{ "id": 8955096, "name": "JOHNNIE E. HARPER, Petitioner v. CITY OF ASHEVILLE, Respondent", "name_abbreviation": "Harper v. City of Asheville", "decision_date": "2003-09-02", "docket_number": "No. COA02-1044", "first_page": "209", "last_page": "217", "citations": [ { "type": "official", "cite": "160 N.C. App. 209" } ], "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": "443 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "768", "parenthetical": "plaintiff bears burden of proving subject matter jurisdiction" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122048 ], "year": 1994, "pin_cites": [ { "page": "91", "parenthetical": "plaintiff bears burden of proving subject matter jurisdiction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0087-01" ] }, { "cite": "574 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511616, 1511406, 1511344, 1511509, 1511447 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0611-04", "/nc/356/0611-05", "/nc/356/0611-01", "/nc/356/0611-02", "/nc/356/0611-03" ] }, { "cite": "567 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 474", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250554 ], "pin_cites": [ { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0474-01" ] }, { "cite": "552 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "268", "parenthetical": "Greene, J., dissenting" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357914 ], "year": 2001, "pin_cites": [ { "page": "392", "parenthetical": "Greene, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0388-01" ] }, { "cite": "559 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220028 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0269-01" ] }, { "cite": "579 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491520, 491684, 491750, 491596, 491725, 491760, 491635, 491479 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0062-01", "/nc/357/0062-03", "/nc/357/0062-04", "/nc/357/0062-08", "/nc/357/0062-06", "/nc/357/0062-02", "/nc/357/0062-07", "/nc/357/0062-05" ] }, { "cite": "575 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "495 S.E.2d 395", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "397", "parenthetical": "quoting 2 James W. Moore et al., Moore's Federal Practice, \u00a7 12.30[3] (3d ed. 1997)" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655550 ], "year": 1998, "pin_cites": [ { "page": "493", "parenthetical": "quoting 2 James W. Moore et al., Moore's Federal Practice, \u00a7 12.30[3] (3d ed. 1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0490-01" ] }, { "cite": "350 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "86" } ], "opinion_index": 0 }, { "cite": "318 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734194 ], "year": 1986, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0577-01" ] }, { "cite": "567 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 1063761 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/sc/350/0416-02" ] }, { "cite": "350 S.C. 416", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 1063761, 1063759 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/sc/350/0416-02", "/sc/350/0416-01" ] }, { "cite": "243 S.C. 1", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2113658 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "9" }, { "page": "21-22" } ], "opinion_index": 0, "case_paths": [ "/sc/243/0001-01" ] }, { "cite": "137 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "808", "parenthetical": "quoting Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 9, 132 S.E.2d 18, 21-22 (1963), overruled in part on other grounds, Sabb v. S.C. State Univ., 350 S.C. 416, 567 S.E.2d 231 (2002)" } ], "opinion_index": 0 }, { "cite": "262 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568279 ], "year": 1964, "pin_cites": [ { "page": "465-66", "parenthetical": "quoting Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 9, 132 S.E.2d 18, 21-22 (1963), overruled in part on other grounds, Sabb v. S.C. State Univ., 350 S.C. 416, 567 S.E.2d 231 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0462-01" ] }, { "cite": "481 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "692", "parenthetical": "because petitioner contended that the State Personnel Commission erred in deciding that it did not have jurisdiction over a particular personnel action, \"our de novo review is again required\"" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868692 ], "year": 1997, "pin_cites": [ { "page": "468", "parenthetical": "because petitioner contended that the State Personnel Commission erred in deciding that it did not have jurisdiction over a particular personnel action, \"our de novo review is again required\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0457-01" ] }, { "cite": "571 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "590", "parenthetical": "\"Because the issue of whether the Board had jurisdiction is a question of law, the trial court applied the incorrect standard of review. The appropriate review is de novo.