Sartori v County of Jackson, et al
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in acco rdance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-1398 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 ROBERT ALLEN SARTORI, Plaintiff, v. Jackson County No. 10 CVS 266 COUNTY OF JACKSON, ET AL (JCJ); DOCTOR STEVEN P. DEWEESE; NURSE, CATHY BARNES, Defendants. Appeal by plaintiff from order entered 7 July 2011 by Judge Bradley B. Letts in Jackson County Superior Court. Heard in the Court of Appeals 6 August 2012. Robert Allen Sartori, pro se, for plaintiff-appellant. No brief, for defendants-appellees. MARTIN, Chief Judge. Plaintiff Robert Allen Sartori appeals from the trial court s order dismissing his claim for medical malpractice and failure to provide medical treatment. Since plaintiff failed to provide proof that he gave notice of appeal as required by the North Carolina Rules of Appellate Procedure, we must dismiss the appeal. -2Although more detailed background facts may be found in this Court s prior opinion in Sartori v. County of Jackson, __ N.C. App. __, 714 S.E.2d 210 (2011) (unpublished), the basic facts are as follows. serving a sentence It appears that plaintiff is currently in Department of Correction. the custody of the North Carolina On 15 April 2010, he petitioned the Jackson County Superior Court for leave to file a complaint against Jackson County, Dr. Steven P. Deweese, and Nurse Cathy Barnes ( defendants ) malpractice. The trial alleging court negligence entered an and order medical dismissing plaintiff s complaint pursuant to Rule 9(j) of the Rules of Civil Procedure. Plaintiff filed a motion for relief from the court s order; the trial court denied the motion on 2 July 2010. Plaintiff appealed, and this Court issued an opinion on 5 July 2011 vacating the trial court s order and remanding this case to the trial court with directions to the trial court to conduct a frivolity review pursuant to N.C. Gen. Stat. ยง 1110(b) (2011). On 7 July 2011, the trial court entered an order again dismissing plaintiff s complaint. to this Court. Plaintiff attempts to appeal -3Plaintiff raises several substantive claims challenging the trial court s ruling. However, as an initial matter, we note that the record is devoid of any indication that plaintiff gave proper and timely notice of appeal, which is required to invoke this Court s jurisdiction. Pursuant to the Rules of Appellate Procedure, a party in a civil case may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the proper time period. 3(a). to N.C.R. App. P. The provisions of Rule 3 are jurisdictional, and failure follow appeal. the requirements thereof requires dismissal of an Abels v. Renfro Corp., 126 N.C. App. 800, 802, 486 S.E.2d 735, 737 (citation omitted), disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997). Although the record contains a notice of appeal, the notice is neither dated nor file-stamped, nor is it accompanied by a certificate of service showing proof of service on the other parties. Since the record does not establish that plaintiff properly and timely gave notice of appeal from the trial court s order, this Court has no jurisdiction over the matter, and the appeal must be dismissed. Dismissed. -4Judges STEPHENS and ERVIN concur. Report per Rule 30(e).
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