Application of Alamance Sav. & Loan Ass'n , 53 N.C. App. 326 ( 1981 )

280 S.E.2d 748 (1981)

In the Matter of the Application of ALAMANCE SAVINGS AND LOAN ASSOCIATION, INC., (Proposed), Burlington, North Carolina, a Stock-Owned Savings and Loan Association.

No. 8010SC1177.

Court of Appeals of North Carolina.

August 4, 1981.

Atty. Gen. Rufus L. Edmisten by Lucien Capone, III, Asst. Atty. Gen., Raleigh, for the North Carolina Sav. and Loan Commission, amicus curiae.

Powe, Porter & Alphin by James L. Stuart and Eugene F. Dauchert, Jr., Durham, for appellant Alamance Sav. and Loan, Inc. (Proposed).

Hatch, Little, Bunn, Jones, Few & Berry by John N. McClain, Jr., Raleigh, Silver, Freeman, Housley, Taff & Goldberg by Daniel J. Goldberg and Matthew G. Ash, Washington, D.C., for appellees.

CLARK, Judge.

While we agree with appellant that the entry of a final judgment on the merits is a somewhat questionable procedure, we note that the record reveals that the court had before it the briefs of the parties and the pertinent portions of the transcripts of the meetings of the Savings and Loan Commission and that the court had the benefit of the oral arguments of the attorneys for both parties on the merits. In light of the facts that judgment on the merits was entered on an issue solely of law and that the court below had before it all that was required for decision of this purely legal question, we fail to see how appellant was prejudiced by entry of judgment on the merits. Appellant has neither presented nor alluded to any new materials on this appeal that would have in any way affected the decision on the merits of the issue determined by the court below. A reversal by us would result only in delaying our inevitable decision on the substantive issue on this appeal. We hold, therefore, that any error was harmless and elect to move on to consideration of the merits of the appeal.

The only remaining issue before us then is whether the trial court erred in concluding as a matter of law that the vote of the Savings and Loan Commission on 14 February 1980, which failed to adopt the recommendation of the Administrator that the application be approved, was final and conclusive, rendering the subsequent actions of the Commission to approve the application null and void and without legal effect. We hold that the trial court erred. The 14 February 1980 vote of the Commission did not amount to a "final agency decision" within the meaning of G.S. 150A-36.

The Commission is vested with the "full power and authority to review, approve, disapprove, or modify" any action of the Administrator. G.S. 54-24.1(c). In a contested case such as the case sub judice the role of the Commission is essentially that of a first level of administrative review. See 4 N.C.A.C. 9A.0205, 4 N.C.A.C. 9B.0201. The decision of the Commission is appealable to the Superior Court. G.S. 150A-45. Only a "final agency decision" is subject to judicial review. G.S. 150A-43.

A final agency decision is defined in G.S. 150A-36, which provides that such decision "shall be made, after review of the official record as defined in G.S. 150A-37(a), in writing and shall include findings of fact and conclusions of law." The 14 February 1980 vote of the Commission was obviously not a final agency decision. No facts were found upon which any conclusions of law could be based. Furthermore, G.S. 150A-36 clearly envisions a writing as the final agency decision. Our reading of the statute suggests that the writing is not merely a memorialization of the decision, but is the decision itself, without which agency action does not become final. Since no written decision was ever entered in accordance with the 14 February vote, no final decision within the meaning of the Administrative Procedure Act was rendered by that vote standing alone. The trial court erred in holding that this initial vote was final and conclusive. Only the written decision is final. Until that decision was rendered, the Commission was as free to reconsider its views as is this Court to reconsider its decisions until its written decisions are filed and certified to the court below. See State v. Council, 129 N.C. 511, 39 S.E. 814 (1901); N.C.Rules App.Proc., Rule 32.

The Administrative Procedure Act provides very clearly what constitutes a final agency decision. By its very nature a decision that is not final is subject to change. This is as it should be. Administrative agencies should be encouraged to continue cases under active deliberation until rendition of a final decision to assure that that decision is the product of adequate, sound deliberation. See Daye, North Carolina's New Administrative Procedure Act: An Interpretive Analysis, 53 N.C.L. Rev. 833, 892 (1975). That an agency retains jurisdiction to continue its deliberations after an initial vote and until such time as a final agency decision is rendered has been previously recognized by this Court in other contexts. Davis v. Dept. of Transportation, 39 N.C.App. 190, 250 S.E.2d 64 (1978), disc. rev. denied, 296 N.C. 735, 254 S.E.2d 177 (1979). The federal jurisdiction similarly recognizes such authority: "Until the matter is closed by final action, the proceedings of an officer of a department are as much open to review or reversal by himself or his successor as are the interlocutory decrees of a court open to review upon the final hearing." New Orleans v. Paine, 147 U.S. 261, 266, 13 S. Ct. 303, 306, 37 L. Ed. 162, 163 (1893). We note that parties are protected from unreasonable delay on the part of agencies in reaching final decisions by G.S. 150A-44, which allows a party adversely affected by such delay to seek a court order compelling action by the agency. See Stevenson v. Dept. of Insurance, 31 N.C.App. 299, 229 S.E.2d 209, disc. rev. denied, 291 N.C. 450, 230 S.E.2d 767 (1976); Davis v. Dept. of Transportation, supra.

The decision of 16 July 1980 being the final agency action in this case, the Order of the trial court that the 14 February 1980 vote was final must be reversed and the case remanded to the Superior Court division for review of the 16 July 1980 decision on the merits.

Reversed and Remanded.

ROBERT M. MARTIN and HILL, JJ., concur.