{ "id": 4160921, "name": "SHIRLEY HARDY LAWRENCE, Plaintiff v. SOPHIA MINDY SULLIVAN, Defendant", "name_abbreviation": "Lawrence v. Sullivan", "decision_date": "2008-09-16", "docket_number": "No. COA07-1496", "first_page": "608", "last_page": "623", "citations": [ { "type": "official", "cite": "192 N.C. App. 608" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "662 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641441 ], "weight": 9, "year": 2008, "pin_cites": [ { "page": "921" }, { "page": "921" }, { "page": "921-22" }, { "page": "921" }, { "page": "922" }, { "page": "922" }, { "page": "922" }, { "page": "922" }, { "page": "922" } ], "opinion_index": 0, "case_paths": [ "/se2d/662/0920-01" ] }, { "cite": "655 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640282 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "913", "parenthetical": "internal citations and internal quotation marks omitted" }, { "page": "913", "parenthetical": "citation and quotation marks omitted" }, { "page": "913", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/655/0911-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "365", "parenthetical": "citation omitted" }, { "page": "365-67" }, { "page": "365-67" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "586 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "796", "parenthetical": "citation omitted" }, { "page": "797", "parenthetical": "citation omitted" }, { "page": "796-97" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956790 ], "year": 2003, "pin_cites": [ { "page": "491", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0484-01" ] }, { "cite": "191 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160167 ], "year": 2008, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0394-01" ] }, { "cite": "188 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155117 ], "year": 2008, "pin_cites": [ { "page": "607", "parenthetical": "internal citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0605-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "year": 2008, "pin_cites": [ { "page": "198", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] }, { "cite": "450 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518274, 2521002, 2517452, 2520793, 2517881 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0311-01", "/nc/338/0311-04", "/nc/338/0311-05", "/nc/338/0311-02", "/nc/338/0311-03" ] }, { "cite": "446 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1994, "pin_cites": [ { "page": "609-10" }, { "page": "610" }, { "page": "610" }, { "page": "610" }, { "page": "609-10" }, { "page": "610" }, { "page": "610" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522154 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "81" }, { "page": "81" }, { "page": "79-82" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0073-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "361", "parenthetical": "noting that it is problematic to hear an appeal on issues not directly presented before the Court as it leaves an appellee \"without notice of the basis upon which an appellate court might rule.\" (citation omitted)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "year": 2005, "pin_cites": [ { "parenthetical": "noting that it is problematic to hear an appeal on issues not directly presented before the Court as it leaves an appellee \"without notice of the basis upon which an appellate court might rule.\" (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "527 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 15, "year": 2000, "pin_cites": [ { "page": "339" }, { "page": "338-39" }, { "page": "337" }, { "page": "338" }, { "page": "338-39", "parenthetical": "brackets omitted" }, { "page": "339", "parenthetical": "citation omitted" }, { "page": "338-39" }, { "page": "338-39" }, { "page": "339" }, { "page": "338-39" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092145 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0119-01" ] } ], "analysis": { "cardinality": 883, "char_count": 34552, "ocr_confidence": 0.744, "pagerank": { "raw": 8.962897130081125e-08, "percentile": 0.5021518629078375 }, "sha256": "b8c8c399c2582d559e48d627aa6c3e4102eab0c89c52b3bdd843fa97abacb206", "simhash": "1:952fdf68114da9f0", "word_count": 5687 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge CALABRIA concur." ], "parties": [ "SHIRLEY HARDY LAWRENCE, Plaintiff v. SOPHIA MINDY SULLIVAN, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiff appeals from trial court orders granting defendant\u2019s motion to dismiss plaintiff\u2019s appeal and granting defendant\u2019s motion to dismiss plaintiff\u2019s claims. The issues before this Court are whether the trial court erred in (1) granting defendant\u2019s motion to dismiss plaintiff\u2019s appeal and (2) granting defendant\u2019s motion to dismiss plaintiff\u2019s claims. For the following reasons, we vacate the trial court order dismissing plaintiff\u2019s appeal and affirm the trial court order dismissing plaintiff\u2019s claims.