{ "id": 2485268, "name": "In Re: GEORGE A. GUESS, M.D., Respondent", "name_abbreviation": "In re Guess", "decision_date": "1989-02-09", "docket_number": "No. 232PA88", "first_page": "105", "last_page": "108", "citations": [ { "type": "official", "cite": "324 N.C. 105" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "367 S.E. 2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": -1 }, { "cite": "89 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524760 ], "year": 1988, "opinion_index": -1, "case_paths": [ "/nc-app/89/0711-01" ] }, { "cite": "242 S.E. 2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "a license revocation case initiated by the Board where this Court accepted an appeal directly from the superior court" } ], "opinion_index": 0 }, { "cite": "294 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574056 ], "year": 1978, "pin_cites": [ { "parenthetical": "a license revocation case initiated by the Board where this Court accepted an appeal directly from the superior court" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0528-01" ] }, { "cite": "362 S.E. 2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "87 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358996 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/87/0650-01" ] }, { "cite": "356 S.E. 2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "194 S.E. 295", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "212 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617057 ], "year": 1937, "pin_cites": [ { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/nc/212/0653-01" ] }, { "cite": "68 S.E. 2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "234 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624770 ], "year": 1951, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0572-01" ] }, { "cite": "180 S.E. 2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "816" } ], "opinion_index": 0 }, { "cite": "278 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561294 ], "year": 1971, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0657-01" ] } ], "analysis": { "cardinality": 394, "char_count": 7746, "ocr_confidence": 0.82, "pagerank": { "raw": 1.4005669832763733e-07, "percentile": 0.644609975330608 }, "sha256": "d5a72b3becdc439df9a821f5a4a311e40ab050b3561f51a7ff767e55fb1ce4eb", "simhash": "1:6cd99021315924fb", "word_count": 1279 }, "last_updated": "2023-07-14T20:39:53.264050+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In Re: GEORGE A. GUESS, M.D., Respondent" ], "opinions": [ { "text": "FRYE, Justice.\nThis case is before the Court by grant of discretionary review to determine the proper place of appeal from a decision of the superior court reversing a decision of the North Carolina Board of Medical Examiners (Board). The Board appealed the decision to the Court of Appeals, which dismissed the appeal holding that appeal was directly to this Court pursuant to N.C.G.S. \u00a7 90-14.11. For the reasons stated hereinafter, we now reverse and hold that appeal lies of right to the Court of Appeals.\nThis case had its genesis in a professional disciplinary matter before the North Carolina Board of Medical Examiners under N.C.G.S. \u00a7 9044(a)(6). The Board is authorized to suspend or revoke the medical licenses of physicians who engage, inter alia, in unprofessional conduct. Dr. Guess, an Asheville physician Board certified in the practice of family medicine, was charged with \u201c[unprofessional conduct, including . . . any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice . . . irrespective of whether or not a patient is injured thereby . . . .\u201d N.C.G.S. \u00a7 9044(a)(6) (1985 & Cum. Supp. 1988).\nThe charges and allegations brought by the Board against Dr. Guess are that he held himself out as professing to diagnose and treat human ailments by the practice of homeopathic medicine and that he engaged in the practice of homeopathic medicine for various patients. Following a public hearing, the Board concluded that Dr. Guess had engaged in unprofessional conduct by practicing homeopathic medicine because such a practice is not within the accepted standards and prevailing practice of medicine in this State. The Board therefore conditionally revoked his license to practice medicine in North Carolina.\nDr. Guess sought judicial review of the Board\u2019s decision in the Wake County Superior Court which reversed and vacated the Board\u2019s decision, finding it both arbitrary and capricious. The Board appealed to the Court of Appeals. Both the Board and Dr. Guess filed briefs in the Court of Appeals, presenting arguments on whether the superior court erred in finding that the Board\u2019s decision was not supported by competent, material and substantial evidence and on whether the Board\u2019s decision was arbitrary and capricious or prejudiced the substantial rights of Dr. Guess. No question was raised as to the jurisdiction of the Court of Appeals to hear the appeal. Nevertheless, following oral arguments on the merits, the Court of Appeals dismissed the appeal on the ground that it was not authorized to hear it. This Court allowed the Board\u2019s petition for discretionary review in order to resolve the jurisdictional question.\nN.C.G.S. \u00a7 90-14.11 provides: \u201cAny party to the review proceeding, including the Board, may appeal to the Supreme Court from the decision of the superior court under rules of procedure applicable in other civil cases.