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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JOHNNIE E. HARPER, Petitioner, v. CITY OF ASHEVILLE, Respondent
Filed: 2 September 2003
1. Administrative Law_appeal to superior court_session law_de novo review of
An appeal of right existed from a decision by the Asheville Civil Service Board that it lacked
jurisdiction over an employment grievance. The session law in which the Asheville Civil Service
Law appears does not suggest a legislative intent that the superior court defer to the Board's findings
and conclusions on subject matter jurisdiction. Moreover, the court has jurisdiction to determine the
whole case, including jurisdiction, when a statute provides appeal from an agency decision de novo,
as in this case. Finally, even if no right of appeal exists, the standard of review is de novo for
questions of subject matter jurisdiction.
2. Administrative Law_appeal to superior court_de novo determination of jurisdiction
The right to appeal a civil service board's jurisdictional decision entitled petitioner to a de
novo determination by the trial court. The trial court's deferential standard of review was improper;
however, after its own de novo review, the Court of Appeals concluded that the Asheville Board
lacked subject matter jurisdiction.
Appeal by petitioner from judgment entered 29 April 2002 by
Judge Robert D. Lewis in Buncombe County Superior Court. Heard in
the Court of Appeals 23 April 2003.
Biggers & Hunter, P.L.L.C., by John C. Hunter, for petitioner-
Office of the City Attorney for the City of Asheville, by
Assistant City Attorney II Martha Walker-McGlohon, for
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 courtruled 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 membershall 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
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 wassupported 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
 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
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 lackedjurisdiction. Under the City's view of the Act, any decision by
the Board that it lacks jurisdiction is not subject to appeal. We
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 forreview 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,
Mr. Harper would still have been entitled to de novo review of the
Board's decision in this case. For questions of subject matter
jurisdiction, the standard of review is de novo even when there is
no right to appeal. See, e.g., Raleigh Rescue Mission, Inc. v.
Board of Adjustment of City of Raleigh, 153 N.C. App. 737, 740, 571
S.E.2d 588, 590 (2002) ("Because the issue of whether the Board had
jurisdiction is a question of law, the trial court applied the
incorrect standard of review. The appropriate review is denovo."); Beauchesne v. University of North Carolina at Chapel Hill,
125 N.C. App. 457, 468, 481 S.E.2d 685, 692 (1997) (because
petitioner contended that the State Personnel Commission erred in
deciding that it did not have jurisdiction over a particular
personnel action, "our de novo review is again required"). Under
the de novo standard, the trial court is required to consider the
question of jurisdiction "anew, as if not previously considered or
decided" by the Board. Raleigh Rescue Mission, 153 N.C. App. at
740, 571 S.E.2d at 590.
We hold, therefore, that a right of appeal exists under 1999
N.C. Sess. Laws ch. 303 from a decision of the Board that it lacks
jurisdiction under § 8(a) of the session law. The trial court
erred (1) in dismissing the petition based on the fact that the
Board had found no jurisdiction; and (2) in applying the whole
record test to the question of jurisdiction when considering the
Board's decision pursuant to the court's writ of certiorari.
Raleigh Rescue Mission, 153 N.C. App. at 740, 571 S.E.2d at 590
(court erred in applying whole record review to question of
 Our holding that Mr. Harper was entitled to appeal the
Board's jurisdictional decision does not, however, automatically
entitle him to a trial by jury on that question. He was instead
entitled to a de novo
determination of subject matter jurisdiction
by the court. Our Supreme Court has held that a trial court may decide the
question of subject matter jurisdiction without a jury even if the
evidence presents issues of fact:
"The issue of jurisdiction is basically one of
law. It involves the determination by the
court of its right to proceed with the
litigation. A decision of this question by
the court deprives a litigant of no right to a
jury trial of the issue of liability because,
if the court has no jurisdiction, the
litigants have no rights which they may assert
in that court. The right to have a jury pass
upon the controverted factual issues must of
necessity relate to the assertion of the right
of the litigant which has been allegedly
violated, which presupposes a court having
jurisdiction to grant the relief sought. The
determination of the jurisdictional question
by the court is not a denial of any
constitutional right of a litigant to a jury
trial, but simply a determination of the forum
in which those rights may properly be
asserted. The decision of the question of
whether the court has jurisdiction is a
preliminary one to the determination of the
merits of the cause, and is for the court to
Burgess v. Gibbs
, 262 N.C. 462, 465-66, 137 S.E.2d 806, 808 (1964)
(quoting Bridges v. Wyandotte Worsted Co.
, 243 S.C. 1, 9, 132
S.E.2d 18, 21-22 (1963), overruled in part on other grounds, Sabb
v. S.C. State Univ.,
350 S.C. 416, 567 S.E.2d 231 (2002)). More
recently, the Supreme Court has held that once the question of
subject matter jurisdiction is raised, the superior court must
"follow the proper procedure and [make] findings of fact and
conclusions of law in resolving the issue." Lemmerman v. Williams
, 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986).
Generally, a defendant raises the issue of subject matter
jurisdiction by filing, as the City did here, a Rule 12(b)(1)
motion. As a leading civil procedure commentator has noted, A motion under Rule 12(b)(1) may be used to
attack two different types of defects. The
first is the pleader's failure to comply with
Rule 8(a)(1), which means that the allegations
in the complaint are insufficient to show that
the . . . court has jurisdiction over the
subject matter of the case. . . . The other
defect that may be challenged under Rule
12(b)(1) is the court's actual lack of
jurisdiction over the subject matter, a defect
that may exist despite the formal sufficiency
of the allegations in the complaint.
