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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA07-377


Filed: 6 November 2007


    v.                        Guilford County
                            No. 06 CVS 7773

    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 of Education.

    Thomas S. Whitaker and Thomas H. Hodges, Jr., for respondent- appellee Employment Security Commission of North Carolina.

    TYSON, Judge.

    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 with instructions.

I. Background
    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 appealed.
    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.
II. Issues
    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 . . . .

(Emphasis supplied).
    “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.
IV. Conclusion
    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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