Harper v. City of Asheville

• Decision Date: 02 September 2003
• Docket Number: No. COA02-1044.,COA02-1044.
• Citation: 585 S.E.2d 240,160 NC App. 209
• Parties: Johnnie E. HARPER, Petitioner, v. City of ASHEVILLE, Respondent.
• Court: North Carolina Court of Appeals

585 S.E.2d 240

160 NC App. 209

Johnnie E. HARPER, Petitioner, v. City of ASHEVILLE, Respondent.

No. COA02-1044.

Court of Appeals of North Carolina.

September 2, 2003.

Biggers & Hunter, P.L.L.C., by John C. Hunter, Asheville, for petitioner-appellant.

Office of the City Attorney for the City of Asheville, by Assistant City Attorney II Martha Walker-McGlohon, for respondent-appellee.

GEER, Judge.

This appeal presents the question whether an individual is entitled, under § 8(f) of Chapter 303 of the 1999 N.C. Sess. Laws, to appeal to superior court a determination of the Asheville Civil Service Board ("the Board") that it lacked subject matter jurisdiction over the individual's grievance. The superior court ruled below that it had no subject matter jurisdiction and could review the Board's decision only pursuant to a writ of certiorari. We hold that, under the pertinent session law, petitioner Johnnie Harper was entitled to de novo review of the Board's decision by the superior court, but that the question of subject matter jurisdiction is a question for the court and not the jury. Because, however, our review of the record reveals no disputed issue of fact regarding whether Mr. Harper resigned, we affirm the trial court's dismissal of Mr. Harper's petition.

As originally enacted in 1953, the Asheville Civil Service Law provided a system of civil service protection for employees of the City of Asheville, but did not provide a mechanism for judicial review of decisions of the Civil Service Board. Jacobs v. City of Asheville, 137 N.C.App. 441, 443-44, 528 S.E.2d 905, 907 (2000). In 1977, the General Assembly amended the Asheville Civil Service Law to allow appeal from a decision of the Board to superior court for a trial de novo. Id. at 444-45, 528 S.E.2d at 907-08; 1977 N.C. Sess. Laws ch. 415.

The current version of the Asheville Civil Service Law appears at 1999 N.C. Sess. Law ch. 303. The act sets forth an administrative review procedure for certain personnel actions taken with respect to covered city employees. Specifically, under § 8(a) of this session law, "[w]henever any member of the classified service of the City is discharged, suspended, reduced in rank, transferred against his or her will, or is denied any promotion or raise in pay which he or she would be entitled to, that member shall be entitled to a hearing before the Civil Service Board to determine whether or not the action complained of is justified."

Mr. Harper worked for the City of Asheville in its Parks and Recreation Department and was covered by the civil service provisions of 1999 N.C. Sess. Law ch. 303. On 30 June 2000, Mr. Harper submitted a grievance alleging that the City of Asheville had unlawfully dismissed him from employment. After a determination by the Parks and Recreation Director that he had voluntarily resigned his position effective 22 June 2000, Mr. Harper sought a hearing before the Board under 1999 N.C. Sess. Law ch. 303, § 8(a).

Following an evidentiary hearing, the Board dismissed the grievance in an order dated 23 October 2000. The Board found that "[o]n June 8, 2000 Harper voluntarily resigned his position with the City of Asheville by giving notice of his resignation, effective June 22, 2000." The Board concluded as a matter of law that "having found that Harper voluntarily resigned from his employment, the Civil Service Board has no jurisdiction to grant relief in this matter."

On 2 November 2000, Mr. Harper filed a petition for trial de novo in Buncombe County Superior Court. The City filed a motion to dismiss under Rules 12(b)(6), 12(b)(1), and 12(b)(2) on 21 November 2000. On 14 March 2001, the City filed a motion to continue explaining that "upon further review of the Complaint filed by the Petitioner, matters outside of the pleadings will need to be considered by the court in ruling upon Respondent's Motion to Dismiss...." The City filed an answer on 23 April 2001, followed by a motion for summary judgment contending that the superior court lacked subject matter jurisdiction.

On 4 December 2001, the trial court entered an order stating that "in order for the Court to determine its subject matter jurisdiction, the Court must first review, by proceedings in the nature of certiorari, the decision rendered by the Asheville Civil Service Board dismissing Petitioner's Grievance for lack of subject matter jurisdiction...." The court ordered, pursuant to Rule 19 of the General Rules of Practice for the Superior and District Courts and N.C. Gen.Stat. § 1-269, that the complete record of proceedings before the Board be filed with the court. The court further directed that the matter be placed upon the trial calendar "for the sole purpose of determining whether the [Civil] Service Board properly dismissed Petitioner's grievance for lack of subject matter jurisdiction."

