{
  "id": 8524525,
  "name": "GEORGE A. BRYANT, Plaintiff v. NORTH CAROLINA STATE BOARD OF EXAMINERS OF ELECTRICAL CONTRACTORS, GARFIELD B. GWYN, WILLIAM T. EASTER, EDWARD H. MARROW, JR., J. MICHAEL SILVER, J. ALAN BARRINGER, WILLIAM H. ROBERTS, and WILLIAM R. HOKE, Defendants",
  "name_abbreviation": "Bryant v. North Carolina State Board of Examiners of Electrical Contractors",
  "decision_date": "1993-09-07",
  "docket_number": "No. 9210SC915",
  "first_page": "875",
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          "page": "708",
          "parenthetical": "complainant who initiates disciplinary hearing against licensee is not an aggrieved party and therefore lacks standing to petition for judicial review of the board's decision"
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      "cite": "86 N.C. App. 308",
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      "reporter": "N.C. App.",
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      "year": 1987,
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  "last_updated": "2023-07-14T15:07:55.768244+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges COZORT and MARTIN concur."
    ],
    "parties": [
      "GEORGE A. BRYANT, Plaintiff v. NORTH CAROLINA STATE BOARD OF EXAMINERS OF ELECTRICAL CONTRACTORS, GARFIELD B. GWYN, WILLIAM T. EASTER, EDWARD H. MARROW, JR., J. MICHAEL SILVER, J. ALAN BARRINGER, WILLIAM H. ROBERTS, and WILLIAM R. HOKE, Defendants"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Chief Judge.\nChapter 87, Article 4 of the General Statutes governs electrical contractors in North Carolina and names the Board as the agency responsible for licensing contractors and overseeing the licensees\u2019 conduct. Chapter 87 also designates certain conduct which will subject an electrical contractor to penalties if the Board, in its discretion, decides to impose those penalties. N.C. Gen. Stat. \u00a7 87-47(al) \u2014(a2) (1989). The complaint plaintiff filed with the Board alleged that a licensee engaged in conduct proscribed by Chapter 87, and his first cause of action in the superior court complaint was a request for an order to compel the Board to apply for an administrative law judge to hold a hearing on the original complaint. He argues that pursuant to N.C. Gen. Stat. \u00a7\u00a7 87-47 and 150B-40(e) he is guaranteed a right to a contested case hearing on those charges.\nG.S. \u00a7 87-47(a3) provides in pertinent part that \u201c[a]ny person may prefer charges against any applicant, qualified individual, or licensee . . . .\u201d When the Board is unable to or declines to hear a contested case, N.C. Gen. Stat. \u00a7 150B-40(e) (1991) provides that \u201cthe agency shall apply to the Director of the Office of Administrative Hearings for the designation of an administrative law judge to preside at the hearing of a contested case under this Article.\u201d Plaintiff argues that because G.S. \u00a7 150B-40(e) states that the agency \u201cshall\u201d apply for an administrative law judge, his cause of action to compel the Board to apply for an administrative law judge was erroneously dismissed. For the reasons set out below, we conclude that plaintiff lacks standing to bring this action, and we affirm the trial court\u2019s order dismissing this cause of action.\nWe view this cause of action as a petition for a writ of mandamus through which plaintiff seeks to compel the Board to perform as required by Chapters 87 and 150B. A writ of mandamus will be granted only to a party having a clear legal right to demand performance of an act. Carter v. State Bd. of Registration for Professional Engineers & Land Surveyors, 86 N.C. App. 308, 314, 357 S.E.2d 705, 709 (1987). It enforces a legal right; it does not create one. Ponder v. Joslin, 262 N.C. 496, 504, 138 S.E.2d 143, 149 (1964). The writ will not be granted to enforce an alleged right which is in doubt. Id. Plaintiff, therefore, must have a legal right to a contested case hearing in order to avoid dismissal of this claim. We hold that he does not have that right.\nG.S. \u00a7 87-47(a3) provides that any person may file a complaint with the Board, but it does not go so far as to bestow standing on any person to demand a contested case hearing. Plaintiff is not in the class of people which Chapter 150B contemplates bringing a contested case hearing. Contested case is defined as \u201can administrative proceeding pursuant to this Chapter to resolve a dispute between an agency and another person that involves the person\u2019s rights, duties, or privileges . . . N.C. Gen. Stat. \u00a7 150B-2(2) (1991). Plaintiff is not a person whose rights, duties, or privileges are at stake, and for that reason, he lacks standing to demand a contested case hearing. See Carter, 86 N.C. App. at 312-13, 357 S.E.2d at 708 (complainant who initiates disciplinary hearing against licensee is not an aggrieved party and therefore lacks standing to petition for judicial review of the board\u2019s decision). G.S. \u00a7 87-47(a3) only provides an avenue for lodging complaints against other licensees; it does not provide plaintiff the standing he lacks. Here we believe that the agency and the licensee against whom the charges are brought are the proper parties to a contested case and, therefore, the only parties who may insist on a hearing in this case.\nThis decision follows naturally from our decision in Carter. The plaintiff in Carter sought judicial review of a licensing board\u2019s decision that the complaint he filed against another licensee was unfounded. We determined that the plaintiff lacked standing to seek judicial review of the agency\u2019s decision because he was not an aggrieved person. Pursuant to Carter, plaintiff here would not have standing to seek judicial review of an administrative decision on his complaint, so it would be inconsistent to hold that he nonetheless has a right to demand that an administrative decision be reached. For these reasons, the trial court properly dismissed plaintiff\u2019s first cause of action.\nIn plaintiff\u2019s second and third arguments, he contends that the court erred in dismissing the claims which he designated as causes of action for nonfeasance and malfeasance. In the complaint plaintiff described certain acts and omissions on the part of the individual defendants and requested, as relief, \u201cjudgment of nonfeasance\u201d and \u201cjudgment of malfeasance.\u201d Nonfeasance and malfeasance are not in themselves recognized causes of action, and plaintiff cites no law in support of his claims aside from the statutes or administrative rules which defendants allegedly ignored. These arguments have no merit.\nIn his final argument, plaintiff contends that the court erred by dismissing his sixth claim for relief in which he requests \u201cjudgment of misconduct\u201d against defendant Hoke, an attorney, for violating the Rules of Professional Conduct. We reject plaintiff\u2019s argument that the court\u2019s general disciplinary power over attorneys creates a cause of action in his favor, and we likewise reject plaintiff\u2019s entire argument on this issue.\nThe trial court\u2019s order dismissing plaintiff\u2019s complaint is affirmed.\nAffirmed.\nJudges COZORT and MARTIN concur.",
        "type": "majority",
        "author": "ARNOLD, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General James E. Magner, Jr., for defendants.",
      "George A. Bryant pro se."
