               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-501

                               Filed: 6 February 2018

Scotland County, No. 16 CVS 517

ANTHONY BUTLER, Petitioner,

              v.

SCOTLAND COUNTY BOARD OF EDUCATION, Respondent.


        Appeal by petitioner from order entered 23 January 2017 by Judge Tanya T.

Wallace in Scotland County Superior Court. Heard in the Court of Appeals 5 October

2017.


        Van Camp, Meacham & Newman, PLLC, by Amanda L. Tomblyn and Thomas
        M. Van Camp, for petitioner-appellant.

        Tharrington Smith, L.L.P., by Kenneth A. Soo and Lindsay Vance Smith, for
        respondent-appellee.

        Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jill R. Wilson and
        Elizabeth L. Troutman, and Allison B. Schafer, for amicus curiae North
        Carolina School Boards Association.


        DAVIS, Judge.


        This appeal requires us to revisit the issue of which provisions from North

Carolina’s Administrative Procedure Act (“APA”) should be used to fill gaps existing

in statutes authorizing appeals to superior court from decisions by a local school

board. Anthony Butler appeals from the trial court’s order dismissing his petition for

judicial review in which he sought to challenge the termination of his employment as
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                                   Opinion of the Court



a teacher by the Scotland County Board of Education (the “Board”). Because we

conclude that Butler’s petition failed to comply with several essential requirements

under N.C. Gen. Stat. § 150B-46, we affirm.

                       Factual and Procedural Background

         In 2016, Butler was a career teacher employed at Scotland County High School.

On 9 May 2016, the Superintendent of Scotland County Schools notified him that he

was being placed on suspension without pay and that his dismissal had been

recommended to the Board. On 9 June 2016, the Board held a hearing and entered

an order terminating his contract of employment.

         On 7 July 2016, Butler filed a document captioned “Notice of Appeal and

Petition for Judicial Review” in Scotland County Superior Court. Butler served the

petition by mailing a copy to the attorney who had represented the Board in the

administrative proceeding. On 3 August 2016, the Board filed a motion to dismiss in

which it asserted that a number of errors existed in the petition and that Butler had

failed to properly serve the petition upon the Board.

         A hearing was held on the Board’s motion to dismiss on 28 November 2016

before the Honorable Tanya T. Wallace. On 23 January 2017, the trial court entered

an order granting the Board’s motion. Butler filed a timely notice of appeal to this

Court.

                                       Analysis



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      It is well established that “[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.” Davis v. Macon Cty. Bd. of Educ., 178 N.C. App. 646, 651, 632 S.E.2d 590,

594 (2006) (citation omitted), disc. review denied, 360 N.C. 645, 638 S.E.2d 465 (2006).

“The proper standard of review depends upon the nature of the asserted error.” Id.

(citation omitted). Because Butler’s appeal to this Court concerns the purely legal

issues of whether his petition for judicial review was legally sufficient and whether

he properly served the petition on the Board, we review de novo the trial court’s order

dismissing his appeal. See In re Taylor, 242 N.C. App. 30, 34, 774 S.E.2d 863, 866

(2015).

      Butler’s petition stated as follows:

                    NOW COMES Petitioner, Anthony Butler, by and
             through his undersigned counsel, and pursuant to N.C.
             Gen. Stat. § 115C-325.8, et. seq., N.C. Gen. Stat. § 150B-
             43, et. seq., N.C. Gen. Stat. § 150B-45, et. seq., and N.C.
             Gen. Stat. § 7A-250(a), et. seq., and hereby gives Notice of
             Appeal to the Superior Court of Scotland County, North
             Carolina from the Order of Dismissal by the Scotland
             County Board of Education, dated June 9, 2016. Petitioner
             respectfully requests that the Court enter an appropriate
             Order requiring the Respondent to promptly transmit and
             deliver to this Court a complete copy of the administrative
             record compiled in this matter, including any and all
             transcripts, exhibits, evidence, or other similar matters,
             pursuant to N.C. Gen. Stat. § 115C-325.8(b).

      Chapter 115C of the North Carolina General Statutes governs appeals from

various types of decisions made by local school boards. The particular statute within


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Chapter 115C relied upon by Butler in challenging his dismissal was N.C. Gen. Stat.

§ 115C-325.8, which states as follows:

                 (a) A teacher who (i) has been dismissed, demoted, or
             reduced to employment on a part-time basis for
             disciplinary reasons during the term of the contract as
             provided in G.S. 115C-325.4, or has received a disciplinary
             suspension without pay as provided in G.S. 115C-325.5,
             and (ii) requested and participated in a hearing before the
             local board of education, shall have a further right of
             appeal from the final decision of the local board of
             education to the superior court of the State on one or more
             of the following grounds that the decision:

                   (1) Is in violation of constitutional provisions.

