{
  "id": 9082973,
  "name": "LINCOLN COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner v. PAT HOVIS, Respondent",
  "name_abbreviation": "Lincoln County Department of Social Services v. Hovis",
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  "docket_number": "No. COA01-952",
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    "judges": [
      "Chief Judge EAGLES and Judge McGEE concur."
    ],
    "parties": [
      "LINCOLN COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner v. PAT HOVIS, Respondent"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nLincoln County Department of Social Services (\u201cpetitioner\u201d) appeals from the superior court\u2019s orders that affirmed the order of Administrative Law Judge Meg Scott Phipps (\u201cALJ Phipps\u201d).\nI. Facts\nPetitioner terminated Pat Hovis (\u201crespondent\u201d) from her employment on 9 September 1998. Respondent appealed the decision and filed a petition for a contested case hearing with the Office of Administrative Hearings (\u201cOAH\u201d) on 7 October 1998. AU Phipps issued a scheduling order on 12 October 1998 that set the discovery deadline for 15 February 1999, and noticed a hearing for 1 March 1999.\nBy letters dated 9 February and 26 February 1999, respondent requested petitioner to comply with discovery requests and with ALJ Phipps\u2019 scheduling order. Petitioner failed to respond to respondent\u2019s requests. Respondent filed a motion for sanctions against petitioner and for a continuance on 8 March 1999. On 16 March 1999, ALJ Phipps issued an order requiring petitioner to show cause why sanctions should not be imposed and to respond to respondent\u2019s discovery requests no later than 2 April 1999. ALJ Phipps received no response from petitioner.\nAU Phipps issued a final decision which reinstated respondent to her former position, awarded her back pay, front pay, and attorney\u2019s fees on 8 April 1999. Respondent then filed a request to supplement judgment with the OAH to determine damages. ALJ Phipps issued a request to petitioner for a response to respondent\u2019s motion on 24 May 1999, ordering petitioner to respond by 3 June 1999. Unbeknownst to AU Phipps and respondent, petitioner had filed a petition for judicial review pursuant to G.S. \u00a7 150B-46 on or about 10 May 1999.\nSuperior Court Judge Robert P. Johnston reviewed the record, determined it inadequate, and entered an order remanding the case to OAH for clarification. On remand ALJ Phipps was on administrative leave and Chief Administrative Law Judge Julian Mann assigned the case to Administrative Law Judge James L. Conner, II (\u201cAU Conner\u201d). On 15 June 2000, AU Conner conducted a hearing and signed a protective order allowing respondent to copy petitioner\u2019s files only for preparation of respondent\u2019s case. On 15 November 2000, AU Conner issued supplementary findings and conclusions and an amended final order upholding the decision by AU Phipps.\nSuperior Court Judge James Lanning conducted a second hearing on petitioner\u2019s original petition for judicial review on 19 January 2001. The superior court entered an order on 16 February 2001 upholding the decision of AU Phipps as supplemented by AU Conner. Judge Lanning subsequently entered a corrected and amended order on 12 March 2001. Petitioner appeals.\nII. Issues\nPetitioner assigns as error the trial court\u2019s denial of its requested relief and argues (1) no rational basis existed for the ALJ\u2019s amended final order and that it was an abuse of discretion, (2) the AU\u2019s decision was in excess of statutory authority.\nA. Abuse of Discretion\nTo support its contention, petitioner claims that the \u201crecord contains no evidence of any formal discovery requests of any nature ever being made by [respondent].\u201d It also claims that it never received the order to show cause.\nThe extensive findings of fact in this case demonstrates that a scheduling order set discovery deadlines, a telephone conference call with all parties present discussed discovery, and that respondent reminded petitioner of discovery in two separate letters prior to ALJ Phipps issuing the order to show cause.\nALJ Conner\u2019s supplementary findings found that \u201cthe certificate of service establishes that it was mailed to the same address to which all other mailings in the matter were sent. Mr. Taylor conceded at the investigatory hearing that he had received all other mailings from this Office in the matter.