{ "id": 3734133, "name": "TAMERA FRANK & PETER FRANKLIN, Plaintiffs v. WALTER SAVAGE, JERRI STORIE & JOHNNY RIDDLE in their capacity As Yancey County Commissioners; THE YANCEY COUNTY BOARD OF COMMISSIONERS; NATHAN BENNETT, in his capacity as Yancey County Manager; JASON ROBINSON, JERRI STORIE, CATHY KING, ELAINE BOONE, & JUDY BUCHANAN, in their capacity as Members of the Yancey County Department of Social Services Board of Directors; & THE YANCEY COUNTY DEPARTMENT OF SOCIAL SERVICES BOARD OF DIRECTORS, Defendants", "name_abbreviation": "Frank v. Savage", "decision_date": "2010-07-06", "docket_number": "No. COA09-1413", "first_page": "183", "last_page": "192", "citations": [ { "type": "official", "cite": "205 N.C. App. 183" } ], "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": "659 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640823 ], "year": 2008, "pin_cites": [ { "page": "748", "parenthetical": "holding that- County Board of Elections violated the Open Meetings Law" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0742-01" ] }, { "cite": "667 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642042 ], "year": 2008, "pin_cites": [ { "page": "326", "parenthetical": "quoting Nationwide Mut. Insurance Co. v. Roberts, 261 N.C. 285, 287, 134 S.E.2d 654, 656-57 (1964)" } ], "opinion_index": 0, "case_paths": [ "/se2d/667/0324-01" ] }, { "cite": "480 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "663", "parenthetical": "\"Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner.\"" } ], "opinion_index": 0 }, { "cite": "345 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53948 ], "year": 1997, "pin_cites": [ { "page": "482", "parenthetical": "\"Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0480-01" ] }, { "cite": "314 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "529", "parenthetical": "federal constitution" } ], "opinion_index": 0 }, { "cite": "310 N.C. 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2401043 ], "year": 1984, "pin_cites": [ { "page": "740-41", "parenthetical": "federal constitution" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0739-01" ] }, { "cite": "678 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "611", "parenthetical": "federal constitution" } ], "opinion_index": 0 }, { "cite": "363 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151536 ], "year": 2009, "pin_cites": [ { "page": "85", "parenthetical": "federal constitution" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0070-01" ] }, { "cite": "688 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "428" }, { "parenthetical": "state constitution" } ], "opinion_index": 0 }, { "cite": "363 N.C. 784", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151199 ], "year": 2010, "pin_cites": [ { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0784-01" ] }, { "cite": "262 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573794, 8573836, 8573779, 8573812, 8573755 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0121-03", "/nc/299/0121-05", "/nc/299/0121-02", "/nc/299/0121-04", "/nc/299/0121-01" ] }, { "cite": "258 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "486", "parenthetical": "case was appropriate for declaratory judgment when member of Cemetery Commission challenged Governor's statutory basis for his removal" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 109", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550149 ], "year": 1979, "pin_cites": [ { "page": "116", "parenthetical": "case was appropriate for declaratory judgment when member of Cemetery Commission challenged Governor's statutory basis for his removal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0109-01" ] }, { "cite": "436 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "423" } ], "opinion_index": 0 }, { "cite": "335 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527438 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0182-01" ] }, { "cite": "432 S.E.2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1993, "pin_cites": [ { "page": "311" }, { "page": "424-25" }, { "page": "312" }, { "page": "425" }, { "page": "312" }, { "page": "426-27" }, { "page": "313-14" }, { "page": "313" }, { "page": "427" }, { "page": "313-14" } ], "opinion_index": 0 }, { "cite": "334 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531487 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0421-01" ] }, { "cite": "477 S.E.2d 926", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "345 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53923 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/345/0178-01" ] }, { "cite": "468 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "521" } ], "opinion_index": 0 }, { "cite": "122 N.C. 