{ "id": 11203547, "name": "MICHAEL HOWELL, Petitioner v. RONALD W. MORTON, Area Director, Forsyth-Stokes Mental Health, Respondent", "name_abbreviation": "Howell v. Morton", "decision_date": "1998-12-15", "docket_number": "No. COA97-1559", "first_page": "626", "last_page": "634", "citations": [ { "type": "official", "cite": "131 N.C. App. 626" } ], "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": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "781" } ], "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "year": 1994, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0569-01" ] }, { "cite": "452 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 556", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526015 ], "year": 1995, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0556-01" ] }, { "cite": "493 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "85", "parenthetical": "interpreting whether the LAA is required to follow section 150B-36 by considering amendment to G.S. \u00a7 126-37(b)" }, { "page": "85" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652147 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "73", "parenthetical": "interpreting whether the LAA is required to follow section 150B-36 by considering amendment to G.S. \u00a7 126-37(b)" }, { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0070-01" ] }, { "cite": "473 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798947, 798789, 798922, 798795, 798942 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0749-01", "/nc/343/0749-04", "/nc/343/0749-02", "/nc/343/0749-03", "/nc/343/0749-05" ] }, { "cite": "470 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917624 ], "year": 1996, "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0429-01" ] }, { "cite": "233 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568391, 8568432, 8568464, 8568315, 8568351 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0264-03", "/nc/292/0264-04", "/nc/292/0264-05", "/nc/292/0264-01", "/nc/292/0264-02" ] }, { "cite": "155 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "116" } ], "opinion_index": 0 }, { "cite": "270 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570077 ], "year": 1967, "pin_cites": [ { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0674-01" ] }, { "cite": "490 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "249", "parenthetical": "quoting Elmore v. Lanier, Comr. of Insurance, 270 N.C. 674, 678, 155 S.E.2d 114, 116 (1967)" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11797078 ], "year": 1997, "pin_cites": [ { "page": "436", "parenthetical": "quoting Elmore v. Lanier, Comr. of Insurance, 270 N.C. 674, 678, 155 S.E.2d 114, 116 (1967)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0434-01" ] }, { "cite": "444 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "685", "parenthetical": "Chapter 126 does not create a cause of action but instead refers to judicial review provided by G.S. \u00a7 150B-43" }, { "page": "684-85" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12130421 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "392", "parenthetical": "Chapter 126 does not create a cause of action but instead refers to judicial review provided by G.S. \u00a7 150B-43" }, { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0390-01" ] }, { "cite": "432 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "301" }, { "page": "301" }, { "page": "301" }, { "page": "301" } ], "opinion_index": 0 }, { "cite": "334 N.C. 414", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531871 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "418" }, { "page": "418" }, { "page": "418" }, { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0414-01" ] }, { "cite": "389 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "38" }, { "page": "38" } ], "opinion_index": 0 }, { "cite": "326 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305257 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "342" }, { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0338-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "pin_cites": [ { "page": "(a)(2)", "parenthetical": "listing employees of area mental health, mental retardation, and substance abuse authorities as employees subject to Chapter 126" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 126-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "426 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "478", "parenthetical": "Court