\u201d In reaching its decision, the Court of Appeals relied upon this statute and our case of In re Wilkins, 294 N.C. 528, 242 S.E. 2d 829 (1978) (a license revocation case initiated by the Board where this Court accepted an appeal directly from the superior court). The Court of Appeals found N.C.G.S. \u00a7 90-14.11 controlling notwithstanding the later enactment of N.C.G.S. \u00a7 7A-27(b) (1986) which provides that \u201c[f]rom any final judgment of a superior court . . . including any final judgment entered upon review of a decision of an administrative agency, appeal lies of right to the Court of Appeals.\u201d\nThe two statutes are in obvious conflict. N.C.G.S. \u00a7 90-14.11 directs appeals from superior court review of decisions of the Board to the Supreme Court while N.C.G.S. \u00a7 7A-27(b) effectively directs such appeals to the Court of Appeals. The conflict between the two statutes was not discussed in In re Wilkins. In fact, there is no reference in the opinion to N.C.G.S. \u00a7 7A-27(b).\nIt is a generally accepted rule that where there is an irreconcilable conflict between two statutes, the later statute controls as the last expression of legislative intent. Bland v. City of Wilmington, 278 N.C. 657, 661, 180 S.E. 2d 813, 816 (1971); Victory Cab Co. v. City of Charlotte, 234 N.C. 572, 577, 68 S.E. 2d 433, 437 (1951); Guilford County v. Estates Administration, Inc., 212 N.C. 653, 655, 194 S.E. 295, 296 (1937). N.C.G.S. \u00a7 90-14.11 was enacted in 1953, at a time when the Supreme Court was North Carolina\u2019s only appellate court. Then in 1967, the General Assembly enacted legislation creating the Court of Appeals. See 1967 N.C. Sess. Laws ch. 108, \u00a7 1 (codified as N.C.G.S. \u00a7 7A-16 (1986)). N.C.G.S. \u00a7 7A-27(b) was a part of that legislation and clearly provided for a right of direct appeal to the Court of Appeals from a final judgment of a superior court entered upon review of a decision of an administrative agency.\nAny doubt regarding the appropriate appellate court to which an appeal lies from final decision of a superior court entered upon review of a decision of the Board of Medical Examiners was resolved by this Court in In re Archibald Carter Magee, No. 125P87, 356 S.E. 2d 5 (1987). In that case, the Board\u2019s appeal to this Court from the Wake County Superior Court \u201cunder the provisions of G.S. 90-14.11\u201d was dismissed by this Court. The order provides as follows:\nPurported appeal dismissed on the ground that the later enacted statute which makes the Court of Appeals the proper court to hear the appeal controls. The clerk shall return all documents delivered to this Court to counsel for the appellant forthwith. By order of the Court in conference, this the 5th day of May 1987.\nId.\nThereafter, the Court of Appeals heard the appeal and rendered its decision on the merits. See In re Magee, 87 N.C. App. 650, 362 S.E. 2d 564 (1987).\nWe now hold that the later enacted statute (N.C.G.S. \u00a7 7A-27(b)) controls in the instant case. The Court of Appeals is the proper court to determine appeals taken from decisions of the superior court in proceedings for judicial review of decisions of the Board of Medical Examiners. Thus, the Court of Appeals erred in dismissing the appeal. We reverse the decision of the Court of Appeals and remand to that court for consideration on the merits of the issues previously briefed and argued in that court.\nReversed and remanded.\n. The North Carolina Board of Medical Examiners is clearly an administrative agency as that term is used in N.C.G.S. \u00a7 7A-27(b). See N.C.G.S. \u00a7 150B-1(c) (1987).", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, by Michael E. Weddington, for appellant-Board of Medical Examiners.", "Manning, Fulton & Skinner, by Charles E. Nichols, Jr., for appellee." ], "corrections": "", "head_matter": "In Re: GEORGE A. GUESS, M.D., Respondent\nNo. 232PA88\n(Filed 9 February 1989)\nPhysicians, Surgeons and Allied Professions \u00a7 7\u2014 review of Board of Medical Examiners \u2014 appeal of right to Court of Appeals\nThe Court of Appeals is the proper court to determine appeals taken from decisions of the superior court in proceedings for judicial review of decisions of the Board of Medical Examiners. Although N.C.G.S. \u00a7 90-14.11 directs appeals from superior court review of decisions of the Board to the Supreme Court, N.C.G.S. \u00a7 7A-27(b) effectively directs such appeals to the Court of Appeals and is the later enacted statute.\nOn grant of North Carolina Board of Medical Examiners\u2019 petition for discretionary review of a decision of the Court of Appeals, 89 N.C. App. 711, 367 S.E. 2d 11 (1988), dismissing the Board\u2019s appeal from an order of the Superior Court, WAKE County, by Farmer, J., Civil Session 20 May 1987, reversing and vacating an order of the North Carolina Board of Medical Examiners which conditionally revoked respondent\u2019s medical license. Heard in the Supreme Court 14 November 1988.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, by Michael E. Weddington, for appellant-Board of Medical Examiners.\nManning, Fulton & Skinner, by Charles E. Nichols, Jr., for appellee." }, "file_name": "0105-01", "first_page_order": 143, "last_page_order": 146 }