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

84 N.C. App. 564 | N.C. Ct. App. | 1987

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 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.