IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-854
Filed 18 April 2023
Wake County, No. 21 CVS 1307
CHRISTOPHER B. VENTERS, Plaintiff,
v.
PHILLIP RUSSELL LANIER, Defendant.
Appeal by defendant from orders entered 13 September 2021 and 4 May 2022
by Judge Keith Gregory in Wake County Superior Court. Heard in the Court of
Appeals 7 March 2023.
Buckmiller, Boyette & Frost, PLLC, by Matthew W. Buckmiller, for plaintiff - appellee.
The Armstrong Law Firm, P.A., by L. Lamar Armstrong, III, for defendant- appellant.
ARROWOOD, Judge.
Phillip Russell Lanier (“defendant”) appeals from an order granting
Christopher B. Venters’s (“plaintiff”) motion for summary judgment and from the
trial court’s order refusing to rule on his motions to amend and to reconsider. On
appeal, defendant argues the trial court erred in granting plaintiff’s motion for
summary judgment and in declining to rule on defendant’s motions to amend his
admission and for reconsideration of summary judgment. In response, plaintiff has
filed a motion to dismiss defendant’s appeal “only as to the summary judgment order VENTERS V. LANIER
Opinion of the Court
due to numerous violations of the appellate rules.” For the following reasons, we
remand the matter to the trial court that abstained from ruling on defendant’s motion
to amend his responses to the requests for admission and his Rule 56 and 60 motions
with respect to reconsider summary judgment.
I. Background
Plaintiff filed the initial complaint against defendant on 25 January 2021,
asserting claims of alienation of affection and criminal conversation. On
12 April 2021, defendant, acting pro se, responded to the complaint answering only
four of the allegations. On 28 June 2021, defendant filed another answer to the
complaint, this time addressing all of the allegations. On 7 May 2021, defendant was
served with plaintiff’s first set of interrogatories, requests for production of
documents, and first set of requests for admissions. In pertinent part, the requests
for admissions stated:
50. Admit or deny that Plaintiff is entitled to recover from you compensatory damages in excess of $500,000.00.
51. Admit or deny that Plaintiff is entitled to recover from you punitive damages in excess of $500,000.00.
Defendant replied to the request for admissions on 1 July 2021, which was twenty-
five days late. In his untimely response to the request for admissions, defendant
admitted to having an affair with plaintiff’s ex-wife, but denied that plaintiff was
entitled to recover compensatory or punitive damages from him. On 9 July 2021,
plaintiff filed a motion for summary judgment, arguing that defendant was untimely
-2- VENTERS V. LANIER
in his response to the admissions and plaintiff was entitled to summary judgment as
the issues were deemed admitted.
The matter came on for hearing on plaintiff’s motion in Wake County Superior
Court on 13 September 2021, Judge Gregory presiding. At the hearing, plaintiff’s
counsel argued that because defendant failed to respond within thirty days of being
served with the request for admissions, those facts were admitted under Rule 36A
and plaintiff was therefore entitled to summary judgment. Plaintiff offered no
evidence other than the late response to the request for admissions to support a
judgment. Defendant, still acting pro se, admitted that he was late in answering the
request for admissions, and stated he could not afford an attorney and although he
requested an extension for filing his answers, plaintiff’s counsel declined to provide
one.
The trial court initially expressed concern about granting plaintiff’s motion for
summary judgment, stating it was “not required to grant the motion[,]” as defendant
did not seem to be intentionally doing “anything to usurp or obstruct the process[,]”
and plaintiff was not prejudiced by defendant’s late response. However, plaintiff’s
counsel advised the trial court that defendant had deeded real property, “right after
this lawsuit was filed” to his parents and plaintiff’s ex-wife, insinuating defendant
was attempting to safeguard the property from the lawsuit. Defendant admitted he
did deed the property to others. “[B]ased on that representation,” the trial court
granted plaintiff’s motion for summary judgment in open court and in an order filed
-3- VENTERS V. LANIER
13 September 2021, finding plaintiff was entitled to a judgment of $1,000,000.00.
Defendant filed a pro se paper writing labeled “Notice of Appeal” on 13 October 2021.
