IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-770

Filed 18 April 2023

Onslow County, No. 21 CVS 4010

D.W., a minor, by and through his parent, Jessie Sanders, Petitioners,

v.

ONSLOW COUNTY BOARD OF EDUCATION, Respondent.

Appeal by petitioners from order entered 22 April 2022 by Judge Henry L. 

Stevens, IV in Superior Court, Onslow County. Heard in the Court of Appeals 27 

February 2023.

Legal Aid of North Carolina, Inc., by Carlton Powell, Jennifer Richelson Story, 

Crystal Ingram, Celia Pistolis, and Kilpatrick Townsend & Stockton LLP, by 

Carl Sanders and Callie Thomas, for petitioners-appellants.

Tharrington Smith, L.L.P, by Stephen G. Rawson, Daniel Clark, and Deborah 

R. Stagner, for respondent-appellee.

Peggy D. Nicholson and Crystal Grant, for amicus curiae Duke University

School of Law Children’s Law Clinic.

Aly Martin and Hayley Lampkin Blyth, for amicus curiae Council for 

Children’s Rights.

STROUD, Chief Judge.

D.W., a minor, by and through his parent, Jessie Sanders, (collectively 

“Petitioners”) appeals from order entered 22 April 2022 dismissing their petition for 

judicial review for lack of subject matter jurisdiction. We affirm.
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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I. Background

D.W. was a fifteen-year-old student at Northside High School (“NHS”) in the 

Onslow County Public School System in 2021. D.W. was a new student and felt he 

was targeted by other students while riding on the bus and while in the hallways. 

D.W. was accused of instigating a fight between his sister and another female 

on 27 August 2021. D.W. received a five-day suspension. His mother, Sanders asked 

NHS staff to assign a social worker to assist her son and to institute a behavior plan 

for him. D.W. was referred to PRIDE in North Carolina, Inc., a private organization, 

which provides services to individuals with mental illness, developmental 

disabilities, and behavioral disorders. NHS staff told Sanders and D.W. that he

would be removed from NHS if he became involved in another fight. D.W. served the 

five-day suspension from his sister’s fight and returned to school. 

Two weeks later, D.W. and another student exchanged words on the school bus 

to NHS on 13 September 2021. D.W. alleged the other student had called him racial 

slurs. The other student proposed they meet to fight and the two boys later met in a 

school bathroom to fight. The fight ended when a teacher entered the bathroom. 

D.W. was issued a 10-day out-of-school suspension, and he was referred to Onslow 

County Schools’ alternative school, Onslow County Learning Center (“OCLC”). 

Sanders believed D.W.’s placement at OCLC would be temporary and he would 

return to NHS after completing his 10-day suspension. While attending class at 

OCLC, a teacher told D.W. that he was required to stay at OCLC until at least 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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January. Sanders requested an appeal hearing before members of the school board 

in late September and again requested an appeal on 6 October 2021. 

Respondent convened a hearing panel on 18 November 2021. Respondent 

issued a written decision affirming D.W.’s placement at OCLC “until such time as he 

has met his established goals[.]” Respondent sent a letter to Sanders informing her 

of her purported “right to appeal the Board panel’s decision on placement at the 

OCLC by filing a petition for judicial review in the Superior Court of Onslow County.” 

Petitioners filed a petition for judicial review on 17 December 2021. In a later letter 

dated 28 January 2022, Respondent asserted Saunders had no right to seek judicial 

review of the Board’s decision. 

Respondent filed a motion to dismiss on 17 February 2022. Following a 

hearing on 18 April 2022, the superior court allowed the motion to dismiss for lack 

of subject matter jurisdiction by order dated 22 April 2022. Petitioner appeals. 

Respondent has filed a motion to dismiss Petitioner’s appeal as moot, alleging D.W.

had graduated 7 February 2023 with a regular North Carolina high school diploma 

and is no longer attending the Onslow County Public School System. 