On 22 April 2002, Judge Robert D. Lewis heard the continued motion for summary judgment and Mr. Harper's petition for a jury trial de novo. With respect to Mr. Harper's petition, Judge Lewis concluded that the Board "considered conscientiously the evidence and determined unanimously that Johnnie Harper had resigned[;]" that without the necessary predicate action of a discharge, the Board had no jurisdiction; and "[a] fortior[i], the petition does not vest subject matter jurisdiction in the Superior Court...." In considering the court's own writ of certiorari, the court stressed that "the judge presiding does not substitute his or her own judgment for that of the Board," but decides only whether the Board committed an error of law and whether the decision was supported by competent evidence in the record. Finding no error of law and that competent evidence supported the Board's decision, Judge Lewis concluded that Mr. Harper was not entitled to relief by way of the writ of certiorari. Mr. Harper appealed from this order.

I

The first question presented by this appeal is whether Mr. Harper was entitled to de novo review before the superior court under 1999 N.C. Sess. Laws ch. 303 or whether the court properly considered his appeal pursuant to a writ of certiorari. Review by certiorari is appropriate when no right to appeal has been provided by law. Russ v. Board of Education, 232 N.C. 128, 130, 59 S.E.2d 589, 591 (1950).

In determining whether the trial court erred in reviewing this case by way of certiorari, we must decide whether 1999 N.C. Sess. Laws ch. 303 provided Mr. Harper with a right to appeal from the Board's conclusion that it lacked jurisdiction. The session law provides:

Within ten days of the receipt of notice of the decision of the Board, either party may appeal to the Superior Court Division of the General Court of Justice for Buncombe County for a trial de novo. The appeal shall be effected by filing with the Clerk of the Superior Court of Buncombe County a petition for trial in superior court, setting out the facts upon which the petitioner relies for relief. If the petitioner desires a trial by jury, the petition shall so state.

1999 N.C. Sess. Laws ch. 303, § 8(f).

The City argues that Mr. Harper had no right of appeal under this provision because the Board concluded that it lacked jurisdiction. Under the City's view of the Act, any decision by the Board that it lacks jurisdiction is not subject to appeal. We disagree.

No provision of the session law suggests such a limitation. Section 8(f) states that upon receipt of the decision, either party may appeal "for a trial de novo." The Board issued a decision under § 8(e), finding that Mr. Harper had not met the requirements of § 8(a). The plain language of § 8(f) of the session law authorized Mr. Harper to appeal that decision.

The language does not suggest that the General Assembly intended to require the superior court to defer to the Board's factual findings and legal conclusions regarding subject matter jurisdiction. To the contrary, our Supreme Court has held that when a statute providing an appeal from an agency decision stipulates that the hearing shall be de novo, the statute gives "the court jurisdiction to determine the whole case...." Able Outdoor, Inc. v. Harrelson, 341 N.C. 167, 170, 459 S.E.2d 626, 628 (1995). A significant aspect of "the whole case" is whether the agency—or in this case the Board—had jurisdiction. This Court's prior decisions with respect to the Asheville Civil Service Board are consistent with a de novo hearing on the question of subject matter jurisdiction. In Worley v. City of Asheville, 100 N.C.App. 596, 598, 397 S.E.2d 370, 370 (1990),disc. review denied, 328 N.C. 275, 400 S.E.2d 463 (1991), this Court affirmed the trial court's grant of summary judgment when review of the evidence revealed no issue of fact regarding whether the petitioner was entitled to a pay increase, a prerequisite for review by the Board. Similarly, in O'Donnell v. City Asheville, 113 N.C.App. 178, 180, 438 S.E.2d 422, 423 (1993), the Court affirmed the trial court's dismissal of a petition for lack of jurisdiction based on the allegations of the petition and not on the Board's dismissal: "Plaintiff's failure to allege that he is entitled to a promotion is more than a harmless technical error. Without that allegation, the petition does not vest subject matter jurisdiction in the superior court, and whenever the court does not have subject matter jurisdiction, the judge must dismiss." In neither case did this Court base its decision on the Board's finding of a lack of jurisdiction. See also Warren v. City of Asheville, 74 N.C.App. 402, 405-06, 328 S.E.2d 859, 862 (Asheville Civil Service Law's provision for trial de novo vests the superior court "`with full power to determine the issues and rights of all parties... as if the suit had been filed originally in the court.'") (quoting In re Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649 (1964)), disc. review denied, 314 N.C. 336, 333 S.E.2d 496 (1985).

Even if the City were correct and no right to appeal existed,...