Bradley Home, Caring for Wake Cmty. & the Carolinas

• Court: Court of Appeals of North Carolina
• Decided: July 16, 2024
• Docket: 24-107
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-107

Filed 16 July 2024

Wake County, No. 23 CVS 5430-910

BRADLEY HOME, CARING FOR WAKE COMMUNITY AND THE CAROLINAS, INC. d/b/a/ BRADLEY HOME (MHL #092-319) and d/b/a BRADLEY HOME EXTENSION – KIMBERLY HOUSE (MHL #092-412), Petitioner,

v.

N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF HEALTH SERVICE REGULATION, MENTAL HEALTH LICENSURE AND CERTIFICATION SECTION, Respondent.

Appeal by Respondent from order entered 5 October 2023 by Judge Bryan

Collins in Wake County Superior Court. Heard in the Court of Appeals 11 June 2024.

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC., by Matthew W. Wolfe and E. Bahati Mutisya, for Petitioner-Appellee.

Attorney General Joshua H. Stein, by Assistant Attorney General Kerry M. Boehm, for Respondent-Appellant.

GRIFFIN, Judge.

Respondent North Carolina Department of Health and Human Services

appeals from the Superior Court’s order reversing and remanding an order of an

Administrative Law Judge dismissing Petitioner Bradley Home’s section 150B-23

petition for lack of subject-matter jurisdiction. DHHS argues North Carolina Rule of

Civil Procedure 6(e), the Mailbox Rule, does not apply to extend the statutorily

mandated sixty-day deadline for a party aggrieved by a State agency decision to file BRADLEY HOME V. N.C. DEP’T OF HEALTH AND HUM. SERVS.

Opinion of the Court

a petition contesting that decision. We agree.

I. Factual and Procedural Background

DHHS is a State agency tasked with the licensing and oversight of mental

health care facilities operating within the State. Petitioner is licensed by DHHS to

operate two mental health care facilities: (1) Bradley Home at Kelly Road in Garner,

NC (Bradley Home) and (2) Bradley Home Extension - Kimberly House in Raleigh,

NC (Kimberly House). In June 2021, after Petitioner submitted License Renewal

Applications for both the Bradley Home and Kimberly House facilities, DHHS,

pursuant to its authority under Chapter 122C of the North Carolina General

Statutes, conducted surveys of both facilities. The surveys identified numerous

violations of the North Carolina Administrative Code at both of Petitioner’s facilities.

On 21 June 2021, DHHS notified Petitioner by certified mail that it was citing

both facilities for these violations and imposed monetary penalties totaling $7,000.

In each of the letters, DHHS notified Petitioner it had the right to contest the

penalties by filing a petition for a contested case hearing with the Office of

Administrative Hearings within thirty days from the date the letter was mailed.

Accordingly, the deadline to contest the penalties was 21 July 2021.

On the same day that DHHS imposed the penalties, it also notified Petitioner

via certified mail that it would be suspending admissions from both of Petitioner’s

facilities (collectively, the “SOA Letters”). For each SOA Letter, Petitioner had the

right to contest the suspensions by filing a petition for a contested case hearing with

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the OAH within twenty days from the date the letter was placed in the mail.

Accordingly, the deadline to contest the SOA Letters was 11 July 2021.

Finally, and at issue here, on 3 August 2021, DHHS notified Petitioner by

certified mail that it was revoking its licenses to operate its facilities. In each of the

letters, DHHS notified Petitioner that under N.C. Gen. Stat. § 150B-23(f), it had the

right to file petitions contesting the revocations within sixty days from the date the

letter was mailed. Accordingly, the deadline to file the petitions was 4 October 2021.1

On 5 October 2021, Petitioner filed a petition appealing the revocations and the other

administrative actions.

Eight months later, on 3 June 2022, Petitioner—with DHHS’s consent—filed

a Consent Notice of Voluntary Dismissal Without Prejudice, allowing Petitioner “to

re-file its contested case petition to include claims concerning the Revocation Notices,

Suspension Notices, and Penalty Notices, and associated surveys.” On 5 July 2022,

Petitioner re-filed its petition with the OAH, challenging: (1) the 21 June 2021

penalties; (2) the 21 June 2021 suspensions of admission; and (3) the 3 August 2021

revocation of Petitioner’s licenses to operate its facilities. DHHS moved to dismiss

arguing that, because the petition was filed outside the respective specified time-

periods for filing with regard to all three notices, the OAH lacked subject matter

1 The initial deadline for filing the petition was 2 October 2021. However, as 2 October 2021 was a Saturday, the ALJ acknowledged Petitioner had until Monday, 4 October 2021, to file its petition. Regardless of this, Petitioner did not file its petition until 5 October 2021.