II. Jurisdiction 

This Court possesses jurisdiction pursuant to North Carolina General Statute

§ 7A-27(b) (2021). 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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III. Respondent’s Motion to Dismiss as Moot

In this case, the entire substantive issue on appeal is subject matter 

jurisdiction. Petitioner contends the Superior Court has subject matter jurisdiction 

under North Carolina General Statute § 115C-45(c) (2021) to review the Board’s 

ruling; Respondent disagrees. Respondent also filed a motion to dismiss this appeal 

as moot, and mootness also raises an issue of subject matter jurisdiction. See Yeager 

v. Yeager, 228 N.C. App. 562, 565-66, 746 S.E.2d 427, 430 (2013) (“[A] moot claim is 

not justiciable, and a trial court does not have subject matter jurisdiction over a nonjusticiable claim[.]” (citing, inter alia, Sharpe v. Park Newspapers of Lumberton, Inc., 

317 N.C. 579, 585-86, 347 S.E.2d 25, 30 (1986))). As a result, we believe it is prudent 

first to consider whether we can address the substantive legal jurisdictional issue—

subject matter jurisdiction under Section 115C-45(c)—before the jurisdictional issue 

based upon facts that develop “during the course of the proceedings” raised by a 

motion to dismiss as moot. In re Peoples, 296 N.C. 109, 148, 250 S.E.2d 890, 912 

(1978).

Whenever, during the course of litigation it develops 

that the relief sought has been granted or that the 

questions originally in controversy between the parties are 

no longer at issue, the case should be dismissed, for courts 

will not entertain or proceed with a cause merely to 

determine abstract propositions of law. Benvenue ParentTeacher Association v. Nash County Board of Education, 

275 N.C. 675, 170 S.E.2d 473 (1969); Crew v. Thompson, 

266 N.C. 476, 146 S.E.2d 471 (1966); In re Assignment of 

School Children, 242 N.C. 500, 87 S.E.2d 911 (1955); 

Savage v. Kinston, 238 N.C. 551, 78 S.E.2d 318 (1953); 1 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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Strong’s N.C. Index 3rd Actions § 3, Appeal & Error § 9 

(1976).

Unlike the question of jurisdiction, the issue of 

mootness is not determined solely by examining facts in 

existence at the commencement of the action. If the issues 

before a court or administrative body become moot at any 

time during the course of the proceedings, the usual 

response should be to dismiss the action. Allen v. Georgia, 

166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897); People ex 

rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, cert. 

denied 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642 (1952); 20 

Am.Jur.2d Courts § 81 (1965).

Id. at 147-48, 250 S.E.2d at 912. Thus, “the usual response should be to dismiss” as 

moot based upon facts that develop during the course of litigation, if the issue is 

actually moot and there is no other justification to rule upon the issue, because courts 

should rule only on real controversies. Id. at 148, 250 S.E.2d at 912.

In this scenario—where mootness and the substantive issue of jurisdiction 

under North Carolina General Statute § 115C-45(c) both involve subject matter 

jurisdiction—we will address mootness before the substantive jurisdictional issue. In 

this type of scenario, if a court did not address mootness first, it would have 

unfettered discretion to choose to issue what may be an advisory opinion or to dismiss 

an appeal and avoid addressing the substantive issue based on factual mootness. But 

we should not “determine abstract principles of law” if the case has become moot. Id.

at 147-48, 250 S.E.2d at 912.