\"" }, { "page": "590" }, { "page": "590", "parenthetical": "court erred in applying whole record review to question of jurisdiction" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251535 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "740", "parenthetical": "\"Because the issue of whether the Board had jurisdiction is a question of law, the trial court applied the incorrect standard of review. The appropriate review is de novo.\"" }, { "page": "740" }, { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0737-01" ] }, { "cite": "333 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 336", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4692056, 4694245, 4687773 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0336-02", "/nc/314/0336-03", "/nc/314/0336-01" ] }, { "cite": "135 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "649" }, { "page": "649" } ], "opinion_index": 0 }, { "cite": "261 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575039 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "622" }, { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0616-01" ] }, { "cite": "328 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "862" }, { "page": "862" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524744 ], "weight": 2, "pin_cites": [ { "page": "405-06" }, { "page": "405-06" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0402-01" ] }, { "cite": "438 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "423" }, { "page": "423", "parenthetical": "without plaintiff's allegation that he was \"entitled to\" a promotion, \"the petition does not vest subject matter jurisdiction in the superior court,\" and the trial judge must dismiss the petition" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521307 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "180" }, { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0178-01" ] }, { "cite": "400 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541830, 2542760, 2542446, 2541807, 2540764 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0275-02", "/nc/328/0275-05", "/nc/328/0275-04", "/nc/328/0275-01", "/nc/328/0275-03" ] }, { "cite": "397 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "370" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527302 ], "year": 1990, "pin_cites": [ { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0596-01" ] }, { "cite": "459 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "341 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793206 ], "year": 1995, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0167-01" ] }, { "cite": "59 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "591" } ], "opinion_index": 0 }, { "cite": "232 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595808 ], "year": 1950, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0128-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-269", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "528 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "907" }, { "page": "907-08" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093926 ], "year": 2000, "pin_cites": [ { "page": "443-44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0441-01" ] } ], "analysis": { "cardinality": 829, "char_count": 21286, "ocr_confidence": 0.768, "pagerank": { "raw": 3.8266312533419735e-07, "percentile": 0.8985813458622491 }, "sha256": "d23a02e64278a6d225fbae658ac1a4d78664c5c3f1a9b0d727bcf3481c23d601", "simhash": "1:5bbdc4a8103d9d27", "word_count": 3575 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and BRYANT concur." ], "parties": [ "JOHNNIE E. HARPER, Petitioner v. CITY OF ASHEVILLE, Respondent" ], "opinions": [ { "text": "GEER, Judge.\nThis appeal presents the question whether an individual is entitled, under \u00a7 8(f) of Chapter 303 of the 1999 N.C. Sess. Laws, to appeal to superior court a determination of the Asheville Civil Service Board (\u201cthe Board\u201d) that it lacked subject matter jurisdiction over the individual\u2019s grievance. The superior court ruled below that it had no subject matter jurisdiction and could review the Board\u2019s decision only pursuant to a writ of certiorari. We hold that, under the pertinent session law, petitioner Johnnie Harper was entitled to de novo review of the Board\u2019s decision by the superior court, but that the question of subject matter jurisdiction is a question for the court and not the jury. Because, however, our review of the record reveals no disputed issue of fact regarding whether Mr. Harper resigned, we affirm the trial court\u2019s dismissal of Mr. Harper\u2019s petition.\nAs originally enacted in 1953, the Asheville Civil Service Law provided a system of civil service protection for employees of the City of Asheville, but did not provide a mechanism for judicial review of decisions of the Civil Service Board. Jacobs v. City of Asheville, 137 N.C. App. 441, 443-44, 528 S.E.2d 905, 907 (2000). In 1977, the General Assembly amended the Asheville Civil Service Law to allow appeal from a decision of the Board to superior court for a trial de novo. Id. at 444-45, 528 S.E.2d at 907-08; 1977 N.C. Sess. Laws ch. 415.