Carter v. N.C. State Bd. of Registration for Professional Engineers & Land Surveyors, 8610SC1345

• Decision Date: 07 July 1987
• Docket Number: No. 8610SC1345,8610SC1345
• Citation: 357 S.E.2d 705,86 N.C.App. 308
• Court: North Carolina Court of Appeals
• Parties: John M. CARTER, Plaintiff, v. N.C. STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS & LAND SURVEYORS; and George T. Paris, Chairman; and Montgomery T. Speir, Executive Secretary.

Page 705

357 S.E.2d 705

86 N.C.App. 308

John M. CARTER, Plaintiff, v. N.C. STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS & LAND SURVEYORS; and George T. Paris, Chairman and Montgomery T. Speir, Executive Secretary.

No. 8610SC1345.

Court of Appeals of North Carolina.

July 7, 1987.

Everett, Hancock, Nichols & Calhoun by M. Jackson Nichols, Raleigh, for plaintiff-appellant.

Bailey, Dixon, Wooten, McDonald, Fountain & Walker by Wright T. Dixon, Jr., Raleigh, for defendants-appellees.

MARTIN, Judge.

Plaintiff brought this civil action seeking a writ of mandamus to compel defendants to perform duties allegedly required of them by statute. Upon motion of defendants made pursuant to G.S. 1A-1, Rules 12(b)(1) and 12(b)(6), the trial court entered judgment dismissing the action. Plaintiff's petition for writ of certiorari to review the judgment was granted by this Court. We affirm the judgment of the trial court.

I

In the record on appeal filed by plaintiff, five assignments of error are listed, each of which is followed by a correspondingly numbered exception together with the reference "(R p ---)." However, there are no exceptions set out in the record on appeal as required by App.R. 10(b)(1) which provides, in part, that "[e]ach exception shall be set out immediately following the record of judicial action to which it is addressed." Exceptions which are not set out as provided by the rule may not be made the basis of an assignment of error, App.R. 10(a), and "exceptions which appear nowhere in the record except in the assignments of error will not be considered on appeal." State v. Lampkins, 283 N.C. 520, 526, 196 S.E.2d 697, 700 (1973). In addition, plaintiff has disregarded the mandatory requirements of App.R. 28(b)(5), which requires that each question presented in the brief be followed by "a reference to the assignments of error and exceptions pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record."

Ordinarily, a failure to comply with the Rules of Appellate Procedure subjects an appeal to dismissal. Wiseman v. Wiseman, 68 N.C.App. 252, 314 S.E.2d 566 (1984). In the present case, however, dismissal of plaintiff's complaint was based, in part, upon the trial court's conclusion that it was without subject matter jurisdiction. Notwithstanding the absence of exceptions properly set out in the record on appeal, a party may present for review the question of subject matter jurisdiction by raising the issue in his brief. App.R. 10(a). In his brief, plaintiff contends that the trial court has jurisdiction of this action and that it erred by granting defendants' Rule 12(b)(1) motion for dismissal. Accordingly, we will consider the issue of subject matter jurisdiction to be properly before us and, exercising the discretion granted us by App.R. 2, will review the merits of this appeal notwithstanding appellant's rules violations.

II

The North Carolina State Board of Registration for Professional Engineers and Land Surveyors (Board) is a statutorily created body charged with the duty of administering the provisions of Chapter 89C of the North Carolina General Statutes, "The North Carolina Engineering and Land Surveying Act;" defendants Paris and Speir are, respectively, its chairman and executive secretary. On or about 13 February 1985, plaintiff delivered to the Board information concerning a survey made of certain land in Rockingham County by Kenneth Vaughn, a registered land surveyor. Plaintiff, who is also a registered land surveyor and professional engineer, owns land which adjoins that surveyed by Vaughn. The material was accompanied by a letter addressed to the Board in which plaintiff stated: "The information is provided for your use to consider whether the methods used by Mr. Vaughn to survey the land ... comply with the Standards of Practice approved by your Board." In an attachment to the letter, plaintiff pointed out several alleged deficiencies in the Vaughn survey.