may raise the question of subject matter jurisdiction on its own motion, even if it was not argued by the parties in their briefs" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525054 ], "year": 1993, "pin_cites": [ { "page": "251", "parenthetical": "Court may raise the question of subject matter jurisdiction on its own motion, even if it was not argued by the parties in their briefs" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0248-01" ] }, { "cite": "314 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "568" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526971 ], "year": 1984, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0252-01" ] }, { "cite": "468 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "273" }, { "page": "273" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916022 ], "year": 1996, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0143-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-37", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1993, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" }, { "page": "(a)" }, { "page": "(bl)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": 0 } ], "analysis": { "cardinality": 792, "char_count": 19777, "ocr_confidence": 0.756, "pagerank": { "raw": 1.2145130324457016e-07, "percentile": 0.5968253361489415 }, "sha256": "ac111ca4e7fa3552bf6e3243bca95a0ff767e0837d58ea4e9d5257de9f75cbfd", "simhash": "1:856805ba57f64639", "word_count": 3172 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and TIMMONS-GOODSON concur." ], "parties": [ "MICHAEL HOWELL, Petitioner v. RONALD W. MORTON, Area Director, Forsyth-Stokes Mental Health, Respondent" ], "opinions": [ { "text": "SMITH, Judge.\nPetitioner appeals the trial court\u2019s grant of respondent\u2019s motion to dismiss for failure to state a claim under N.C. Gen. Stat. 1A-1, Rule 12(b)(6) (1990). Petitioner further avers the court erred by denying his motion to amend his petition for judicial review. We vacate the decision below on the grounds that the superior court did not have subject matter jurisdiction over petitioner\u2019s appeal.\nRelevant facts and procedural history include the following: In March 1994, petitioner Michael Howell (Howell) was discharged by respondent Robert W. Morton (Morton) from his employment with Forsyth-Stokes Mental Health Center for \u201cjust cause\u201d as set forth in N.C. Gen. Stat. \u00a7 126-35 (1993). Howell appealed his discharge on 29 April 1994 and the matter was heard by Administrative Law Judge (ALJ) Sammie Chess, Jr. The ALJ issued a recommended decision in favor of Howell on 24 March 1995 concluding, inter alia, that petitioner should \u201cbe reinstated to his former position ... be paid for his lost wages . . . and [should receive] payment of his reasonable attorney\u2019s fees.\u201d\nSubsequently, pursuant to N.C. Gen. Stat. \u00a7 126-37(a) (1993), the case was heard by the State Personnel Commission (Commission), which issued a recommendation adopting the decision of the AU on 18 January 1996. The case was then transferred to Local Appointing Authority (LAA) Morton for a final decision.\nOn 19 March 1996, petitioner sought judicial review of the Commission\u2019s recommended decision in superior court pursuant to N.C. Gen. Stat. \u00a7 126-37(b) (1993). Specifically, Howell requested an order \u201caffirming the recommended decision by the [Commission],\u201d because he was \u201cdis-satisfied with the action taken by [respondent] pursuant to the [Commission\u2019s] Recommended Decision.\u201d\nOn 9 April 1996, LAA Morton issued his final decision wherein he declined to adopt the recommended decision of either the ALJ or the Commission. Instead Morton \u201caffirm[ed] his decision of March 30, 1994 in dismissing [Howell].\u201d\nOn 23 April 1996, Howell filed an amended petition for judicial review pursuant to G.S. \u00a7 126-37(b) and Chapter 150B, the Administrative Procedure Act (APA). Respondent filed a motion to dismiss petitioner\u2019s amended petition pursuant to N.C. R. Civ. P. 12(b)(6) on 15 May 1996. Petitioner moved to file a second amended petition 23 May 1996, and the court denied petitioner\u2019s motion 8 November 1996.\nQn 4 September 1997, the court granted respondent\u2019s motion to dismiss, and petitioner filed a timely notice of appeal 1 October 1997.\nI.