{ "id": 11918902, "name": "N.C. CENTRAL UNIVERSITY, Petitioner-Appellant, v. BOYD S. TAYLOR, Respondent-Appellee", "name_abbreviation": "N.C. Central University v. Taylor", "decision_date": "1996-06-04", "docket_number": "No. COA95-755", "first_page": "609", "last_page": "614", "citations": [ { "type": "official", "cite": "122 N.C. App. 609" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "449 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "Court of Appeals without authority to issue writ of certiorari to review decision of Deputy Commissioner of Industrial Commission" } ], "opinion_index": 0 }, { "cite": "337 N.C. 801", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552128, 2551232, 2550766, 2549840, 2550675 ], "year": 1994, "pin_cites": [ { "parenthetical": "Court of Appeals without authority to issue writ of certiorari to review decision of Deputy Commissioner of Industrial Commission" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0801-05", "/nc/337/0801-04", "/nc/337/0801-01", "/nc/337/0801-03", "/nc/337/0801-02" ] }, { "cite": "448 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "Court of Appeals without authority to issue writ of certiorari to review decision of Deputy Commissioner of Industrial Commission" }, { "page": "382", "parenthetical": "issuance of writ of certiorari exceeding the court's proper exercise of its discretionary powers must be vacated" } ], "opinion_index": 0 }, { "cite": "337 N.C. 785", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551769 ], "year": 1994, "pin_cites": [ { "page": "788", "parenthetical": "Court of Appeals without authority to issue writ of certiorari to review decision of Deputy Commissioner of Industrial Commission" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0785-01" ] }, { "cite": "228 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "535-36" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547642 ], "year": 1976, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0088-01" ] }, { "cite": "400 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "113" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 433", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527869 ], "year": 1991, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0433-01" ] }, { "cite": "418 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "705", "parenthetical": "quoting State v. House of Raeford Farms, 101 N.C. App. 433, 442, 400 S.E.2d 107, 113 (1991)" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527132 ], "year": 1992, "pin_cites": [ { "page": "70", "parenthetical": "quoting State v. House of Raeford Farms, 101 N.C. App. 433, 442, 400 S.E.2d 107, 113 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0063-01" ] }, { "cite": "408 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "888", "parenthetical": "citations omitted" }, { "page": "887-88" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 280", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521290 ], "year": 1991, "pin_cites": [ { "page": "284", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0280-01" ] }, { "cite": "23 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "222 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630914 ], "year": 1943, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0441-01" ] }, { "cite": "4 L.Ed.2d 738", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1960, "opinion_index": 0 }, { "cite": "362 U.S. 917", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177710, 6177582, 6177457, 6177203, 6177331, 6177852 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/us/362/0657-05", "/us/362/0657-04", "/us/362/0657-03", "/us/362/0657-01", "/us/362/0657-02", "/us/362/0657-06" ] }, { "cite": "111 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "9" } ], "opinion_index": 0 }, { "cite": "251 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624134 ], "year": 1959, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0177-01" ] }, { "cite": "124 S.E. 751", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1924, "pin_cites": [ { "page": "751" } ], "opinion_index": 0 }, { "cite": "188 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654074 ], "year": 1924, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc/188/0450-01" ] }, { "cite": "22 S.E.2d 896", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "222 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630038 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/222/0310-01" ] }, { "cite": "341 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523255 ], "year": 1986, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0279-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 