The documents were referred to a Review Committee of the Board and an investigation of plaintiff's allegations was conducted. On 30 May 1985, the Review Committee reviewed the case, concluded that there was insufficient evidence to support a charge of incompetence, gross negligence, or misconduct against Vaughn, and recommended that the case be closed. The recommendation of the Review Committee was approved by the Board. Defendant Speir notified plaintiff of the Board's action by letter dated 17 June 1985. Following a voluminous amount of correspondence about the matter between plaintiff, his attorney, various elected officials of the State, and defendants, plaintiff commenced the present action on 18 December 1985. Plaintiff alleged that the Board's action in closing the case without conducting a hearing with respect to his complaint against Vaughn was arbitrary, capricious, and in violation of the Board's statutory duty. He sought issuance of "a writ of mandamus according to the course and practice of the Court, requiring and compelling the Defendants to conduct a hearing" on his complaint against Vaughn, and an order permitting him to intervene in the hearing pursuant to G.S. 150A-23(d).

Defendants moved to dismiss the complaint pursuant to G.S. 1A-1, Rules 12(b)(1) and 12(b)(6). Upon hearing the motions to dismiss, the trial court apparently treated the complaint as a petition for judicial review of an administrative decision pursuant to Article 4 of Chapter 150A of the General Statutes (amended and recodified as G.S. 150B, Art. 4, effective 1 January 1986) and concluded that, although the Board's action in closing the case was the functional equivalent of a finding that plaintiff's charges against Vaughn were unfounded, the Board had not technically complied with G.S. 89C-22(b), which requires that all charges filed with the Board be heard unless dismissed by the Board as "unfounded or trivial." An order was entered remanding the matter to the Board for consideration de novo of plaintiff's charges against Vaughn and action with respect thereto as required by G.S. 89C-22(b). The trial court ordered that a copy of the Review Committee's recommendation and a copy of the Board's action taken on the recommendation be filed with the court.

Upon remand, the Review Committee reconsidered plaintiff's charges against Vaughn and submitted to the Board a written recommendation that the charges be dismissed as unfounded. The recommendation was considered by the Board at a meeting on 13 March 1986 and, after a presentation by plaintiff and his attorney, the Board voted to dismiss the charges against Vaughn as "unfounded." A report of the Board's action was submitted to the trial court.

At a subsequent hearing on defendants' motions to dismiss, the trial court reviewed the Board's report and permitted the parties to call witnesses and offer evidence. At the conclusion of the hearing, the trial court dismissed the action. The court concluded that plaintiff is not an "aggrieved" person as defined in the then applicable Administrative Procedure Act, G.S. 150A, and that the court was therefore without subject matter jurisdiction to judicially review the Board's action. The court also concluded, as a separate ground for dismissal of the action for mandamus, that "the pleadings show on their face that the Board received, investigated, considered and did not abuse its discretion in refusing to conduct a hearing, ... thus leaving no issue to be determined ... and the matter should be dismissed under Rule 12(B)(6) [sic]."

III

Plaintiff did not expressly petition for judicial review of an agency decision pursuant to G.S. 150A, Article 4, however, it is apparent from the record that the parties and the trial court considered the complaint as such a petition, and, on appeal, plaintiff contends that the action was properly before the superior court for review of the Board's decision. He assigns error to the court's conclusion that it was without subject matter jurisdiction to judicially review the Board's action because plaintiff is not "aggrieved" as that term is defined by G.S. 150A-2(6). He contends that he has status to petition for judicial review of the Board's action as an "aggrieved party": (1) because he is the complainant against Vaughn and suffered "procedural injury" by the denial of a hearing on the charges which he preferred; (2) because "he has legal interests as a property owner who was adversely affected by" Vaughn's allegedly improper survey; and (3) because, as a surveyor, he is required to comply with the Board's rules. We are not persuaded by his argument.

G.S. 89C-22(d) provides that a registrant who is aggrieved by a final decision of the Board in a disciplinary matter may appeal for judicial review as provided by G.S. 150A, Article 4. G.S. 150A- 43 establishes the requirements for judicial review of an agency decision. The statute requires that: (1) the plaintiff seeking review must be an aggrieved party; (2) there must be a final agency decision; (3) the decision must result from a contested case; (4) the plaintiff must have exhausted all administrative remedies; and (5) there must be no other adequate procedure for judicial review. Dyer v. Bradshaw, 54 N.C.App. 136, 282...