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App.", "case_ids": [ 4161304 ], "year": 2008, "pin_cites": [ { "page": "451", "parenthetical": "quoting Nationwide Mut. Insurance Co. v. Roberts, 261 N.C. 285, 287, 134 S.E.2d 654, 656-57 (1964)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0450-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-253", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-318", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-318.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-318.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. 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App.", "case_ids": [ 9378221 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/147/0102-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-318.9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 832, "char_count": 20729, "ocr_confidence": 0.769, "pagerank": { "raw": 6.113725938952548e-08, "percentile": 0.3809897797130257 }, "sha256": "b09562378df377fe90167f54502896760e4b69ebe86eb28c51eaa5df0d20e469", "simhash": "1:3b6c1d6e7eab6c5a", "word_count": 3396 }, "last_updated": "2023-07-14T21:30:55.510002+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and HUNTER, JR. concur." ], "parties": [ "TAMERA FRANK & PETER FRANKLIN, Plaintiffs v. WALTER SAVAGE, JERRI STORIE & JOHNNY RIDDLE in their capacity As Yancey County Commissioners; THE YANCEY COUNTY BOARD OF COMMISSIONERS; NATHAN BENNETT, in his capacity as Yancey County Manager; JASON ROBINSON, JERRI STORIE, CATHY KING, ELAINE BOONE, & JUDY BUCHANAN, in their capacity as Members of the Yancey County Department of Social Services Board of Directors; & THE YANCEY COUNTY DEPARTMENT OF SOCIAL SERVICES BOARD OF DIRECTORS, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\n\u2022 \u201cIn ruling upon a Rule 12(b)(6) motion, the trial court. . . should not dismiss the action unless it appears to a certainty that plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim.\u201d In the present case, the trial court granted Defendants\u2019 Rule 12(b)(6) Motion to Dismiss Plaintiffs Tamera Frank and Peter Franklin\u2019s complaint. Treating Plaintiffs allegations as true, we hold that the complaint was sufficient to state claims upon which relief may be granted against Defendant Yancey County Board of Commissioners. We therefore reverse, in part, the trial court\u2019s dismissal of Plaintiff\u2019s complaint.\nIn their complaint filed 23 January 2009, Plaintiffs alleged that during the regularly scheduled monthly meeting of the Yancey County Board of Commissioners on 11 November 2008, the Commissioners nominated and appointed Plaintiffs to serve on the Yancey County Department of Social Services (\u201cDSS\u201d) Board of Directors. Plaintiffs were sworn into office by the Clerk to the Board of Commissioners immediately following the meeting.\nDefendants Walter Savage, Jerri Storie, and Johnny Riddle were sworn into office on the new Board of Yancey County Commissioners on 1 December 2008. At a special meeting held that day, the new Board declared Plaintiffs\u2019 appointments invalid and, to the extent the appointments were valid, voted to revoke the appointments. Thereafter, the Board authorized the appointments of Defendants Elaine Boone and Judy Buchanan to serve as DSS Directors in place of Plaintiffs. Following the special meeting, Defendant Nathan Bennett,. Yancey County Manager, sent a letter to Plaintiffs stating that the Board found Plaintiffs\u2019 appointments were not properly executed and therefore invalid.\nOn 9 December 2008, the Board held its regularly scheduled meeting and adopted the minutes of the 1 December 2008 meeting. Plaintiffs attended the 9 December 2008 meeting and requested reconsideration of the revocation and invalidation of their appointments. This request was denied. After the 9 December 2008 meeting, Defendant Nathan Bennett sent a letter to each of the Plaintiffs stating that the Board would not address the issue further and informing Plaintiffs that their recourse was to the courts.\nIn their complaint, Plaintiffs alleged numerous violations of their rights under the constitution and laws of North Carolina. Plaintiffs requested, among other things, injunctions restraining Defendants from further violations of Plaintiffs\u2019 rights; a declaratory judgment declaring the rights of the parties and declaring the actions of the new Board null and void; and that the costs of this action be taxed against Defendants. On 26 March 2009, Defendants filed an answer and a motion to dismiss Plaintiff\u2019s complaint pursuant to Rule 12(b)(6). By order filed 13 July 2009, the trial court granted Defendants\u2019 motion to dismiss.