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jurisdiction to hear the merits of the case. The ALJ agreed with DHHS and dismissed

the petition regarding all three notices. Petitioner timely appealed to Wake County

Superior Court, arguing that, under the Mailbox Rule, it had an extra three days to

file the initial petition for a contested case hearing with the OAH.

The Superior Court held that Petitioner’s initial petition, filed on 5 October

2021, was untimely as to the suspension of admissions and administrative penalties

because the deadlines were 11 July 2021 and 21 July 2021, respectively. However,

applying the Mailbox Rule, the Superior Court held that the petition contesting the

license revocations was timely even though it was filed past the sixty-day deadline.

The trial court concluded that the OAH had subject matter jurisdiction to hear the

merits regarding the license revocations and reversed and remanded the decision to

the OAH. DHHS timely appealed.

II. Analysis

A. Standard of Review

Chapter 150B of the North Carolina General Statutes, the North Carolina

Administrative Procedure Act, “‘governs trial and appellate court review of

administrative agency decisions.’” Harnett Cnty. Bd. of Educ. v. Ret. Sys. Div., Dep’t

of State Treasurer, 291 N.C. App. 14, 19, 894 S.E.2d 275, 279 (2023) (quoting Amanini

v. N.C. Dep’t of Hum. Res., 114 N.C. App. 668, 673, 443 S.E.2d 114, 117 (1994)).

Pursuant to the APA, an aggrieved party may seek review of an ALJ’s final decision

by a superior court. Id.; see also N.C. Gen. Stat. § 150B-43 (2023). In this context,

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the superior court sits in an appellate capacity and reviews errors of law de novo.

Bernold v. Bd. of Governors of Univ. of N.C., 200 N.C. App. 295, 297-298, 683 S.E.2d

428, 430 (2009) (citations and internal marks omitted); see also N.C. Gen. Stat. §

150B-51(b)–(c) (2023). Following an appeal of an ALJ’s decision to a superior court,

the APA affords litigants the right to “appeal from the superior court’s final judgment

to the appellate division.” EnvironmentaLEE v. N.C. Dep’t of Env’t and Nat’l Res.,

258 N.C. App. 590, 595, 813 S.E.2d 673, 677 (2018); see also N.C. Gen. Stat. § 150B-

52 (2023).

On review, we examine “the trial court’s order for errors of law; this ‘twofold

task’ involves: ‘(1) determining whether the trial court exercised the appropriate

scope of review and, if appropriate, (2) deciding whether the court did so properly.’”

Hardee v. N.C. Bd. of Chiropractic Exam’rs, 164 N.C. App. 628, 633, 596 S.E.2d 324,

328 (2004) (citation and internal marks omitted).

DHHS asks this Court to reverse the Superior Court’s decision and affirm the

ALJ’s initial decision dismissing Petitioner’s petition for lack of subject matter

jurisdiction. Both the ALJ and Superior Court’s decisions turn on whether the

Mailbox Rule applies to extend the sixty-day filing deadline provided in section 150B-

23(f). As the parties agree about when the pertinent filings were made, we address

whether the Superior Court erred in reaching the conclusion of law that the Mailbox

Rule applies.

B. Superior Court Standard of Review

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The Superior Court reviewed the ALJ’s order de novo. As the ALJ engaged in

the statutory construction of section 150B-23(f) to determine the petition was

untimely, de novo review was appropriate. See Moore v. Proper, 366 N.C. 25, 30, 726

S.E.2d 812, 817 (2012) (“[W]hen a trial court’s determination relies on statutory

interpretation, [appellate] review is de novo because those matters of statutory

interpretation necessarily present questions of law.”) (citation omitted). Having

determined the Superior Court applied the correct standard of review, we now

address whether its conclusions of law were proper.

C. Conclusions of Law

The dispositive issue here is whether the Mailbox Rule applies to extend the

section 150B-23(f) sixty-day period during which an aggrieved party may file a

petition to contest a decision of an administrative agency. If it does not apply, then

the petition was untimely and deprived the ALJ from having the necessary subject

matter jurisdiction to adjudicate the case. See Gray v. N.C. Dep’t of Env’t, Health &

Hum. Res., 149 N.C. App. 374, 378, 560 S.E.2d 394, 397 (2002) (“[W]e agree that

timely filing of a petition is necessary to confer subject matter jurisdiction on the

agencies as well as the courts[.]”) (citation omitted).