\nPreliminarily, we note that petitioner\u2019s and respondent\u2019s briefs violate Rule 26(g) of the North Carolina Rules of Appellate Procedure. Rule 26 requires \u201cat least 11 point\u201d type; the term \u201cpoint\u201d referring to the height of a letter, extending from the highest part of any letter, such as \u201cb\u201d to the lowest part, such as \u201cy.\u201d See N.C. App. P. R. 26(g); Lewis v. Craven Regional Medical Center, 122 N.C. App. 143, 147, 468 S.E.2d 269, 273 (1996). Accordingly, a brief submitted in eleven point type will contain not more than sixty-five (65) characters and spaces per line, and no more than twenty-seven (27) lines of double spaced text per page. See Lewis, 122 N.C. at 147, 468 S.E.2d at 273.\nAlthough Rule 26 does not speak in terms of characters per inch (cpi), a standard not equivalent to point size, \u201c[t]en characters per inch is . . . the standard we will apply to the briefs filed with this Court.\u201d Id. This standard is met when a brief is presented in the same type-setting as used by this Court in its slip opinions \u2014 Courier lOcpi \u2014 which insures no more than sixty-five (65) characters per line and twenty-seven (27) lines per page. Courier lOcpi may be achieved in computer and word processing technology by utilizing no smaller than size twelve (12) Courier or Courier New font.\nIn the case sub judice, both the briefs of petitioner and respondent contain in excess of ninety-eight characters per line and thus violate Rule 26. Absent this violation, both briefs would exceed the thirty-five (35) page limitation set forth in Rule 28.\nIn light of the steady increase in appeals filed with this Court each year, we are particularly concerned with the concomitant increase in appellate rule violations. Accordingly, we remind our colleagues in the Bar of the importance of adhering to our appellate rules. As stated by Greene, J., writing for this Court in Lewis, these rules \u201cprevent unfair advantage to any litigant\u201d and insure a level playing field for all parties on appeal. Id.\nIn the instant case, the violations of the rules by each party subject the appeal to dismissal. See Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 568 (1984). Nevertheless, we elect pursuant to N.C.R. App. R 2 to consider the merits of this appeal. However, we also deem it appropriate in our discretion to impose a sanction for these violations of our mandatory appellate rules, and tax one-half of the printing costs personally against petitioner\u2019s attorney, and one-half of the printing costs personally against respondent\u2019s attorney. N.C.R. App. P. 25(b) (1998).\nII.\nAlthough neither party argues the issue in their briefs, we must first consider whether the superior court had subject matter jurisdiction over Howell\u2019s petition for judicial review. See Union Grove Milling and Manufacturing Co. v. Faw, 109 N.C. App. 248, 251, 426 S.E.2d 476, 478 (1993) (Court may raise the question of subject matter jurisdiction on its own motion, even if it was not argued by the parties in their briefs). We hold the superior court did not have subject matter jurisdiction because petitioner\u2019s petition was prematurely filed.\nLocal appointing authority employees (such as petitioner) are subject to the provisions of the State Personnel Act, codified at N.C. Gen. Stat. \u00a7\u00a7 126-1 through 126-88. N.C. Gen. Stat. \u00a7 126-5(a)(2) (1995) (listing employees of area mental health, mental retardation, and substance abuse authorities as employees subject to Chapter 126). Article 8 of Chapter 126 concerns \u201cEmployee Appeals of Grievances and Disciplinary Action,\u201d and in conjunction with the provisions for administrative hearings of \u201ccontested cases\u201d under Article 3 of the Administrative Procedure Act (APA), (N.C. Gen. Stat. \u00a7\u00a7 150B-22 through 150B-37), entitles certain state employees \u201caggrieved\u201d by agency or departmental decisions affecting their employment to administrative and judicial review of those decisions. See N.C. Gen. Stat. \u00a7 150B-43 (1995); see also Batten v. N.C. Dept. of Correction, 326 N.C. 338, 342, 389 S.E.2d 35, 38 (1990).\nUnlike the jurisdiction of the Office of Administrative Hearings (OAH) over employee appeals, which derives from Chapter 126, see Batten, 326 N.C. at 342, 389 S.E.2d at 38, the North Carolina Supreme Court has made clear that the \u201c[\u00a1jurisdiction of the superior courts over final decisions of the [agency] derives not from Chapter 126, but from Chapter[] 7A and [from the Administrative Procedure Act (APA), Chapter] 150B.