Here, on 21 February 2023, Respondent filed a motion to dismiss this appeal 

as moot, contending “[o]n 7 February 2023, D.W. graduated early from the Onslow 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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County Schools, having earned all necessary credits to receive his diploma under 

North Carolina law and State Board policy.” According to the affidavit of the 

principal of Swansboro High School filed with Respondent’s motion, D.W. was 

certified for “early graduation” based upon his “completion of the requirements for 

graduation and receipt of a high school diploma.” In addition, his transcript “reflects 

his graduation from Swansboro High School” and the “Onslow County Learning 

Center program does not appear on his transcript or his diploma.” Respondent 

contends this appeal became moot upon D.W.’s graduation since this court’s ruling 

can no longer provide “any meaningful relief for D.W. in this case[.]” Respondent also 

argues the public interest exception to mootness should not apply in this case. And 

if the issue of mootness were clear, we would allow Respondent’s motion to dismiss 

as moot, assuming without deciding the public interest exception would not apply.

But in this case, the facts alleged to support the motion to dismiss as moot are 

disputed, and this Court cannot resolve factual disputes. See, e.g., Johnston v. State, 

224 N.C. App. 282, 302, 735 S.E.2d 859, 873 (2012) (“Normally, the appellate courts 

do not engage in fact finding.” (citation and quotation marks omitted)). According to 

Petitioner: 

D.W. began the 2022-2023 school year at Swansboro 

High School as a junior with an identified disability 

requiring an Individualized Education Program (IEP). He 

still required several classes to complete his junior year, let 

alone satisfy all requirements for graduation from high 

school. And yet after a single semester and despite his 

disability, Respondent now asserts that D.W. has not only 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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satisfied all graduation requirements, but also has 

graduated from high school. To accomplish this feat, 

Respondent pushed D.W. through completing multiple 

semester-long courses out of sequence and via virtual 

platforms that included no direct instruction, ultimately 

“graduating” him upon awarding credit for an English 

course completed in seven days without access to critical 

and required special education services.

Respondent supplied D.W. with deficient 

educational services while he was suspended and, upon his 

return to school, Respondent now again tries to deprive 

D.W. of his constitutional right to “the privilege of 

education” while avoiding its duty “to guard and maintain 

that right” by attempting to rush him out of school to avoid 

this Court’s review. N.C. Const. Art. I, § 15. D.W. has not 

received the education he is owed by the State and has not 

completed the requirements to graduate from high school. 

Thus, the issue before this Court is not moot.

(Emphasis in original.)

Petitioner goes on to discuss the details of D.W.’s transcript and notes that he 

had “only taken and passed English I[;]” he was “enrolled concurrently in English III 

and in English IV[;]” he was enrolled in English II “in a virtual platform with no 

instruction[,]” and he “reportedly completed this semester-long course in just seven 

days, after which OCS [Onslow County Schools] ‘graduated’ him the following day.” 

(Emphasis in original.) Petitioner further alleges his IEP team “just met on 27 

January 2023 and determined” he needed “an increase in his special education 

services,” but OCS did not provide the “ninety-five daily minutes of special education 

services or his weekly thirty-minute counseling sessions required by his IEP[.]” 

According to the affidavit of D.W.’s mother, she did not “learn that D.W. had been 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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graduated or that he was no longer eligible to receive his special education services 

until” she was informed by her attorney on 21 February 2023.1 D.W.’s mother also 

alleges as of 8 March 2023, neither she nor D.W. has received “a final report card or 

his diploma[,]” although the principal informed her D.W. would have to “’walk the 

stage’ later this year” to get the diploma.

The competing affidavits filed with and in response to the motion to dismiss 

raise a factual dispute as to whether D.W. had met the requirements to graduate 

from Swansboro High School. Notably, since this factual dispute focuses on D.W.’s 

time at Swansboro High School, it does not relate to D.W.’s course of study or 

opportunity to progress towards graduation while on disciplinary reassignment at 

OCLC, which Petitioners here have not challenged.