                   (2) Is in excess of the statutory authority or
                   jurisdiction of the board.

                   (3) Was made upon unlawful procedure.

                   (4) Is affected by other error of law.

                   (5) Is unsupported by substantial evidence in view
                   of the entire record as submitted.

                   (6) Is arbitrary or capricious.

                (b) An appeal pursuant to this section must be filed
             within 30 days of notification of the final decision of the
             local board of education and shall be decided on the
             administrative record. The superior court shall have
             authority to affirm or reverse the local board’s decision or
             remand the matter to the local board of education. The
             superior court shall not have authority to award monetary
             damages or to direct the local board of education to enter
             into an employment contract of more than one year, ending
             June 30.



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N.C. Gen. Stat. § 115C-325.8 (2017).

         Because N.C. Gen. Stat. § 115C-325.8 does not specifically address the

contents of a petition for judicial review of a school board’s decision or the manner in

which it must be served, the Board contends that N.C. Gen. Stat. § 150B-46 — a

statute within the APA — governs these issues. N.C. Gen. Stat. § 150B-46 states, in

pertinent part, as follows:

               The petition shall explicitly state what exceptions are
               taken to the decision or procedure and what relief the
               petitioner seeks. Within 10 days after the petition is filed
               with the court, the party seeking the review shall serve
               copies of the petition by personal service or by certified mail
               upon all who were parties of record to the administrative
               proceedings. . . .

N.C. Gen. Stat. § 150B-46 (2017).

         It is undisputed that Butler’s petition failed to comply with N.C. Gen. Stat.

§ 150B-46 in several respects.       First, the petition did not contain any specific

exceptions to the Board’s decision or state what relief was being sought by Butler.

Second, Butler failed to personally serve the Board within ten days of the filing of the

petition by means of either personal service or certified mail. Thus, the question

before us is whether N.C. Gen. Stat. § 150B-46 applied to Butler’s appeal to superior

court.

         As an initial matter, it is clear that “local school boards and local school

administrative units are local governmental units, and, as such, are not ‘agencies’ for



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the purpose of the APA.” Thomas Jefferson Classical Acad. Charter Sch. v. Cleveland

Cty. Bd. of Educ., 236 N.C. App. 207, 215, 763 S.E.2d 288, 295 (2014) (citation

omitted). However, although school board appeals are exempted from the scope of

the APA as a general proposition, our appellate courts have nevertheless repeatedly

“borrowed” certain provisions of the APA to fill gaps existing in the judicial review

provisions of Chapter 115C. Thus, it is helpful to review the pertinent case law from

our appellate courts on this subject.

      In Thompson v. Wake Cty. Bd. of Educ., 292 N.C. 406, 233 S.E.2d 538 (1977),

a career teacher was suspended pursuant to N.C. Gen. Stat. § 115-142(f). The Wake

County Board of Education subsequently entered an order dismissing the teacher,

and he appealed to superior court. Id. at 408, 233 S.E.2d at 540. The court reversed

the Board’s decision. Id. On appeal, our Supreme Court addressed the question of

what standard of review applied to appeals to superior court from local school board

decisions. The Court held that “the whole record rule” as set out in N.C. Gen. Stat.

§ 150A-51 — a provision of the APA — was the applicable standard of review in such

appeals. Id. at 410, 233 S.E.2d at 541.

      The Supreme Court reiterated the holding of Thompson in Overton v.

Goldsboro City Board of Education, 304 N.C. 312, 283 S.E.2d 495 (1981). In Overton,

a school board dismissed the plaintiff from his position as a middle school physical

education teacher. He appealed the dismissal to superior court, which determined



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that the board’s decision was not supported by substantial evidence in the record. Id.

at 316, 283 S.E.2d at 498.

      In reviewing his appeal, the Supreme Court once again considered the issue of

what standard of review applied to school board appeals.

             We first determine the appropriate standard of judicial
             review. Plaintiff appealed the Board’s action to the
             superior court pursuant to the provisions of G.S. 115-
             142(n) (1978). That statute, however, provides no
             standards for review. We find no standards for judicial
             review for an appeal of a school board decision to the courts
             set forth in Chapter 115 of our General Statutes. Moreover,
             we note that G.S. 150A-2(1) expressly excepts county and
             city boards of education from the coverage of the
             Administrative Procedure Act (APA), Chapter 150A, N.C.
             General Statutes. However, this Court held in Thompson
             v. Wake County Board of Education, 292 N.C. 406, 233 S.E.
             2d 538 (1977), that the standards for judicial review set
             forth in G.S. 150A-51 are applicable to appeals from school
             boards to the courts. Since no other statute provides
             guidance for judicial review of school board decisions and
             in the interest of uniformity in reviewing administrative
             board decisions, we reiterate that holding and apply the
             standards of review set forth in G.S. 150A-51 . . . .