\nOn appeal, Plaintiffs contend that the trial court erred in granting Defendants\u2019 motion to dismiss because Plaintiffs\u2019 complaint stated claims based on valid legal theories: (I) alleged violations of N.C. Gen. Stat. \u00a7 143-318.9 & 318.12(b)(2) and N.C. Gen. Stat. \u00a7 153A-40(b); (II) alleged violations of N.C. Gen. Stat. \u00a7 108A-4; and (III) alleged violations of Plaintiff\u2019s Due Process Rights.\nPreliminarily, we address Defendants\u2019 Motion to Dismiss Plaintiffs\u2019 appeal filed with this Court on 31 March 2010. In their Motion to Dismiss, Defendants contend that Plaintiffs failed to file timely notices of appeal under Rule 3 of our Rules of Appellate Procedure, which provides that an appellant must file and serve a notice of appeal:\n(1) within thirty days after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure; or\n(2) within thirty days after service upon the party of a copy of the judgment if service was not made within that three day period;\nN.C. R. App. P. 3(c)(1) & (2) (2010).\nThe trial court\u2019s order from which this appeal was taken was filed on 13 July 2009. According to Defendants\u2019 certificates of service, they deposited copies of the trial court\u2019s order in the mail on the same day. According to Plaintiffs, their attorney received the order on 17 July 2009. Plaintiffs filed respective notices of appeal on 13 August 2009. Plaintiffs thus filed their respective notices of appeal 31 days after entry of the order and 27 days from the date of receipt.\nDefendants argue that Plaintiffs\u2019 failure to file timely notices of appeal under Rule 3(c)(1) warrants dismissal of their appeal. Plaintiffs reply that this Court should deny Defendants\u2019 motion to dismiss, as Defendants did not themselves comply with the Rules of Appellate Procedure.\nRule 3(c)(1) of the Rules of Appellate Procedure provides that a party must file and serve notice of appeal within thirty days after entry of judgment if the party has been served a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure. N.C. R. App. P 3(c) (emphasis added). Rule 58 provides that \u201c[s]ervice and proof of service shall be in accordance with Rule 5.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 58 (2009). Rule 5(b) provides: \u201c[a] certificate of service shall accompany every pleading and every paper required to be served . . . [and] shall show the date and method of service or the date of acceptance of service and shall show the name and service address of each person upon whom the paper has been served.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 5 (2009) (emphasis added).\nDefendants\u2019 certificate of service does not show the name or service address of any person upon whom the order was served. Plaintiffs argue that Defendants therefore did not properly serve them by mail and that this Court should determine the applicable deadline for appeal by using Rule 3(c)(2). Plaintiffs point out that they actually received the order on 17 July 2009, more than three days after entry of the order. By Plaintiffs\u2019 calculation, their 13 August 2009 filing was timely.\nWe faced a similar situation in Davis v. Kelly, 147 N.C. App. 102, 554 S.E.2d 402 (2001). Appellee in Davis argued that appellant \u201cfiled the notice of appeal more than 30 days after the judgment was entered and that her appeal should therefore be dismissed.\u201d Id. at 105, 554 S.E.2d at 404. The Court noted however that appellee \u201cdid not fully comply with the service requirements of Rule 58 of the Rules of Civil Procedure.\u201d Id. Under the applicable provisions of Rule 3, appellant had thirty days from the date she was properly served with the judgment. Id. The Court therefore denied appellee\u2019s Motion to Dismiss the appeal.\nWe believe that Defendants\u2019 failure to comply with the service requirements of Rule 58 of the Rules of Civil Procedure in the present case requires us to apply Rule 3(c)(2) and not Rule 3(c)(1). We therefore hold that Plaintiffs\u2019 appeal is timely. Defendants\u2019 Motion to Dismiss Plaintiffs\u2019 appeal is denied.\nTurning to the merits of Plaintiffs appeal, we note that:\nOn a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted. Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiffs claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiffs claim.