The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-1008
Filed 16 July 2025
Mecklenburg County, No. 21CVD013113-590
KIYA CUNNINGHAM, Plaintiff,
v.
BRAVO 4 AUTOWORKS LLC, Defendant.
Appeal by plaintiff from order entered 13 July 2022 by Judge Paulina N.
Havelka and order entered 11 July 2024 by Judge Roy H. Wiggins in Mecklenburg
County District Court. Heard in the Court of Appeals 21 May 2025.
Kiya Cunningham, Pro se, Plaintiff-Appellant.
James, McElroy & Diehl, P.A., by Alexandra B. Bachman, for
Defendant-Appellee.
COLLINS, Judge.
Plaintiff Kiya Cunningham appeals from an order granting Defendant Bravo
4 Autoworks LLC’s motion for summary judgment and an order denying Plaintiff’s
motion to reconsider, entered pursuant to Rule 63 of the North Carolina Rules of Civil
Procedure. Because Plaintiff’s notice of appeal of the trial court’s order granting
Defendant’s motion for summary judgment was untimely, we dismiss her appeal of
that order. Because the trial court acted in accordance with Rule 63, we affirm the
trial court’s order denying Plaintiff’s motion to reconsider.
CUNNINGHAM V. BRAVO 4 AUTOWORKS LLC
Opinion of the Court
I. Background
On 22 July 2021, Plaintiff filed a pro se complaint against Defendant in small
claims court in Mecklenburg County seeking damages for improper repairs to her
vehicle. After a trial, judgment was entered in favor of Defendant and Plaintiff was
ordered to pay the costs of the action. Plaintiff timely appealed the small claims
judgment to the Mecklenburg County district court.
The claim was heard by an arbitrator, and an arbitration judgment was
entered on 12 October 2021 in favor of Plaintiff. Then, on 8 November 2021, Plaintiff
requested a trial de novo.
Defendant filed its Motion to Dismiss, Answer, and Affirmative Defenses on 1
December 2021. Defendant then served Plaintiff with Defendant’s First Set of
Requests for Admission on 10 December 2021. Plaintiff did not serve any responses
to the requests for admission; on 19 January 2022, Defendant filed a notice to have
the requests for admission deemed admitted.
On 8 March 2022, Defendant filed a motion for summary judgment.
Defendant’s motion was heard by district court Judge Paulina Havelka on 13 July
2022; Plaintiff was not present at the hearing. That same day, Judge Havelka
granted Defendant’s motion by written order (“Summary Judgment Order”).
Plaintiff filed a motion to reconsider later that same day, alleging that she
“[a]rrived at Court Hearing at 9:10 am on July 13, 2022 due to an accident on I-77
interstate as there was a longstanding traffic delay.” A hearing on Plaintiff’s motion
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Opinion of the Court
was held on 27 September 2022. Judge Havelka found that “the unforeseen traffic
that delayed [Plaintiff] on July 13, 2022 constitutes a viable ground for relief”
pursuant to Rule 60 of the North Carolina Rules of Civil Procedure, and thus Judge
Havelka allowed Plaintiff to be heard on Defendant’s motion for summary judgment.
At the conclusion of the hearing, Judge Havelka found that Plaintiff “does not have a
meritorious defense to Defendant’s Motion for Summary Judgment” and denied
Plaintiff’s motion to reconsider. Judge Havelka ordered Defendant’s counsel to draft
a proposed order denying Plaintiff’s motion.
The next day, 28 September 2022, Defendant’s counsel emailed the proposed
order denying Plaintiff’s motion to reconsider to both Judge Havelka and Plaintiff.
Plaintiff emailed Defendant’s counsel and Judge Havelka on 4 October 2022
“Plaintiff’s Objection to Defendant’s Proposed Order for Plaintiff’s Motion to
Reconsideration.” The following day, Plaintiff filed “Plaintiff’s Motion to Withdraw
Deemed Admissions or in the alternative for an Extension of Time to Respond to
Defendant’s First Set of Requests for Admission to Plaintiff [] .”
Nothing happened in the case for approximately a year and a half, until March
2024. In the meantime, Judge Havelka’s judicial term expired on 31 December 2023,
and the order denying Plaintiff’s motion to reconsider was never entered.
On 22 March 2024, Plaintiff filed a “Motion to be Reviewed by the Chief District
Court Judge for a Request to Schedule a Trial by Jury and/or if necessary, a Second
Motion for Hearing for Assignment to a New Judge Due to the Former Presiding
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Opinion of the Court
Judge Departure and Failure to Render a Ruling.” Chief District Court Judge Roy
Wiggins conducted a hearing on 30 May 2024; at the conclusion he “took the matter
under advisement to review the audio recording of the Hearing on the Motion to Set
Aside heard by Judge Havelka on September 27, 2022.”