\nI. Background\nThis action arises out of an automobile accident which occurred on or about 16 February 2002 when defendant\u2019s vehicle hit the rear of plaintiff\u2019s vehicle. On 8 February 2005, plaintiff filed her first complaint which alleged that defendant\u2019s negligence caused the automobile accident and plaintiff\u2019s resulting personal injury. On or about 8 February 2005, a civil summons was issued addressed to defendant at \u201c10200 Jefferson Davis Hwy, Lot 52, Richmond, VA 23237[.]\u201d On or about 29 March 2005, plaintiff\u2019s attorney filed an affidavit which read in pertinent part, \u201cThe process was returned unservedf.]\u201d Attached to the affidavit was a copy of the returned receipt. The envelope was stamped, \u201cATTEMPTED NOT KNOWN[.]\u201d\nOn or about 7 April 2005, plaintiff had an alias and pluries summons issued to defendant at the same address. On 5 October 2005 at 1:51 p.m., plaintiff\u2019s attorney filed a second affidavit which asserted that the process was in fact received. Attached to the second affidavit was a return receipt signed by James Holt. On the same day, at 1:57 p.m. plaintiff filed a motion to voluntarily dismiss the action without prejudice.\nOn 29 September 2006, plaintiff re-filed her complaint alleging the same claims as in the original complaint. On 13 November 2006, defendant filed an answer, alleging several defenses. On 4 January 2007, defendant filed a motion to, dismiss plaintiff\u2019s action for \u201clack of jurisdiction over the Defendant, insufficiency of process and insufficiency'of service of process pursuant to Rules 12(b)(2), 12(b)(4) and 12(b)(5) of the North Carolina Rules of Civil Procedure[.]\u201d Defendant also filed an affidavit which read in pertinent part,\nSOPHIA MINDY SULLIVAN, after first being duly sworn, deposes and says:\n3. That James Holt signed the certified mail containing the Civil Summons and Complaint;\n4. That she did not reside at the 10200 Jefferson Davis Highway, Lot 52, Richmond VA 23237 address on May 20, 2005;\n5. That she did not receive a copy of the Civil Summons and Complaint that was signed by James Holt on May 20, 2005.\nOn 2 March 2007, the trial court granted def\u00e9ndant\u2019s motion to dismiss plaintiff\u2019s action with prejudice for \u201clack of jurisdiction over the Defendant, insufficiency of process and insufficiency of service of process pursuant to Rules 12(b)(2), 12(b)(4) and 12 (b)(5) of the North Carolina Rules of Civil Procedure, and time barred pursuant to North Carolina General Statute \u00a7 l-52(5)[.]\u201d\nOn 29 March 2007, plaintiff filed a notice of appeal from the order of dismissal. On or about 13 June 2007, defendant made a motion to dismiss plaintiff\u2019s appeal pursuant to Rules 11 and 25 of the North Carolina Rules of Appellate Procedure because\n3. Rule 11 of the North Carolina Rules of Appellate Procedure provides that an appealing party must service [sic] a proposed record on appeal on the appellee within 35 days of filing a notice of appeal. In this case, 35 days from the filing of Notice of Appeal was May 3, [2007,]\n4. As of close of business on June 13, 2007, counsel for the Defendant had not been served with the Plaintiff\u2019s proposed record on appeal. . .;\n5. Owing to the Plaintiff\u2019s failure to take any action to perfect her appeal, the Defendant respectfully requests that the Court dismiss the Plaintiff\u2019s appeal, as it is authorized to do under Appellate Rule 25.\nThe 13 June 2007 motion to dismiss was accompanied by an affidavit of defendant\u2019s attorney attesting to the facts in the motion requesting plaintiff\u2019s appeal be dismissed.\nOn 13 August 2007, plaintiff filed a response to defendant\u2019s motion to dismiss plaintiff\u2019s appeal which read in pertinent part,\n3. That Rule 7 of the North Carolina Rules of Appellate Procedure provides that in civil actions the Appellant shall within fourteen (14) [days] after filing notice of appeal arrange for transcripts and other proceeding or of such parts from the proceeding not already filed as the Appellant deems necessary. Pursuant to Rule 7 of the North Carolina Rules of Appellate Procedure the Plaintiff-Appellant in compliance with Rule 14 attempted to arrange for the transcription of the hearing that was held on February 27, 2007 before the Henry W. Hight, Jr.; in support thereof shows as follows, attachments hereto:\na. On April 10, 2007, the attorney for the Plaintiff in compliance with the Rule tried to make arrangements for transcription of the hearing on the Defendant\u2019s Motion to Dismiss the Plaintiff\u2019s claim for February 27, 2007; (attachment A and B-l)\nb. On April 10, 2007, the undersigned counsel for the Plaintiff was provided the email address of the Court Reporter, Kim Horstman at khorstman@nc.rr.com, sent a email requesting in a letter to make arrangements for transcription of the