\nWood v. Guilford County, 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citation omitted). \u201cIn ruling upon a Rule 12(b)(6) motion, the trial court should liberally construe the complaint and should not dismiss the action unless it appears to a certainty that plaintiff is entitled to no relief under any statement of facts which could be proved in support of the claim.\u201d Arroyo v. Scottie\u2019s Professional Window Cleaning, 120 N.C. App. 154, 158, 461 S.E.2d 13, 16 (1995), disc. review improvidently allowed, 343 N.C. 118, 468 S.E.2d 58 (1996). \u201cThis Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court\u2019s ruling on the motion to dismiss was correct.\u201d Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff\u2019d per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).\nI\nPlaintiffs first argue that the trial court erred in dismissing the complaint because the Board of Commissioners and its members violated our Open Meetings Law, N.C. Gen. Stat. \u00a7 143-318.9 & 318.10 and \u00a7 143-318.12(b)(2), as well as \u00a7 153A-40, by holding a special meeting on 1 December 2008 without giving proper notice to the public.\nN.C. Gen. Stat. \u00a7 143-318.10 provides that \u201c[e]xcept as provided . . . each official meeting of a public body shall be open to the public, and any person is entitled to attend such a meeting.\u201d N.C. Gen. Stat. \u00a7 143-318.10(a) (2009). N.C. Gen. Stat. \u00a7 143-318.12(b) provides \u201c[i]f a public body holds an official meeting at any time or place other than a time or place [of its regularly scheduled meeting], it shall give public notice of the time and place of that meeting as provided in this subsection.\u201d N.C. Gen. Stat. \u00a7 143-318.12(b) (2009).\nN.C. Gen. Stat. \u00a7 143-318.16 grants courts \u201cjurisdiction to enter mandatory or prohibitory injunctions to enjoin\u201d violations of this Article. N.C. Gen. Stat. \u00a7 143-318.16 (2009). N.C. Gen. Stat. \u00a7 143-318.16A states:\nAny person may institute a suit in the superior court requesting the entry of a judgment declaring that any action of a public body was taken, considered, discussed, or deliberated in violation of this Article. Upon such a finding, the court may declare any such action null and void.\nN.C. Gen. Stat. \u00a7 143-318.16A(a) (2009).\nPlaintiffs also cite N.C. Gen. Stat. \u00a7 153A-40, which pertains specifically to County Boards of Commissioners. That statute requires notice of a special meeting \u201cto be posted on the courthouse bulletin board at least 48 hours before the meeting.\u201d N.C. Gen. Stat. 153A-40 (2009). Although there is no specific enforcement mechanism provided, Plaintiffs contend that they are entitled to enforcement of this statute under the Declaratory Judgment Act. See N.C. Gen. Stat. \u00a7 1-253 (2009). \u201c[Jurisdiction under the Act may be invoked \u2018only when the pleadings and evidence disclose the existence of a genuine controversy between the parties to the action, arising out of conflicting contentions as to their respective legal rights and liabilities under a deed, will, contract, statute, ordinance, or franchise.\u2019 \u201d A. Perin Dev. Co., LLC v. Ty-Par Realty, Inc., 193 N.C. App. 450, 451, 667 S.E.2d 324, 326 (2008) (quoting Nationwide Mut. Insurance Co. v. Roberts, 261 N.C. 285, 287, 134 S.E.2d 654, 656-57 (1964)), disc. review denied, 363 N.C. 372, 678 S.E.2d 230 (2009).\nAccording to Plaintiff\u2019s complaint, notice of the 1 December 2008 special meeting of the Yancey County Board of Commissioners was not properly given. Treating the allegations in Plaintiffs\u2019 complaint as true, as we must, we conclude that Plaintiffs have stated a cognizable claim that the special meeting of the Board was held without complying with the notice requirements of N.C. Gen. Stat. \u00a7 143-318.12(b) and N.C. Gen. Stat. \u00a7 153A-40. See Knight v. Higgs, 189 N.C. App. 696, 704, 659 S.E.2d 742, 748 (2008) (holding that- County Board of Elections violated the Open Meetings Law); H.B.S. Contractors v. Cumberland County Bd. of Education, 122 N.C. App. 49, 54, 468 S.E.2d 517, 521 (affirming trial court\u2019s declaration that County Board of Education violated Open Meetings Law), disc. review improvidently allowed, 345 N.C. 178, 477 S.E.2d 926 (1996). Plaintiffs are therefore entitled to a judicial determination of whether the actions taken by the Board at the unannounced meeting are null and void.