Law Off. of Ashley-Nicole Russell, P.A. v. McLawhorn Legal Servs. Pllc

Law Off. of Ashley-Nicole Russell, P.A. v. McLawhorn Legal Servs. PLLC, 2026
NCBC 44.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
WAKE COUNTY 25CV028164-910

THE LAW OFFICE OF ASHLEY-
NICOLE RUSSELL, P.A. (d/b/a ANR
Law), A North Carolina Professional
Association. and ASHLEY-NICOLE
RUSSELL, an individual,

Plaintiffs, ORDER AND OPINION ON
DEFENDANTS MCLAWHORN LEGAL
v.
SERVICES PLLC AND BENJAMIN T.
MCLAWHORN LEGAL SERVICES MCLAWHORN’S MOTION TO
PLLC, A North Carolina Professional DISMISS NOTICE OF APPEAL AND
Limited Liability Company, and FOR ATTORNEYS’ FEES
BENJAMIN T. MCLAWHORN, an
individual (d/b/a "The Law Offices of
Benjamin T. McLawhorn"),

Defendants.

1. THIS MATTER is before the Court following the 7 April 2026 filing of

Defendants McLawhorn Legal Services PLLC and Benjamin T. McLawhorn’s Motion

to Dismiss Notice of Appeal and for Attorneys’ Fees (the Motion). (ECF No. 45 [Mot.].)

Pursuant to Rule 25(a) of the North Carolina Rules of Appellate Procedure (the

Appellate Rules) and N.C.G.S. § 6-21.5, Defendants move to dismiss the notice of

appeal filed by Plaintiffs in this action on 6 February 2026 and seek attorneys’ fees.

2. For the reasons set forth herein, the Court GRANTS the Motion in part.

Van Horn Law Firm, by Matthew I. Van Horn, for Plaintiffs The Law
Office of Ashley-Nicole Russell, P.A. (d/b/a ANR Law) and Ashley-
Nicole Russell.

Gaskins Hancock Tuttle Hash LLP, by E.D. Gaskins, Jr. and
Elizabeth R. Harrison, for Defendants McLawhorn Legal Services PLLC
and Benjamin T. McLawhorn.

Robinson, Chief Judge.
I. RELEVANT BACKGROUND

3. On 21 January 2026, the Court entered its Order and Opinion on

Defendants’ Amended Motion to Dismiss and, in the Alternative, Motion to Stay,

dismissing all claims asserted against Defendants in this action with prejudice, which

was served electronically on the parties through the Court’s electronic filing system.

(ECF No. 42.) The Order and Opinion was filed with the Wake County Clerk of

Superior Court the same day.

4. On 6 February 2026, Plaintiffs filed a notice of appeal with this Court

through the North Carolina Business Court’s electronic filing system (the Notice of

Appeal). (ECF No. 44 [Notice].) The Notice of Appeal provides as follows:

PLEASE TAKE NOTICE that Plaintiff The Law Office of Ashley-Nicole
Russell, P.A. d/b/a ANR Law and Ashley-Nicole Russell (collectively
“Plaintiffs”), through counsel, pursuant to Rule 3 of the North Carolina
Rules of Appellate Procedure, hereby appeal to the North Carolina Court
of Appeals from the trial court’s Order and Opinion On Defendants’
Amended Motion to Dismiss And, In The Alternative, Motion To Stay
(“Order”) which granted the Defendants’ Amended Motion to Dismiss
and, in the Alternative, Motion to Stay (ECF No. 10) and dismissed
Plaintiffs’ claims with prejudice. The Order was signed on 21 January
2026 and entered by filing on 21 January 2026.

(Notice.) The Notice of Appeal was not filed with the Wake County Clerk of Superior

Court.

5. On 5 March 2026, Plaintiffs provided Defendants with a proposed record on

appeal. (See ECF No. 46.1.)