hearing; (attachment B)\nc. On April 23, 2007,1 contacted the Clerk\u2019s Office and spoke with Cathy Shuart in reference to attempting to make arrangements for the transcript of the hearing; (attachment D)\nd. On April 24, 2007, Cathy Shuart, Trial Court Administrator of Durham County emailed Kim Horstman advising her of my attempts to make arrangement with her regarding the transcription and asking her to respond; (attachment D)\ne. On April 24, 2007, the Court Reporter, Kim Horstman emailed Cathy Shuart, Trial Court Administrator that she was in receipt of my transcript request and that she would be contacting me separately to make arrangements; (attachment E)\nf. On April 29, 2007, I again contacted the Trial Court Administrator, Cathy Shuart informing her that I had not heard from Kim Horstman, Court Reporter regarding the transcript request; (attachment F)\ng. On April 30, 2007, Cathy Shuart, Trial Court Administrator emailed Kim Horstman informing her of my attempts to contact her and asking her was there a problem, (attachment G)\nh. On April 30, 2007, Kim Horstman, Court Reporter by fax informed me of the fee arrangements for transcription and minimum deposit and that I needed to send her a short letter requesting such transcript with a deposit of $100.00 and she would have sixty (60) days from receipt of the request to produce the transcript and may request an extension; (attachment H)\ni. On May 1, 2007, the Plaintiffs attorney sent a letter to the Court Report[er], Kim Horstman requesting the transcript and included a check in the amount of $100.00 as per her request. I also requested that Ms. Horstman remit a contract agreement to prepare the transcript, as per Rule of Appellate Procedure, for my records; (attachment I)\nj. That the Court Reporter, Kim Horstman did not provide a written contract for the preparation of the transcript as requested in my letter.\nk. On June 21, 2007, Kim Horstman, Court Reporter emailed the undersigned counsel informing him that she would need an extension to prepare the transcript in the above referenced case; (attachment J)\n4. Rule 7(b)(1) provides in civil cases from the date of the requesting party serves written documentation of transcript arrangements on the person designated to prepare the transcription that the person shall have sixty (60) days to prepare and deliver the transcript. That the Court Reporter, Kim Horstman did not deliver the typed transcription of the hearing that was held February 12, 2007, until July 12, 2007. (attachment K)\n5. Rule 11 of the North Carolina Rules of Appellate Procedure provides sub-paragraph (a) that within thirty-five (35) days after the reporters transcription certification or delivery of the transcript, if such was ordered or thirty-five (35) [days] after the filing the notice of appeal, if [sic] not transcript was ordered the party may by agreement entered in the record on appeal and settle a proposed [record] on appeal[.]\n6. That the undersigned counsel has requested a transcription of the hearing and did so and attempted to make arrangements and did without the Court Reporter providing any written contract, paid the $100.00 deposit as per her instructions. That pursuant to Rule 11(a) that the undersigned counsel for the Plaintiff has thirty-five (35) days from the date of certification of the delivery of the transcript of the hearing, (attachment B-l; I)\n7. Based upon the Rule 11 of the North Carolina Rules of Appellate Procedure, the Plaintiffs time to prepare the proposed record on appeal did not begin to run until July 12, 2007 and the time for preparing the proposed record on appeal has not expired as the date of this responses to the Plaintiffs Motion and that said thirty-five (35) days does not expire [sic] August 16, 2007, which would be thirty-five (35) days from the date of certification of the delivery of the transcript by the official court reporter, Kim Horstman.\n8. Therefore, the Plaintiff has not failed to perfect the appeal and the time for perfecting the appeal has not expired and therefore the Court should dismiss the Defendant\u2019s Motion requesting the court to dismiss the Plaintiff\u2019s Appeal.\nAttached to plaintiff\u2019s response to defendant\u2019s motion to dismiss plaintiff\u2019s appeal were several documents including letters and emails that substantiated the facts asserted in plaintiff\u2019s response.\nOn 20 August 2007, the trial court granted defendant\u2019s motion to dismiss plaintiff\u2019s appeal because plaintiff\nfail[ed] to arrange for the transcription of the proceedings, and fail[ed] to have the transcript produced within sixty (60) days following documentation of the transcript arrangement pursuant to Rule 7 of the North Carolina Rules of Appellate Procedure, and subsequently fail[ed] to seek an extension of time in which to produce this transcript.\nPlaintiff appeals.