              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-812

                                Filed: 6 March 2018

Buncombe County, No. 15 CV 00719

TODD ROBERT MAHAFFEY, Plaintiff,

             v.

CHRISTOPHER C. BOYD, Executor for the Estate of DOROTHY COE BOYD,
Defendant.


      Appeal by Plaintiff from order entered 10 October 2016 by Judge Alan Z.

Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 28

November 2017.


      Todd Robert Mahaffey, Plaintiff-Appellant, pro se.

      McGuire, Wood & Bissette, P.A., by Matthew S. Roberson, for the Defendant-
      Appellee.


      DILLON, Judge.


                                     I. Background

      In February 2015, Todd Robert Mahaffey filed a complaint alleging that

Christopher C. Boyd (the “Executor”), the executor for the estate of Dorothy C. Boyd,

owed him payment for renovations Mr. Mahaffey made to Ms. Boyd’s home.

      The record shows as follows:

      Ms. Boyd died in July 2014. However, in the years before she died, she engaged

Mr. Mahaffey to perform work on her home and yard. Mr. Mahaffey continued to
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perform work on the property at Ms. Boyd’s direction, and after Ms. Boyd’s death, at

the direction of the Executor.

      In September 2014, two months after Ms. Boyd’s death, Mr. Mahaffey

delivered documents to the Executor’s law firm consisting of receipts, bills, and time

sheets relating to projects he completed at Ms. Boyd’s property. Shortly thereafter,

an employee at the law firm asked Mr. Mahaffey to provide clearer documentation of

the work he had completed and any payments which had already been made.

      In a letter dated 19 November 2014, the Executor informed Mr. Mahaffey that,

based on his lack of response to the law firm’s request, he was denying Mr. Mahaffey’s

claim in accordance with N.C. Gen. Stat. § 28A-19-16, which requires that a claim

against a decedent’s estate be “in writing and state the amount or item claimed[.]”

N.C. Gen. Stat. § 28A-19-1 (2013).

      Three months later, in February 2015, Mr. Mahaffey commenced this action.

In April 2015, the Executor answered the complaint and served requests for

admissions, to which Mr. Mahaffey failed to respond in a timely fashion.

      In May 2015, the Executor moved for summary judgment, contending that Mr.

Mahaffey (1) failed to comply with the requirements of N.C. Gen. Stat. § 28A-19-1 in

order to preserve his claim against Ms. Boyd’s estate, and (2) performed illegal




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contracting services because he was not a licensed contractor1 and undertook a project

for which the cost of improvement was greater than $30,000.2

        In June 2015, after a hearing on the matter, the trial court entered an order

granting the Executor’s summary judgment motion, based in part on Mr. Mahaffey’s

failure to respond to the requests for admissions. Mr. Mahaffey timely appealed from

the order (the “Summary Judgment Order”); however, he failed to take steps to

properly perfect the appeal.

        Three months later, in September 2015, the Executor filed a motion to dismiss

the appeal.      In October 2015, after a hearing, the trial court entered an order

dismissing Mr. Mahaffey’s appeal of the Summary Judgment Order, concluding that

Mr. Mahaffey had failed to comply with “the deadlines for presenting the appeal for

decision under the North Carolina Rules of Appellate Procedure.”

        About a year later, on 9 September 2016, Mr. Mahaffey filed a motion titled

“Rule 59 Motion for New Trial; Amend Judgment” (the “Rule 59 Motion”). In his Rule

59 Motion, Mr. Mahaffey requested that the trial court reverse its October 2015 order



        1 Section 87-1 of our General Statutes provides that a person who undertakes “the construction
of any building . . . or any improvement or structure where the cost of the undertaking is thirty
thousand dollars ($30,000) or more, . . . shall be deemed to be a ‘general contractor’ engaged in the
business of general contracting in the State of North Carolina.” N.C. Gen. Stat. § 87-1 (2015). A person
acting as a general contractor in North Carolina must be authorized and licensed by the State. N.C.
Gen. Stat. § 87-13.
        2 In his complaint, Mr. Mahaffey contended that Ms. Boyd requested that he undertake nine

consecutive, separate projects on her property, none of which cost more than $30,000. We acknowledge
that there certainly existed a material issue of fact as to whether Mr. Mahaffey completed one large
project totaling $53,740 or nine separate projects which did not exceed $30,000 per project.

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dismissing his appeal of the Summary Judgment Order. In October 2016, the trial

court entered an order denying Mr. Mahaffey’s Rule 59 Motion (the “Rule 59 Order”).

Mr. Mahaffey timely appealed from the Rule 59 Order.

                                     II. Analysis

      This matter involves three orders: (1) the Summary Judgment Order entered

June 2015; (2) the order entered in October 2015 dismissing Mr. Mahaffey’s appeal

of the Summary Judgment Order; and (3) the Rule 59 Order.

