NO. COA 14-230

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

VICTOR E. MAGAZIAN,

Plaintiff,

v. Wake County

No. 12 CVS 16912

JAMES J. CREAGH,

Defendant.

Appeal by Plaintiff from Order entered 20 September 2013 by 

Judge Paul Gessner in Wake County Superior Court. Heard in the 

Court of Appeals 4 June 2014.

Kerner Law Firm, PLLC, by Thomas W. Kerner, for Plaintiff.

Smith, Debnam, Narron, Drake, Saintsing & Myers, L.L.P., by 

Bettie Kelley Sousa, for Defendant.

STEPHENS, Judge.

Factual Background and Procedural History

This appeal arises from an action to “renew” a judgment. A 

Connecticut State court purportedly entered a judgment against 

Defendant James J. Creagh for a deficiency balance in favor of 

New Milford Savings Bank in the State of Connecticut on 11 March 
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20011. Plaintiff Victor E. Magazian claims to be a successor in 

interest to New Milford Savings Bank. Plaintiff previously 

filed a Notice of Filing of Foreign Judgment against Defendant 

in Wake County Superior Court on 6 December 2002.

On 3 December 2012, Plaintiff filed a “Complaint to Renew 

Judgment” in Wake County Superior Court.2 Defendant answered on 

6 February 2013 and filed a motion for summary judgment on 30 

August 2013. Plaintiff also filed a motion for summary judgment 

on 6 September 2013. Both summary judgment motions came on for 

hearing on 16 September 2013. The court granted Defendant’s 

 

1 We note that, although both parties refer to the previous 

judgment in their briefs, no copy of the foreign judgment was 

included in the record on appeal. Thus, we are unable to confirm 

any details of the judgment. Counsel are reminded that N.C. R. 

App. P. 9(a)(1)(j) requires the inclusion “of all other papers 

filed and statements of all other proceedings had in the trial 

court which are necessary to an understanding of all issues 

presented on appeal. . . .” N.C.R. App. P. 9(a)(1)(j) (2013). 

Thus, even had this appeal been timely, failure to include the 

foreign judgment would have prevented resolution of the issue of 

timeliness of the action to renew the judgment.

2 There is a ten-year statute of limitations on an action upon a 

judgment. N.C. Gen. Stat. § 1-47(1) (2013). Despite the language 

used in the caption of Plaintiff’s complaint, the original 

judgment may not be “renewed” for an additional ten-year period. 

However, a creditor may obtain a new judgment by instituting a 

separate action based on the original judgment within the tenyear statute of limitations period. See, e.g., Duplin County DSS 

v. Frazier, __ N.C. App. , , 751 S.E.2d 621, 625 (2013). The 

creditor will then have the applicable ten-year statute of 

limitations to enforce the new judgment. N.C. Gen. Stat. § 1-

47(1).
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motion, denied Plaintiff’s motion, and dismissed the action with 

prejudice by order entered on 20 September 2013. Plaintiff 

received actual notice of the dismissal order by email on 25 

September 20133 and filed a notice of appeal on 25 October 2013.

Discussion

On appeal, Plaintiff argues that the trial court erred by 

(1) granting Defendant’s motion for summary judgment and (2) 

denying Plaintiff’s motion for summary judgment. Plaintiff 

contends that the Notice of Filing of Foreign Judgment filed on 

6 December 2002 acted as a new North Carolina judgment, and

therefore Plaintiff was within the ten-year statute of 

limitations when he instituted the new action in December 2012.

Thus, Plaintiff argues that he was entitled to judgment as a 

matter of law. Similarly, Plaintiff argues that Defendant’s 

motion for summary judgment failed to show that there was no 

genuine issue of material fact as to whether Plaintiff was 

entitled to maintain his 2012 action. Because Plaintiff’s appeal 

is untimely, we dismiss.

 

3 The record does not contain a copy of the email and does not 

reflect who sent the email to Plaintiff. Plaintiff states in his 

notice of appeal that the order was “served on counsel for the 

Plaintiff via email” on 25 September 2013.
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In civil actions, the notice of appeal must be filed 

“within thirty days after entry of the judgment if the party has 

been served with a copy of the judgment within the three day 

period” following entry of the judgment. N.C.R. App. P. 3(c)(1)

(2013); N.C. Gen. Stat. § 1A-1, Rule 58 (2013). The three day 

period excludes weekends and court holidays. N.C. Gen. Stat. § 

1A-1, Rule 6(a) (2013). Email is not a valid method of service 

under the North Carolina Rules of Civil Procedure. N.C. Gen 

Stat. § 1A-1, Rule 4 (2013). However, when a party receives 

actual notice that a judgment has been entered, the service 

requirements of Rule 3(c) are not applicable, and actual notice 

substitutes for proper service. Manone v. Coffee, N.C. App. 

, , 720 S.E.2d 781, 784 (2011). Failure to file a timely 

notice of appeal is a jurisdictional flaw which requires 

dismissal. Id. at , 720 S.E.2d at 782.

The order from which Plaintiff attempts to appeal was 

entered on 20 September 2013, a Friday. Plaintiff acknowledges 

in his notice of appeal that he received actual notice of the 

order by email on 25 September 2013, the following Wednesday. 

Plaintiff received actual notice within three days of entry of 

the order, excluding the intervening Saturday and Sunday. 

Therefore, to be timely, the Rules of Appellate Procedure 
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required Plaintiff to file his notice of appeal within 30 days 

of entry of the order. In other words, Plaintiff needed to file 

his notice of appeal on or before 21 October 2013. Because 

Plaintiff did not file his notice of appeal until 25 October 

2013, the appeal is not timely and this court lacks 

jurisdiction. Accordingly, we dismiss.

DISMISSED.

Judges STROUD and MCCULLOUGH concur.