\nII. Dismissal of Appeal\nPlaintiff argues\nthe trial court committed reversible error when it granted the defendant\u2019s motion to dismiss plaintiff\u2019s appeal based on alleged violation of Appellate Rules 7, and 11 of the North Carolina Rule of Appeal Procedures [sic] even though plaintiff\u2019s counsel substantially complied with the appellate rules by attempting to make arrangements for the transcription of the proceedings.\nA motion to dismiss an appeal is a matter within the discretion of the trial court. Harvey v. Stokes, 137 N.C. App. 119, 124, 527 S.E.2d 336, 339 (2000). \u201cIt is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion.\u201d White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citation omitted).\nA. North Carolina Rule of Appellate Procedure 7 \u2014 Grounds Upon which Defendant\u2019s Motion to Dismiss Was Granted\nIn this case, the trial court granted defendant\u2019s motion to dismiss plaintiff\u2019s appeal because plaintiff\nfail[ed] to arrange for the transcription of the proceedings, and failfed] to have the transcript produced within sixty (60) days following documentation of the transcript arrangement pursuant to Rule 7 of the North Carolina Rules of Appellate Procedure, and subsequently fail[ed] to seek an extension of time in which to produce this transcript.\nHowever, these grounds were not presented to the trial court in defendant\u2019s motion to dismiss plaintiff\u2019s appeal; defendant instead based her motion on Rule 11 of the North Carolina Rules of Appellate Procedure, regarding the time in which to file the record on appeal. See Viar v. N.C. Dep\u2019t. of Transp., 359 N.C. 400, 402 610 S.E.2d 360, 361 (2005) (noting that it is problematic to hear an appeal on issues not directly presented before the Court as it leaves an appellee \u201cwithout notice of the basis upon which an appellate court might rule.\u201d (citation omitted)). Furthermore, the grounds upon which the trial court dismissed plaintiff\u2019s appeal are contrary to existing law. See Harvey at 123, 527 S.E.2d at 338-39; Lockert v. Lockert, 116 N.C. App. 73, 81, 446 S.E.2d 606, 609-10, disc. review allowed in part and denied in part, 338 N.C. 311, 450 S.E.2d 487 (1994).\nRule 7 of the North Carolina Rules of Appellate Procedure reads in pertinent part,\n(a) Ordering the transcript.\n(1) Civil cases. Within 14 days after filing the notice of appeal the appellant shall arrange for the transcription of the proceedings or of such parts of the proceedings not already on file, as the appellant deems necessary, in accordance with these rules, and shall provide the following information in writing: a designation of the parts of the proceedings to be transcribed; the name and address of the court reporter or other neutral person designated to prepare the transcript; and, where portions of the proceedings have been designated to be transcribed, a statement of the issues the appellant intends to raise on appeal. The appellant shall file the written documentation of this transcript arrangement with the clerk of the trial tribunal, and serve a copy of it upon all other parties of record, and upon the person designated to prepare the transcript. If the appellant intends to urge on appeal that a finding or conclusion of the trial court is unsupported by the evidence or is contrary to the evidence, the appellant shall file with the record on appeal a transcript of all evidence relevant to such finding or conclusion.\n(b) Production and delivery of transcript. \u2022\n(1) In civil cases: from the date the requesting party serves the written documentation of the transcript- arrangement on the person designated to prepare the transcript, that person shall have 60 days to prepare and deliver the transcript. . . .\nThe transcript format shall comply with Appendix B of these Rules. Except in capitally tried criminal cases which result in the imposition of a sentence of death, (t)he trial tribunal, in its discretion, and for good cause shown by the appellant may extend the time to produce the transcript for an additional 30 days. Any subsequent motions for additional time required to produce the transcript may' only be made to the appellate court to which appeal has been taken. . . .\n(2) The court reporter, or person designated to prepare the transcript, shall deliver the completed transcript to the parties, as ordered, within the time provided by this rule, unless an extension of time has been granted under Rule 7(b)(1) or Rule 27(c). The court reporter or transcriptionist shall certify to the clerk of the trial tribunal that the parties\u2019 copies have been so delivered, and shall send a copy of such certification to the appellate court to which the appeal is taken. The appealing party shall retain custody of the original transcript and shall transmit the original transcript to the appellate court upon settlement of the record on appeal.\nN.C.R. App. P. 7(a)(1), (b)(l)-(2).\nIn Harvey, the plaintiff \u201crequested in writing that the court reporter furnish him a copy of the trial transcript.