126-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1995, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "441 S.E.2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527477 ], "year": 1994, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0256-01" ] }, { "cite": "435 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "112 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520577 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0151-01" ] } ], "analysis": { "cardinality": 594, "char_count": 12442, "ocr_confidence": 0.751, "pagerank": { "raw": 5.894493567351843e-07, "percentile": 0.9527036132222381 }, "sha256": "84caada15297eb5d8cf13e7c939c3cc4eed9ba9cad92eb63134577d0ff6b6583", "simhash": "1:51bf460940d506df", "word_count": 1996 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and LEWIS concur." ], "parties": [ "N.C. CENTRAL UNIVERSITY, Petitioner-Appellant, v. BOYD S. TAYLOR, Respondent-Appellee" ], "opinions": [ { "text": "SMITH, Judge.\nThis case involves appellee Boyd Taylor\u2019s rights to priority reemployment consideration under North Carolina law resulting from a Reduction in Force (\u201cRIF\u201d) and veteran\u2019s preference consideration by appellant, North Carolina Central University (\u201cNCCU\u201d). Both parties attempt to appeal a superior court order which partially denied and partially granted NCCU\u2019s petition for certiorari from an administrative law judge\u2019s (\u201cAU\u201d) order denying NCCU\u2019s motion for summary judgment. There is no appeal provided by statute from an interlocutory order of the superior court granting or denying certiorari to an administrative agency. Therefore, the parties\u2019 attempted appeals in this case are defective and subject to dismissal.\nBecause no appeal is provided by statute, NCCU should have filed a petition for writ of certiorari with this Court pursuant to Appellate Rule 21(b) to obtain this Court\u2019s review of the superior court\u2019s partial denial of certiorari. Mr. Taylor\u2019s attempt to cross-assign error to the partial granting of certiorari and dismissal of the RIF claim was improper as the alleged error did not \u201cdeprive[] the appellee of an alternative basis in law for supporting the judgment. . . from which appeal has been taken.\u201d N.C.R, App. P. 10(d) (1995). Therefore, these issues are not properly before this Court. However, pursuant to Appellate Rule 21, and in our discretion, we treat the purported appeals of the parties as petitions for certiorari which are allowed pursuant to N.C. Gen. Stat. \u00a7 7A-32(c) (1995). Munn v. Munn, 112 N.C. App. 151, 435 S.E.2d 74 (1993). We now address the parties\u2019 issues in order to expedite a decision in this case and to promote judicial economy. See Adams v. Jones, 114 N.C. App. 256, 258, 441 S.E.2d 699, 700 (1994). For the reasons stated herein, that part of the superior court\u2019s order partially granting NCCU\u2019s petition for certiorari is vacated. That part of the order partially denying NCCU\u2019s petition is affirmed.\nThe relevant facts and procedural history are as follows: In September 1988, Mr. Taylor was hired by NCCU as a Food Service Director III, at pay grade 74. In November 1991, the University separated Taylor as a result of a RIF. He was advised that the circumstances under which he was leaving subjected him to the RIF policy, which provides certain separated employees priority reemployment consideration.\nIn August 1991, a pay grade 65 Purchasing Agent I position was posted by the University. Mr. Taylor applied and was interviewed for the job. However, a temporary employee was recommended for the position. In January 1992, Taylor contacted Mavis B. Lewis, Director of Personnel at NCCU, with regard to his priority employment rights under the RIF policy. Ms. Lewis informed Joyce Page, Director of Purchasing at NCCU, that Mr. Taylor should be hired for the position based upon his RIF status. Mr. Taylor was not hired and thereafter filed an internal grievance.\nOn 22 April 1992, the non-academic personnel appeals committee of NCCU found that Mr. Taylor\u2019s rights to priority consideration were violated and recommended he be placed in the first available position for which he met minimum requirements. Chancellor Donna J. Benson agreed with the committee\u2019s decision and informed Mr. Taylor that his priority reemployment status would be reinstated immediately.\nIn August 1992, Taylor accepted a position with NCCU for which the salary was $12,915 less than that of his previous position. On 18 September 1992, Mr. Taylor\u2019s attorney wrote Ms. Benson informing her that Taylor\u2019s priority reemployment consideration was \u201cmishandled,\u201d stating the purchasing job was filled \u201cin spite of Mr. Taylor\u2019s double priority considerations (Vietnam-era veteran and RIF\u2019ed status) . . . .