We assume Respondent would likely challenge Petitioner’s contentions as to

D.W.’s graduation, but based upon the information before this Court, there is a 

factual dispute raised by the competing affidavits. This Court cannot adjudicate 

factual disputes. See, e.g., Johnston, 224 N.C. App. at 302, 735 S.E.2d at 873 

(explaining appellate courts generally “do not engage in fact finding”). According to 

Petitioners, as of the end of January, D.W.’s mother, Sanders, was not aware of any 

possibility of D.W. being able to graduate before the usual end of the school year, and 

she did not learn of his alleged graduation until less than a week before the argument 

1 Oral argument of this case was held less than one week later, on 27 February 2023.
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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of this appeal. D.W.’s mother contends Respondent rushed to push D.W. through a 

semester-long English class, without any of the special education services required 

by his IEP, in one week, alone in a room on a computer, allowing Respondent to end 

its obligation to provide special education services to D.W. and to file its motion to 

dismiss D.W.’s appeal as moot.

Because there is a factual dispute regarding whether D.W. has actually 

completed his high school education and graduated, we deny Respondent’s motion to 

dismiss this appeal as moot.

IV. Subject Matter Jurisdiction Under Relevant Statutes

Having addressed Respondent’s motion to dismiss the appeal as moot, we now 

turn to the substantive issue of jurisdiction under North Carolina General Statute § 

115C-45(c), which depends on the interpretation of Sections 115C-390.7(e) and 115C390.1(b)(7) in this case. See N.C. Gen. Stat. § 115C-45(c) (granting an appeal to 

superior court of a local board of education review of a final administrative decision 

on, inter alia, “[t]he discipline of a student under G.S. 115C-390.7”); N.C. Gen. Stat. 

§ 115C-390.7(e) (2021) (exempting “[d]isciplinary reassignments” from long-term 

suspensions in a section specifically on such suspensions); N.C. Gen. Stat. § 115C390.1(b)(7) (2021) (providing an initial definition for “Long-term suspension”). We 

first explain the standard of review and then analyze the relevant statutes.

A. Standard of Review 

“Whether a trial court has subject-matter jurisdiction is a question of law, 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 

590, 592 (2010) (citation omitted).

B. Analysis

We now analyze de novo whether the trial court had subject matter jurisdiction

in this case. Id. We first explain the rules of statutory construction and then apply

those rules to the relevant statutes here.

1. Rules of Statutory Construction 

In our analysis, we are guided by several well-established principles of 

statutory construction. “The principal goal of statutory construction is to accomplish 

the legislative intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 

(2001) (citation omitted). “The best indicia of that intent are the [plain] language of 

the statute . . . , the spirit of the act and what the act seeks to accomplish.” Concrete 

Co. v. Bd. of Comm’rs, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citations 

omitted). “[S]tatutes in pari materia must be read in context with each other.” Cedar 

Creek Enters. v. Dep’t of Motor Vehicles, 290 N.C. 450, 454, 226 S.E.2d 336, 338 (1976) 

(citation omitted).

“When construing legislative provisions, this Court looks first to the plain 

meaning of the words of the statute itself[.]” State v. Ward, 364 N.C. 157, 160, 694 

S.E.2d 729, 731 (2010) (citation omitted). “Interpretations that would create a 

conflict between two or more statutes are to be avoided, and statutes should be 

reconciled with each other whenever possible.” Taylor v. Robinson, 131 N.C. App. 337, 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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338, 508 S.E.2d 289, 291 (1998) (internal citations, quotation marks, and ellipses 

omitted). 

Further, “where a literal interpretation of the language of a statute will lead 

to absurd results, or contravene the manifest purpose of the Legislature, as otherwise 

expressed, the reason and purpose of the law shall control.” State v. Beck, 359 N.C. 

611, 614, 614 S.E.2d 274, 277 (2005) (internal quotation marks omitted) (quoting 

Mazda Motors v. Sw. Motors, 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979)). 