\nThe current version of the Asheville Civil Service Law appears at 1999 N.C. Sess. Law ch. 303. The act sets forth an administrative review procedure for certain personnel actions taken with respect to covered city employees. Specifically, under \u00a7 8(a) of this session law, \u201c[wjhenever any member of the classified service of the City is discharged, suspended, reduced in rank, transferred against his or her will, or is denied any promotion or raise in pay which he or she would be entitled to, that member shall be entitled to a hearing before the Civil Service Board to determine whether or not the action complained of is justified.\u201d\nMr. Harper worked for the City of Asheville in its Parks and Recreation Department and was covered by the civil service provisions of 1999 N.C. Sess. Law ch. 303. On 30 June 2000, Mr. Harper submitted a grievance alleging that the City of Asheville had unlawfully dismissed him from employment. After a determination by the Parks and Recreation Director that he had voluntarily resigned his position effective 22 June 2000, Mr. Harper sought a hearing before the Board under 1999 N.C. Sess. Law ch. 303, \u00a7 8(a).\nFollowing an evidentiary hearing, the Board dismissed the grievance in an order dated 23 October 2000. The Board found that \u201c[o]n June 8, 2000 Harper voluntarily resigned his position with the City of Asheville by giving notice of his resignation, effective June 22, 2000.\u201d The Board concluded as a matter of law that \u201chaving found that Harper voluntarily resigned from his employment, the Civil Service Board has no jurisdiction to grant relief in this matter.\u201d\nOn 2 November 2000, Mr. Harper filed a petition for trial de novo in Buncombe County Superior Court. The City filed a motion to dismiss under Rules 12(b)(6), 12(b)(1), and 12(b)(2) on 21 November 2000. On 14 March 2001, the City filed a motion to continue explaining that \u201cupon further review of the Complaint filed by the Petitioner, matters outside of the pleadings will need to be considered by the court in ruling upon Respondent\u2019s Motion to Dismiss . . . .\u201d The City filed an answer on 23 April 2001, followed by a motion for summary judgment contending that the superior court lacked subject matter jurisdiction.\nOn 4 December 2001, the trial court entered an order stating that \u201cin order for the Court to determine its subject matter jurisdiction, the Court must first review, by proceedings in the nature of certiorari, the decision rendered by the Asheville Civil Service Board dismissing Petitioner\u2019s Grievance for lack of subject matter jurisdiction....\u201d The court ordered, pursuant to Rule 19 of the General Rules of Practice for the Superior and District Courts and \u00d1.C. Gen. Stat. \u00a7 1-269, that the complete record of proceedings before the Board be filed with the court. The court further directed that the matter be placed upon the trial calendar \u201cfor the sole purpose of determining whether the [Civil] Service Board properly dismissed Petitioner\u2019s grievance for lack of subject matter jurisdiction.\u201d\nOn 22 April 2002, Judge Robert D. Lewis heard the continued motion for summary judgment and Mr. Harper\u2019s petition for a jury trial de novo. With respect to Mr. Harper\u2019s petition, Judge Lewis concluded that the Board \u201cconsidered conscientiously the evidence and determined unanimously that Johnnie Harper had resigned[;]\u201d that without the necessary predicate action of a discharge, the Board had no jurisdiction; and \u201c[a] fortior[i], the petition does not vest subject matter jurisdiction in the Superior Court . ...\u201d In considering the court\u2019s own writ of certiorari, the court stressed that \u201cthe judge presiding does not substitute his or her own judgment for that of the Board,\u201d but decides only whether the Board committed an error of law and whether the decision was supported by competent evidence in the record. Finding no error of law and that competent evidence supported the Board\u2019s decision, Judge Lewis concluded that Mr. Harper was not entitled to relief by way of the writ of certiorari. Mr. Harper appealed from this order.\nI\nThe first question presented by this appeal is whether Mr. Harper was entitled to de novo review before the superior court under 1999 N.C. Sess. Laws ch. 303 or whether the court properly considered his appeal pursuant to a writ of certiorari. Review by certiorari is appropriate when no right to appeal has been provided by law. Russ v. Board of Education, 232 N.C. 128, 130, 59 S.E.2d 589, 591 (1950).\nIn determining whether the trial court erred in reviewing this case by way of certiorari, we must decide whether 1999 N.C. Sess. Laws ch. 303 provided Mr. Harper with a right to appeal from the Board\u2019s conclusion that it lacked jurisdiction. The session law provides:\nWithin ten days of the receipt of notice of the decision of the Board, either party may appeal to the Superior Court Division of the General Court of Justice for Buncombe County for a trial de novo. The appeal shall be effected by filing with the Clerk of the Superior Court of Buncombe County a petition for trial in superior court, setting out the facts upon which the petitioner relies for relief. If the petitioner desires a trial by jury, the petition shall so state.