{ "id": 4356066, "name": "IN RE VICTORIOUS RONE by and through ARDEAL and DIANNE ROSEBORO, Petitioners, v. WINSTON-SALEM/FORSYTH COUNTY BOARD OF EDUCATION, Respondent", "name_abbreviation": "Rone ex rel. Roseboro v. Winston-Salem/Forsyth County Board of Education", "decision_date": "2012-05-01", "docket_number": "No. COA11-642", "first_page": "401", "last_page": "406", "citations": [ { "type": "official", "cite": "220 N.C. App. 401" } ], "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": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": -1 }, { "cite": "615 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633276 ], "year": 2005, "pin_cites": [ { "page": "413", "parenthetical": "quoting Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002)" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0408-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "471 U.S. 234", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6200520 ], "weight": 13, "year": 1985, "pin_cites": [ { "page": "237" }, { "page": "239" }, { "page": "1925" }, { "page": "241" }, { "page": "241" }, { "page": "1927", "parenthetical": "internal quotation marks omitted" }, { "page": "243" }, { "page": "242" }, { "page": "1928" } ], "opinion_index": 0, "case_paths": [ "/us/471/0234-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "171 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8438969 ], "year": 2005, "pin_cites": [ { "page": "654", "parenthetical": "quoting Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0649-01" ] }, { "cite": "479 U.S. 6", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6208981 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "15" }, { "page": "198" }, { "page": "341-42" } ], "opinion_index": 0, "case_paths": [ "/us/479/0006-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 6, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 6-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "701 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "293" }, { "page": "294" } ], "opinion_index": 0 }, { "cite": "207 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4179295 ], "year": 2010, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc-app/207/0618-01" ] }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 7, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 563, "char_count": 12720, "ocr_confidence": 0.76, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14838336134654956 }, "sha256": "c56724206678e082cef7e7e3d82cf1fe4104859c1acbd810f4583ab4a45ac07f", "simhash": "1:970b89e2127a6592", "word_count": 2072 }, "last_updated": "2023-07-14T21:35:53.925153+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and BEASLEY concur." ], "parties": [ "IN RE VICTORIOUS RONE by and through ARDEAL and DIANNE ROSEBORO, Petitioners, v. WINSTON-SALEM/FORSYTH COUNTY BOARD OF EDUCATION, Respondent" ], "opinions": [ { "text": "GEER, Judge.\nPetitioners Ardeal and Dianne Roseboro and respondent Winston-Salem/Forsyth County Board of Education (\u201cthe Board\u201d) cross-appeal from the trial court\u2019s award of attorney\u2019s fees to petitioners\u2019 counsel pursuant to 42 U.S.C. \u00a7 1988 (2006). Because this case was not an action or proceeding under 42 U.S.C \u00a7 1983 (2006), the trial court lacked authority to award fees under \u00a7 1988. We, therefore, reverse and remand to the trial court for further proceedings.\nFacts\nOn 10 November 2008, petitioners filed a petition for judicial review seeking review of the final decision of the Board affirming Victorious Rone\u2019s assignment to an alternative learning center for the 2008-2009 academic year. The petition invoked the superior court\u2019s jurisdiction under N.C. Gen. Stat. \u00a7\u00a7 115C-45(c) and 115C-391(d) (2009). It alleged that \u201c[t]he decision of the board of education upholding Victorious Rone\u2019s assignment to the Alternative Learning Center violates constitutional provisions, state law, and local board policy; was made upon unlawful procedure; is affected by other error of law; is unsupported by substantial evidence; and is arbitrary and capricious.