Our Supreme Court has examined the court’s proper application of generally 

applicable statutes to more specific, special statutes and held:

Where there is one statute dealing with a subject in general 

and comprehensive terms, and another dealing with a part 

of the same subject in a more minute and definite way, the 

two should be read together and harmonized, if possible, 

with a view to giving effect to a consistent legislative policy; 

but, to the extent of any necessary repugnancy between 

them, the special statute, or the one dealing with the 

common subject matter in a minute way, will prevail over 

the general statute, according to the authorities on the 

question, unless it appears that the legislature intended to 

make the general act controlling; and this is true a fortiori

when the special act is later in point of time, although the 

rule is applicable without regard to the respective dates of 

passage.

McIntyre v. McIntyre, 341 N.C. 629, 631, 461 S.E.2d 745, 747 (1995) (citations 

omitted).

2. Statutory Construction Analysis

Turning to the relevant statutes in this case, North Carolina General Statute
D.W. V. ONSLOW CNTY. BD. OF EDUC.

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§ 115C-390.1(b)(7) defines long-term suspension as: 

The exclusion for more than 10 school days of a student 

from school attendance for disciplinary purposes from the 

school to which the student was assigned at the time of the 

disciplinary action. If the offense leading to the long-term 

suspension occurs before the final quarter of the school 

year, the exclusion shall be no longer than the remainder 

of the school year in which the offense was committed. If 

the offense leading to the long-term suspension occurs 

during the final quarter of the school year, the exclusion 

may include a period up to the remainder of the school year 

in which the offense was committed and the first semester 

of the following school year.

N.C. Gen. Stat. § 115C-390.1(b)(7) (emphasis supplied). 

North Carolina General Statute § 115C-390.7(e) was enacted in 2011 and 

specifically exempts disciplinary reassignment from the provisions of long-term 

suspensions, providing: 

Disciplinary reassignment of a student to a full-time 

educational program that meets the academic 

requirements of the standard course of study established 

by the State Board of Education as provided in G.S. 115C12 and provides the student with the opportunity to make 

timely progress towards graduation and grade promotion 

is not a long-term suspension requiring the due process 

procedures described in G.S. 115C-390.8.

N.C. Gen. Stat. § 115C-390.7(e) (emphasis supplied). 

Contrary to Petitioners’ arguments, the clear intent of the General Assembly 

is expressed in the plain language of North Carolina General Statute § 115C-390.7(e). 

The General Assembly reaffirms the doctrine that certain student disciplinary 

decisions are properly made in the classroom or upon review before the
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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superintendent and the school board, and not in the courtroom. As the trial court 

properly found: “[A]lthough reassignment of a student from the attendance of his 

regular high school to any other school is by definition a ‘long-term suspension’, it is 

not a ‘long-term suspension’ requiring judicial review as provided in the due process 

procedures described in NCGS 115C-309.8 for other long-term suspensions.” 

The superior court correctly concluded the plain and more specific language of 

the 2011 amendment in North Carolina General Statute § 115C-390.7(e) controls 

under these facts and is properly viewed as a specified exception to the general 

definition of “long-term suspension” in North Carolina General Statute § 15C390.1(b)(7). See Electric Service v. City of Rocky Mount, 20 N.C. App. 347, 350, 201 

S.E.2d 508, 510 (1974) (When a general statute conflicts with a more specific, special 

statute, the “special statute is viewed as an exception to the provisions of the general 

statute[.]”), aff’d 285 N.C. 135, 203 S.E.2d 838 (1974). 

Petitioners do not argue D.W.’s assignment to OCLC fails to meet the 

requirements from North Carolina General Statute § 115C-12 or that D.W.’s

disciplinary reassignment does or did not provide him with the “opportunity to make 

timely progress towards graduation and grade promotion.” N.C. Gen. Stat. § 115C390.7(e). Petitioners’ argument is overruled.

V. Conclusion 

The General Assembly specifically exempted a “disciplinary reassignment”

complying with the specific requirements of North Carolina General Statute § 115C-
D.W. V. ONSLOW CNTY. BD. OF EDUC.

Opinion of the Court

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12 from being defined and treated as a “long-term suspension.” See N.C. Gen. Stat. 