Id. at 316-17, 283 S.E.2d at 498.

      Since Overton, our appellate courts have routinely applied the standard of

review set out in the APA to appeals from school board decisions. See, e.g., Farris v.

Burke Cty. Bd. of Educ., 355 N.C. 225, 235, 559 S.E.2d 774, 781 (2002) (applying

standards set out in N.C. Gen. Stat. § 150B-51 (citation omitted)); Davis, 178 N.C.

App. at 651, 632 S.E.2d at 594 (“N.C. Gen. Stat. § 150B-51(b) governs judicial review



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of school board actions . . . .” (citation omitted)); Evers v. Pender Cty. Bd. of Educ., 104

N.C. App. 1, 9-10, 407 S.E.2d 879, 884 (1991) (“[O]ur Supreme Court has . . . held that

the standards for judicial review set forth in N.C. Gen. Stat. § 150A-51 (now section

150B-51) apply to appeals from school boards.” (citation omitted)), aff’d per curiam,

331 N.C. 380, 416 S.E.2d 3 (1992).

       We have also, however, utilized other APA provisions in school board appeals

on issues as to which Chapter 115C was silent. For example, in Coomer v. Lee County

Board of Education, 220 N.C. App. 155, 723 S.E.2d 802, appeal dismissed and disc.

review denied, 366 N.C. 238, 731 S.E.2d 428 (2012), the petitioner appealed to

superior court pursuant to N.C. Gen. Stat. § 115C-45 from a school board’s decision

to terminate her employment as a bus driver. The superior court dismissed her

appeal as untimely based on the requirement in N.C. Gen. Stat. § 150B-45 imposing

a thirty-day time limit on appeals from agency decisions. Id. at 156-57, 723 S.E.2d

at 803. In affirming the court’s dismissal of her appeal, we stated as follows:

                     . . . Section 115C-45(c) does not contain a time limit,
              so the superior court looked to the time limit set out in
              Article 4 of the Administrative Procedure Act (APA).
              Under the APA, a person seeking judicial review of a final
              decision under Article 4 of the APA “must file a petition
              within 30 days after the person is served with a written
              copy of the decision.” N.C. Gen. Stat. § 150B-45(a) (2011).
              Although local boards of education are generally excluded
              from the requirements of the APA, see N.C. Gen. Stat.
              §§ 115C-2, 150B-2(1a) (2011), our appellate courts have
              consistently applied the standards for judicial review set
              out in § 150A-51 to appeals from school boards to the


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             courts, e.g., Overton v. Board of Education, 304 N.C. 312,
             316-17, 283 S.E.2d 495, 498 (1981). As the Supreme Court
             explained in Overton, because “no other statute provides
             guidance for judicial review of school board decisions and
             in the interest of uniformity in reviewing administrative
             board decisions,” the courts “apply the standards of review
             set forth in G.S. 150A-51[.]” Id.

                   Similarly, here, no other statute provides guidance
             for the judicial review of school board decisions, so the
             superior court, following Overton, properly looked to Article
             4 of the APA to determine the correct time limit for
             appealing from school boards to the courts. . . .

Id. at 157, 723 S.E.2d at 803-04 (internal citation omitted).

      Indeed, we specifically noted the applicability of N.C. Gen. Stat. § 150B-46 to

an appeal under Chapter 115C in Tobe-Williams v. New Hanover County Board of

Education, 234 N.C. App. 453, 759 S.E.2d 680 (2014). That case involved a local

school board’s decision not to renew the contract of an assistant principal. She

appealed to superior court, and the court reversed the board’s decision and reinstated

her. On appeal to this Court, the school board argued that the trial court had erred

by failing to dismiss the assistant principal’s petition for judicial review based on lack

of personal jurisdiction.   Id. at 460, 759 S.E.2d at 687.       Based on Overton, we

determined that “[t]he Board’s decision not to renew an assistant principal’s

employment contract is subject to judicial review in accordance with Article 4 of the

North Carolina Administrative Procedure Act . . . .” Id. at 459, 759 S.E.2d at 686

(citation omitted). We then stated the following:



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                        The Board first argues that the trial court erred in
                 failing to dismiss the petition for lack of personal
                 jurisdiction. The APA provides that “the person seeking
                 review must file a petition within 30 days after the person
                 is served with a written copy of the decision.” N.C. Gen.
                 Stat. § 150B-45(a) (2013). Additionally, “[w]ithin 10 days
                 after the petition is filed with the court, the party seeking
                 the review shall serve copies of the petition by personal
                 service or by certified mail upon all who were parties of
                 record to the administrative proceedings.” N.C. Gen. Stat.
                 § 150B-46 (2013).

                        Here, Ms. Tobe-Williams filed her petition on 9
                 August 2012, but the Board was not served by personal
                 service or by certified mail until 5 September 2012, more
                 than 10 days later. Service was, therefore, defective.