\u201d\nAs of 21 March 1994, Mr. Taylor had not received a final decision regarding the University\u2019s failure to hire him for the purchasing position. He believed it was futile to again request a final decision. Thus, he filed a contested case petition with the Office of Administrative Hearings (\u201cOAH\u201d) on 24 May 1994, pursuant to N.C. Gen. Stat. \u00a7\u00a7 126-37 (1995) and 150B-23 (1995). In his contested case petition, a standardized OAH form, Taylor alleged \u201cRIF reemployment rights and due process.\u201d He did not reference his veteran\u2019s preference claim in the petition. However, he did raise the issue of veteran\u2019s preference in the letter to Ms. Benson and in his prehearing statement.\nOn 24 August 1994, NCCU filed a motion for summary judgment with OAH which was subsequently denied by the ALL On 4 January 1995, the superior court granted a temporary stay of the proceedings in OAH. On 20 April 1995, the superior court granted NCCU\u2019s petition for certiorari regarding OAH\u2019s jurisdiction over Mr. Taylor\u2019s RIF claim and dismissed that portion of Taylor\u2019s contested case. The superior court denied NCCU\u2019s petition for certiorari with regard to whether OAH had jurisdiction over Taylor\u2019s veteran\u2019s preference claim.\nAppellant NCCU now contends that the superior court erred by partially denying its petition for certiorari on the veteran\u2019s preference claim because sovereign immunity precludes Mr. Taylor from pursuing this claim. Mr. Taylor argues the superior court erred by partially granting NCCU\u2019s petition. We conclude that the superior court should not have issued the writ of certiorari on the issue of Taylor\u2019s RIF status. Thus, we vacate the partial issuance of the writ. The superior court\u2019s partial denial of NCCU\u2019s petition on Taylor\u2019s veteran\u2019s preference claim is affirmed.\nCertiorari is a common law writ which, in an appropriate case, may issue from a superior court to an inferior body exercising judicial or quasi-judicial powers to send up the record of a particular case for review. Mize v. County of Mecklenburg, 80 N.C. App. 279, 282, 341 S.E.2d 767, 769 (1986). However, our courts have frequently observed that a writ of certiorari is an extraordinary remedial writ. Pue v. Hood, 222 N.C. 310, 22 S.E.2d 896 (1942).\nIssuance of a writ of certiorari is within the discretion of the reviewing court. See, e.g., King v. Taylor, 188 N.C. 450, 451, 124 S.E. 751, 751 (1924); State v. Grundler and State v. Jelly, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959), cert. denied, 362 U.S. 917, 4 L.Ed.2d 738 (1960). Thus, in our review of the superior court\u2019s grant or denial of certiorari to an inferior tribunal, we determine only whether the superior court abused its discretion. We do not address the merits of the petition to the superior court in the instant case. See Belk\u2019s Department Store, Inc. v. Guilford County, 222 N.C. 441, 445, 23 S.E.2d 897, 901 (1943). We find that the superior court did abuse its discretion by partially granting NCCU\u2019s petition for certiorari and therefore vacate that order.\nThis Court has held that before a writ of certiorari will appropriately issue, the moving party bears the burden of \u201cdemonstrating]: (1) no appeal is provided at law; (2) a prima facie case of error below; and (3) merit to its petition.\u201d House of Raeford Farms v. City of Raeford, 104 N.C. App. 280, 284, 408 S.E.2d 885, 888 (1991) (citations omitted). Failure to meet the pleading requirements for this extraordinary writ deprives the superior court of subject matter jurisdiction of the particular matter over which the moving party seeks review. Id. at 283-84, 408 S.E.2d at 887-88.\nNCCU\u2019s petition for writ of certiorari to the superior court is deficient in its failure to allege or show that no appeal from the AU\u2019s denial of summary judgment is provided by law. The statutory framework within which this action was commenced, the Administrative Procedure Act, N.C. Gen. Stat. \u00a7\u00a7 150B, et seq., creates a right of judicial review for NCCU. Had the superior court not issued a partial writ of certiorari, an administrative hearing would have ensued. Thereafter, the ALJ would have issued a recommended decision to the State Personnel Commission, which would have then issued a final agency decision. See N.C. Gen. Stat. \u00a7 126-37(a) (1995).