\u201d With respect to the allegation of \u201cunlawful procedure,\u201d the petition contended that the Board\u2019s \u201cprocedures violated Victorious Rone\u2019s due process rights under the federal and state constitutions, and local board policy .. . .\u201d\nThe petition asked the superior court to reverse the decision upholding the assignment to the alternative learning center, that Victorious be returned to regular classes, and that the Board be ordered to expunge all references to the assignment from Victorious\u2019 official record. Finally, the petition asked \u201c[t]hat the costs of this action, including reasonable attorney\u2019s fees, be taxed to Respondent. . ..\u201d\nThe superior court, \u201c[a]fter a full review of the Record, the transcript of the hearing below, the briefs and supporting cases,\u201d entered an order upholding the Board\u2019s decision. The court noted with respect to petitioners\u2019 claim for violation of federal and state due process rights that \u201c[o]n appeal of a decision of a school board, a trial court sits as an appellate court and reviews the evidence presented to the school board.\u201d The court then concluded that Victorious\u2019 due process rights were not violated.\nPetitioners appealed to this Court, which concluded, contrary to the superior court, that petitioners had shown a violation of Victorious\u2019 due process rights. Rone v. Winston-Salem/Forsyth Cnty. Bd. of Educ., 207 N.C. App. 618, 630, 701 S.E.2d 284, 293 (2010). The Court reversed and remanded to the superior court with instructions to further remand to the Board \u201cto expunge Rone\u2019s assignment to the [alternative learning center] for the 2008-09 school year.\u201d Id. at 632, 701 S.E.2d at 294. The Court further mandated that \u201con remand, the superior court should determine whether petitioners are entitled to the costs of the proceedings.\u201d Id.\nUpon remand, petitioners filed a Motion for Costs and Attorney\u2019s Fees, citing as authority 42 U.S.C. \u00a7 1988 and N.C. Gen. Stat. \u00a7\u00a7 6-1 and 7A-305 (2009). The motion sought $60,030.00 in attorney\u2019s fees and $1,565.71 in costs. As grounds for the motion, petitioners asserted that \u201c[t]his is an action to which 42 U.S.C. \u00a7 1983, 1988 apply\u201d because \u201c[i]n their petition for judicial review, Petitioners alleged, among other things, that the decision was made in violation of Petitioner Victorious Rone\u2019s constitutional right to procedural due process.\u201d\nOn 15 March 2011, the superior court entered an order awarding attorney\u2019s fees and expenses under 42 U.S.C. \u00a7 1988 in the amount of $50,000.00. The superior court noted that North Carolina is a notice pleading state and concluded that the petition for judicial review gave the Board \u201csufficient notice that Petitioners alleged a violation of the federal constitution\u201d and that they were seeking attorney\u2019s fees and costs. Petitioners and the Board each timely appealed to this Court.\nDiscussion\nThe central question for this appeal is whether the superior court had authority to award attorney\u2019s fees and expenses under 42 U.S.C. \u00a7 1988. 42 U.S.C. \u00a7 1988(b) provides in pertinent part: \u201cIn any action or proceeding to enforce a provision of... \u00a7 1983 of this title . . ., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney\u2019s fee as part of the costs . . . .\u201d\nIn this case, petitioners argue that because they contended that the Board violated Victorious\u2019 right to procedural due process under the federal constitution, this case constitutes an action under 42 U.S.C. \u00a7 1983. 42 U.S.C. \u00a7 1983 authorizes an injured party to bring \u201can action at law, suit in equity, or other proper proceeding for redress\u201d against a party who, acting under color of law,' subjected the injured party \u201cto the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.