\u201d Harding v. N.C. Dept. of Correction, 334 N.C. 414, 418, 432 S.E.2d 298, 301 (1993); cf. Hill v. Morton, 115 N.C. App. 390, 392, 444 S.E.2d 683, 685 (1994) (Chapter 126 does not create a cause of action but instead refers to judicial review provided by G.S. \u00a7 150B-43).\nChapter 7A states in relevant part:\nthe superior court division is the proper division, without regard to the amount in controversy, for review by original action or proceeding, or by appeal, of the decisions of administrative agencies, according to the practice and procedure provided for the particular action, proceeding, or appeal.\nN.C. Gen. Stat. \u00a7 7A-250(a) (1995) (emphasis added).\nThe APA provides:\nAny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article ....\nG.S. \u00a7 150B-43 (emphasis added).\nIn the instant case, Howell petitioned for judicial review of the Commission\u2019s advisory decision under G.S. \u00a7 126-37 before this section was amended effective 1 January 1995. The prior version of Section 126-37 provided in relevant part:\na) The State Personnel Director or any other person or persons designated by the Commission shall investigate the disciplinary action or alleged discrimination which is appealed to the Commission. Appeals involving a disciplinary action, alleged discrimination, and any other contested case arising under this Chapter shall be conducted in the Office of Administrative Hearings as provided in Article 3 of Chapter 150B .... The State Personnel Commission shall make a final decision in these cases as provided in G.S. 150B-36 [which involve appeals alleging discrimination]. . . . However, in all other local employee appeals, the decisions of the State Personnel Commission shall be advisory to the local appointing authority.\nb) An action brought in superior court by an employee who is dissatisfied with an advisory decision of the State Personnel Commission or with the action taken by the local appointing authority pursuant to the [Commission\u2019s] decision shall be heard upon the record and not as a trial de novo. ... If superior court affirms the decision of the Commission, the decision of superior court shall be binding on the local appointing authority.\nN.C. Gen. Stat. \u00a7 126-37(a), (b) (1993) (emphasis added).\nHowell\u2019s petition did not allege discrimination, and thus, as prescribed in G.S. \u00a7 126-37, the Commission\u2019s decision was not a final agency decision but was \u201cadvisory to the local appointing authority [LAA].\u201d G.S. \u00a7 126-37(a). The LAA\u2019s final decision in Howell\u2019s contested case was issued on 9 April 1996, twenty-one days after Howell petitioned the court to \u201caffirm[] the recommended decision by the [Commission].\u201d (Emphasis added).\nThe jurisdiction of the superior court, however, is predicated upon compliance with the requirements of Chapter 150B, see Harding, 334 N.C. at 418, 432 S.E.2d at 301, which only permits judicial review for a \u201cperson ... aggrieved by the final decision in a contested case.\u201d G.S. \u00a7 150B-43 (emphasis added). \u201cTo obtain judicial review of a final decision under [the APA], the person seeking review must file a petition . . . within 30 days after the person is served with a written copy of the decision.\u201d N.C. Gen. Stat. \u00a7 150B-45 (1995) (emphasis added). Furthermore, a party seeking judicial review must exhaust all available administrative remedies to avoid the \u201c \u2018interruption and cessation of proceedings before a commission by untimely and premature intervention by the courts [which] would completely destroy the efficiency, effectiveness, and purpose of the administrative agencies.\u2019 \u201d Jackson v. Dept. of Administration, 127 N.C. App. 434, 436, 490 S.E.2d 248, 249 (1997) (quoting Elmore v. Lanier, Comr. of Insurance, 270 N.C. 674, 678, 155 S.E.2d 114, 116 (1967)), appeal dismissed and disc. review denied, 292 N.C. 264, 233 S.E.2d 391 (1977)); see also G.S. \u00a7 150B-43. Since LAA Morton had not issued a final decision as of the date Howell filed his petition for judicial review, Howell did not adhere to the procedures set out in Chapter 150B to obtain judicial review and the superior court was therefore without jurisdiction to entertain his appeal.\nPetitioner argues, however, that G.S. \u00a7 126-37(b) provides procedures for one seeking judicial review in two circumstances: 1) when an employee is \u201cdissatisfied with an advisory decision of the [Commission],\u201d or 2) when an employee is dissatisfied with the \u201caction taken by the local appointing authority pursuant to the decision [of the Commission].