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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
ROBIN J. SIMMONS-BLOUNT,
v. Guilford County
No. 06 CVS 7773
GUILFORD COUNTY BOARD OF EDUCATION
and EMPLOYMENT SECURITY COMMISSION
OF NORTH CAROLINA,
Appeal by petitioner from judgment entered 5 December 2006 by
Judge W. Douglas Albright in Guilford County Superior Court. Heard
in the Court of Appeals 18 October 2007.
Robin J. Simmons-Blount, petitioner-appellant, pro se.
No brief filed for respondent-appellee Guilford County Board
Thomas S. Whitaker and Thomas H. Hodges, Jr., for respondent-
appellee Employment Security Commission of North Carolina.
Robin J. Simmons-Blount (claimant) appeals from judgment
entered, which affirmed the Employment Security Commission of North
Carolina's (the Commission) decision to disqualify her from
receiving unemployment insurance benefits. We vacate and remand
Claimant was employed by the Guilford County Board of
Education (the Board) as a teacher at Smith High School. On 5
October 2005, claimant attempted to control an unruly student inher classroom. The confrontation escalated into a physical
altercation between claimant and the student. The altercation
spilled over into the hallway and ended when another teacher
intervened and separated claimant from the student.
Two days later on 7 October 2005, claimant met with school
administrators to discuss the incident. Claimant was informed the
Board would not support her return to Smith High School and was
told sometimes when people find themselves in this situation, they
elect to resign their position rather than have [a] termination on
their record. At the end of the meeting, claimant signed a
release and resignation letter previously prepared by the Board.
Six weeks later, on 27 November 2005, claimant filed a New
Initial Claim for unemployment insurance benefits. The adjudicator
held claimant was disqualified from receiving benefits. Claimant
On 16 March 2006, the appeals referee stated the record
evidence and facts found therefrom do not support a conclusion that
the claimant has met the burden of showing good cause attributable
to the employer for leaving. The appeals referee held claimant
was disqualified from receiving unemployment benefits. Claimant
appealed to the Commission.
On 25 May 2006, the Commission affirmed the decision of the
appeals referee. On 29 June 2006, claimant petitioned for judicial
review of the Commission's decision. The superior court affirmed
the Commission's decision in its entirety. Claimant appeals.
Claimant argues the trial court erred by: (1) finding the
Commission's findings of fact to be supported by competent
evidence; (2) finding that the Commission's findings of fact
support its conclusions of law; and (3) affirming the Commission's
decision in its entirety.
The Commission cross assigns that the trial court erred by
denying its motion to dismiss claimant's appeal.
III. Motion to Dismiss
As a threshold matter, we review the trial court's failure to
grant the Commission's motion to dismiss claimant's petition for
judicial review. The Commission argues the petition was not
properly served upon the Board pursuant to N.C. Gen. Stat. § 96-
15(h) and the superior court erred by not granting its motion to
dismiss. We agree.
N.C. Gen. Stat. § 96-15(h) (2005) states:
Within 10 days after the petition is filed
with the court, the petitioner shall serve
copies of the petition . . . upon the
Commission and upon all parties of record to
the Commission proceedings. . . . The
Commission shall be deemed to be a party to
any judicial action involving any of its
decisions and may be represented in the
judicial action by any qualified attorney who
has been designated by it for that purpose.
Upon motion of the Commission, the court shall
dismiss any review for which the petition is .
. . improperly served . . . .
The statutory requirements [of serving the petition upon the
Board] are mandatory and not directory. They are conditions
precedent to obtaining a review by the courts and must be observed. Noncompliance therewith requires dismissal. In re Employment
Security Com., 234 N.C. 651, 653, 68 S.E.2d 311, 312 (1951).
Here, the superior court found as fact:
[claimant] did not properly serve a copy of
her Petition for Judicial Review on the
[Board] as required by [N.C. Gen. Stat. §] 96-
15(h), but in the alternative, if the Court
were to conclude that [claimant] . . .
[complied] with the statute, the Court, upon
review of the entire case is of the opinion
that the Commission's FINDINGS OF FACT were
supported by competent evidence; the
[Commission] properly applied the law to those
facts; and that [the Commission's decision]
should be affirmed in its entirety.
Based upon the mandatory language of N.C. Gen. Stat. § 96-
15(h) and our Supreme Court's precedent, the superior court was
required to dismiss claimant's petition for judicial review upon
motion and finding claimant did not properly serve a copy of her
[petition] on the [Board]. Id. In light of our decision, we do
not address claimants's assignments of error.
The superior court's order is vacated and this case is
remanded with instructions to grant the Commission's motion to
dismiss and enter an appropriate order to dismiss this action.
Vacated and Remanded with Instructions.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).
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