Summary
holding that "[b]ecause there is no language in N.C. Gen.Stat. § 150B–46 nor the rest of the general statutes providing for an extension to serve a petition for judicial review, we hold it was error for the trial court to grant Petitioner the extension"
Summary of this case from NC Dep't of Pub. Safety v. OwensOpinion
No. COA12–316.
2012-10-2
Terry L. SCHERMERHORN, Petitioner, v. NORTH CAROLINA STATE HIGHWAY PATROL, Respondent.
Peter Wood, for Petitioner. Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for Respondent.
Appeal by Petitioner from order entered 10 November 2011 by Judge W. Osmond Smith, III in Wake County Superior Court. Heard in the Court of Appeals 30 August 2012. Peter Wood, for Petitioner. Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for Respondent.
HUNTER, JR., ROBERT N., Judge.
This case arises out of a violation of N.C. Gen.Stat. § 20–119 (2007), whereby Terry L. Schermerhorn (“Petitioner”) was fined by the North Carolina State Highway Patrol (“NCSHP”) (the “agency”) (“Respondent”), supervised by the North Carolina Department of Crime Control and Public Safety (“NCDCCPS”) (now the Department of Public Safety), $500.00 for operating an overweight vehicle without a permit and $4,054.00 for a weight violation based on the statutory weight parameters of N.C. Gen.Stat. § 20–118 (2007). Pursuant to litigation, the NCDCCPS Secretary upheld the fines, and the trial court affirmed the decision of the administrative agency. Petitioner appeals the order of the trial court. Based upon an alternative argument advanced by Respondent, we conclude that Petitioner's petition should have been dismissed.
I. Facts and Procedural Background
On 28 April 2009 at around 12:28 p.m., Petitioner drove his tractor and semi-trailer, bearing license plate numbers “12764PA” (N.Y.), “1435953” (ME), and “1435954” (ME), into the Halifax Weigh Station on I–95 North in Halifax County. Weigh Station Operator Brian T. Pate asked Petitioner to produce a copy of his special permit because the weight of the vehicle exceeded statutory limits. Petitioner gave Operator Pate a special permit titled “Single Trip Permit # 904277H0331,” which authorized travel “FROM A PT ON U.S. 301 S NORTH TO NC59 TO I95 SOUTH TO THE SOUTH CAROLINA LINE.” The permit, however, did not authorize travel on I–95 North to the Virginia state line, which was the way Petitioner was driving.
In weighing Petitioner's vehicle, Operator Pate discovered that Petitioner's second and third axles weighed 42,940 pounds collectively. Pursuant to N.C. Gen.Stat. § 20–118(b)(2), tandem axles two and three are authorized to weigh up to 38,000 pounds, making Petitioner's axles higher than the statutory permissible weight by 2,470 pounds each. However, Petitioner's special permit authorized a weight on tandem axles two and three of up to 50,000 pounds.
Petitioner's special permit allowed a total weight of axles 1 to 7 not to exceed 132,000 pounds. Weigh Station Operator Pate discovered that Petitioner's axle-group 1 to 7 weighed 108,880 pounds. Pursuant to N.C. Gen.Stat. § 20–118(b)(3), axle-group 1 to 7 was only authorized to weigh up to 80,000 pounds. The weight of axle-group 1 to 7 exceeded the statutory permissible weight allowed by 28,880 pounds.
Operator Pate determined that axle-group 2 to 7 weighed 95,340 pounds. Pursuant to N.C. Gen.Stat. § 20–118(b)(3), this weight exceeded the statutory permissible weight of 80,000 pounds by 15,340 pounds.
Lastly, Operator Pate determined that axle-group 4 to 7 weighed 52,400 pounds. Pursuant to N.C. Gen.Stat. § 20–118(b)(3), axle-group 4 to 7 was only authorized to weigh up to 51,500 pounds. Therefore, the weight for axle-group 4 to 7 exceeded the statutory permissible weight by 900 pounds.
In explaining the situation, Petitioner advised Operator Pate that he left Hope Mills and was headed to Preble, NY. Petitioner did not possess an overweight permit to travel on I95 North to the Virginia line but did possess an overweight permit to travel in the opposite direction on I–95 towards the South Carolina line. Petitioner indicated that he orders his permits from Miner Industries and the lady from whom he orders permits had made mistakes before. He stated he was in a hurry when he signed the permit and did not notice the discrepancy. Petitioner has driven a truck for approximately twenty years. He has never had a permit issued for driving the wrong direction. He usually checks the route listed on the permit. However, he did not check the permit on this occasion. He only noticed the permit listed I–95 all the way.
Operator Pate called Respondent's permit office and spoke with Kathy Smith, who stated the permit was ordered for travel on I–95 North. For approximately 30 to 45 minutes, Petitioner and Operator Pate discussed who was at fault for issuing the incorrect permit. Operator Pate reviewed the North Carolina Department of Transportation's records and determined that the North Carolina Department of Transportation was not at fault for the permitting error.
Based on what Smith advised Operator Pate and the measurements he had taken, Operator Pate issued the following citations to Petitioner: Citation No. 4007730–7 for operating without a permit, assessing Petitioner a $500.00 fine pursuant to N.C. Gen.Stat. § 20–119(d)(la) and Citation No. 3157742–2 for exceeding the standard statutory weight limitations, assessing Petitioner a $4,054.00 fine pursuant to N.C. Gen.Stat. § 20–118(e)(1) and (3). Petitioner was required to and did obtain a valid permit before continuing his route.