“‘Statutory interpretation properly begins with an examination of the plain

words of the statute.’” Belmont Ass’n v. Farwig, 381 N.C. 306, 310, 873 S.E.2d 486,

489 (quoting Correll v. Div. of Soc. Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235

(1992)). When interpreting the language of a statute, “[w]e presume that the

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Legislature chose its words with due care and comprehension of their ordinary

meaning.” C Invs. 2, LLC v. Auger, 383 N.C. 1, 10, 881 S.E.2d 270, 278 (2022) (citation

omitted). To this point, “it is the duty of this Court to give effect to the plain meaning

of the statute, and judicial construction of legislative intent is not required.” State v.

Washington, __ N.C. __, __, 900 S.E.2d 657, 659 (2024) (quoting In re R.L.C., 361 N.C.

287, 292, 643 S.E.2d 920, 923 (2007)) (internal marks omitted). Moreover, where the

language of a statute is clear, we do not “delete words used or [] insert words not

used.” Lunsford v. Mills, 367 N.C. 618, 623, 766 S.E.2d 297, 301 (2014) (citations and

internal marks omitted).

Section 150B-23 of the APA codifies the process by which a party aggrieved by

a State Agency decision may contest said decision. See N.C. Gen. Stat. § 150B-23(a)

(2023). That process includes filing a petition with the Office of Administrative

Hearings which specifies the grounds for the party’s grievance. Id. Section 150B-

23(f) provides the time limitation for filing a petition:

Unless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case is 60 days. The time limitation, whether established by another statute, federal statute, or federal regulation, or this section, commences when notice is given of the agency decision to all persons aggrieved that are known to the agency by personal delivery, electronic delivery, or by the placing of the notice in an official depository of the United States Postal Service wrapped in a wrapper addressed to the person at the latest address given by the person to the agency. The notice shall be in writing, shall set forth the

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agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition.

N.C. Gen. Stat. § 150B-23(f) (emphasis added). In construing the applicability of the

section 150B-23(f) time limitation, we have held that “a petitioner is deemed to have

notice of a final agency decision as soon as the agency places the decision in the mail,

even if it takes several days for the petitioner to receive it.” Krishnan v. N.C. Dep’t

of Health & Hum. Servs., 274 N.C. App. 170, 173, 851 S.E.2d 431, 433 (2020) (citation

omitted).

North Carolina Rule of Civil Procedure 6, on the other hand, provides the rules

governing the computation of time limits in civil cases. See N.C. R. Civ. P. 6 (2023).

Relevant here, Rule 6(e) provides that “[w]henever a party has the right to do some

act or take some proceedings within a prescribed period after the service of a notice

or other paper upon him and the notice or paper is served upon him by mail, three

days shall be added to the prescribed period.” N.C. R. Civ. P. 6(e) (2023). Rule 1

qualifies the applicability of the Rules to apply “in all actions and proceedings of a

civil nature except when a differing procedure is prescribed by statute.” N.C. R. Civ.

P. 1 (2023) (emphasis added).

Here, in reversing the Administrative Order, the Superior Court misapplied

both the Mailbox Rule and our holding in Smith v. Daniels Int’l., 64 N.C. App. 381,

307 S.E.2d 434 (1983). The order also misconstrues the plain and unambiguous

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language of section 150B-23(f). Specifically, in its Conclusions of Law, the court

concluded:

22. Section 150B-23(f) does not provide for how the time period is to be calculated for purposes of the 60-day deadline.

23. Section 150B-23(f) also does not indicate whether or not the computation of time differs depending on whether the Agency provides notice via personal delivery, electronic delivery, or by mail.

24. The OAH Rules governing contested cases provide that “[u]nless otherwise provided in the rules of the Office of Administrative Hearings or in a specific statute, time computations in contested cases before the Office of Administrative Hearings shall be governed by G.S. 1A-1, Rule 6.” 26 NCAC 03.0116.

...

27. “Rule 6(e) was designed to ‘alleviate the disparity between constructive and actual notice when the mailing of notice begins a designated period of time for the performance of some right.’” Precision Fabrics Grp., Inc. v. Transformer Sales & Serv., Inc., 344 N.C. 713, 721, 477 S.E.2d 166, 170 (1996).