\u201d Harvey at 120, 527 S.E.2d at 337. The court reporter mailed the trial transcript to the plaintiff almost six full months after the written request had been made. See id. Defendant made a motion to dismiss plaintiffs appeal, which the trial court denied \u201cfinding good cause to excuse plaintiffs failure to move for an extension of time and good cause for the court reporter\u2019s failure to deliver the transcript in a timely fashion.\u201d Id. Defendant appealed. Id. The Court in Harvey noted,\nThere is no explanation of the reporter\u2019s delay in the record. Plaintiff did not seek an extension of time from either the trial court or from this Court, and the record does not contain reasons for his failure to do so.\nSee id. at 122, 527 S.E.2d at 338.\nThough not necessary to resolve the merits of the case, this Court addressed the defendant\u2019s appeal on the merits\nbecause it presents a recurring question of concern to the appellate bar of this state: what action, if any, must an appellant take to preserve the right of appeal when the court reporter does not transmit a copy of the trial transcript within the time mandated by the appellate rules?\nId.\nIn resolving the issue this Court quoted Lockert v. Lockert which determined that\n[i]f the court reporter fails to certify that the transcript has been delivered within the sixty-day period permitted by Appellate Rule 7(b), the thirty-five day period within which an appellant must serve the proposed record on appeal does not begin to run until the court reporter does certify delivery of the transcript. To hold otherwise would allow a delay by a court reporter, whether with or without good excuse, to determine the rights of litigants to appellate review. In this case, we hold that since Ms. Rorie[,] the court reporter[,] had not certified delivery of her portion of the transcript prior to the hearing on plaintiff\u2019s motion to dismiss the appeal, the defendant\u2019s thirty[-]five day period to serve the record on appeal never began to run, and the trial court erred when it concluded that the defendant\u2019s time for serving his proposed record oh appeal, and time for filing and docketing the record on appeal with this Court, had expired.\nSee id. at 123, 527 S.E.2d at 338-39 (brackets omitted) (quoting Lockert v. Lockert, 116 N.C. App. 73, 81, 446 S.E.2d 606, 610 (1994)).\n\u201cBoth this Court and our Supreme Court have stated that the Rules of Appellate Procedure are \u2018mandatory\u2019 and that failure to take timely action as required by the Rules may subject an appeal to dismissal.\u201d See id. at 123, 527 S.E.2d at 339 (citation omitted). However, the North Carolina Supreme Court has also recently stressed that a party\u2019s failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal. Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008) (citation omitted). Thus, only in cases of the most egregious violations of nonjurisdictional rules will dismissal of the appeal be appropriate. Id. at 198-201, 657 S.E.2d at 365-67.\nIn the present case, plaintiff\u2019s attorney appears to have failed to \u201cfile the written documentation of this transcript arrangement with the clerk of the trial tribunal, and serve a copy of it upon all other parties of record[.]\u201d See N.C.R. App. P. 7(a)(1). The record also contains no explanation of the court reporter\u2019s delay in producing the transcript. Plaintiff did not seek an extension of time from either the trial court or from this Court, and the record does not contain reasons for his failure to do so. However, we do not deem these nonjurisdictional failures on the part of plaintiff to be so egregious that they warrant dismissal of plaintiff\u2019s appeal, particularly in light of Harvey. See Dogwood Dev. & Mgmt. Co., LLC at 198-201, 657 S.E.2d at 365-67; Harvey v. Stokes, 137 N.C. App. 119, 527 S.E.2d 336. Therefore, we turn to the plain language of Lockert,\n[I]f the court reporter fails to certify that the transcript has been delivered within the sixty-day period permitted by Appellate Rule 7(b), the thirty-five day period within which an appellant must serve the proposed record on appeal does not begin to run until the court reporter does certify delivery of the transcript.\nSee Lockert at 81, 446 S.E.2d at 610. We therefore conclude that though the plaintiff failed in some respects to abide by the North Carolina Rules of Appellate Procedure, the trial court did abuse its discretion in granting defendant\u2019s motion to dismiss because (1) there is no evidence in the record to support that plaintiff altogether \u201cfailed to arrange for the transcription of the proceedings!)]