On 17 November 2021, plaintiff filed another complaint against defendant,
defendant’s parents, and plaintiff’s ex-wife regarding the transfer of real property.
Thereafter, defendant hired an attorney who filed a motion to amend defendant’s
answers to plaintiff’s request for admissions and a Rule 56 and 60 motion for
reconsideration of summary judgment. These matters came on for hearing in Wake
County Superior Court on 27 April 2022, Judge Gregory presiding.
At this hearing, defendant’s counsel requested the trial court set aside
summary judgment as to damages only under Rule 60(b)(1), (b)(5), and (b)(6).
However, plaintiff’s counsel argued defendant’s claim under Rule 60(b) had no merit,
and even if it had, the trial court did not have “discretion to grant the motion” since
defendant filed a notice of appeal, depriving the trial court of jurisdiction. When
plaintiff’s counsel presented the defective notice of appeal, defendant’s attorney said
it was the first time he had seen that “but [he] didn’t think” it was “a notice of appeal,”
and confirmed that there was no “appeal that’s been filed or docketed with the Court
of Appeals.”
Following the hearing, in open court and in an order entered 4 May 2022, the
trial court found it did “not have jurisdiction to hear” defendant’s motions to
reconsider summary judgment and to amend defendant’s admissions since defendant
had filed a notice of appeal to this Court. Therefore, the trial court abstained from
-4- VENTERS V. LANIER
ruling on the motions. Defendant appealed.
II. Discussion
On appeal, defendant raises two issues: (1) the trial court erred in granting
plaintiff’s motion for summary judgment for $1,000,000.00 in damages; and (2) the
trial court should have ruled upon defendant’s motion to amend his admissions and
reconsider summary judgment. Plaintiff has filed a motion to dismiss defendant’s
appeal “only as to the summary judgment order due to numerous violations of the
appellate rules.” For the following reasons, we dismiss the purported appeal from
the order granting summary judgment, vacate the trial court’s order declining to rule
on defendant’s motions, and remand to the trial court to consider the motions.
Defendant’s purported pro se notice of appeal was defective and did not confer
jurisdiction on this Court. “In order to confer jurisdiction on the state’s appellate
courts, appellants of lower court orders must comply with the requirements of Rule 3
of the North Carolina Rules of Appellate Procedure and failure to follow the
requirements thereof requires dismissal of an appeal.” In re R.A.F., 284 N.C. App.
637, 642, 877 S.E.2d 84, 89 (2022) (citations and internal quotation marks omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-854
Filed 18 April 2023
Wake County, No. 21 CVS 1307
CHRISTOPHER B. VENTERS, Plaintiff,
v.
PHILLIP RUSSELL LANIER, Defendant.
Appeal by defendant from orders entered 13 September 2021 and 4 May 2022
by Judge Keith Gregory in Wake County Superior Court. Heard in the Court of
Appeals 7 March 2023.
Buckmiller, Boyette & Frost, PLLC, by Matthew W. Buckmiller, for plaintiff - appellee.
The Armstrong Law Firm, P.A., by L. Lamar Armstrong, III, for defendant- appellant.
ARROWOOD, Judge.
Phillip Russell Lanier (“defendant”) appeals from an order granting
Christopher B. Venters’s (“plaintiff”) motion for summary judgment and from the
trial court’s order refusing to rule on his motions to amend and to reconsider. On
appeal, defendant argues the trial court erred in granting plaintiff’s motion for
summary judgment and in declining to rule on defendant’s motions to amend his
admission and for reconsideration of summary judgment. In response, plaintiff has
filed a motion to dismiss defendant’s appeal “only as to the summary judgment order VENTERS V. LANIER
Opinion of the Court
due to numerous violations of the appellate rules.” For the following reasons, we
remand the matter to the trial court that abstained from ruling on defendant’s motion
to amend his responses to the requests for admission and his Rule 56 and 60 motions
with respect to reconsider summary judgment.