\nII\nPlaintiffs next argue that the trial court erred in dismissing their complaint because relief may be granted for Defendants\u2019 violation of N.C. Gen. Stat. \u00a7 108A-4. N.C. Gen. Stat. \u00a7 108A-1 provides that \u201c[e]very county shall have a board of social services[.]\u201d N.C. Gen. Stat. \u00a7 108A-1 (2009). \u201cEach member of a county board of social services shall serve for a term of three years.\u201d N.C. Gen. Stat. \u00a7 108A-4 (2009).\nPlaintiffs rely on Bd. of Adjmt. of the Town of Swansboro v. Town of Swansboro, 334 N.C. 421, 432 S.E.2d 310, reh\u2019g denied, 335 N.C. 182, 436 S.E.2d 369 (1993). In that case, plaintiffs were members of atown Board of Adjustment. Id. at 423, 432 S.E.2d at 311. The town Board of Commissioners abolished the Board of Adjustment on which plaintiffs sat, and created a new Board of Adjustment with different members. Id. at 424-25, 432 S.E.2d at 312. The Swansboro plaintiffs sued, alleging a violation of N.C. Gen. Stat. \u00a7 160A-388(a), which mandated that all Board of Adjustment members serve for three years. Id. at 425, 432 S.E.2d at 312. Noting that the relevant statute did not require the city council to appoint a Board of Adjustment at all, our Supreme Court affirmed the trial court\u2019s award of summary judgment to Defendants. Id. at 426-27, 432 S.E.2d at 313-14.\nThe Court in Swansboro recognized that N.C. Gen. Stat. \u00a7 160A-146 empowered the city council \u201cto create and abolish boards that are not established and required by law.\u201d Swansboro, 334 N.C. at 426, 432 S.E.2d at 313. N.C. Gen. Stat. \u00a7 153A-76 contains analogous language regarding County Government. Compare N.C. Gen. Stat. \u00a7 153A-76 (2009), with N.C. Gen. Stat. \u00a7 160A-146 (2009). N.C. Gen. Stat. \u00a7 153A-76 states, moreover, that \u201c[t]he board [of commissioners] may not change the composition or manner of selection of a local board of education, the board of health, the board of social services, the board of elections, or the board of alcoholic beverage control.\u201d N.C. Gen. Stat. \u00a7 153A-76 (4) (2009).\nAlthough Swansboro dealt with the authority of a town \u2014 rather than a county \u2014 Board of Commissioners, we believe the internal logic of that case is applicable to the circumstances before us. The result in Swansboro depended on the Board of Commissioner\u2019s power to dissolve an administrative board, the establishment of which was not required by law. Id. at 427, 432 S.E.2d at 313-14. The corollary to that principle is that when the establishment of the administrative board is required by law, the Board of Commissioners lacks the authority to abolish said board, in whole or in part. Moreover, N.C. Gen. Stat. \u00a7 153A-76 specifically proMbits changing the composition or the manner of selecting the board of social services.\nPlaintiffs\u2019 complaint alleges that Plaintiffs were appointed and sworn mto office as Directors of Yancey County DSS. It alleges further that the new Board of Commissioners entertained a motion to revoke their appointments and appoint other persons in their places. Treating the allegations m Plamtiffs\u2019 complaint as true, we hold that Plaintiffs have stated a cognizable claim that the Board of Commissioners violated N.C. Gen. Stat. \u00a7 108A-4 (establishing three year term for member of county board of social services) and \u00a7 153A-76 (prohibitmg abolishment of that board) when it revoked Plaintiff\u2019s appointments to the Yancey County DSS. Plamtiffs are entitled to a judicial determination of whether the Yancey County Board of Commissioners acted beyond its statutory authority when it invalidated their appointments. See James v. Hunt, 43 N.C. App. 109, 116, 258 S.E.2d 481, 486 (1979) (case was appropriate for declaratory judgment when member of Cemetery Commission challenged Governor\u2019s statutory basis for his removal), disc. review denied, 299 N.C. 121, 262 S.E.2d 6 (1980).\nIll\nPlaintiffs next argue that the trial court erred in dismissmg their complaint because relief may be granted for a violation of their right to due process.\n\u201cTo assert a direct constitutional claim ... for violation of his procedural due process rights, a plaintiff must allege that no adequate state remedy exists to provide relief for the injury.\u201d Copper v. Denlinger, 363 N.C. 784, 788, 688 S.E.2d 426, 428 (2010). This principle holds for both state and federal due process claims. See id. (state constitution); Gilbert v. North Carolina State Bar, 363 N.C. 70, 85, 678 S.E.2d 602, 611 (2009) (federal constitution); Snuggs v. Stanly County Dept. of Public Health, 310 N.C. 739, 740-41, 314 S.E.2d 528, 529 (1984) (federal constitution).