\u201d There is substantial evidence in the record that shows petitioner had sufficient notice of the order to show cause prior to the hearing, and failed to appear. Also, petitioner was informed of pending discovery requests on numerous prior occasions. This assignment of error is overruled.\nB. Statutory Authority\nPetitioner argues that the ALJ\u2019s authority derives from Chapter 126 of the North Carolina General Statutes, is advisory in nature, and is not a final decision. We disagree. The record fails to show where petitioner protested Judge Lanning\u2019s authority to review AU Phipps\u2019 final agency decision on the procedural grounds that petitioner now argues here.\nAn order of the ALJ issued pursuant to a written pre-hearing motion granting a party\u2019s requested relief for failure of the other party to comply with procedural requirements is a final decision under N.C. Gen. Stat. \u00a7 150B-36(c)(3) (2001). Petitioner is entitled to immediate judicial review pursuant to G.S. \u00a7 150B-43. N.C. Gen. Stat. \u00a7 150B-43 (2001). See Hillis v. Winston-Salem State University, 144 N.C. App. 441, 443, 549 S.E.2d 556, 557 (2001); Fearrington v. University of North Carolina at Chapel Hill, 126 N.C. App. 774, 778, 487 S.E.2d 169, 172 (1997).\nThe plain language of G.S. \u00a7 150B-36(c)(3) grants ALJs the statutory authority to allow a party\u2019s requested relief.\n(c) The following decisions made by administrative law judges in contested cases are final decisions appealable directly to superior court under Article 4 of this Chapter:\n(3) An order entered pursuant to a written prehearing motion that either dismisses the contested case for failure of the petitioner to prosecute or grants the relief requested when a party does not comply with procedural requirements.\nN.C. Gen. Stat. \u00a7 150B-36(c)(3).\nThe superior court\u2019s scope of review under G.S. \u00a7 150B-51(b) includes determining whether the decision of an ALJ contains errors of law, is supported by substantial evidence, and is neither arbitrary nor capricious. N.C. Gen. Stat. \u00a7 150B-51(b) (2001). We hold that the trial court did not err by upholding AU Phipps\u2019 order, as supplemented by AU Conner\u2019s additional findings of fact. The order of the trial court is affirmed.\nAffirmed.\nChief Judge EAGLES and Judge McGEE concur.",
        "type": "majority",
        "author": "TYSON, Judge."
      }
    ],
    "attorneys": [
      "Pendleton & Pendleton, P.A., by Jeffrey A. Taylor, for'petitioner-appellant.",
      "Thomas B. Kakassy, PA., by Thomas B. Kakassy, for respondent-appellee."
    ],
    "corrections": "",
    "head_matter": "LINCOLN COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner v. PAT HOVIS, Respondent\nNo. COA01-952\n(Filed 18 June 2002)\nAdministrative Law\u2014 failure to comply with procedural requirements \u2014 final decision\nThe trial court did not err in an employment termination case by affirming the amended order of the administrative law judge (ALJ) which reinstated respondent to her former position, and awarded her back pay, front pay, and attorney fees after petitioner Department of Social Services failed to show cause why sanctions should not be imposed and failed to respond to respondent\u2019s discovery requests, because: (1) although petitioner contends there is no evidence of any formal discovery requests of any nature ever being made by respondent, there is substantial evidence in the record that shows petitioner had sufficient notice of the order to show cause prior to the hearing; and (2) although petitioner contends the ALJ\u2019s authority is advisory in nature and is not a final decision, an order of the AU issued under a written prehearing motion granting a party\u2019s requested relief for failure of the other party to comply with procedural requirements is a final decision under N.C.G.S. \u00a7 150B-36(c)(3).\nAppeal by petitioner from orders entered 16 February 2001 and 12 March 2001 by Judge James Lanning in Lincoln County Superior Court. Heard in the Court of Appeals 13 May 2002.\nPendleton & Pendleton, P.A., by Jeffrey A. Taylor, for'petitioner-appellant.\nThomas B. Kakassy, PA., by Thomas B. Kakassy, for respondent-appellee."
  },
  "file_name": "0697-01",
  "first_page_order": 727,
  "last_page_order": 731
}