\u201d\nContrary to petitioners\u2019 \u2014 and the superior court\u2019s \u2014 assumption, the mere assertion of a federal constitutional violation does not transform a legal proceeding into a \u00a7 1983 proceeding that carries with it the right to seek fees under \u00a7 1988. In N.C. Dep\u2019t of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 15, 93 L. Ed. 2d 188, 198, 107 S. Ct. 336, 341-42 (1986), the United States Supreme Court emphasized that attorney\u2019s fees may be awarded under 42 U.S.C. \u00a7 1988 only by \u201ca court in an action to enforce one of the civil rights laws listed in \u00a7 1988 ____\u201d\nConsequently, the issue before us is whether this case is an \u201caction or proceeding to enforce ... \u00a7 1983.\u201d 42 U.S.C. \u00a7 1988. This proceeding was brought by way of a petition for judicial review under N.C. Gen. Stat. \u00a7 115C-45(c). Section 115C-45(c) first authorizes an appeal to the local school board from, among other decisions, a final administrative decision regarding the discipline of a student under specified statutes, including, at the time of the petition, N.C. Gen. Stat. \u00a7 115C-391, the basis for the discipline in this case. Section 115C-45(c) further provides that \u201c[a]n appeal of right brought before a local board of education . . . may be further appealed to the superior court of the State on the grounds that the local board\u2019s decision is in violation of constitutional provisions, is in excess of the statutory authority or jurisdiction of the board, is made upon unlawful procedure, is affected by other error of law, is unsupported by substantial evidence in view of the entire record as submitted, or is arbitrary or capricious.\u201d (Emphasis added.)\nConsequently, in this case, the superior court was \u201c \u2018sit[ting] in the posture of an appellate court and [did] not review the sufficiency of evidence presented to it but review[ed] that evidence presented to the [local board].\u2019 \u201d In re Alexander v. Cumberland Cnty. Bd. of Educ., 171 N.C. App. 649, 654, 615 S.E.2d 408, 413 (2005) (quoting Mann Media, Inc. v. Randolph Cnty. Planning Bd., 356 N.C. 1, 12, 565 S.E.2d 9, 17 (2002)). While petitioners could have added a cause of action invoking the superior court\u2019s original jurisdiction and seeking redress for injuries resulting from the violation of the federal constitution, petitioners did not do so.\nUnder N.C. Gen. Stat. \u00a7 115C-391(e), judicial review by the superior court was required to be \u201cin accordance with Article 4 of Chapter 150B of the General Statutes.\u201d Chapter 150B is the Administrative Procedure Act and, under N.C. Gen. Stat. 150B-51(b)(l) (2009), which falls within Article 4, the superior court was authorized only to affirm, remand, or reverse or modify the decision of the Board if that decision was \u201c[i]n violation of constitutional provisions.\u201d In other words, the authority invoked by petitioners\u2019 petition for judicial review included only review of the Board\u2019s administrative decision and could not encompass the assertion of a new cause of action, such as a claim for relief under 42 U.S.C. \u00a7 1983. Simply put, this proceeding was an administrative appeal.\nThe United States Supreme Court\u2019s decision in Webb v. Bd. of Educ. of Dyer Cnty., TN, 471 U.S. 234, 85 L. Ed. 2d 233, 105 S. Ct. 1923 (1985), established that attorney\u2019s fees, as a general matter, may not be awarded under \u00a7 1988 for administrative proceedings. In Webb, the plaintiff, after prevailing in a \u00a7 1983 action challenging the termination of his employment, sought attorney\u2019s fees not only for time spent in the actual \u00a7 1983 action but also for time spent in an administrative appeal of his discharge before a school board. Id. at 237, 85 L. Ed. 2d at 239, 105 S. Ct. at 1925.\nThe Court held that \"[b]ecause \u00a7 1983 stands as an independent avenue of relief and petitioner could go straight to court to assert it,\u201d the school board \u201c[ajdministrative proceedings established to enforce tenure rights created by state law simply [were] not any part of the proceedings to enforce \u00a7 1983.\u201d Id. at 241, 85 L. Ed. 2d at 241, 105 S. Ct. at 1927 (internal quotation marks omitted). The petitioner was, therefore, \u201cnot automatically entitled to claim attorney\u2019s fees for time spent in the administrative process . ...\u201d Id.