\n1999 N.C. Sess. Laws ch. 303, \u00a7 8(f).\nThe City argues that Mr. Harper had no right of appeal under this provision because the Board concluded that it lacked jurisdiction. Under the City\u2019s view of the Act, any decision by the Board that it lacks jurisdiction is not subject to appeal. We disagree.\nNo provision of the session law suggests such a limitation. Section 8(f) states that upon receipt of the decision, either party may appeal \u201cfor a trial de novo.\u201d The Board issued a decision under \u00a7 8(e), finding that Mr. Harper had not met the requirements of \u00a7 8(a). The plain language of \u00a7 8(f) of the session law authorized Mr. Harper to appeal that decision.\nThe language does not suggest that the General Assembly intended to require the superior court to defer to the Board\u2019s factual findings and legal conclusions regarding subject matter jurisdiction. To the contrary, our Supreme Court has held that when a statute providing an appeal from an agency decision stipulates that the hearing shall be de novo, the statute gives \u201cthe court jurisdiction to determine the whole case . . . .\u2019\u2019Able Outdoor, Inc. v. Harrelson, 341 N.C. 167, 170, 459 S.E.2d 626, 628 (1995). A significant aspect of \u201cthe whole case\u201d is whether the agency \u2014 or in this case the Board\u2014 had jurisdiction.\nThis Court\u2019s prior decisions with respect to the Asheville Civil Service Board are consistent with a de novo hearing on the question of subject matter jurisdiction. In Worley v. City of Asheville, 100 N.C. App. 596, 598, 397 S.E.2d 370, 370 (1990), disc. review denied, 328 N.C. 275, 400 S.E.2d 463 (1991), this Court affirmed the trial court\u2019s grant of summary judgment when review of the evidence revealed no issue of fact regarding whether the petitioner was entitled to a pay increase, a prerequisite for review by the Board. Similarly, in O\u2019Donnell v. City of Asheville, 113 N.C. App. 178, 180, 438 S.E.2d 422, 423 (1993), the Court affirmed the trial court\u2019s dismissal of a petition for lack of jurisdiction based on the allegations of the petition and not on the Board\u2019s dismissal: \u201cPlaintiff\u2019s failure to allege that he is entitled to a promotion is more than a harmless technical error. Without that allegation, the petition does not vest subject matter jurisdiction in the superior court, and whenever the court does not have subject matter jurisdiction, the judge must dismiss.\u201d In neither case did this Court base its decision on the Board\u2019s finding of a lack of jurisdiction. See also Warren v. City of Asheville, 74 N.C. App. 402, 405-06, 328 S.E.2d 859, 862 (Asheville Civil Service Law\u2019s provision for trial de novo vests the superior court \u201c \u2018with full power to determine the issues and rights of all parties ... as if the suit had been filed originally in the court.\u2019 \u201d) (quoting In re Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649 (1964)), disc. review denied, 314 N.C. 336, 333 S.E.2d 496 (1985).\nEven if the City were correct and'no right to appeal existed, Mr. Harper would still have been entitled to de novo review of the Board\u2019s decision in this case. For questions of subject matter jurisdiction, the standard of review is de novo even when there is no right to appeal. See, e.g., Raleigh Rescue Mission, Inc. v. Board of Adjustment of City of Raleigh, 153 N.C. App. 737, 740, 571 S.E.2d 588, 590 (2002) (\u201cBecause the issue of whether the Board had jurisdiction is a question of law, the trial court applied the incorrect standard of review. The appropriate review is de novo.\u201d); Beauchesne v. University of North Carolina at Chapel Hill, 125 N.C. App. 457, 468, 481 S.E.2d 685, 692 (1997) (because petitioner contended that the State Personnel Commission erred in deciding that it did not have jurisdiction over a particular personnel action, \u201cour de novo review is again required\u201d). Under the de novo standard, the trial court is required to consider the question of jurisdiction \u201canew, as if not previously considered or decided\u201d by the Board. Raleigh Rescue Mission, 153 N.C. App. at 740, 571 S.E.2d at 590.\nWe hold, therefore, that a right of appeal exists under 1999 N.C. Sess. Laws ch. 303 from a decision of the Board that it lacks jurisdiction under \u00a7 8(a) of the session law. The trial court erred (1) in dismissing the petition based on the fact that the Board had found no jurisdiction; and (2) in applying the whole record test to the question of jurisdiction when considering the Board\u2019s decision pursuant to the court\u2019s writ of certiorari. Raleigh Rescue Mission, 153 N.C. App. at 740, 571 S.E.2d at 590 (court erred in applying whole record review to question of jurisdiction).\nII\nOur holding that Mr. Harper was entitled to appeal the Board\u2019s jurisdictional decision does not, however, automatically entitle him to a trial by jury on that question. He was instead entitled to a de novo determination of subject matter jurisdiction by the court.