NO. COA 14-230
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
VICTOR E. MAGAZIAN,
Plaintiff,
v. Wake County
No. 12 CVS 16912
JAMES J. CREAGH,
Defendant.
Appeal by Plaintiff from Order entered 20 September 2013 by
Judge Paul Gessner in Wake County Superior Court. Heard in the
Court of Appeals 4 June 2014.
Kerner Law Firm, PLLC, by Thomas W. Kerner, for Plaintiff.
Smith, Debnam, Narron, Drake, Saintsing & Myers, L.L.P., by
Bettie Kelley Sousa, for Defendant.
STEPHENS, Judge.
Factual Background and Procedural History
This appeal arises from an action to “renew” a judgment. A
Connecticut State court purportedly entered a judgment against
Defendant James J. Creagh for a deficiency balance in favor of
New Milford Savings Bank in the State of Connecticut on 11 March
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20011. Plaintiff Victor E. Magazian claims to be a successor in
interest to New Milford Savings Bank. Plaintiff previously
filed a Notice of Filing of Foreign Judgment against Defendant
in Wake County Superior Court on 6 December 2002.
On 3 December 2012, Plaintiff filed a “Complaint to Renew
Judgment” in Wake County Superior Court.2 Defendant answered on
6 February 2013 and filed a motion for summary judgment on 30
August 2013. Plaintiff also filed a motion for summary judgment
on 6 September 2013. Both summary judgment motions came on for
hearing on 16 September 2013. The court granted Defendant’s
1
We note that, although both parties refer to the previous
judgment in their briefs, no copy of the foreign judgment was
included in the record on appeal. Thus, we are unable to confirm
any details of the judgment. Counsel are reminded that N.C. R.
App. P. 9(a)(1)(j) requires the inclusion “of all other papers
filed and statements of all other proceedings had in the trial
court which are necessary to an understanding of all issues
presented on appeal. . . .” N.C.R. App. P. 9(a)(1)(j) (2013).
Thus, even had this appeal been timely, failure to include the
foreign judgment would have prevented resolution of the issue of
timeliness of the action to renew the judgment.
2
There is a ten-year statute of limitations on an action upon a
judgment. N.C. Gen. Stat. § 1-47(1) (2013). Despite the language
used in the caption of Plaintiff’s complaint, the original
judgment may not be “renewed” for an additional ten-year period.
However, a creditor may obtain a new judgment by instituting a
separate action based on the original judgment within the ten-
year statute of limitations period. See, e.g., Duplin County DSS
v. Frazier, __ N.C. App. , , 751 S.E.2d 621, 625 (2013). The
creditor will then have the applicable ten-year statute of
limitations to enforce the new judgment. N.C. Gen. Stat. § 1-
47(1).
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motion, denied Plaintiff’s motion, and dismissed the action with
prejudice by order entered on 20 September 2013. Plaintiff
received actual notice of the dismissal order by email on 25
September 20133 and filed a notice of appeal on 25 October 2013.
Discussion
On appeal, Plaintiff argues that the trial court erred by
(1) granting Defendant’s motion for summary judgment and (2)
denying Plaintiff’s motion for summary judgment. Plaintiff
contends that the Notice of Filing of Foreign Judgment filed on
6 December 2002 acted as a new North Carolina judgment, and
therefore Plaintiff was within the ten-year statute of
limitations when he instituted the new action in December 2012.
Thus, Plaintiff argues that he was entitled to judgment as a
matter of law. Similarly, Plaintiff argues that Defendant’s
motion for summary judgment failed to show that there was no
genuine issue of material fact as to whether Plaintiff was
entitled to maintain his 2012 action. Because Plaintiff’s appeal
is untimely, we dismiss.
3
The record does not contain a copy of the email and does not
reflect who sent the email to Plaintiff. Plaintiff states in his
notice of appeal that the order was “served on counsel for the
Plaintiff via email” on 25 September 2013.
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In civil actions, the notice of appeal must be filed
“within thirty days after entry of the judgment if the party has
been served with a copy of the judgment within the three day
period” following entry of the judgment. N.C.R. App. P. 3(c)(1)
(2013); N.C. Gen. Stat. § 1A-1, Rule 58 (2013). The three day
period excludes weekends and court holidays. N.C. Gen. Stat. §
1A-1, Rule 6(a) (2013). Email is not a valid method of service
under the North Carolina Rules of Civil Procedure. N.C. Gen
Stat. § 1A-1, Rule 4 (2013). However, when a party receives
actual notice that a judgment has been entered, the service
requirements of Rule 3(c) are not applicable, and actual notice
substitutes for proper service. Manone v. Coffee, N.C. App.
, , 720 S.E.2d 781, 784 (2011). Failure to file a timely
notice of appeal is a jurisdictional flaw which requires
dismissal. Id. at , 720 S.E.2d at 782.
The order from which Plaintiff attempts to appeal was
entered on 20 September 2013, a Friday. Plaintiff acknowledges
in his notice of appeal that he received actual notice of the
order by email on 25 September 2013, the following Wednesday.
Plaintiff received actual notice within three days of entry of
the order, excluding the intervening Saturday and Sunday.
Therefore, to be timely, the Rules of Appellate Procedure
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required Plaintiff to file his notice of appeal within 30 days
of entry of the order. In other words, Plaintiff needed to file
his notice of appeal on or before 21 October 2013. Because
Plaintiff did not file his notice of appeal until 25 October
2013, the appeal is not timely and this court lacks
jurisdiction. Accordingly, we dismiss.
DISMISSED.
Judges STROUD and MCCULLOUGH concur.