\nSubsequently, if the State Personnel Commission decided against NCCU, the University would be entitled to judicial review in the superior court. N.C. Gen. Stat. \u00a7\u00a7 126-37 and 150B-43. By providing for judicial review of a final agency decision, the General Assembly has expressed an intent that courts are not to review interlocutory administrative decisions. See N.C. Gen. Stat. \u00a7 150B-51.\n\u201cWhere a statute provides for \u2018an orderly procedure for an appeal to the superior court for review . . . this procedure is the exclusive means for obtaining judicial review,\u2019 and a civil action is only proper after all administrative remedies have been exhausted.\" Johnson v. N.C. Dept. of Transportation, 107 N.C. App. 63, 70, 418 S.E.2d 700, 705 (1992) (quoting State v. House of Raeford Farms, 101 N.C. App. 433, 442, 400 S.E.2d 107, 113 (1991)) (emphasis added). NCCU has not yet exhausted all available administrative remedies.\nCertiorari is to be granted in situations where no appeal is available and not, as here, for purposes of avoiding prerequisite procedural stages. See In re Metric Constructors, 31 N.C. App. 88, 92, 228 S.E.2d 533, 535-36 (1976). Until a final agency decision has been issued, there is no action for the superior court to review. Thus, the superior court did not have subject matter jurisdiction to grant the petition seeking the writ of certiorari. See Martin v. Piedmont Asphalt & Paving, 337 N.C. 785, 788, 448 S.E.2d 380, supersedeas dismissed, 337 N.C. 801, 449 S.E.2d 473 (1994) (Court of Appeals without authority to issue writ of certiorari to review decision of Deputy Commissioner of Industrial Commission). It necessarily follows that any orders issued by the superior court adjudicating the petition for certiorari must be vacated. Id. at 788, 448 S.E.2d at 382 (issuance of writ of certiorari exceeding the court\u2019s proper exercise of its discretionary powers must be vacated).\nIn summary, NCCU\u2019s petition for writ of certiorari to the superior court should have been denied in toto because NCCU has a right to judicial review of a final agency decision. For this reason the superior court\u2019s partial grant of certiorari on the RIF claim is vacated. Denial of certiorari on petitioner\u2019s veteran\u2019s preference claim is affirmed. Case remanded to superior court for further remand to OAH.\nVacated in part, affirmed in part.\nJudges GREENE and LEWIS concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Attorney General Michael F Easley, by Assistant Attorney General Thomas 0. Lawton, III, for the State.", "McSurely, Dorosin & Osment, by Alan McSurely, Mark Dorosin and Ashley Osment, for 'petitioner appellee." ], "corrections": "", "head_matter": "N.C. CENTRAL UNIVERSITY, Petitioner-Appellant, v. BOYD S. TAYLOR, Respondent-Appellee\nNo. COA95-755\n(Filed 4 June 1996)\n1. Appeal and Error \u00a7 292 (NCI4th)\u2014 superior court \u2014 certio-rari to administrative agency \u2014 review by certiorari in Court of Appeals\nThere is no appeal provided by statute from an interlocutory order of the superior court granting or denying a writ of certiorari to an administrative agency. Therefore, appellant should have filed a petition for a writ of certiorari with the Court of Appeals pursuant to Appellate Rule 21(b) to obtain review of the superior court\u2019s partial denial of a writ of certiorari seeking review of an administrative law judge\u2019s order denying appellant\u2019s motion for summary judgment.\nAm Jur 2d, Certiorari \u00a7\u00a7 5-14.\n2. Administrative Law and Procedure \u00a7 51 (NCI4th)\u2014 superior court review of interlocutory agency decision \u2014 writ of certiorari improperly granted\nNorth Carolina Central University\u2019s petition for writ of cer-tiorari filed in the superior court should have been denied in toto because it failed to allege or show that no appeal from the administrative law judge\u2019s denial of summary judgment was provided by law. Had the superior court not issued a partial writ of certiorari, an administrative hearing would have ensued; thereafter the administrative law judge would have issued a recommended decision to the State Personnel Commission, which would have then issued a final agency decision; and if the State Personnel Commission had decided against North Carolina Central University, it would be entitled to judicial review in the superior court.\nAm Jur 2d, Administrative Law \u00a7 554; Certiorari \u00a7\u00a7 15 et seq.\nAppeal by petitioner from an order entered 20 April 1995 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 20 March 1996.\nAttorney General Michael F Easley, by Assistant Attorney General Thomas 0. Lawton, III, for the State.\nMcSurely, Dorosin & Osment, by Alan McSurely, Mark Dorosin and Ashley Osment, for 'petitioner appellee." }, "file_name": "0609-01", "first_page_order": 645, "last_page_order": 650 }