    ],
    "corrections": "",
    "head_matter": "GEORGE A. BRYANT, Plaintiff v. NORTH CAROLINA STATE BOARD OF EXAMINERS OF ELECTRICAL CONTRACTORS, GARFIELD B. GWYN, WILLIAM T. EASTER, EDWARD H. MARROW, JR., J. MICHAEL SILVER, J. ALAN BARRINGER, WILLIAM H. ROBERTS, and WILLIAM R. HOKE, Defendants\nNo. 9210SC915\n(Filed 7 September 1993)\n1. Mandamus \u00a7 10 (NCI4th)\u2014 writ of mandamus to compel Board to hold hearing \u2014 no right to contested case hearing \u2014 standing\nThe trial court properly dismissed an action to compel the N.C. State Board of Examiners of Electrical Contractors to apply for an administrative law judge to hear a case which the Board had determined that it was prohibited from hearing due to prior knowledge where plaintiff had filed a complaint with the Board pursuant to N.C.G.S. \u00a7 87-47(a3) and Title 21 of the N.C. Administrative Code alleging that another licensee had repeatedly violated Chapter 87 of the North Carolina General Statutes. The agency and the licensee against whom the charges are brought are the proper parties to a contested case and, therefore, the only parties who may insist on a hearing in this case. A writ of mandamus will be granted only to a party having a clear legal right to demand performance of an act and will not be granted to enforce an alleged right which is in doubt.\nAm Jur 2d, Mandamus \u00a7 162 et seq.\n2. Mandamus \u00a7 10 (NCI4th)\u2014 malfeasance and nonfeasance \u2014not causes of action\nThe trial court did not err in dismissing causes of action for malfeasance and nonfeasance in an action in which plaintiff sought to compel a hearing before an administrative law judge regarding allegations he had brought against another licensee. Nonfeasance and malfeasance are not in themselves recognized causes of action.\nAm Jur 2d, Mandamus \u00a7 162 et seq.\n3. Attorneys at Law \u00a7 5 (NCI4th)\u2014 judgment of misconduct \u2014 claim dismissed\nThe trial court did not err by dismissing a claim for a \u201cjudgment of misconduct\u201d against an attorney based on violations of the Rules of Professional Conduct. Plaintiff\u2019s argument that the court\u2019s general disciplinary power over attorneys creates a cause of action in his favor was rejected.\nAm Jur 2d, Attorneys at Law \u00a7\u00a7 28, 31.\nAppeal by plaintiff from order entered 10 July 1992 by Judge W. Steven Allen in Wake County Superior Court. Heard in the Court of Appeals 8 July 1993.\nPlaintiff is licensed by the North Carolina State Board of Examiners of Electrical Contractors (the Board). On 11 January 1991, he filed a complaint with the Board pursuant to N.C. Gen. Stat. \u00a7 87-47(a3) and Title 21 of the N.C. Administrative Code alleging that another licensee had repeatedly violated Chapter 87 of the North Carolina General Statutes. The complaint was considered by the Board\u2019s Disciplinary Review Committee at its 6 May 1991 meeting. The Committee announced that it would present its recommendations to the full Board at the Board\u2019s next meeting.\nPlaintiff disagreed with the Disciplinary Review Committee\u2019s recommendations and requested that the Board reject them. At its 8 June 1991 meeting, the Board determined that it was prohibited from holding a hearing on the complaint because the members were prejudiced by prior knowledge of the charges. Plaintiff then insisted that the Board apply for an administrative law judge to hear the case, but the Board never made the requested application. Plaintiff filed this action in superior court to compel the Board to apply for an administrative law judge.\nBefore filing an answer, defendants moved for dismissal. The court granted the motion and dismissed the action pursuant to N.C.R. Civ. P. 12(b)(6). From this order plaintiff appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General James E. Magner, Jr., for defendants.\nGeorge A. Bryant pro se."
  },
  "file_name": "0875-01",
  "first_page_order": 905,
  "last_page_order": 909
}