\nOur Supreme Court has held that a trial court may decide the question of subject matter jurisdiction without a jury even if the evidence presents issues of fact:\n\u201cThe issue of jurisdiction is basically one of law. It involves the determination by the court of its right to proceed with the litigation. A decision of this question by the court deprives a litigant of no right to a jury trial of the issue of liability because, if the court has no jurisdiction, the litigants have no rights which they may assert in that court. The right to have a jury pass upon the controverted factual issues must of necessity relate to the assertion of the right of the litigant which has been allegedly violated, which presupposes a court having jurisdiction to grant the relief sought. The determination of the jurisdictional question by the court is not a denial of any constitutional right of a litigant to a jury trial, but simply a determination of the forum in which those rights may properly be asserted. The decision of the question of whether the court has jurisdiction is a preliminary one to the determination of the merits of the cause, and is for the court to decide.\u201d\nBurgess v. Gibbs, 262 N.C. 462, 465-66, 137 S.E.2d 806, 808 (1964) (quoting Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 9, 132 S.E.2d 18, 21-22 (1963), overruled in part on other grounds, Sabb v. S.C. State Univ., 350 S.C. 416, 567 S.E.2d 231 (2002)). More recently, the Supreme Court has held that once the question of subject matter jurisdiction is raised, the superior court must \u201cfollow[] the proper procedure and [make] findings of fact and conclusions of law in resolving the issue.\u201d Lemmerman v. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986).\nGenerally, a defendant raises the issue of subject matter jurisdiction by filing, as the City did here, a Rule 12(b)(1) motion. As a leading civil procedure commentator has noted,\nA motion under Rule 12(b)(1) may be used to attack two different types of defects. The first is the pleader\u2019s failure to comply with Rule 8(a)(1), which means that the allegations in the complaint are insufficient to show that the . . . court has jurisdiction over the subject matter of the case. . . . The other defect that may be challenged under Rule 12(b)(1) is the court\u2019s actual lack of jurisdiction over the subject matter, a defect that may exist despite the formal sufficiency of the allegations in the complaint.\n5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure \u00a7 1350 at 211-12 (2d ed. 1990).\nAs this Court has previously explained, when considering a Rule 12(b)(1) motion \u2014 in contrast to a motion under Rule 12(b)(6) \u2014 a trial court is not confined to the face of the pleadings, \u201c \u2018but may review or accept any evidence, such as affidavits, or it may hold an evidentiary hearing.\u2019 \u201d Smith v. Privette, 128 N.C. App. 490, 493, 495 S.E.2d 395, 397 (1998) (quoting 2 James W. Moore et al., Moore\u2019s Federal Practice, \u00a7 12.30[3] (3d ed. 1997)). Our review of a trial court\u2019s decision denying or allowing a Rule 12(b)(1) motion is de novo \u201cexcept to the extent that the trial court resolves issues of fact and those findings are binding on the appellate court if supported by competent evidence in the record.\u201d Id.\nHere, the trial court should have first determined, as required by O\u2019Donnell, whether Mr. Harper\u2019s petition properly invoked the court\u2019s subject matter jurisdiction by alleging a personnel action within the scope of \u00a7 8(a) of the session law. O\u2019Donnell, 113 N.C. App. at 180, 438 S.E.2d at 423 (without plaintiff\u2019s allegation that he was \u201centitled to\u201d a promotion, \u201cthe petition does not vest subject matter jurisdiction in the superior court,\u201d and the trial judge must dismiss the petition). Mr. Harper\u2019s petition alleges that \u201c[t]he actions of the City herein alleged resulted in the discharge of the Petitioner without just cause and in violation of the Personnel Policy of the City of Asheville.\u201d This allegation sufficiently invokes the superior court\u2019s subject matter jurisdiction.\nThe City was then entitled to challenge, as it did, the factual basis for that allegation. It was the trial court\u2019s responsibility to determine de novo, upon review of the parties\u2019 evidence, whether Mr. Harper resigned or whether he was discharged. See, e.g., Campbell v. N.C. Dep\u2019t of Transp., - N.C. App. -, 575 S.E.2d 54, 60 (superior court properly determined that agency\u2019s conclusion that petitioner voluntarily resigned was an error of law), disc. review denied, 357 N.C. 62, 579 S.E.2d 386 (2003). As this Court indicated in Privette, the trial court was free to decide the jurisdictional question based on affidavits or other documentary evidence or, if the court found issues of fact, to hold an evidentiary hearing.