5A Charles A. Wright and Arthur R. Miller, Federal Practice and
§ 1350 at 211-12 (2d ed. 1990).
As this Court has previously explained, when considering a
Rule 12(b)(1) motion _ in contrast to a motion under Rule 12(b)(6)
_ a trial court is not confined to the face of the pleadings, "'but
may review or accept any evidence, such as affidavits, or it may
hold an evidentiary hearing.'" Smith v. Privette
, 128 N.C. App.
490, 493, 495 S.E.2d 395, 397 (1998) (quoting 2 James W. Moore et
, Moore's Federal Practice,
§ 12.30 (3d ed. 1997)). Our
review of a trial court's decision denying or allowing a Rule
12(b)(1) motion is de novo
"except to the extent that the trial
court resolves issues of fact and those findings are binding on the
appellate court if supported by competent evidence in the record."
Here, the trial court should have first determined, as
required by O'Donnell
, whether Mr. Harper's petition properly
invoked the court's subject matter jurisdiction by alleging a
personnel action within the scope of § 8(a) of the session law.
, 113 N.C. App. at 180, 438 S.E.2d at 423 (without
plaintiff's allegation that he was "entitled to" a promotion, "the
petition does not vest subject matter jurisdiction in the superiorcourt," and the trial judge must dismiss the petition). Mr.
Harper's petition alleges that "[t]he actions of the City herein
alleged resulted in the discharge of the Petitioner without just
cause and in violation of the Personnel Policy of the City of
Asheville." This allegation sufficiently invokes the superior
court's subject matter jurisdiction.
The City was then entitled to challenge, as it did, the
factual basis for that allegation. It was the trial court's
responsibility to determine de novo
, upon review of the parties'
evidence, whether Mr. Harper resigned or whether he was discharged.
, Campbell v. N.C. Dep't of Transp.
, __ N.C. App. __, 575
S.E.2d 54, 60 (superior court properly determined that agency's
conclusion that petitioner voluntarily resigned was an error of
law), disc. review denied,
357 N.C. 62, 579 S.E.2d 386 (2003). As
this Court indicated in Privette
, the trial court was free to
decide the jurisdictional question based on affidavits or other
documentary evidence or, if the court found issues of fact, to hold
an evidentiary hearing.
It is apparent from Judge Lewis' order that he conducted a
careful review of the whole administrative record, but that he
applied the wrong standard of review. As stated by Judge Lewis in
his order, "With regard to this case, sub judice
, the judge
presiding does not substitute his or her own judgment for that of
the Board but decides only: 1. Did the Board commit an error of
law? 2. Is the Board's decision that Harper resigned supported by
competent evidence in the record?" Judge Lewis thus applied a
deferential standard of review to the Board's decision. Under §8(f) of the session law, however, Mr. Harper was entitled to de
review, which "'vests a court with full power to determine the
issues and rights of all parties involved, and to try the case as
if the suit had been filed originally in that court.'" Warren
N.C. App. at 405-06, 328 S.E.2d at 862 (quoting In re Hayes
N.C. 616, 622, 135 S.E.2d 645, 649 (1964)).
Since the issue of subject matter jurisdiction is a question
of law, we may address the dispositive issue without remanding the
case to superior court for application of the proper standard of
review. Capital Outdoor, Inc. v. Guilford County Bd. Of
355 N.C. 269, 559 S.E.2d 547 (2002), adopting per
146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene,
J., dissenting). See also Capital Outdoor, Inc. v. Guilford County
Bd. Of Adjustment,
152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (on
appeal from superior court's review of agency decision, appellate
court must determine whether agency committed any errors in law),
disc. review denied,
356 N.C. 611, 574 S.E.2d 676 (2002). After a
careful de novo
review of the record, we find no evidence that
could support a finding that Mr. Harper was fired. The Board,
therefore, properly concluded it lacked subject matter
During his testimony before the Board, Mr. Harper admitted, at
the beginning of his cross-examination, that he told the
receptionist he was quitting at the point when she asked if he
wanted to leave a voice mail for the Director of Parks and
Recreation. He then repeatedly testified that he could not deny
instructing the receptionist to tell the Director that he wasquitting effective two weeks later, that the Director should draw
up the necessary paperwork, and that Mr. Harper would be going to
court. Although given numerous opportunities, Mr. Harper never
denied directing the receptionist to tell the Director that he was
quitting. Mr. Harper bore the burden of proving that he was
discharged as opposed to voluntarily resigning because without a
discharge, the superior court lacked subject matter jurisdiction.
(See footnote 1)
Guilford County Planning & Dev. Dep't v. Simmons,
115 N.C. App. 87,
91, 443 S.E.2d 765, 768 (1994) (plaintiff bears burden of proving
subject matter jurisdiction). In light of Mr. Harper's testimony
before the Board, he cannot meet his burden.
Although we agree with Mr. Harper's first contention that the
trial court erred in reviewing the Board's decision pursuant to a
writ of certiorari
, we conclude that the trial court properly
dismissed the petition for lack of subject matter jurisdiction.
Judges TIMMONS-GOODSON and BRYANT concur.
Our review of the record does not indicate that Mr. Harper has
argued at any point that his resignation amounted to a constructive
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