NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 16 August Appeal by defendant from order entered 15 July 2010 by

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 16 August 2011 CHRIS and VONDA PENICK d/b/a INVISIBLE FENCE OF THE HIGH COUNTRY, LLC. Plaintiffs, v. Watauga County No. 10 CVD 313 GO POSTAL IN BOONE, INC., Defendant. Appeal by defendant from order entered 15 July 2010 by Judge William Leavell in Watauga County District Court. Heard in the Court of Appeals 27 April Bruce L. Kaplan for defendant-appellant. James T. Rusher, P.A., for plaintiff-appellees. BRYANT, Judge. One who is no longer a party to an action cannot appeal the judgment of the lower tribunal. Where the trial court properly grants a motion to dismiss the appeal of the magistrate s order, and no request is made for findings of fact, there can be no error for failure of the trial court to enter findings of fact. We affirm the trial court order dismissing defendant s appeal.

2 -2- On 19 January 2010, the Watauga County Magistrates Court issued a summons for a small claims action against defendant Kenneth R. Gottfried, individually, and Kenneth R. Gottfried d/b/a Go Postal in Boone, Inc. (collectively defendants). Plaintiffs Chris and Vonda Patrick alleged that defendants owed them $3,063.74, the value of two UPS packages delivered to Go Postal in Boone, Inc. on 22 January 2009 and signed for by an employee of Go Postal but never delivered to plaintiffs. Defendants filed a motion to dismiss the claims against Kenneth Gottfried, individually, and Kenneth Gottfried d/b/a Go Postal Boone, Inc. On 2 March 2010, plaintiffs took a voluntary dismissal of the complaint against Kenneth Gottfried, individually, and requested leave to amend their complaint to remove the name Kenneth R. Gottfried, leaving Go Postal In Boone, Inc. as sole defendant. On 27 April 2010, a magistrate in the Small Claims division of Watauga County District Court entered an amended order 1 in which it found that plaintiffs proved the case by the greater weight of evidence and were to recover $3, from defendant 1 The original order, dated 26 April 2010, had the names Kenneth Gottfried and Go Postal in Boone Inc. as defendants.

3 -3- Go Postal In Boone, Inc. On 3 May 2010, Kenneth R. Gottfried appealed to Watauga County District Court. Thereafter, plaintiffs and defendants Kenneth R. Gottfried and Go Postal In Boone, Inc., were notified that their case had been selected for court-ordered arbitration. Plaintiffs filed a motion in the District Court to dismiss the appeal and to defer assignment of arbitration, alleging that Kenneth R. Gottfried had been dismissed as a defendant and the complaint amended to reflect only Go Postal In Boone, Inc., as defendant. The court allowed a continuance of the arbitration, and held a hearing on plaintiff s motion to dismiss the appeal. On 15 July 2010, following an 8 July 2010 hearing, Watauga County District Court Judge William Leavell entered an order dismissing the appeal, leaving the 27 April 2010 amended order of the magistrate as the final judgment in the matter. Defendant Go Postal In Boone, Inc., appeals. On appeal, defendants Go Postal in Boone, Inc., and Kenneth R. Gottfried contend the District Court erred in granting plaintiffs motion to dismiss defendants appeal from the magistrate s order. Defendants argue that the District Court s order fails to include the specific grounds upon which the dismissal was based, and even presuming the dismissal was

4 -4- premised on using the wrong caption in the notice of appeal, such an error does not rise to the level of error warranting dismissal. We disagree. Pursuant to North Carolina General Statutes, section 7A- 228(a), [a]fter final disposition before the magistrate, the sole remedy for an aggrieved party is appeal for trial de novo before a district court judge or a jury. N.C.G.S. ' 7A-228(a) (2009). Except as otherwise provided in this Chapter, the civil procedure provided in Chapters 1 and 1A of the General Statutes applies in the district court division of the General Court of Justice. Where there is reference in Chapters 1 and 1A of the General Statutes to the superior court, it shall be deemed to refer also to the district court in respect of causes in the district court division. N.C. Gen. Stat. ' 7A-193 (2009). Under our Rules of Civil Procedure, Rule 52, [f]indings of fact and conclusions of law are necessary on decisions of any motion or order ex mero motu only when requested by a party and as provided by Rule 41(b). N.C. Gen. Stat. ' 1A-1, Rule 52(a)(2) (2009). Rule 41(b) addresses the involuntary dismissal of an action or any claim. N.C. R. Civ. P. 41(b) (2009) ( For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim

5 -5- therein against him. ); Hill v. Lassiter, 135 N.C. App. 515, 517, 520 S.E.2d 797, 800 (1999) ( If the trial court grants a defendant's motion for involuntary dismissal [pursuant to Rule 41(b)], [the court] must make findings of fact and failure to do so constitutes reversible error. ). On 8 July 2010, the Watauga County District Court heard arguments on plaintiffs motion to dismiss defendant s appeal from the magistrate s order. Plaintiffs contended that on appeal Kenneth R. Gottfried was not an aggrieved party. On 2 March 2010, plaintiffs took a voluntary dismissal of the complaint against defendant Gottfried, individually, and the magistrate s 27 April 2010 amended judgment found that plaintiffs were entitled to recover $3, from defendant Go Postal In Boone, N.C., Inc. However, notwithstanding his dismissal from the case, Kenneth R. Gottfried individually filed notice of appeal to the District Court. On 15 July 2010, the Watauga County District Court allowed the plaintiffs motion to dismiss the appeal and asserted that the magistrate s amended judgment entered 27 August 2010 was the final judgment in the matter. The court stated no findings of fact or conclusions of law.

6 -6- We note that no party requested pursuant to Rule 52 that the District Court make findings of fact in its 15 July 2010 order dismissing the appeal, and as plaintiffs motion to dismiss was made pursuant to Rule 41(a), governing voluntary dismissals, and thereafter did not amount to a motion to involuntarily dismiss the action, Rule 41(b) was inapplicable. Therefore, the trial court did not err in failing to enter findings of fact in its 15 July 2010 order dismissing defendant s appeal. As to defendant s second contention, that Kenneth R. Gottfried s name on the notice of appeal did not rise to the level of error warranting dismissal, we disagree. The notice of appeal stated only defendant Kenneth R. Gottfried as the appealing party. On 2 March 2010, prior to the magistrate s 27 April 2010 order, plaintiffs took a voluntary dismissal of their claims against Kenneth Gottfried, individually, and requested that their complaint be amended to reflect Go Postal In Boone, Inc., as the sole defendant. As Kenneth R. Gottfried was no longer a party to the action, the dismissal of his appeal was proper. Accordingly, we affirm the 15 July 2010 order of the Watauga County District Court. Affirmed.

7 -7- Judges HUNTER, Robert C., and McCULLOUGH concur. Report per Rule 30(e).

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 17 September v. New Hanover County Nos. 11 CVM 1575 JOHN MUNN, 11 CVM 1576 Defendant.

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 17 September v. New Hanover County Nos. 11 CVM 1575 JOHN MUNN, 11 CVM 1576 Defendant. An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3)