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James v. Hunt

Filed: October 2, 1979.

HENRY JAMES, JR.
v.
JAMES B. HUNT, JR.



Appeal by plaintiff from Ervin, Judge. Judgment entered 26 June 1978, Mecklenburg superior Court. Heard in the Court of Appeals 13 June 1979.

Morris, Chief Judge. Judges Parker and Martin (Harry C.) concur.

Morris

The trial judge held that until the defendant has made his final decision after a hearing on the merits, no justiciable "case or controversy" exists and that, therefore, the case is not "ripe" for judicial scrutiny at this time. We disagree. Plaintiff's complaint raises two questions: Whether the Administrative Procedure Act (G.S. 150A-1 et seq.) is applicable and must be followed in the removal proceedings initiated by defendant and whether defendant has the authority to suspend plaintiff pending a hearing on the merits.

It is true that plaintiff is entitled to a hearing. This is conceded by defendant and affirmatively averred in his counterclaim. After such a factual hearing is held, appeal may be had from the determination resulting therefrom. Plaintiff does not seek, in this action, to have any factual controversy settled. The question of whether the facts constitute cause for removal is not now before us. The only issues sought to be determined are questions of law.

The Declaratory Judgment Act (G.S., Chapter 1, Art. 26) provides that courts shall have the power to "declare rights, status, and other legal relations" regardless of whether "further relief is or could be claimed.". G.S. 1-253.

By G.S. 1-254 provision is made for any person interested "under a deed, will, written contract or other writings constituting a contract" or whose rights may be affected by a statute, ordinance, contract, or franchise to have determined "any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise . . ." and G.S. 1-255 sets out those who may apply for a declaration of rights or legal relations with respect to trusts or estates of decedents, infants, lunatics, or insolvents. However, G.S. 1-256 specifically provides that "[t]the enumeration in §§ 1-254 and 1-255 does not limit or restrict the exercise of the general powers conferred in § 1-253 in any proceedings where declaratory relief is sought, in which a

judgment or decree will terminate the controversy or remove an uncertainty " (emphasis supplied) and G.S. 1-264 declares that the Declaratory Judgment Act is intended to be remedial, that "its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be liberally construed and administered".

"The courts have on numerous occasions stated that the Uniform Declaratory Judgment Act furnishes a particularly appropriate method for determination of controversies relative to the construction and validity of a statute, provided there is an actual or justiciable controversy between the parties in respect to their rights under the statute. (Citations omitted.)" Woodard v. Carteret County, 270 N.C. 55, 59-60, 153 S.E.2d 809, 812 (1967).

Here plaintiff alleges that defendant must follow the procedure set out in the Administrative Procedure Act. (Chapter 150A, General Statutes of North Carolina.) Defendant maintains this statute should be construed as having no application under these circumstances. Plaintiff urges that defendant has no authority to suspend him pending final determination on the merits. Defendant, on the other hand, urges a construction of the statutes, G.S. 65-50 and G.S. 143B-13(d), to allow for suspension.

We think this is clearly an appropriate case for declaratory judgment. See Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).

We now discuss the problem of whether, in removing plaintiff, the defendant must follow the procedure set up in the Administrative Procedure Act.

Article 9, Chapter 65 of the General Statutes of North Carolina, is entitled "North Carolina Cemetery Act". That Act establishes "in the Department of Commerce a North Carolina Cemetery Commission with the power and duty to adopt rules and regulations to be followed in the enforcement of this Article." G.S. 65-49. The Governor is given the power to appoint the seven members of the Commission (for fixed terms with staggered ...


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