      In his brief on appeal, Mr. Mahaffey seeks review of two of these orders: the

Summary Judgment Order and the Rule 59 Order. However, he failed to properly

perfect his appeal of the Summary Judgment Order. Our review is therefore limited

to consideration of the Rule 59 Order. See Davis v. Davis, 360 N.C. 518, 526, 631

S.E.2d 114, 120 (2006) (“Appellate review of a denial of a Rule 59 motion for a new

trial is distinct from review of the underlying judgment or order upon which such a

motion may be based.”). And after careful review, we affirm the trial court’s Rule 59

Order.

      A trial court’s ruling on a motion for new trial under Rule 59 is reviewed for

abuse of discretion:

             It has been long settled in our jurisdiction that an appellate
             court’s review of a trial judge’s discretionary ruling either
             granting or denying a motion to set aside a verdict and
             order a new trial is strictly limited to the determination of
             whether the record affirmatively demonstrates a manifest
             abuse of discretion by the judge.


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Davis, 360 N.C. at 523, 631 S.E.2d at 118.

      A motion for a new trial under Rule 59 must be served “not later than 10 days

after entry of the judgment.” N.C. R. Civ. P. 59(b). Here, Mr. Mahaffey exceeded the

time permitted for serving and filing a Rule 59 Motion by approximately nine months.

See id. Therefore, we hold that the trial court did not abuse its discretion in denying

Mr. Mahaffey’s motion.

      We further hold, in the alternative, that Mr. Mahaffey’s Rule 59 Motion was

not an appropriate method of challenging the trial court’s order dismissing his appeal

from the Summary Judgment Order. Our Court has concluded that a “Rule 59(a)

motion is not a proper ground for relief from an entry of summary judgment.” Bodie

Island Beach Club Ass’n v. Wray, 215 N.C. App. 283, 294-95, 716 S.E.2d 67, 77 (2011)

(holding that “[b]ecause both Rule 59(a)(8) and (9) are post-trial motions and because

the instant case concluded at the summary judgment stage, the court did not err by

concluding that it [would be improper] to set aside default against [the] Defendant []

and vacate the summary judgment pursuant to Rule 59(a)(8) and (9)” (emphasis

added)); see also Tetra Tech Tesoro, Inc. v. JAAAT Tech. Servs., LLC, ___ N.C. App.

___, ___, 794 S.E.2d 535, 538 (2016) (“All of the enumerated grounds in Rule 59(a),

and the concluding text addressing ‘an action tried without a jury,’ indicate that this

rule applies only after a trial on the merits or, at a minimum, a judgment ending a




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case on the merits.’ ”).3 Because the order dismissing the appeal was based on Mr.

Mahaffey’s failure to perfect his appeal from the Summary Judgment Order within

the proper time period – a procedural matter – it could not possibly be considered a

judgment ending the case on its merits. See id.

       Accordingly, we conclude that a Rule 59 motion was an inappropriate method

of challenging the trial court’s order dismissing Mr. Mahaffey’s appeal in this case.

In order to properly appeal the order dismissing his appeal, Mr. Mahaffey should

have filed a petition for writ of certiorari with our Court. See State v. Evans, 46 N.C.

App. 327, 327, 264 S.E.2d 766, 767 (1980). Recently, in E. Brooks Wilkins Family

Medicine, P.A. v. WakeMed, ___ N.C. App. ___, 784 S.E.2d 178 (2016), our Court

concluded that it has no jurisdiction to review an order dismissing an appeal, and

thus there is no right of appeal from such an order. E. Brooks Wilkins Family

Medicine, ___ N.C. App. at ___, 784 S.E.2d at 185. The proper remedy to obtain review

of an order of the trial court dismissing an appeal for failure to perfect it within the

appropriate time period is “by petition for writ of certiorari[.]” Evans, 46 N.C. App.

at 327, 264 S.E.2d at 767 (emphasis added).


       3  Between our decisions in Bodie Island and Tetra Tech, a different panel of our Court held
that a trial court erred in denying a party’s Rule 59 motion to amend a partial summary judgment
order, thus sanctioning the use of a motion under Rule 59 to challenge a summary judgment order.
See Rutherford Plantation, LLC v. Challenge Golf Grp. of Carolinas, LLC, 225 N.C. App. 79, 737 S.E.2d
409 (2013). On this point, Rutherford is clearly in direct conflict with Bodie Island and Tetra Tech.
However, although Rutherford was affirmed per curiam by our Supreme Court, it was affirmed
“without precedential value,” with three Justices voting to affirm and three voting to reverse. See
Rutherford Plantation, LLC v. Golf Grp. of the Carolinas, LLC, 367 N.C. 197, 753 S.E.2d 152 (2014).
We conclude that the present case is controlled by Bodie Island and Tetra Tech on this issue.

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                                  Opinion of the Court



       In light of the foregoing, we are unable to conclude that the trial court abused

its discretion in denying Mr. Mahaffey’s Rule 59 Motion. We therefore affirm the

ruling of the trial court.

       AFFIRMED.

       Judges BRYANT and DIETZ concur.




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