28. The facts of this case illustrate the very reason the mailbox rule exists and must apply. The Agency mailed the Revocation Notices on August 3, 2021 but [Petitioner] received the Revocation Notices on August 10, 2021. Thus, the disparity of Petitioner’s constructive and active notice exists here.

29. N.C.G.S. § 150B-23(f) does not clarify whether the 60-day time period to appeal the mailed notice would commence on August 3, 2021 or August 10, 2021. Rule 6(e) provides the needed clarification by instructing the Agency and [Petitioner] to start the clock when the notice is placed in the mail and to add three days to the time period to

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accommodate the inherent delay in receipt due to the mailing of the notice. Thus, when calculating the 60-day deadline to appeal the Revocation Notices, three days must be added, making the deadline October 5, 2021, the date Petitioner filed its Petition.

31. The Rules of Civil Procedure apply in “all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute.” N.C.G.S. § 1A-1, 1. In Smith v. Daniels International, the Court of Appeals analyzed whether Rule 6(e) applied to the statutory 10-day time period in N.C.G.S. § 96-15(b)(2) for the complainant to appeal a notice of benefits disqualification. 64 N.C. App. 381, 383, 307 S.E.2d 434, 435 (1983). The claimant argued he had thirteen days under Rule 6(e) because the benefits disqualification notice was mailed to him. Id., 307 S.E.2d at 435. However, N.C.G.S. § 96-15(b)(2), which prescribes the ten days, expressly stated that an appeal was untimely unless the claimant files the appeal “within [ten] days after notification of the conclusion of the adjudicator, whether the conclusion be delivered manually or mailed.” Id. (emphasis in original). The Court relied on this italicized language to conclude that the complainant would have had thirteen days to appeal but for the language in the statute, which “clearly indicates legislative intent to establish ‘a differing procedure’ from that prescribed by G.S. 1A–1, Rule 6(e).” Id. Thus, the Court could not apply Rule 6(e) in that particular instance based solely on that specific language in the statute.

32. There is no such language in N.C.G.S. § 150B-23(f) that would provide a differing procedure from Rule 6(e). Therefore, the default Mailbox Rule in Rule 6(e) applies, which gave Petitioner until October 5, 2021 to timely appeal the Revocation Notices.

As to Conclusions of Law 22 and 23, section 150B-23(f) states, in precise

language, that the “general limitation for the filing of a petition in a contested case is

60 days.” N.C. Gen. Stat. § 150B-23(f). The section clarifies that the sixty-day period

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“commences when notice is given of the agency decision to all persons aggrieved that

are known to the agency by personal delivery, electronic delivery, or by the placing of

the notice in an official depository of the United States Postal Service[.]” Id. When

read in harmony, it is apparent from the plain language that to calculate the sixty-

day period, you begin counting from the day the notice is either personally or

electronically delivered or when the notice is placed in the mail. The Superior Court’s

order unnecessarily reads ambiguity into the statute where there is none.

Conclusion of Law 23 does the same. Section 150B-23(f) specifies the time

limitation “commences when notice is given of the agency decision[.]” Id. (emphasis

added). Directly thereafter, the statute specifies three methods of permissible

notification: personal delivery, electronic delivery, or by placing the notice in the care

of the United States Postal Service. Id. As we “presume that the Legislature chose

its words with due care[,]” C Invs. 2, 383 N.C. at 10, 881 S.E.2d at 278 (citation

omitted), the choice to not make the time calculation contingent upon the method of

notification reflects that the time calculation is the same regardless of the method

used. Thus, as the statute plainly states, the sixty-day time limitation commences

regardless of the method of delivery and is contrary to the assertion that it does not

indicate a difference. Rather, it indicates there is no difference in time computation.

Conclusion of Law 24, while stating the law correctly, misconstrues the

meaning of section 150B-23(f) as well as the applicability of 26 NCAC 03 .0116. 26

NCAC 03 .0116 provides that “time computations in contested cases before the Office

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of Administrative Hearings shall be governed by G.S. 1A-1, Rule 6.” 26 NCAC 03

.0116 (2024) (emphasis added). Section 150B-23(a) provides the method for initiating

a contested case. It states that “[a] contested case shall be commenced by paying a

fee in an amount established in G.S. 150B-23.2 and by filing a petition with the Office

of Administrative Hearings[.]” N.C. Gen. Stat. § 150B-23(a) (2023). The plain

meaning of the foregoing language indicates a contested case does not start until the

filing of a petition. Because the “timely filing of a petition is necessary to confer

subject matter jurisdiction on the agenc[y][,]” Gray, 149 N.C. App. at 378, 560 S.E.2d

at 397, Rule 6 is inapplicable to time limitations effective prior to the commencement

of the proceeding.

