Zloop, Inc. v. Parker Poe Adams & Bernstein, LLP

2018 NCBC 39

Opinion

Zloop, Inc. v. Parker Poe Adams & Bernstein, LLP, 2018 NCBC 39.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF MECKLENBURG 17 CVS 5480

ZLOOP, INC.,

Plaintiff,

v. ORDER & OPINION ON MOTION TO DISMISS APPEAL AND MOTION FOR PARKER POE ADAMS & BERNSTEIN, LEAVE TO FILE AMENDED NOTICE LLP; ALBA-JUSTINA SECRIST a/k/a OF APPEAL A-J SECRIST, and R. DOUGLAS HARMON,

Defendants.

1. THIS MATTER is before the Court on Defendants Parker Poe Adams &

Bernstein, LLP, Alba-Justina Secrist, and R. Douglas Harmon’s Motion to Dismiss

Appeal and on Plaintiff Zloop, Inc.’s Motion for Leave to File Amended Notice of

Appeal (collectively, the “Motions”). For the reasons discussed below, the Court

GRANTS the Motion to Dismiss Appeal and DENIES the Motion for Leave to File

Amended Notice of Appeal.

Rossabi Reardon Klein Spivey PLLC, by Gavin J. Reardon, for Plaintiff Zloop, Inc.

Robinson, Bradshaw & Hinson, P.A., by Robert W. Fuller, for Defendants Parker Poe Adams & Bernstein, LLP, Alba-Justina Secrist a/k/a A-J Secrist, and R. Douglas Harmon.

Gale, Chief Judge.

2. On February 16, 2018, this Court entered its Order & Opinion granting

Defendants’ Motion for Judgment on the Pleadings (“Judgment”), which was served

electronically on the parties that same day. A written copy of the Judgment was received and filed by the Clerk of the Mecklenburg County Superior Court on

February 20, 2018. On February 21, 2018, Defendants certified service of the

Judgment on Plaintiff’s counsel.

3. There is no dispute that Plaintiff filed its notice of appeal (“Notice”) less

than thirty days from when the Judgment was filed and served, which reads in full

as follows:

TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:

Plaintiff Zloop, Inc. hereby gives notice of appeal to the North Carolina Court of Appeals from all rulings contained in the “Order & Opinion on Defendants’ Motion for Judgment on the Pleadings Pursuant to N.C.R.P. 12(c)” of the Honorable James L. Gale, Chief Business Court Judge, filed in this action on February 16, 2018, as ECF No. 55, which granted Defendants’ motion for judgment on the pleadings and dismissed all claims of the Amended Complaint with prejudice.

This 2nd day of March, 2018.

(Pl’s. Notice of Appeal, ECF No. 57.)

4. Plaintiff electronically filed the Notice on March 2, 2018, filed the Notice

of Appeal with the Clerk of Mecklenburg County Superior Court on March 5, 2018,

and has since timely served a proposed record on appeal, to which Defendants’

response is not yet due.

5. Section 7A-27 of the North Carolina General Statutes requires any

appeal from this Court to be taken to the Supreme Court of North Carolina. N.C.

Gen. Stat. § 7A-27(a) (2015).

6. On March 26, 2018, Defendants moved pursuant to Rule 25(a) of the

Rules of Appellate Procedure to dismiss the appeal, contending that the Notice fails to comply with Rule 3(d) of the Rules of Appellate Procedure because it does not

properly designate the Supreme Court of North Carolina as the appellate court to

which the appeal must be taken, and that the time for filing a proper notice of appeal

had expired.

7. Defendants addressed their Motion to Dismiss Appeal to this Court

pursuant to Appellate Rule 25(a) because the record on appeal has not been finalized

and filed in the appellate court. See Carter v. Clements Walker PLLC, 08 CVS 4333,

2014 NCBC LEXIS 12, at *6–10 (N.C. Super. Ct. Apr. 30, 2014) (discussing Rule 25

and concluding that “when an appeal has not yet been docketed with the appellate

court, the trial court retains jurisdiction over the case” to determine whether the

notice of appeal was properly filed); Ehrenhaus v. Baker, 08 CVS 22632, 2014 NCBC

LEXIS 30, at *3–4, (N.C. Super. Ct. July 16, 2014) (quoting N.C. R. App. P. 25(a))

(stating that Appellate Rule 25 “permits the trial court, upon motion of a party and

prior to the filing of an appeal in the appellate court, to dismiss an appeal if the

appellant ‘fail[s] . . . to take any action required to present the appeal for decision’”).

8. On April 5, 2018, Plaintiff requested leave from this Court to file an

amended notice of appeal, supported by counsel’s affidavit and a supporting

memorandum.

9. As directed by the Court, both parties submitted additional memoranda

addressing the Motions on April 18, 2018.

10. The Court conducted a hearing on the Motions on April 25, 2018, at which

counsel for both parties presented argument and submitted additional authorities. 11. The Notice does not comply with Rule 3(d) of the Rules of Appellate

Procedure because it specifies that appeal is being taken to the North Carolina Court

of Appeals, which does not have jurisdiction over final orders in cases designated to

this Court on or after October 1, 2014. Christenbury Eye Center, P.A. v. Medflow,

Inc., 783 S.E.2d 264, 266 (N.C. App. 2016), aff’d 802 S.E.2d 888 (N.C. 2017).

12. The Supreme Court of North Carolina has held that “the provisions of

Rule 3 are jurisdictional.” Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322

(2000). Nevertheless, multiple opinions of the North Carolina Court of Appeals

suggest, at least implicitly, that appellate courts may have discretionary authority to

allow an appeal to proceed notwithstanding a notice of appeal’s noncompliance with

Rule 3. See, e.g., Phelps Staffing, LLC v. S.C. Phelps, Inc., 217 N.C. App. 403, 410,

720 S.E.2d 785, 791 (2011). It is also clear that the Court of Appeals has not always

exercised any such discretion to salvage an appeal in the face of a notice that fails to

comply with Rule 3. See, e.g., Guilford Cty. Dep’t of Emergency Servs. v. Seaboard

Chem. Corp., 114 N.C. App. 1, 9, 441 S.E.2d 177, 181 (1994).

13. This Court has previously held that the trial court is not vested with such

discretion and is required to strictly construe Rule 3. See Carter, 2014 NCBC LEXIS

12, at *18.

14. Although the Court acknowledges that its Judgment addressed

significant issues that would present matters of first impression before the Supreme

Court of North Carolina, and that both parties were aware that any appeal from the

Judgment would be before the Supreme Court, the Court concludes that it does not have authority to excuse the Notice’s failure to comply with Rule 3. Having found

that Plaintiff has not met the requirements of Rule 3, the Court concludes that it does

not have jurisdiction to allow an amended notice of appeal.

15. Accordingly, the Court:

a. GRANTS Defendants’ Motion to Dismiss Appeal and DISMISSES

the appeal; and

b. DENIES Plaintiff’s Motion for Leave to File Amended Notice of

Appeal.

SO ORDERED, this the 30th day of April, 2018.

/s/ James L. Gale l James L. Gale Chief Business Court Judge