Petitioner submitted a letter of protest to the North Carolina State Highway Patrol disputing the citations he received. On 6 August 2009, this action was commenced by filing a contested case petition in the Office of Administrative Hearings. Administrative Law Judge Melissa O. Lassiter filed a Recommended Decision on 14 October 2010 and an Amended Recommended Decision on 21 October 2010, recommending (1) a reduced fine of $100 for the permit violation and (2) reversal of the excess weight limitation fines. Reuben Young, Secretary of the NCDCCPS, issued a Final Agency Decision on 10 January 2011 and an Amended Final Agency Decision on 13 January 2011, upholding the original citations issued by Operator Pate. Petitioner filed a petition for judicial review in the Superior Court on 15 February 2011. The certificate of service attached to the petition indicates it was served on Respondent's counsel, Assistant Attorney General Jess D. McKeel, on the same day. However, the envelope containing the petition was postmarked “26 FEB 2011 PM,” and Counsel for Respondent claims to have received the petition on 28 February 2011. Moreover, Petitioner only served Respondent's counsel, an Assistant Attorney General; he did not serve any individual employed by Respondent.
On 3 March 2011, Respondent filed a motion to dismiss the petition for judicial review for lack of personal jurisdiction and insufficient service of process. On 29 April 2011, Petitioner moved the court to accept the belated service date of 18 April 2011 on Respondent's process agent, Cassandra White. Over Respondent's objection, Petitioner's motion was granted, and Respondent's motion to dismiss was denied. On 19 September 2011, the Honorable Osmond Smith heard the petition for judicial review and affirmed the Amended Final Agency Decision by order filed 10 November 2011. Petitioner filed timely notice of appeal to this Court.
II. Jurisdiction
As Petitioner appeals from the final judgment of a superior court, an appeal lies of right with this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
III. Analysis
Petitioner contends the trial court committed prejudicial error and abused its discretion when it allowed the State to assess fines against Petitioner for both operating without a permit under N.C. Gen.Stat. § 20–118 and exceeding statutory weight limits under N.C. Gen.Stat. § 20–119. In responding to Petitioner's argument, Respondent puts forth the following alternative grounds for upholding the result reached in the trial court as permitted by Rule 10(d) of the Rules of Appellate Procedure: the trial court erred by (1) denying Respondent's motion to dismiss the petition for judicial review for lack of personal jurisdiction and insufficient service of process and (2) granting Petitioner's motion for an extension of time to serve the petition for judicial review. Because we agree with Respondent's alternative arguments, we do not reach Petitioner's argument on appeal and reverse the order denying Respondent's dismissal motion.
Petitioner filed for judicial review on 15 February 2011. There is a discrepancy as to whether Respondent's counsel, an Assistant Attorney General, was timely served on 15 February 2011 or belatedly served on 28 February 2011. Regardless of when Respondent's counsel was served, we hold Petitioner's service was insufficient.
In serving a petition for judicial review, N.C. Gen.Stat. § 150B–46 requires the following:
Within 10 days after the petition is filed with the court, the party seeking the review shall serve copies of the petition by personal service or by certified mail upon all who were parties of record to the administrative proceedings. Names and addresses of such parties shall be furnished to the petitioner by the agency upon request. Any party to the administrative proceeding is a party to the review proceedings unless the party withdraws by notifying the court of the withdrawal and serving the other parties with notice of the withdrawal.
N.C. Gen.Stat. § 150B–46 (2011) (emphasis added). Because the NCSHP was a party on record to the administrative proceeding, Petitioner was required to effect service on the agency. Although Petitioner served the agency's counsel, an Assistant Attorney General, we hold such service was inadequate to meet the requirements of N.C. Gen.Stat. § 150B–46. See Follum v. N.C. State Univ., 198 N.C.App. 389, 395, 679 S.E.2d 420, 424 (2009) (where service of a petition for judicial review upon the agency's counsel did not comply with N.C. Gen.Stat. § 150B–46 because the counsel was an employee of the North Carolina Department of Justice, not of the agency).
Petitioner argues that because he received an extension by the trial court until 18 April 2011 to serve the agency and because Petitioner effected such service by the extended deadline, service was not insufficient. However, we hold the trial court erred by granting the extension to serve the petition for judicial review on the agency.
Petitioner argued to the trial court that North Carolina Civil Procedure Rule 6(b) gave the trial court the discretion to extend time to serve the petition for judicial review. Rule 6(b) provides, in pertinent part:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect.
N.C. Gen.Stat. § 1A1, Rule 6(b) (2011). Petitioner argued that “[t]he Courts have used Rule 6(b) to enlarge time to serve summons under Rule 4,” which lays out the guidelines for service of process. However, although Rule 4 applies generally to service in all civil matters, N.C. Gen.Stat. § 150B–46 is more specific and applies to the issue in this case: service of a petition for judicial review. Due to this specificity and the fact that there is no legislative intent to the contrary, the terms of N.C. Gen.Stat. § 150B–46 control the service requirements for a petition for judicial review of an agency decision. Follum, 198 N.C.App. at 392–93, 679 S.E .2d at 422 (“G.S. 150B–46 deals with the service of a petition for judicial review of an agency decision, while Rule 4 applies generally to service in all civil matters. Therefore, since G.S. 150B–46 is more specific and there is no legislative intent to the contrary, its terms control.” (quotation marks and citation omitted)). Because there is no language in N.C. Gen.Stat. § 150B–46 nor the rest of the general statutes providing for an extension to serve a petition for judicial review, we hold it was error for the trial court to grant Petitioner the extension.
IV. Conclusion
For the foregoing reasons, the order of the superior court denying Respondent's dismissal motion is
Reversed. Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).