\u201d See G.S. \u00a7 126-37(b).\nAs to the former circumstance, petitioner cannot now assert that he was \u201cdissatisfied with an advisory decision of the [Commission]\u201d because he petitioned \u201cthe Court for a decision affirming the recommended decision of the [Commission],\u201d stating that he \u201c[wa]s satisfied with the [Commission\u2019s] decision.\u201d By the clear language of his petition, Howell was not \u201cdissatisfied\u201d with the recommended decision of the Commission. G.S. \u00a7 126-37(b) (emphasis added). Howell\u2019s petition, therefore, does not meet the first circumstance outlined in G.S. \u00a7 126-37(b), and judicial review cannot be based upon this ground.\nAccordingly, we need not address the statutory conflict between the language of G.S. \u00a7 126-37(b) (judicial review of \u201cadvisory\u201d decisions of the Commission) and the language of G.S. 150B-43 (judicial review for only final agency actions). However, we note that the amendment to G.S. \u00a7 126-37(b), which took effect 1 January 1995, is in accord with Chapter 150B\u2019s requirement of final agency action as a predicate to proper judicial review.\nPetitioner further argues, however, that he falls within the second circumstance described in Section 126-37(b) because he was \u201cdis-satisfied with the action taken by [respondent] pursuant to the [Commission\u2019s] Recommended Decision.\u201d See G.S. \u00a7 126-37(b). Specifically, petitioner maintains that judicial review of the Commission\u2019s recommended decision was proper because after being notified of the Commission\u2019s recommended decision on 18 January 1996, the LAA \u201crefused to either implement the recommended decision ... or otherwise to resolve this matter.\u201d Petitioner thereby reads \u201caction taken by the [LAA]\u201d in G.S. \u00a7 126-37(b) to include the inaction or delay of the LAA. We disagree with petitioner\u2019s interpretation.\nThe term \u201caction\u201d in G.S. \u00a7 126-37(b) is not defined in Chapter 126, but can be interpreted either to include the inaction of the LAA, or as only encompassing the LAA\u2019s final action, i.e. the final decision of the LAA. This ambiguity must be resolved by determining the intent of the legislature; in determining that intent, it is proper to review any amendments to the statute which may reveal or address the ambiguity. See Al Smith Buick Co. v. Mazda Motor of America, 122 N.C. App. 429, 435, 470 S.E.2d 552, 555, disc. review denied, 343 N.C. 749, 473 S.E.2d 609-10 (1996); see also Cunningham v. Catawba County, 128 N.C. App. 70, 73, 493 S.E.2d 82, 85 (1997) (interpreting whether the LAA is required to follow section 150B-36 by considering amendment to G.S. \u00a7 126-37(b)).\nIn 1994, the General Assembly amended G.S. \u00a7 126-37(b), which now provides in pertinent part:\nbl) ... the decision of the [Commission] shall be advisory to the [LAA]. . . . The [LAA] shall, within 90 days of receipt of the advisory decision of the [Commission], issue a written, final decision either accepting, rejecting, or modifying the decision of the [Commission].\nb2) The final decision is subject to judicial review pursuant to Article 4 of Chapter 150B of the General Statutes. . . .\nN.C. Gen. Stat. \u00a7 126-37(bl), (b2) (1995).\nWe have previously stated \u201cthat this amendment reflects the intent of the legislature in enacting the original version of section 126-37 and was an effort by the legislature to clarify its original language.\u201d See Cunningham, 128 N.C. App. at 73, 493 S.E.2d at 85. Since the amended version of section 126-37 requires a \u201cfinal\u201d decision before judicial review is proper, we believe the term \u201caction\u201d in the pre-amended section is properly read as including only the final decision made by the LAA.\nThis interpretation is consistent with the requirement of Article 4 of the APA governing judicial review of agency actions. Statutes which are in pari materia, i.e., which relate to or are applicable to the same matter or subject, must be construed together in order to ascertain legislative intent, see Friends of Hatteras Island v. Coastal Resources Comm., 117 N.C. App. 556, 566, 452 S.E.2d 337, 344 (1995), and should be reconciled with each other when possible. See Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 591, 447 S.E.2d 768, 781 (1994).