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Swauger v. University of North Carolina at Charlotte

Court of Appeals of North Carolina

May 15, 2018

PAUL W. SWAUGER, Petitioner,
v.
UNIVERSITY OF NORTH CAROLINA AT CHARLOTTE, Respondent.

          Heard in the Court of Appeals 3 May 2018.

          Appeal by Petitioner from Order entered 10 July 2017 by Judge Martin B. McGee in Cabarrus County, No. 17 CVS 000366 Superior Court.

          Pinto Coates Kyre & Bowers, PLLC, by Jon Ward and Matthew J. Millisor, for Petitioner-Appellant Paul W. Swauger.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Matthew Tulchin, for Respondent-Appellee University of North Carolina at Charlotte.

          INMAN, Judge.

         Petitioner Paul Swauger ("Petitioner") appeals an order dismissing his petition for judicial review for lack of subject matter jurisdiction. Petitioner contends the Cabarrus County Superior Court erred in failing to review an Administrative Law Judge's final decision pursuant to Sections 150B-43 and 150B-45 of our General Statutes. Because Sections 7A-29(a) and 126-34.02(a) provided Petitioner with an adequate procedure for judicial review by direct appeal to this Court, we affirm the trial court's dismissal of Petitioner's petition.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner was a career state employee at the University of North Carolina at Charlotte (the "University"), where he worked as a mechanic. During Petitioner's employment, the University switched its email provider from Microsoft Outlook to Google's Gmail. Petitioner refused to agree to Google's Terms of Service for Gmail and was dismissed from his job as a result.

         Petitioner filed a petition for contested case hearing in the Office of Administrative Hearings ("OAH") on 5 May 2016, alleging he was dismissed without just cause. On 4 January 2017, the administrative law judge ("ALJ") that heard Petitioner's case issued a Final Decision concluding that the University sufficiently proved it had just cause to dismiss Petitioner.

         On 2 February 2017, Petitioner filed a petition in Cabarrus County Superior Court for review of the ALJ's Final Decision. The University filed a motion to dismiss the petition, contending that the superior court did not have subject matter jurisdiction. On 10 July 2017, the trial court granted the motion to dismiss. Petitioner timely appealed the trial court's dismissal order to this Court.

         II. ANALYSIS

         A. Standard of Review

         The standard of review for an appeal based on subject matter jurisdiction is de novo. Country Club of Johnston Cty., Inc. v. United States Fid. & Guar. Co., 150 N.C.App. 231, 238, 563 S.E.2d 269, 274 (2002). Issues of statutory interpretation are also subject to de novo review. Matter of Dippel, __ N.C.App. __,, 791 S.E.2d 684, 685 (2016). This standard requires the Court to "consider the question anew, as if not previously considered or decided." In re Soc'y for Pres. of Historic Oakwood, 153 N.C.App. 737, 740, 571 S.E.2d 588, 590 (2002) (citation omitted).

         B. The Superior Court Was Without Jurisdiction to Hear ...


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