{
  "id": 11916665,
  "name": "RIVERVIEW MOBILE HOME PARK, Plaintiff/Appellant v. ANNIE RUTH BRADSHAW and OCCUPANTS, Defendants/Appellees",
  "name_abbreviation": "Riverview Mobile Home Park v. Bradshaw",
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    "judges": [
      "Judges EAGLES and JOHN concur."
    ],
    "parties": [
      "RIVERVIEW MOBILE HOME PARK, Plaintiff/Appellant v. ANNIE RUTH BRADSHAW and OCCUPANTS, Defendants/Appellees"
    ],
    "opinions": [
      {
        "text": "McGEE, Judge.\nOn 2 February 1994 plaintiff filed a complaint in summary ejectment seeking the eviction of defendants based on the allegation that they had failed to pay rent. Defendants filed an answer and counterclaims in which they contended the eviction was retaliatory and plaintiff practiced unfair and deceptive trade practices. A hearing on the matter was held on 14 February 1994 in Wake County Small Claims Court. Following the hearing, the magistrate issued a judgment dismissing plaintiff\u2019s summary ejectment action as being a retaliatory eviction, and awarded defendants $3,000.00 in actual damages and $1,530.00 in attorney\u2019s fees.\nOn 24 February 1994 plaintiff gave notice of appeal to the District Court of Wake County. In so doing, plaintiff failed to pay the appeals fee as required by N.C. Gen. Stat. \u00a7 7A-228 (b) (1989). Accordingly, the appeal was automatically dismissed for failure to perfect the appeal. On or about 30 March 1994 plaintiff filed a motion in Wake County Small Claims Court seeking an order setting aside the entry of judgment pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (1990), on the grounds of surprise. In the alternative, plaintiff sought an order allowing an extension of time within which to perfect the appeal pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 6(b) (1990). In support of this motion, plaintiff cited Porter v. Cahill, 1 N.C. App. 579, 162 S.E.2d 128 (1968) wherein this Court held that notice of appeal from a small claims court was sufficient to perfect the appeal, and the appeal could not be dismissed for failure of the Clerk to perform his duty to collect fees. The magistrate denied plaintiffs motion pursuant to Rule 60(b), but granted plaintiffs motion for an extension of time within which to perfect the appeal, apparently relying on this Court\u2019s holding in Cahill.\nDefendants filed a motion in Wake County District Court seeking to dismiss the appeal for failure to perfect within the time permitted by statute. By order dated 9 August 1994, the trial court dismissed the appeal, finding that the magistrate was without the authority to grant an extension of time to pay the appeals fee, therefore the appeal was not timely perfected. Plaintiff appeals the order dismissing the appeal.\nThe two issues raised on appeal are (1) whether the trial court erred in determining that the magistrate lacked the authority to extend the time in which to perfect the appeal; and (2) if so, whether plaintiff demonstrated excusable neglect sufficient to warrant the extension of time.\nG.S. \u00a7 1A-1, Rule 6(b) provides the following:\n(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect.\nThe trial court\u2019s discretionary authority to extend the time specified for doing any act contained in Rule 6(b) has been held to address \u201cthe computation of any time period prescribed by the Rules of Civil Procedure.\u201d Lemons v. Old Hickory Council, 322 N.C. 271, 275, 367 S.E.2d 655, 657, reh\u2019g denied, 322 N.C. 610, 370 S.E.2d 247 (1988). See also, Osborne v. Walton, 110 N.C. App. 850, 431 S.E.2d 496 (1993). However, in the instant case the time limitation is not contained in the Rules of Civil Procedure, but is found in G.S. \u00a7 7A-228. Accordingly, the magistrate did not have the authority under Rule 6(b) to extend the time for plaintiff to pay the filing fees, and the trial court did not err in so ruling.\nEven had the authority for enlargement in Rule 6(b) been properly applied, an extension of time allowed subsequent to the expiration of the specified period for action requires a showing of excusable neglect. G.S. \u00a7 1A-1, Rule 6(b). Plaintiff contends that its failure to pay the filing fees should be excused because counsel relied upon the statement of an anonymous Assistant Clerk of Court that no fee was required, and when the notice of appeal was filed with the Wake County Clerk\u2019s Office, no fee was assessed. This argument was recently addressed by this Court in Principal Mut. Life Ins. Co. v. Burnup & Sims, Inc., 114 N.C. App. 494, 442 S.E.2d 85 (1994). In Principal, the defendant attempting to appeal the decision of a magistrate to the district court failed to pay the filing fees required under G.S. \u00a7 7A-228. On appeal, the defendant argued that the failure should be excused because the clerk of superior court failed to collect the court costs. This Court held that it is the responsibility of the appellant to perfect his appeal, including ascertaining and paying the costs of the appeal. The clerk of superior court has no duty to perfect an appellant\u2019s appeal. Principal, 114 at 496-97, 442 S.E.2d at 86.\nThe argument raised in the current appeal must fail for the same reason. The statute is clear and unambiguous in requiring the fees to be paid within twenty days of giving notice of appeal. The failure of the clerk of superior court to collect those fees does not operate to excuse the appellant for failing to ascertain the requirement and fulfilling it. Because there is no basis for finding excusable neglect for the failure to perfect the appeal, an extension of time granted on that ground must be overruled. Accordingly, we find no error by the trial court in its ruling.\nFor these reasons, we affirm the order of the trial court dismissing the appeal.\nAffirmed.\nJudges EAGLES and JOHN concur.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Hunter Law Firm, by R. Christopher Hunter and Elizabeth K. Blake, for plaintiff-appellant.",
      "Womble Carlyle Sandridge & Rice, a Professional Limited Liability Company, by Mark A. Davis, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "RIVERVIEW MOBILE HOME PARK, Plaintiff/Appellant v. ANNIE RUTH BRADSHAW and OCCUPANTS, Defendants/Appellees\nNo. COA94-1313\n(Filed 18 July 1995)\n1. Appeal and Error \u00a7 14 (NCI4th)\u2014 extension of time to pay filing fees \u2014 no authority of magistrate\nThe magistrate did not have authority under N.C.G.S. \u00a7 1A-1, Rule 6(b) to extend the time for plaintiff to pay filing fees for an appeal from a small claims court to the district court since the time limitation at issue was found in N.C.G.S. \u00a7 7A-228 rather than in the Rules of Civil Procedure.\nAm Jur 2d, Appellate Review \u00a7\u00a7 347, 348.\n2. Appeal and Error \u00a7 230 (NCI4th)\u2014 filing fee for appeal\u2014 failure of clerk to collect \u2014 appellant not excused\nFailure of the clerk of district court to collect those fees required by N.C.G.S. \u00a7 7A-228 for filing an appeal from small claims court does not operate to excuse appellant for failing to ascertain the requirement and fulfilling it.\nAm Jur 2d, Justices of the Peace \u00a7\u00a7 2,3.\nAppeal by plaintiff from order entered 9 August 1994 by Judge L. W. Payne in Wake County District Court. Heard in the Court of Appeals 12 June 1995.\nHunter Law Firm, by R. Christopher Hunter and Elizabeth K. Blake, for plaintiff-appellant.\nWomble Carlyle Sandridge & Rice, a Professional Limited Liability Company, by Mark A. Davis, for defendant-appellees."
  },
  "file_name": "0585-01",
  "first_page_order": 619,
  "last_page_order": 622
}