\nIt is apparent from Judge Lewis\u2019 order that he conducted a careful review of the whole administrative record, but that he applied the wrong standard of review. As stated by Judge Lewis in his order, \u201cWith regard to this case, sub judice, the judge presiding does not substitute his or her own judgment for that of the Board but decides only: 1. Did the Board commit an error of law? 2. Is the Board\u2019s decision that Harper resigned supported by competent evidence in the record?\u201d Judge Lewis thus applied a deferential standard of review to the Board\u2019s decision. Under \u00a7 8(f) of the session law, however, Mr. Harper was entitled to de novo review, which \u201c \u2018vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court.\u2019 \u201d Warren, 74 N.C. App. at 405-06, 328 S.E.2d at 862 (quoting In re Hayes, 261 N.C. 616, 622, 135 S.E.2d 645, 649 (1964)).\nSince the issue of subject matter jurisdiction is a question of law, we may address the dispositive issue without remanding the case to superior court for application of the proper standard of review. Capital Outdoor, Inc. v. Guilford County Bd. of Adjustment, 355 N.C. 269, 559 S.E.2d 547 (2002), adopting per curiam, 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J., dissenting). See also Capital Outdoor, Inc. v. Guilford County Bd. of Adjustment, 152 N.C. App. 474, 475, 567 S.E.2d 440, 441 (on appeal from superior court\u2019s review of agency decision, appellate court must determine whether agency committed any errors in law), disc. review denied, 356 N.C. 611, 574 S.E.2d 676 (2002). After a careful de novo review of the record, we find no evidence that could support a finding that Mr. Harper was fired. The Board, therefore, properly concluded it lacked subject matter jurisdiction.\nDuring his testimony before the Board, Mr. Harper admitted, at the beginning of his cross-examination, that he told the receptionist he was quitting at the point when she asked if he wanted to leave a voice mail for the Director of Parks and Recreation. He then repeatedly testified that he could not deny instructing the receptionist to tell the Director that he was quitting effective two weeks later, that the Director should draw up the necessary paperwork, and that Mr. Harper would be going to court. Although given numerous opportunities, Mr. Harper never denied directing the receptionist to tell the Director that he was quitting. Mr. Harper bore the burden of proving that he was discharged as opposed to voluntarily resigning because without a discharge, the superior court lacked subject matter jurisdiction. Guilford County Planning & Dev. Dep\u2019t v. Simmons, 115 N.C. App. 87, 91, 443 S.E.2d 765, 768 (1994) (plaintiff bears burden of proving subject matter jurisdiction). In light of Mr. Harper\u2019s testimony before the Board, he cannot meet his burden.\nAlthough we agree with Mr. Harper\u2019s first contention that the trial court erred in reviewing the Board\u2019s decision pursuant to a writ of certiorari, we conclude that the trial court properly dismissed the petition for lack of subject matter jurisdiction.\nAffirmed.\nJudges TIMMONS-GOODSON and BRYANT concur.\n. Our review of the record does not indicate that Mr. Harper has argued at any point that his resignation amounted to a constructive discharge.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Biggers & Hunter, P.L.L.C., by John C. Hunter, for 'petitioner-appellant.", "Office of the City Attorney for the City of Asheville, by Assistant City Attorney II Martha Walker-McGlohon, for respondent-appellee." ], "corrections": "", "head_matter": "JOHNNIE E. HARPER, Petitioner v. CITY OF ASHEVILLE, Respondent\nNo. COA02-1044\n(Filed 2 September 2003)\n1. Administrative Law\u2014 appeal to superior court \u2014 session law \u2014 de novo review of jurisdiction\nAn appeal of right existed from a decision by the Asheville Civil Service Board that it lacked jurisdiction over an employment grievance. The session law in which the Asheville Civil Service Law appears does not suggest a legislative intent that the superior court defer to the Board\u2019s findings and conclusions on subject matter jurisdiction. Moreover, the court has jurisdiction to determine the whole case, including jurisdiction, when a statute provides appeal from an agency decision de novo, as in this case. Finally, even if no right of appeal exists, the standard of review is de novo for questions of subject matter jurisdiction.\n2. Administrative Law\u2014 appeal to superior court \u2014 de novo determination of jurisdiction\nThe right to appeal a civil service board\u2019s jurisdictional decision entitled petitioner to a de novo determination by the trial court. The trial court\u2019s deferential standard of review was improper; however, after its own de novo review, the Court of Appeals concluded that the Asheville Board lacked subject matter jurisdiction.\nAppeal by petitioner from judgment entered 29 April 2002 by Judge Robert D. Lewis in Buncombe County Superior Court. Heard in the Court of Appeals 23 April 2003.\nBiggers & Hunter, P.L.L.C., by John C. Hunter, for 'petitioner-appellant.\nOffice of the City Attorney for the City of Asheville, by Assistant City Attorney II Martha Walker-McGlohon, for respondent-appellee." }, "file_name": "0209-01", "first_page_order": 239, "last_page_order": 247 }