I. Background
Plaintiff filed the initial complaint against defendant on 25 January 2021,
asserting claims of alienation of affection and criminal conversation. On
12 April 2021, defendant, acting pro se, responded to the complaint answering only
four of the allegations. On 28 June 2021, defendant filed another answer to the
complaint, this time addressing all of the allegations. On 7 May 2021, defendant was
served with plaintiff’s first set of interrogatories, requests for production of
documents, and first set of requests for admissions. In pertinent part, the requests
for admissions stated:
50. Admit or deny that Plaintiff is entitled to recover from you compensatory damages in excess of $500,000.00.
51. Admit or deny that Plaintiff is entitled to recover from you punitive damages in excess of $500,000.00.
Defendant replied to the request for admissions on 1 July 2021, which was twenty-
five days late. In his untimely response to the request for admissions, defendant
admitted to having an affair with plaintiff’s ex-wife, but denied that plaintiff was
entitled to recover compensatory or punitive damages from him. On 9 July 2021,
plaintiff filed a motion for summary judgment, arguing that defendant was untimely
-2- VENTERS V. LANIER
in his response to the admissions and plaintiff was entitled to summary judgment as
the issues were deemed admitted.
The matter came on for hearing on plaintiff’s motion in Wake County Superior
Court on 13 September 2021, Judge Gregory presiding. At the hearing, plaintiff’s
counsel argued that because defendant failed to respond within thirty days of being
served with the request for admissions, those facts were admitted under Rule 36A
and plaintiff was therefore entitled to summary judgment. Plaintiff offered no
evidence other than the late response to the request for admissions to support a
judgment. Defendant, still acting pro se, admitted that he was late in answering the
request for admissions, and stated he could not afford an attorney and although he
requested an extension for filing his answers, plaintiff’s counsel declined to provide
one.
The trial court initially expressed concern about granting plaintiff’s motion for
summary judgment, stating it was “not required to grant the motion[,]” as defendant
did not seem to be intentionally doing “anything to usurp or obstruct the process[,]”
and plaintiff was not prejudiced by defendant’s late response. However, plaintiff’s
counsel advised the trial court that defendant had deeded real property, “right after
this lawsuit was filed” to his parents and plaintiff’s ex-wife, insinuating defendant
was attempting to safeguard the property from the lawsuit. Defendant admitted he
did deed the property to others. “[B]ased on that representation,” the trial court
granted plaintiff’s motion for summary judgment in open court and in an order filed
-3- VENTERS V. LANIER
13 September 2021, finding plaintiff was entitled to a judgment of $1,000,000.00.
Defendant filed a pro se paper writing labeled “Notice of Appeal” on 13 October 2021.
On 17 November 2021, plaintiff filed another complaint against defendant,
defendant’s parents, and plaintiff’s ex-wife regarding the transfer of real property.
Thereafter, defendant hired an attorney who filed a motion to amend defendant’s
answers to plaintiff’s request for admissions and a Rule 56 and 60 motion for
reconsideration of summary judgment. These matters came on for hearing in Wake
County Superior Court on 27 April 2022, Judge Gregory presiding.
At this hearing, defendant’s counsel requested the trial court set aside
summary judgment as to damages only under Rule 60(b)(1), (b)(5), and (b)(6).
However, plaintiff’s counsel argued defendant’s claim under Rule 60(b) had no merit,
and even if it had, the trial court did not have “discretion to grant the motion” since
defendant filed a notice of appeal, depriving the trial court of jurisdiction. When
plaintiff’s counsel presented the defective notice of appeal, defendant’s attorney said
it was the first time he had seen that “but [he] didn’t think” it was “a notice of appeal,”
and confirmed that there was no “appeal that’s been filed or docketed with the Court
of Appeals.”
Following the hearing, in open court and in an order entered 4 May 2022, the
trial court found it did “not have jurisdiction to hear” defendant’s motions to
reconsider summary judgment and to amend defendant’s admissions since defendant
had filed a notice of appeal to this Court. Therefore, the trial court abstained from
-4- VENTERS V. LANIER
ruling on the motions. Defendant appealed.