\nFollowing the reasoning in Webb, if a party cannot in an actual action brought under 42 U.S.C. \u00a7 1983 recover for time spent in a separate administrative proceeding, then there is no basis for awarding fees under \u00a7 1988 when petitioners pursued only administrative remedies and never filed an independent action under 42 U.S.C. \u00a7 1983 at all. Under Webb and Crest Street Community Council, this case was not an action to enforce \u00a7 1983.\nThe Court in Webb acknowledged that a \u201cdiscrete portion of the work product from the administrative proceedings\u201d could be included within a \u00a7 1988 fee award if that work \u201cwas both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached\u201d when the plaintiff became a prevailing party. Webb, 471 U.S. at 243, 85 L. Ed. 2d at 242, 105 S. Ct. at 1928. Since, however, petitioners never filed a \u00a7 1983 action, Webb precludes petitioners from seeking recovery for any of the tasks performed in the administrative proceeding.\nPetitioners attempt to suggest that their motion for costs somehow transformed this administrative proceeding into a \u00a7 1983 action. Not surprisingly, petitioners cite no authority indicating that a party may, for the first time, assert a cause of action in a motion for costs. Logically, petitioners\u2019 theory is procedurally impossible. Section 1988 allows fees only to the prevailing party, while N.C. Gen. Stat. \u00a7 6-1 (2011) authorizes a trial court to award costs \u201c [t] o the party for whom judgment is given . ...\u201d In other words, by the time a party files a motion for costs, the proceeding must be over \u2014 a motion for costs cannot be a vehicle to initiate a new cause of action or transform the nature of the proceeding that has already concluded.\nConsequently, the superior court in this case had no authority to award attorney\u2019s fees to petitioners under \u00a7 1988. We, therefore, reverse the trial court\u2019s order and do not address petitioners\u2019 argument regarding the sufficiency of the award. On remand, however, the superior court must consider whether petitioners are entitled to an award of fees under N.C. Gen. Stat. \u00a7 6-19.1 (2011) and whether petitioners are entitled to recover their costs apart from fees.\nReversed and remanded.\nJudges STEELMAN and BEASLEY concur.\n. N.C. Gen. Stat. \u00a7 115C-391 was repealed effective 23 June 2011. 2011 N.C. Sess. Laws ch. 282, \u00a7 1.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "The Roseboro Law Firm, PLLC, by John Roseboro, for petitioners.", "Womble Carlyle Sandridge & Rice, PLLC, by Reid C. Adams, Jr., Gemma L. Soluta, and Jonathan R. Reich, for respondent.", "Tharrington Smith, L.L.P, by Deborah R. Stagner; and North Carolina School Boards Association, by Allison B. Schafer, General Counsel, for North Carolina School Boards Association, amicus curiae." ], "corrections": "", "head_matter": "IN RE VICTORIOUS RONE by and through ARDEAL and DIANNE ROSEBORO, Petitioners, v. WINSTON-SALEM/FORSYTH COUNTY BOARD OF EDUCATION, Respondent\nNo. COA11-642\n(Filed 1 May 2012)\nAttorney Fees \u2014 administrative appeal \u2014 not authorized\nThe trial court erred in an administrative appeal from the Winston-Salem/Forsyth County Board of Education\u2019s decision upholding a student\u2019s assignment to an alternative learning center by awarding attorney fees to petitioners\u2019 counsel pursuant to 42 U.S.C. \u00a7 1988. Because this case was not an action or proceeding under 42 U.S.C \u00a7 1983, the trial court lacked authority to award fees under \u00a7 1988.\nAppeal by petitioners and respondent from order entered 15 March 2011 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 9 November 2011.\nThe Roseboro Law Firm, PLLC, by John Roseboro, for petitioners.\nWomble Carlyle Sandridge & Rice, PLLC, by Reid C. Adams, Jr., Gemma L. Soluta, and Jonathan R. Reich, for respondent.\nTharrington Smith, L.L.P, by Deborah R. Stagner; and North Carolina School Boards Association, by Allison B. Schafer, General Counsel, for North Carolina School Boards Association, amicus curiae." }, "file_name": "0401-01", "first_page_order": 411, "last_page_order": 416 }