6. On 7 April 2026, Defendants filed the Motion, which has been fully briefed

and is ripe for resolution. Pursuant to Business Court Rule (BCR) 7.4, the Court, in

its discretion, elects to rule on the Motion without oral argument.
II. ANALYSIS

7. Defendants seek dismissal of the Notice of Appeal on the following grounds:

(i) the Notice of Appeal was not filed, timely or untimely, with the Wake County Clerk

of Superior Court; and (ii) the Notice of Appeal is addressed to the wrong appellate

court. (Mot. 1.)

8. Pursuant to Appellate Rule 25(a):

If after giving notice of appeal from any court . . . the appellant shall fail
within the times allowed by these rules or by order of court to take any
action required to present the appeal for decision, the appeal may on
motion of any other party be dismissed. Prior to the filing of an appeal
in an appellate court, motions to dismiss are made to the court . . . from
which appeal has been taken; after an appeal has been filed in an
appellate court, motions to dismiss are made to that court.

N.C. R. App. P. 25(a).

9. As the record on appeal has not been finalized and filed in the appellate

court, Defendants have appropriately brought the Motion before this Court pursuant

to Appellate Rule 25(a). See Carter v. Clements Walker PLLC, 2014 NCBC LEXIS 12,

at *6–10 (N.C. Super. Ct. Apr. 30, 2014) (concluding that when an appeal has not yet

been docketed with the appellate court, the trial court retains jurisdiction to

determine whether a notice of appeal was timely and properly filed).

10. Appellate Rule 3(a) provides that the appealing party “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 by subsection (c) of this rule.” N.C. R.

App. P. 3(a) (emphasis added). It is undisputed that Plaintiffs’ deadline to file a notice
of appeal from the Court’s 21 January 2026 Order and Opinion was 20 February 2026.

See N.C. R. App. P. 3(c).

11. The 6 February 2026 filing by Plaintiffs of the Notice of Appeal on the

Business Court’s docket does not comply with provisions of Appellate Rule 3(a).

Moreover, BCR 3.11 makes clear that “the Clerk of Superior Court in the county of

venue maintains the official file for any action designated to the [Business] Court[.]”

Therefore, Plaintiffs have failed to timely file a notice of appeal satisfying the

requirements of Appellate Rule 3(a).

12. Further, pursuant to Section 7A-27 of the North Carolina General Statutes,

any appeal from this Court shall be taken to the Supreme Court of North Carolina.

N.C.G.S. § 7A-27(a). As the Notice of Appeal specifies that appeal has been taken to

the North Carolina Court of Appeals, the Notice of Appeal fails to comply with

Appellate Rule 3(d). See Zloop, Inc. v. Parker Poe Adams & Bernstein, LLP, 2018

NCBC LEXIS 40, at *4 (N.C. Super. Ct. Apr. 30, 2018) (citing Christenbury Eye Ctr.,

P.A. v. Medflow, Inc., 246 N.C. App. 237 (2016)).

13. As this Court noted in Zloop, the trial court must strictly construe Appellate

Rule 3 and is not vested with the discretion to allow an appeal to proceed

notwithstanding a notice of appeal’s noncompliance with that rule. Zloop, 2018

NCBC LEXIS 40, at *4 (citing Carter, 2014 NCBC LEXIS 12, at *18).
III. CONCLUSION

14. As Plaintiffs have failed to timely file the Notice of Appeal with the Wake

County Clerk of Superior Court and have improperly directed their appeal to the

North Carolina Court of Appeals, a dismissal of the appeal is appropriate.

15. THEREFORE, the Court hereby GRANTS the Motion in part and

DISMISSES the 6 February 2026 Notice of Appeal. With respect to Defendants’

request for attorneys’ fees, the Court ORDERS that Defendants file a separate

motion, along with a supporting brief and affidavits, justifying their request for an

award of attorneys’ fees, including a disclosure of the time spent and costs incurred,

and evidence of the reasonableness of the fees requested. Defendants shall file such

motion within twenty-eight (28) days of entry of this Order and Opinion.

SO ORDERED, this the 29th day of April, 2026.

/s/ Michael L. Robinson
Michael L. Robinson
Chief Business Court Judge