\u201d (2) there is no evidence that the \u201cfail[ure] to have the transcript produced within sixty (60) days\u201d was the fault of the plaintiff and pursuant to Harvey and Loekert the court reporter\u2019s failures cannot automatically be attributed to the plaintiff, see Harvey at 123, 527 S.E.2d at 338-39; Loekert at 81, 446 S.E.2d at 610, and (3) \u201cfailing] to seek an extension of time in which to produce [the] transcript\u201d is not a valid reason to dismiss plaintiff\u2019s appeal. See Harvey at 122-23, 527 S.E.2d at 338-39; Loekert at 80-81, 446 S.E.2d at 609-10. Therefore, the trial court erred in granting defendant\u2019s motion to dismiss based upon the legal grounds stated in its own order.\nHowever, we again strongly stress to plaintiff\u2019s attorney the importance of following the appellate rules and urge him to remember that \u201cwhen a court reporter fails to deliver a transcript within the time allowed by the appellate rules, the better practice is that appellant request an extension of time from the appropriate court.\u201d See Harvey at 124, 527 S.E.2d at 339.\nB. North Carolina Rule of Appellate Procedure 11 \u2014 Grounds Upon Which Defendant\u2019s Motion to Dismiss was Based\nDefendant\u2019s 13 June 2007 motion to dismiss was actually based upon Rule 11 of the North Carolina Rules of Appellate Procedure, but under Rule 11, the trial court also could not have properly dismissed the appeal. See Harvey at 123, 527 S.E.2d at 338-39; Loekert at 81, 446 S.E.2d at 610. Defendant argued plaintiff had committed a rule violation by not \u201cserving] a proposed record on appeal on the appellee within 35 days of filing a notice of appeal\u201d pursuant to North Carolina Rule of Appellate Procedure 11. However, Loekert is clear in stating that \u201cthe thirty-five day period within which an appellant must serve the proposed record on appeal does not begin to run until the court reporter does certify delivery of the transcript.\u201d See Loekert at 81, 446 S.E.2d at 610. Plaintiff\u2019s thirty-five days within which she had to serve the proposed record on appeal did not expire until 16 August 2007 as delivery was not certified until 12 July 2007. See N.C.R. App. P. 11. Defendant filed her motion to dismiss plaintiff\u2019s appeal because \u201c[defendant had not been served with the [p]laintiff\u2019s proposed record on appeal\u201d on or about 13 June 2007, which was prior to the court reporter\u2019s certification of delivery of the transcript. Plaintiff had until 16 August 2007 to file the proposed record on appeal, so defendant\u2019s motion was untimely. As the trial court abused its discretion on the grounds upon which it granted defendant\u2019s motion to dismiss and as defendant\u2019s motion was untimely as to the requested grounds for dismissal, we vacate the trial court order dismissing plaintiff\u2019s appeal.\nIII. Dismissal of Claims\nAs we have determined that plaintiff\u2019s appeal is properly before this Court, we will examine the merits of plaintiff\u2019s original appeal regarding the trial court\u2019s dismissal of plaintiff\u2019s claims. Plaintiff argues,\nThe trial judge committed reversible error when he granted the defendant\u2019s motion to dismiss all of plaintiff\u2019s claims in an action re-filed within one year after the plaintiff had taken a voluntary dismissal in the first action after she had submitted her affidavit of service of the summons and complaint on the defendant by certified mail.\nWe disagree.\nWe review a trial court\u2019s decision to dismiss an action based on the statute of limitations de novo. Ordinarily, a dismissal predicated upon the statute of limitations is a mixed question of law and fact. But where the relevant facts are not in dispute, all that remains is the question of limitations which is a matter of law. The statute of limitations having been pled, the burden is on the plaintiff to show that his cause of action accrued within the limitations period.\nReece v. Smith, 188 N.C. App. 605, 607, 655 S.E.2d 911, 913 (2008) (internal citations and internal quotation marks omitted).\nRule 4 of the North Carolina Rules of Civil Procedure provides, in pertinent part,\n(j) Process \u2014 Manner of service to exercise personal jurisdiction. \u2014 In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manner of service of process within or without the State shall be as follows:\n(1) Natural Person. \u2014 Except as provided in subsection (2) below, upon a natural person by one of the following:\nc. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 4.\nIn Camara v. Gbarbera, plaintiffs issued an alias and pluries summons that defendant never received. Camara v. Gbarbera, 191 N.C. App. 394, 395, 662 S.E.2d 920, 921 (2008). \u201c[Plaintiffs [then] voluntarily dismissed their action against defendant without prejudice.\u201d Id. at 395, 662 S.E.2d at 921. Plaintiffs later re-filed their complaint outside of the statute of limitations, and \u201cdefendant filed a motion to dismiss for insufficiency of process, insufficiency of service of process, and because the statute of limitations had expired.