Id. at 460-61, 759 S.E.2d at 687.1

         In Ragland v. Nash-Rocky Mount Board of Education, __ N.C. App. __, 787

S.E.2d 422, appeal dismissed and disc. review denied, __ N.C. __, 793 S.E.2d 237

(2016), the petitioner was a part-time teacher who was terminated by the school

board.       After filing a petition for judicial review of the school board’s decision

pursuant to N.C. Gen. Stat. § 115C-325.8, the petitioner filed three motions — a

motion for entry of default, a motion for default judgment, and a motion for summary

judgment — based on his contention that the school board had failed to file an

appropriate responsive pleading to his petition for judicial review. Id. at __, 787

S.E.2d at 429-30. The superior court denied the motions, and the petitioner appealed.



         1
         However, because the board had failed to raise the issue of personal jurisdiction in superior
court, we ultimately determined that the issue had been waived. Id. at 461, 759 S.E.2d at 687.

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Id. at __, 787 S.E.2d at 430. We held that because the petition was filed to initiate

an administrative appeal rather than a new civil action the school board’s response

was not required to set forth affirmative defenses or specifically deny allegations set

forth in the petition as would be required of an answer to a complaint under the North

Carolina Rules of Civil Procedure.

                    . . . Here, N.C. Gen. Stat. § 150B-46 provides that, in
             response to a petition filed following administrative
             proceedings, “parties to the proceeding may file a response
             to the petition within 30 days of service. Parties, including
             agencies, may state exceptions to the decision or procedure
             and what relief is sought in the response.” Id. § 150B-
             46 (2015).

                    Respondent-Board responded in a timely manner to
             the Petition. Respondent-Board was served with a copy of
             the Amended Petition by certified mail on 24 February
             2015 and respondent-Board filed a copy with the trial court
             on 25 March 2015, within thirty days after receipt of the
             Petition (twenty-nine days later). Respondent-Board had
             no duty to respond to petitioner’s improper motions. . . .

Id. at __, 787 S.E.2d at 430.

      Thus, as the above-referenced cases make clear, this Court has previously

applied N.C. Gen. Stat. § 150B-46 — as well as other provisions of the APA — in

administrative appeals arising under Chapter 115C in the absence of contrary

statutory guidance contained therein. Accordingly, given the lack of any provision in

N.C. Gen. Stat. § 115C-325.8 governing the contents and service of petitions for

judicial review, we conclude it is likewise appropriate to apply N.C. Gen. Stat. § 150B-

46 in the present case.

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      In a number of prior instances, we have affirmed the dismissal of petitions for

judicial review based on (1) their failure to adequately state exceptions to the

underlying agency decision, see, e.g., Gray v. Orange Cty. Health Dep’t, 119 N.C. App.

62, 72, 457 S.E.2d 892, 899 (mere listing of broad exceptions to agency decision could

not “operate to salvage a petition which utterly disregards the statutory specificity

requirements”), disc. review denied, 341 N.C. 649, 462 S.E.2d 511 (1995); Vann v.

N.C. State Bar, 79 N.C. App. 173, 174, 339 S.E.2d 97, 98 (1986) (petition for judicial

review “was not sufficiently explicit to allow effective judicial review of respondent’s

proceedings”); and (2) the petitioner’s failure to serve the petition in compliance with

N.C. Gen. Stat. § 150B-46, see, e.g., Follum v. N.C. State Univ., 198 N.C. App. 389,

395, 679 S.E.2d 420, 424 (2009) (petitioner’s service of petition for judicial review

upon university board’s attorney did not comply with mandate of N.C. Gen. Stat.

§ 150B-46 because attorney was “not a party of record to the administrative

proceedings”).

      Butler’s appeal was deficient in these same respects. First, his petition failed

to state any specific exceptions to the Board’s decision or the relief he sought to obtain

as expressly required by N.C. Gen. Stat. § 150B-46. Second, he failed to comply with

N.C. Gen. Stat. § 150B-46’s service requirements in that instead of personally serving

the Board with his petition within the ten-day time limit he simply served a copy of




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his petition upon the attorney for the Board. Thus, his petition for judicial review

was properly dismissed by the trial court.2

                                           Conclusion

       For the reasons stated above, we affirm the trial court’s 23 January 2017 order.

       AFFIRMED.

       Judges ZACHARY and BERGER concur.




       2  While not necessary to our decision, we observe that Butler expressly referenced several
provisions of the APA in his petition, thereby demonstrating his awareness that the APA
supplemented N.C. Gen. Stat. § 115C-325.8 in terms of imposing certain procedural requirements
applicable to his appeal of the Board’s decision. Moreover, in his appellate brief, he has not directed
our attention to any alternative statutes addressing what must be contained in a petition for judicial
review or the manner in which such a petition must be served.

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