Opinion

Pinewood Manor Mobile Homes, Inc. v. North Carolina Manufactured Housing Board

  • 84 N.C. App. 564
  • 353 S.E.2d 231
  • 1987 N.C. App. LEXIS 2532
Court
Court of Appeals of North Carolina
Filed
Mar 3, 1987
Status
Published
Author
Orr
On the bench
Arnold, Orr, Phillips
Cited by
1 cases
Authority
More cited than 48.1%

The opinion

ORR, Judge.

Petitioner contends that the trial court erred in granting the Board’s motion to dismiss pursuant to the provisions of N.C.G.S. § 150A. We do not agree.

N.C.G.S. § 150A-45 of the Administrative Procedure Act provides that “[i]n order to obtain judicial review of a final agency decision under this Chapter, the person seeking review must file a petition in the Superior Court of Wake County . . . .” N.C.G.S. § 150A-45 was rewritten and became N.C.G.S. § 150B-45 in 1985. N.C.G.S. § 150B-45 allows a person seeking review of an administrative decision to file a petition either “in the Superior Court of Wake County or in the superior court of the county where the petitioner resides.” However, 1985 N.C. Sess. Laws ch. 746, § 19 provides that N.C.G.S. § 150B “shall not affect contested cases commenced before January 1, 1986.”

Petitioner maintains that no contest existed prior to 1 January 1986 and therefore N.C.G.S. § 150B should apply. However, both the complaints and the notices of hearing were filed prior to 1 January 1986. While N.C.G.S. § 150A is silent as to the time of commencement of an action, under Rule 3 of the North *566 Carolina Rules of Civil Procedure, a case begins with the filing of a complaint and issuance of a notice of hearing to the affected parties. In Ready Mix Concrete v. Sales Corp., 36 N.C. App. 778 , 245 S.E. 2d 234 (1978), this Court stated that “[u]nder G.S. 1A-1, Rule 3, an action is commenced when a complaint is filed or when a summons is issued.” 36 N.C. App. at 780 , 245 S.E. 2d at 235 . Therefore, by analogizing the Administrative Procedure Act to the North Carolina Rules of Civil Procedure, the case was commenced prior to 1 January 1986.

We find that N.C.G.S. § 150B has no application in this case, as the action was clearly commenced before 1 January 1986. The decision below should be affirmed.

Affirmed.

Judges Arnold and Phillips concur.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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