of appeal was not in compliance with Rule 3, and we
dismiss plaintiff’s appeal.
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Dismissed.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).