\u201d Id. at 395, 662 S.E.2d at 921-22. The trial court granted defendant\u2019s motion to dismiss, and the plaintiffs appealed. Id. at 395, 662 S.E.2d at 921.\nThis Court affirmed the decision of the trial court to dismiss plaintiff\u2019s action noting that\n[t]he statute of limitations for a personal injury allegedly due to negligence is three years.... If an action is commenced within the statute of limitations, and a plaintiff voluntarily dismisses the action without prejudice, anew action on the same claim may be commenced within one year. However, a plaintiff must obtain proper service prior to dismissal in order to toll the statute of limitations for a year. In Latham, this Court held that if a voluntary dismissal is based on defective service, the voluntary dismissal does not toll the statute of limitations.\nId. at 395, 662 S.E.2d at 922. (internal citations omitted). As the plaintiffs in Camara had never properly served defendant, the statute of limitations was not tolled, and as of the re-filing of their complaint, the statute of limitations had expired. Id. at 395, 662 S.E.2d at 922.\n\u201cA showing on the face of the record of compliance with the statute providing for service of process raises a rebuttable presumption of valid service.\u201d Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 491, 586 S.E.2d 791, 796 (2003) (citation omitted) (discussing default judgments pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j2)). Further, \u201ca defendant who seeks to rebut the presumption of regular service generally must present evidence that service of process failed to accomplish its goal of providing defendant with notice of the suit.\u201d Id. at 493, 586 S.E.2d at 797 (citation omitted). However, once the defendant has pled the statute of limitations, \u201cthe burden is on the plaintiff to show that his cause of action accrued within the limitations period.\u201d Reece at 607, 655 S.E.2d at 913 (citation and quotation marks omitted).\nHere the automobile accident giving rise to this action occurred on 16 February 2002. Therefore, plaintiff had until 17 February 2005 to file her complaint. See Camara at 396, 662 S.E.2d at 922. Plaintiff\u2019s first complaint was filed before expiration of the statute of limitations, but defendant was not served with the original summons and the envelope was returned stamped, \u201cATTEMPTED NOT KNOWN[.]\u201d On 7 April 2005, plaintiff had an alias and pluries summons issued to defendant at the same address as the original summons. See N.C. Gen. Stat. \u00a7 1A-1, Rule 4(d) (\u201cWhen any defendant in a civil action is not served within the time allowed for service, the action may be continued[.]\u201d). On 5 October 2005 at 1:51 p.m., plaintiff\u2019s attorney filed an affidavit which read in pertinent part, \u201cThe process was in fact received[.]\u201d Attached to the affidavit was a return receipt signed by James Holt. This same date at 1:57 p.m., plaintiff filed a voluntary dismissal of the action without prejudice.\nOn 29 September 2006, plaintiff re-filed her complaint. On 4 January 2007, defendant filed a motion to dismiss plaintiff\u2019s action \u201cfor lack of jurisdiction over the Defendant, insufficiency of process and insufficiency of service of process pursuant to Rules 12(b)(2), 12(b)(4) and 12(b)(5) of the North Carolina Rules of Civil Procedure.\u201d Defendant\u2019s affidavit read in pertinent part,\nSOPHIA MINDY SULLIVAN, after first being duly sworn, deposes and says:\n3. That James Holt signed the certified mail containing the Civil Summons and Complaint;\n4. That she did not reside at the 10200 Jefferson Davis Highway, Lot 52, Richmond VA 23237 address on May 20, 2005;\n5. That she did not receive a copy of the Civil Summons and Complaint that was signed by James Holt on May 20, 2005.\nDefendant therefore rebutted plaintiff\u2019s presumption of valid service, and plaintiff thereafter failed to bring forth any evidence \u201cto show that [her] cause of action accrued within the limitations period.\u201d Reece at 607, 655 S.E.2d at 913 (citation and quotation marks omitted); see Granville Med. Ctr. at 491-93, 586 S.E.2d at 796-97. As defendant was never properly served with the first complaint, plaintiff\u2019s voluntary dismissal without prejudice did not toll the statute of limitations. See Camara at 397, 662 S.E.2d at 922. Plaintiff did not refile her action until 29 September 2006 and as the statute of limitations was not tolled, it had expired on 17 February 2005. See Camara at 397, 662 S.E.2d at 922. We therefore affirm the order of the trial court dismissing plaintiff\u2019s claims.\nIV. Conclusion\nFor the foregoing reasons, we vacate the order of the trial court granting defendant\u2019s motion to dismiss plaintiff\u2019s appeal and affirm the order of the trial court dismissing plaintiff\u2019s claims.\nVACATED in part; affirmed in part.\nChief Judge MARTIN and Judge CALABRIA concur.