                           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
                                    -2-
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 ten-
year 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).
                                      -3-
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
                                          -5-
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.
