Community Psychiatric Centers v. North Carolina Department of Human Resources

405 S.E.2d 769 (1991) 103 N.C. App. 514

COMMUNITY PSYCHIATRIC CENTERS
v.
NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, DIVISION OF FACILITY SERVICES, Certificate of Need Section.

No. 8910OAH1256.

Court of Appeals of North Carolina.

July 16, 1991.

Hunton & Williams by John R. McArthur, Raleigh and McGlinchey, Stafford, Mintz, Cellini & Lang by Donna G. Klein and Eve Barrie Masinter, New Orleans, La., for petitioner-appellant.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. James A. Wellons, Raleigh, for respondent-appellee.

ARNOLD, Judge.

Petitioner is not a "party in a contested case hearing" within the meaning of N.C. Gen.Stat. § 131E-188(b) (1988). This appeal must therefore be dismissed for lack of subject matter jurisdiction.

The Administrative Law Judge (A.L.J.) found the following facts. The Department of Human Resources (DHR) mailed petitioner notice that DHR had denied petitioner's application for a certificate of need on 26 December 1988. DHR first received a letter from petitioner captioned "Petition for Contested Case Hearing" on 20 January 1989. This letter was not verified or supported by affidavit. DHR received a second document from petitioner on 30 January 1989 requesting a contested case hearing. This document was verified.

From these findings the A.L.J. concluded the letter received on 20 January 1989 was not a valid petition and the second document received on 30 January 1989 was not timely filed. As a result the Office of Administrative Hearings did not have subject matter jurisdiction. The A.L.J. then entered an order granting DHR's motion to dismiss.

In Charlotte-Mecklenburg Hospital Authority v. North Carolina Department of Human Resources, 83 N.C.App. 122, 349 S.E.2d 291 (1986), we held that a "contested case hearing" is a jurisdictional prerequisite under G.S. § 131E-188(b) for a direct appeal to this Court from a final agency decision. A contested case hearing is distinguishable from a contested case. The phrase "contested case" extends beyond an adjudicatory hearing to include "any agency proceeding, by whatever name called, wherein the legal rights, duties and privileges of a party are required by law to be determined by an agency after an opportunity for an adjudicatory hearing." Charlotte-Mecklenburg, at 124, 349 S.E.2d at 292; see N.C.Gen.Stat. § 150B-2(2) (1987).

The result of petitioner's ineffective attempts to file a petition for a contested case hearing was only a contested case. A contested case hearing was not held because the A.L.J. granted DHR's motion to dismiss. See, Rowan Health Properties, Inc. v. North Carolina Dept. of Human Resources, 89 N.C.App. 285, 365 S.E.2d 635 (1988). Without this jurisdictional prerequisite petitioner cannot utilize G.S. § 131E-188(b) to appeal to this Court.

"Any person who is aggrieved by the final decision in a contested case ... is entitled to judicial review of the decision under this Article...." N.C.Gen.Stat. § 150B-43 (1987) (emphasis added). "To obtain judicial review of a final decision under this Article, the person seeking review must file a petition in the Superior Court of Wake County or in the superior court of the county where the person resides." N.C.Gen.Stat. § 150B-45 (1987). Petitioner's relief was to be found under these statutory provisions rather than G.S. § 131E-188(b).

Appeal dismissed.

WELLS and PHILLIPS, JJ., concur.