Anuforo v. Dennie , 119 N.C. App. 359 ( 1995 )

Judge Greene

dissenting.

I believe the order of the trial court denying plaintiff’s Rule 60 motion to set aside the order dismissing her appeal should be affirmed. Accordingly, I dissent.

Rule 7 requires that the appellant, within ten days after filing the notice of appeal, enter into a written contract with the court reporter for production of the transcript. Although the requirement that there be a written contract suggests that there must be more than a simple request from the appellant to the court reporter to satisfy Rule 7, because the court reporter has an affirmative obligation to prepare the transcript upon request, the contract arises upon a written request. I therefore agree with the majority that the letter from plaintiff to the court reporter is a contract within the meaning of Rule 7. Thus, because the contract was entered into on 26 October 1993, plaintiff, as the appellant, had the obligation to have the transcript produced by the court reporter within sixty days after 26 October 1993 or obtain an extension of time in which to do so from the trial court or the appellate court. N.C. R. App. R 7(b)(1).

In this case, the transcript was produced more than sixty days after plaintiff’s request for the transcript, and neither the court reporter nor plaintiff nor her attorney requested an extension of time in which to produce and deliver the transcript under Rule 7(b)(1). Therefore, the appeal was subject to dismissal, N.C. R. App. P. 25(a), and the record does not reveal that the trial court abused its discretion in denying plaintiff’s Rule 60 motion to set aside the earlier dismissal. See Sink v. Easter, 288 N.C. 183, 200, 217 S.E.2d 532, 543 (1975) (motion for relief under 60(b) is addressed to sound discretion of trial court, and appellate review is limited to determining whether court abused its discretion).

Whether plaintiffs noncompliance with the sixty-day requirement amounts to “excusable neglect” is not an issue before this Court because it was not asserted before the trial court as a ground for the motion. N.C.G.S. § 1A-1, Rule 7(b)(1) (1990) (motion “shall state the grounds therefor”). The only ground asserted for the Rule 60 motion was that the plaintiff did not receive notice of the hearing of the defendant’s motion to dismiss the appeal. The trial court did not address this issue in its order denying the Rule 60 motion and the plaintiff does not argue this issue on appeal. In any event, a finding of “excusable neglect” is not alone sufficient to support an order striking the order of dismissal, as plaintiff must also show that her appeal from the underlying jury verdict has merit. See In the Matter of Oxford Plastics v. Goodson, 74 N.C. App. 256, 258, 328 S.E.2d 7, 9 (1985). This she has failed to do.

Finally, I do not accept that affirming the order of the trial court in this case would permit a court reporter to “determine the rights of [the] litigants to appellate review.” Rule 7(b)(1) is specific in granting the plaintiff the right to request an extension of time for production of the transcript. In this case, plaintiff neither requested an extension nor argued that her failure to so request was excusable. Thus, the plaintiffs rights to appellate review were not determined or controlled by the reporter’s failure to timely submit the transcript.