\nNotably, G.S. \u00a7 126-37 \u201cdoes not create a cause of action but instead refers to judicial review provided by [G.S. \u00a7 150B-43].\u201d See Hill, 115 N.C. App. at 392, 444 S.E.2d at 684-85. G.S. \u00a7 150B-43 provides that proper judicial review follows only from a \u201cfinal [agency] decision.\u201d See G.S. \u00a7 150B-43 (emphasis added). A person seeking judicial review may only do so \u201c30 days after the person is served with a written copy of the [final] decision.\u201d G.S. \u00a7 150B-45 (emphasis added). Since the jurisdiction of the superior court over agency decisions \u201cderives not from Chapter 126, but from Chapter[] 150B,\u201d see Harding, 334 N.C. at 418, 432 S.E.2d at 301, we construe G.S. \u00a7 126-37(b) in light of G.S. \u00a7\u00a7 150B-43 and 150B-45. Accordingly, we hold that \u201caction\u201d refers to the issuance of a final agency decision. If Howell was \u201cdissatisfied\u201d with the inaction of the LAA, his remedy was to proceed under N.C. Gen. Stat. \u00a7 150B-44 (1995), (providing for a court order compelling agency action when there has been an \u201c[unreasonable delay on the part of any agency\u201d), instead of seeking judicial review of an advisory decision not appealable under Chapter 150B. Therefore, since Howell filed his petition before the LAA\u2019s final decision was issued, he does not fall within the latter circumstance of G.S. \u00a7 126-37(b) and his petition was prematurely filed.\nIn conclusion, the jurisdiction of the superior court over appeals from agency action derives from Chapter 150B, see Harding, 334 N.C. at 418, 432 S.E.2d at 301, and thus judicial review is only proper \u201c30 days after\u201d a person is served with a final agency decision. G.S. \u00a7 150B-45 (emphasis added). Because Howell sought judicial review before LAA Morton had issued his final decision, the superior court did not have subject matter jurisdiction over his appeal. As such, any action taken by the superior court is vacated and the matter is remanded for dismissal for the reasons set forth herein.\nVacated and remanded with instructions.\nJudges GREENE and TIMMONS-GOODSON concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Robert Winfrey for petitioner.", "Womble Carlyle Sandridge & Rice, by James R. Morgan, Jr., for respondent." ], "corrections": "", "head_matter": "MICHAEL HOWELL, Petitioner v. RONALD W. MORTON, Area Director, Forsyth-Stokes Mental Health, Respondent\nNo. COA97-1559\n(Filed 15 December 1998)\n1. Appeal and Error\u2014 brief \u2014 characters per line \u2014 rules violation\nThe printing costs of an appeal were taxed personally to petitioner\u2019s and respondent\u2019s attorneys where both briefs contained in excess of ninety-eight characters per line and violated Appellate Rule 26 (and otherwise would have exceeded the thirty-five page limitation of Rule 28). Rule 26 requires at least 11 point type, a standard met in computer and word processing technology by utilizing no smaller than a size twelve Courier or Courier New font.\n2. Administrative Law\u2014 recommended decision \u2014 not adopted or rejected \u2014 remedy\nThe trial court did not have subject matter jurisdiction over petitioner\u2019s appeal where petitioner obtained a recommendation from the State Personnel Commission to the Local Appointing Authority that he be reinstated with payment for lost wages; he filed this action on 19 March seeking judicial review because he was dissatisfied with the action taken by respondent; the Local Appointing Authority issued its final decision declining to adopt the recommended decision on 9 April; and the court granted respondent\u2019s motion to dismiss. The superior court did not have subject matter jurisdiction because petitioner sought judicial review before the Local Hiring Authority had issued its final decision. If petitioner was dissatisfied with the inaction of the Local Appointing Authority, his remedy was to proceed under N.C.G.S. \u00a7 150B-44, which provides for a court order compelling agency action.\nAppeal by petitioner from order entered 4 September 1997 by Judge Henry V. Barnette, Jr., in Wake County Superior Court. Heard in the Court of Appeals 15 September 1998.\nRobert Winfrey for petitioner.\nWomble Carlyle Sandridge & Rice, by James R. Morgan, Jr., for respondent." }, "file_name": "0626-01", "first_page_order": 660, "last_page_order": 668 }