\nPlaintiffs do not specify in their complaint or m their brief whether they mean to invoke the state or the federal constitution. Either way, Plaintiffs\u2019 complaint failed to allege that no adequate state remedy exists. Indeed, the complaint concurrently alleged cognizable claims under state law, as recognized above. Accordingly, we hold that the trial court did not err in dismissing Plaintiffs\u2019 due process claims.\nWe conclude by noting that Plaintiffs\u2019 argument in their brief concerns only their complaint as against the Yancey County Board of Commissioners and its members in their official capacities. Insofar as there is no error claimed in the trial court\u2019s dismissal of Plaintiffs\u2019 complaint with regard to the other named Defendants, we do not disturb the trial court\u2019s order regarding them.\nAffirmed in part, Reversed in part.\nJudges STROUD and HUNTER, JR. concur.\n. Arroyo v. Scottie\u2019s Professional Window Cleaning, 120 N.C. App. 154, 158, 461 S.E.2d 13, 16 (1995), disc. review improvidently allowed, 343 N.C. 118, 468 S.E.2d 58 (1996).\n. We recognize that the language of Rule 3 when Davis was decided differs from that of the current Rule 3. See N.C. R. App. P. 3(c) (2001) (\u201cThe running of the time for filing and serving a notice of appeal... is tolled as to all parties for the duration of any period of noncompliance with the service requirements of Rule 58 of the Rules of Civil Procedure .. . .\u201d). We believe application of the current Rule 3 yields the same result.\n. To the extent that Plaintiff\u2019s appeal was not timely filed, we grant Plaintiffs\u2019 petition for a writ of certiorari. See Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) (\u201cRule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner.\u201d)", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Parker Poe Adams & Bernstein LLP, by Robert A. Leandro and Elizabeth A. Magee, for plaintiffs-appellants.", "Donny J. Laws, for defendants-appellees." ], "corrections": "", "head_matter": "TAMERA FRANK & PETER FRANKLIN, Plaintiffs v. WALTER SAVAGE, JERRI STORIE & JOHNNY RIDDLE in their capacity As Yancey County Commissioners; THE YANCEY COUNTY BOARD OF COMMISSIONERS; NATHAN BENNETT, in his capacity as Yancey County Manager; JASON ROBINSON, JERRI STORIE, CATHY KING, ELAINE BOONE, & JUDY BUCHANAN, in their capacity as Members of the Yancey County Department of Social Services Board of Directors; & THE YANCEY COUNTY DEPARTMENT OF SOCIAL SERVICES BOARD OF DIRECTORS, Defendants\nNo. COA09-1413\n(Filed 6 July 2010)\n1. Appeal and Error\u2014 notice of appeal \u2014 timely\nDefendants\u2019 motion to dismiss plaintiffs\u2019 appeal for failure to file timely notice of appeal was denied. Defendants\u2019 failure to comply with the service requirements of Rule 58 of the rules of Civil Procedure required the application of Rule 3(c)(2) and under this Rule, plaintiffs\u2019 appeal was timely.\n2. Open Meetings\u2014 Board of Commissioners \u2014 unannounced meeting\nThe trial court erred in granting defendants\u2019 motion to dismiss plaintiff\u2019s complaint pursuant t\u00f3 N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) alleging that the Board of Commissioners and its members violated the Open Meetings Law. Treating the allegations in plaintiffs\u2019 complaint as true, plaintiffs stated a cognizable claim that the Board of Commissioners violated N.C.G.S. \u00a7\u00a7 143-318.12(b) and 153A-40.\n3. Counties\u2014 authority of Board of Commissioners \u2014 composition of administrative board\nThe trial court erred in granting defendants\u2019 motion to dismiss plaintiff\u2019s complaint pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) because, treating plaintiffs\u2019 allegations as true, plaintiffs stated a cognizable claim that the Board of Commissioners exceeded its authority and violated N.C.G.S. \u00a7\u00a7 108A-4 and 153A-76 by revoking plaintiffs\u2019 appointments to the Department of Social Services Board of Directors.\n4. Constitutional Law\u2014 due process \u2014 no adequate state remedy \u2014 not alleged\nThe trial court did not err by dismissing plaintiffs\u2019 due process claims where they did not allege the lack of adequate state remedy.\nAppeal by plaintiffs from order entered 13 July 2009 by Judge Bradley Letts in Superior Court, Yancey County. Heard in the Court of Appeals 25 May 2010.\nParker Poe Adams & Bernstein LLP, by Robert A. Leandro and Elizabeth A. Magee, for plaintiffs-appellants.\nDonny J. Laws, for defendants-appellees." }, "file_name": "0183-01", "first_page_order": 211, "last_page_order": 220 }