\n. In Lockert v. Lockert, a decision of this Court predating Harvey, this Court appears to afford no deference to the trial court and to use a de novo standard of review to determine whether a trial court erred in dismissing an appeal because \u201cdefendant\u2019s time to perfect his appeal had expired\u201d, see Lockert v. Lockert, 116 N.C. App. 73, 79-82, 446 S.E.2d 606, disc. review allowed in part and denied in part, 338 N.C. 311, 450 S.E.2d 487 (1994); however, we note that under either an abuse of discretion or de novo standard of review the outcome of the present case would be the same.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "William L. Davis, III, for plaintiff-appellant.", "Teague Rotenstreich Stanaland Fox & Holt, LLP by Paul A. Daniels, for defendant-appellee." ], "corrections": "", "head_matter": "SHIRLEY HARDY LAWRENCE, Plaintiff v. SOPHIA MINDY SULLIVAN, Defendant\nNo. COA07-1496\n(Filed 16 September 2008)\n1. Appeal and Error\u2014 appellate rules violations \u2014 failure to arrange for transcription of proceedings \u2014 failure to have transcript within sixty days \u2014 failure to seek extension of time\nThe trial court abused its discretion in a negligence case arising out of an automobile accident by granting defendant\u2019s motion to dismiss based on a violation of N.C. R. App. P. 7 for plaintiff\u2019s failure to arrange for the transcription of the proceedings, failure to have the transcript produced within sixty days following documentation of the transcript arrangement, and subsequent failure to seek an extension of time in which to produce the transcript, because: (1) these grounds were not presented to the trial court in defendant\u2019s motion to dismiss plaintiff\u2019s appeal, but the motion was instead based on N.C. R. App. P. 11 regarding the time for filing the record on appeal; (2) the grounds upon which the trial court dismissed plaintiff\u2019s appeal are contrary to existing law when our Supreme Court has stressed that a party\u2019s failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal and only the most egregious violations of nonjurisdictional rules will require dismissal; (3) there was no evidence in the record to support a finding that plaintiff altogether failed to arrange for the transcription of the proceeding; (4) there was no evidence that the failure to have the transcript produced within sixty days was the fault of plaintiff, and the court reporter\u2019s failures cannot automatically be attributed to plaintiff; and (5) failing to seek an extension of time in which to produce the transcript was not a valid reason to dismiss plaintiff\u2019s appeal.\n2. Appeal and Error\u2014 appellate rules violations \u2014 failure to serve proposed record on appeal within thirty-five days of filing notice of appeal\nThe trial court abused its discretion in a negligence case arising out of an automobile accident by granting defendant\u2019s motion to dismiss based on a violation of N.C. R. App. P. 11 for plaintiff\u2019s failure to serve a proposed record on appeal on appellee within thirty-five days of filing a notice of appeal, and the order is vacated, because: (1) the thirty-five day period does not begin to run until the court reporter certifies delivery of the transcript; (2) plaintiff\u2019s thirty-five days did not expire until 16 August 2007, as delivery was not certified until 12 July 2007; and (3) defendant\u2019s motion was untimely as to the' requested grounds for dismissal since it stated defendant had not been served with plaintiff\u2019s proposed record on appeal on or about 13 June 2007, which was prior to the court reporter\u2019s certification of delivery of the transcript.\n3. Statutes of Limitation and Repose\u2014 tolling \u2014 automobile accident \u2014 rebuttable presumption of valid service\nThe trial court did not err in a negligence case arising out of an automobile accident by dismissing plaintiff\u2019s claims because: (1) the pertinent automobile accident occurred on 16 February 2002, and thus plaintiff had until 17 February 2005 to file her complaint; (2) defendant rebutted plaintiff\u2019s presumption of valid service, and plaintiff thereafter failed to bring forth any evidence to show that her cause of action accrued within the limitations period; (3) plaintiff\u2019s voluntary dismissal without prejudice did not toll the statute of limitations since defendant was never properly served with the first complaint; and (4) plaintiff did not refile her action until 29 September 2006, which was after the statute of limitations expired.\nAppeal by plaintiff from orders entered on 2 March 2007 by Judge Henry W. Hight, Jr. in Superior Court, Durham County and on 20 August 2007 by Judge Orlando F. Hudson, Jr. in Superior Court, Durham County. Heard in the Court of Appeals 9 June 2008.\nWilliam L. Davis, III, for plaintiff-appellant.\nTeague Rotenstreich Stanaland Fox & Holt, LLP by Paul A. Daniels, for defendant-appellee." }, "file_name": "0608-01", "first_page_order": 636, "last_page_order": 651 }