On 11 July 2024, Chief Judge Wiggins entered an order denying Plaintiff’s
motion to reconsider pursuant to Rule 63 (“Rule 63 Order”). Plaintiff filed a notice of
appeal to this Court on 9 August 2024, appealing both the 13 July 2022 Summary
Judgment Order and the 11 July 2024 Rule 63 Order.
II. Discussion
A. Summary Judgment Order
We first address Plaintiff’s notice of appeal of Judge Havelka’s Summary
Judgment Order.
“A timely notice of appeal is required to confer jurisdiction upon this Court.”
Raymond v. Raymond, 257 N.C. App. 700, 703 (2018) (citation omitted). Our
appellate rules provide that, in civil actions, a party must file and serve a notice of
appeal:
(1) within thirty days after entry of judgment if the party
has been served with a copy of the judgment within the
three-day period prescribed by Rule 58 of the Rules of
Civil Procedure; or
(2) within thirty days after service upon the party of a copy
of the judgment if service was not made within that
three-day period; provided that
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(3) if a timely motion is made by any party for relief under
Rules 50(b), 52(b) or 59 of the Rules of Civil Procedure,
the thirty-day period for taking appeal is tolled as to all
parties until entry of an order disposing of the motion
and then runs as to each party from the date of entry of
the order or its untimely service upon the party, as
provided in subdivisions (1) and (2) of this subsection
(c).
N.C. R. App. P. 3(c). While a timely Rule 59 motion tolls the time for taking appeal,
it is well settled that Rule 59 does not apply to pre-trial rulings such as rulings on
summary judgment motions. Doe v. City of Charlotte, 273 N.C. App. 10, 18-19 (2020).
It is also well settled that “[m]otions entered pursuant to Rule 60 do not toll
the time for filing a notice of appeal.” Wallis v. Cambron, 194 N.C. App. 190, 193
(2008) (citing N.C. R. App. P. 3(c)). Rule 60 provides, “On motion and upon such terms
as are just, the court may relieve a party” from a final order for various reasons,
including “[m]istake, inadvertence, surprise, or excusable neglect[.]” N.C. Gen. Stat.
§ 1A-1, Rule 60(b)(1) (2023). “To set aside a judgment on the grounds of excusable
neglect under Rule 60(b), the moving party must show that the judgment rendered
against him was due to his excusable neglect and that he has a meritorious defense.”
Monaghan v. Schilling, 197 N.C. App. 578, 584 (2009) (citation omitted).
Here, Judge Havelka entered the Summary Judgment Order on 13 July 2022.
Plaintiff did not file a notice of appeal from that order within thirty days after the
entry of that order. Rather, Plaintiff filed a motion for “Reconsideration,” alleging
that she “[a]rrived at Court Hearing at 9:10 am on July 13, 2022 due to an accident
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on I-77 interstate as there was a longstanding traffic delay. Delay was due to
unforeseen circumstances[.]”
While Plaintiff’s motion for reconsideration was not expressly made pursuant
to any particular rule of Civil Procedure, her arguments indicate that she had moved
the court to grant her relief from the Summary Judgment Order for excusable neglect
under Rule 60(b)(1). See Doe, 273 N.C. App. at 16 (“[C]onfusion likely results from
there being no mention of a ‘motion to reconsider’ in the North Carolina Rules of Civil
Procedure. Thus, litigants seeking to have the trial court reconsider a ruling often
search for wording in our procedural rules that permits their motion.”). In fact,
during the 27 September 2022 hearing on Plaintiff’s motion to reconsider, Judge
Havelka found that Plaintiff’s unforeseen traffic delays constituted a viable ground
for relief pursuant to Rule 60 and thus allowed Plaintiff to be heard on Defendant’s
motion for summary judgment.
Accordingly, because Plaintiff failed to file a timely notice of appeal from the
13 July 2022 Summary Judgment Order, we do not have jurisdiction to review this
order. We therefore dismiss Plaintiff’s appeal of this order.
B. Rule 63 Order
Plaintiff next argues that Chief Judge Wiggins erred by entering the Rule 63
Order. Specifically, Plaintiff contends, “Judge Wiggins made several findings of fact
concerning the events of this case (Findings 2, 3, 4, 5, 6, 7, 9), which mischaracterized
the evidence or were not supported by the evidence of this case.” Plaintiff’s argument
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lacks merit.
“The North Carolina Rules of Civil Procedure are part of the General Statutes.