II. Discussion
On appeal, defendant raises two issues: (1) the trial court erred in granting
plaintiff’s motion for summary judgment for $1,000,000.00 in damages; and (2) the
trial court should have ruled upon defendant’s motion to amend his admissions and
reconsider summary judgment. Plaintiff has filed a motion to dismiss defendant’s
appeal “only as to the summary judgment order due to numerous violations of the
appellate rules.” For the following reasons, we dismiss the purported appeal from
the order granting summary judgment, vacate the trial court’s order declining to rule
on defendant’s motions, and remand to the trial court to consider the motions.
Defendant’s purported pro se notice of appeal was defective and did not confer
jurisdiction on this Court. “In order to confer jurisdiction on the state’s appellate
courts, appellants of lower court orders must comply with the requirements of Rule 3
of the North Carolina Rules of Appellate Procedure and failure to follow the
requirements thereof requires dismissal of an appeal.” In re R.A.F., 284 N.C. App.
637, 642, 877 S.E.2d 84, 89 (2022) (citations and internal quotation marks omitted).
“Any party entitled by law to appeal from a judgment or order . . . may take appeal
by filing notice of appeal with the clerk of superior court and serving copies thereof
upon all other parties within the time prescribed[.]” N.C.R. App. P. 3(a) (2022). The
notice must “specify the party . . . taking the appeal; shall designate the judgment or
order from which appeal is taken and the court to which appeal is taken; and shall be
-5- VENTERS V. LANIER
signed by counsel of record . . ., or by any such party not represented by counsel of
record.” N.C.R. App. P. 3(d). “A party must comply with the requirements of Rule 3
to confer jurisdiction on an appellate court. Thus, failure to comply with Rule 3 is a
jurisdictional default that prevents this Court ‘from acting in any manner other than
to dismiss the appeal.’ ” In re Moore, 234 N.C. App. 37, 40, 758 S.E.2d 33, 36 (citations
omitted), disc. review denied, 367 N.C. 527, 762 S.E.2d 202 (Mem) (2014).
Here, defendant’s purported notice of appeal lacked any information other than
a heading that would designate it as an attempted appeal. The first page of the
document contained a caption with the words “Notice of Appeal” with the remainder
of the page blank. The second page consisted of two paragraphs that argues why
plaintiff had not been damaged and contained the pro se defendant’s signature. It
did not comply with any of the requirements of Rule 3 other than containing a
signature. It is apparent from a cursory review of the paper writing that it was not
a proper Notice of Appeal and was not sufficient to deprive the trial court of
jurisdiction or to convey jurisdiction to this Court. Brooks v. Gooden, 69 N.C. App.
701, 707, 318 S.E.2d 348, 352 (1984) (“ ‘Without proper notice of appeal, this Court
acquires no jurisdiction.’ ”) (citation omitted); Dogwood Dev. & Mgmt. Co., LLC v.
White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 364 (2008) (“[A] default
precluding appellate review on the merits necessarily arises when the appealing
party fails to complete all of the steps necessary to vest jurisdiction in the appellate
court.”) (citation omitted); State v. Kirkman, 251 N.C. App. 274, 283, 795 S.E.2d 379,
-6- VENTERS V. LANIER
385 (2016) (finding that because the defendant’s “notice of appeal was defective, . . .
jurisdiction was not with this Court, but rather still with the trial court[,]” but still
assessing the merits of the claim since the defendant acknowledged this error and
filed a petition for writ of certiorari) (citing State v. Miller, 205 N.C. App. 724, 696
S.E.2d 542 (2010)), disc. review denied, 369 N.C. 523, 797 S.E.2d 299 (Mem) (2017).
In view of the fact that the appeal was clearly insufficient to satisfy the Rules
of Appellate Procedure, jurisdiction remained with the trial court to rule on all the
motions filed by defendant. Accordingly, the trial court erred in declining to rule on
the motions. The order abstaining from ruling on all the motions must be vacated and
this matter remanded to Judge Gregory.
III. Conclusion
For the foregoing reasons, we dismiss the purported appeal from the initial
summary judgment order for lack of jurisdiction, vacate the order in which the trial
court abstained from ruling on defendant’s pending motions, and remand for the trial
judge to consider defendant’s motions.
DISMISSED IN PART, VACATED AND REMANDED IN PART.
Judges MURPHY and RIGGS concur.
-7-