§ 115C-390.7(e) and N.C. Gen. Stat. § 115C-390.1(b)(7). The trial court’s order 

dismissing Petitioners’ petition for judicial review for lack of subject matter 

jurisdiction is affirmed. It is so ordered.

AFFIRMED.

Judge STADING concurs.

Judge TYSON concurs in result only by separate opinion.
No. COA22-770 – D.W. v. Onslow Cnty. Bd. of Educ.

TYSON, Judge, concurring in the result.

I concur in the result to affirm the superior court’s order. The trial court 

properly found: “although reassignment of a student from the attendance of his 

regular high school to any other school is by definition a ‘long-term suspension’, it is 

not a ‘long-term suspension’ requiring judicial review as provided in the due process 

procedures described in NCGS 115C-309.8 for other long-term suspensions.” The 

clear intent of the General Assembly, as is expressed in the plain language of N.C. 

Gen. Stat. § 115C-390.7(e) (2021), reaffirms the doctrine that certain student 

disciplinary decisions are properly made in the classroom or upon review before the 

superintendent and the school board, and not in the courtroom. Id.

We all agree the superior court correctly concluded Petitioner’s disciplinary 

reassignment is unchallenged on either of the two bases set forth in N.C. Gen. Stat. 

§ 115C-390.7(e), which exempts judicial review of disciplinary reassignments in 

compliance with the statute. Id. The sole proper holding and mandate is to affirm 

the superior court’s order as the law of the case. 

“Subject matter jurisdiction is a prerequisite for the exercise of judicial 

authority over any case or controversy.” Shell Island Homeowners Ass’n v. 

Tomlinson, 134 N.C. App. 286, 290, 517 S.E.2d 401, 403-04 (1999) (citing Harris v. 

Pembaur, 84 N.C. App. 666, 353 S.E.2d 673 (1987)). 

The majority’s opinion correctly states: “it is prudent first to consider whether 

we can address the substantive legal jurisdictional issue—subject matter jurisdiction 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

TYSON, J., concurring in the result

2

under Section 115C-45(c)—before the jurisdictional issue based upon facts that 

develop ‘during the course of the proceedings’ raised by a motion to dismiss as moot. 

In re Peoples, 296 N.C. 109, 148, 250 S.E.2d 890, 912 (1978).” “[A] moot claim is not 

justiciable, and a trial court does not have subject matter jurisdiction over a nonjusticiable claim[.]” Yeager v. Yeager, 228 N.C. App. 562, 566, 746 S.E.2d 427, 430 

(2013)(citing, inter alia, Sharpe v. Park Newspapers of Lumberton, Inc., 317 N.C. 579, 

585-86, 347 S.E.2d 25, 30 (1986)). 

It is a waste of judicial economy to examine unresolved factual disputes, which 

are wholly unnecessary to resolve the sole issue properly before us: whether the trial 

court possesses subject matter jurisdiction for judicial review of their petition. Any 

further discussion of any factual disputes on a motion to dismiss as moot is 

unnecessary and an advisory obiter dicta. Petitioners do not argue D.W.’s 

disciplinary assignment to OCLC fails to meet the requirements from N.C. Gen. Stat. 

§ 115C-12 or that D.W.’s disciplinary reassignment does or did not provide him with 

the “opportunity to make timely progress towards graduation and grade promotion[.]” 

N.C. Gen. Stat. § 115C-390.7(e).

The trial court properly concluded it lacked subject matter jurisdiction for 

judicial review of a “[d]isciplinary reassignment of a student to a full time educational 

program.” Id. As such, it is unnecessary to reach Petitioners or Respondent’s 

arguments on mootness or the factual dispute of D.W.’s purported high school 

graduation or award of a high school diploma. I vote to affirm the superior court’s 
D.W. V. ONSLOW CNTY. BD. OF EDUC.

TYSON, J., concurring in the result

3

order.