Accordingly, interpreting the Rules of Civil Procedure is a matter of statutory
interpretation.” In re E.D.H., 381 N.C. 395, 398 (2022) (citations omitted). “A
question of statutory interpretation is ultimately a question of law” that is reviewed
de novo on appeal. Brown v. Flowe, 349 N.C. 520, 523 (1998) (citation omitted);
Swauger v. Univ. of N.C. at Charlotte, 259 N.C. App. 727, 728 (2018).
Civil Procedure Rule 63 provides,
If by reason of . . . expiration of term, . . . a judge before
whom an action has been tried or a hearing has been held
is unable to perform the duties to be performed by the court
under these rules after a verdict is returned or a trial or
hearing is otherwise concluded, then those duties,
including entry of judgment, may be performed:
....
(2) In actions in the district court, by the chief judge
of the district . . . .
If the substituted judge is satisfied that he or she cannot
perform those duties because the judge did not preside at
the trial or hearing or for any other reason, the judge may,
in the judge’s discretion, grant a new trial or hearing.
N.C. Gen. Stat. § 1A-1, Rule 63 (2023). Under Rule 63, if a district court judge
“ma[kes] the findings of fact and conclusions of law that appear in the order before”
leaving office and the chief district court judge, acting as the substitute judge, does
“nothing more than put his signature on the order and enter it ministerially, the order
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is valid.” In re E.D.H., 381 N.C. at 399.
Here, Judge Havelka presided over the hearing on Defendant’s motion for
summary judgment and Plaintiff’s motion to reconsider. At the hearing on Plaintiff’s
motion to reconsider, Judge Havelka heard arguments from both parties and
“announced her Findings, Conclusions and Order in Open Court.” Judge Havelka
asked Defendant’s counsel to draft the order and “confer with Plaintiff over its final
form.” After Plaintiff objected to Defendant’s counsel’s proposed order, no final
agreement was reached on the final form of the order. Judge Havelka’s judicial term
expired on 31 December 2023, at which time no written order on Plaintiff’s motion to
reconsider had been entered.
Upon Plaintiff’s 22 March 2024 motion to have the matter reviewed by the chief
district court judge, Chief Judge Wiggins “took the matter under advisement” and
reviewed the audio recording of the 27 September 2022 hearing on Plaintiff’s motion
to reconsider. Chief Judge Wiggins “listened to the entire hearing” and was able to
determine that “Judge Havelka made the following findings:”
A. Judge Havelka found that it was in the interest of
justice to deem Plaintiff’s tardiness to court as a basis
to reopen the case under [Civil Procedure Rule] 60 but
made additional findings that were contrary to
re-opening the case.
B. Judge Havelka subsequently found that there was no
meritorious defense to the Summary Judgment Motion.
C. Judge Havelka found that Requests for Admissions
were filed in December and deemed admitted in
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Opinion of the Court
January. They were sent to Plaintiff’s address. All
Notices of Hearings were sent to Plaintiff’s address.
D. Judge Havelka also found that Plaintiff’s response to
the Summary Judgment Motion was not timely filed or
served as it was filed the day before the hearing and
mailed to [Defendant’s] [c]ounsel the day before the
hearing[.]
E. Judge Havelka stated in open court that the Motion to
Reconsider is Denied.
Chief Judge Wiggins concluded that because he “was able to determine that Judge
Havelka clearly stated her facts, reasoning, and conclusions on the record,” and
because he was able to determine that “Judge Havelka clearly stated her ruling on
the record,” Plaintiff’s motion to reconsider should be denied.
Plaintiff does not challenge any of the findings A-E listed above. Rather,
Plaintiff challenges several other findings, arguing that they “mischaracterize[] the
evidence” by leaving out certain minor details. Contrary to Plaintiff’s contentions,
the challenged findings do not mischaracterize any of the evidence presented in this
case, and Plaintiff makes no further argument as to how or why the challenged
findings of fact were not supported by the evidence or how those findings are relevant
to the issue of whether the Rule 63 Order was properly entered.
Chief Judge Wiggins’ order was prepared and entered in conformity with Rule
63. Chief Judge Wiggins did not make any findings of fact or conclusions of law;
Judge Havelka made such findings and conclusions after presiding over the hearing
and before the expiration of her term. Chief Judge Wiggins reviewed the hearing in
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its entirety and did “nothing more than put his signature on the order and enter it
ministerially.” Id. Accordingly, Chief Judge Wiggins did not err by entering the Rule
63 Order.
III. Conclusion
For the foregoing reasons, we dismiss Plaintiff’s appeal of the trial court’s
Summary Judgment Order and affirm the trial court’s Rule 63 Order.
DISMISSED IN PART; AFFIRMED IN PART.
Judges TYSON and GRIFFIN concur.
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