Conclusions of Law 27 and 28 disregard our precedent construing section

150B-23(f). In Krishnan v. N.C. Department of Health & Human Services, we

interpreted the language of section 150B-23(f) to mean “a petitioner is deemed to have

notice of a final agency decision as soon as the agency places the decision in the mail,

even if it takes several days for the petitioner to receive it.” Krishnan, 274 N.C. App.

at 173, 851 S.E.2d at 433. Thus, the difference in a petitioner’s actual and

constructive notice of an agency’s decision is immaterial for the purposes of filing a

contested case petition under section 150B-23(f).

Conclusion of Law 29 also misapprehends section 150B-23(f). The conclusion

that “N.C.G.S. § 150B-23(f) does not clarify whether the 60-day time period to appeal

the mailed notice would commence on August 3, 2021 or August 10, 2021,” is

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erroneous. The plain language of section 150B-23(f) states that the general sixty-day

limitation “commences when notice is given of the agency decision to all persons

aggrieved . . . by the placing of the notice in an official depository of the United States

Postal Service wrapped in a wrapper addressed to the person at the latest address

given by the person to the agency.” N.C. Gen. Stat. § 150B-23(f) (emphasis added).

The time limitation commences when the agency places its notice in the mail. DHHS

did so on 3 August 2021. Thus, the sixty-day time limit commenced on 3 August 2021.

If Petitioner sought further clarification of the time limit, they need have referred

only to the text of the revocation notice, as it stated below the 3 August 2021 mailing

date that:

You have the right to contest the above action by filing a petition for a contested case hearing with the Office of Administrative Hearings within sixty (60) days of mailing of this letter.

If you do not file a petition within the sixty (60) day period, you lose your right to appeal and the action explained in this letter will become effective as described above.

Finally, Conclusion of Law 31 misconstrues our holding in Smith v. Daniels

International. Initially, Smith addressed whether Rule 6 applies to section 96-

15(b)(2), a statute providing the appeals process from the denial of unemployment

benefits, not section 150B. See Smith, 64 N.C. App. at 434–35, 307 S.E.2d at 382; see

N.C. Gen. Stat. § 96-15(b)(2) (2023). Nonetheless, as section 96-15(b)(2) and section

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150B-23(f) govern the appeals of administrative decisions, we conclude Smith is

persuasive here. There, we held the language “[u]nless the claimant . . . within 10

days after notification of the conclusion of the adjudicator, whether the conclusion be

delivered manually or mailed, files an appeal to such conclusion, the conclusion shall

be final and benefits paid or denied in accordance therewith[,]” to indicate a

“legislative intent to establish ‘a differing procedure’ from that prescribed by G.S. 1A-

1, Rule 6(e).” Id. at 383, 307 S.E.2d at 435. In fulfilling this intent, we held Rule 6(e)

inapplicable to the section 96-15(b)(2) ten-day time limitation for filing an appeal. Id.

at 382, 307 S.E.2d at 434–35.

As stated above, the Legislature did not provide for different time periods to

apply depending on the method of delivery in section 150B-23(f). Rather, they listed

the permissible methods of delivery immediately after stating the time limitation

would commence upon the completion of any of them. This language is analogous to

the dispositive language in Smith because neither statute provides for different time

limitations contingent upon the method of delivery. Thus, utilizing the same

reasoning we used in Smith, the language in section 150B-23(f) “indicates [a]

legislative intent to establish ‘a differing procedure’ from that prescribed by G.S. 1A–

1, Rule 6(e).” Id. at 383, 307 S.E.2d at 435.

Ultimately, the Superior Court utilized the correct standard of review when

addressing the ALJ’s order. However, as both our interpretation of section 150B-23(f)

and our precedent counsel against applying Rule 6(e) to the sixty-day time limit, we

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hold the Superior Court erred in reversing the ALJ’s order. Accordingly, we reverse

the Superior Court’s order and remand to the Superior Court for further remand to

the ALJ for entry of dismissal.

III. Conclusion

For the aforementioned reasons, we reverse the Superior Court’s decision and

remand for dismissal.

REVERSED AND REMANDED.

Judge ZACHARY concurs.

Judge TYSON dissents by separate opinion.

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TYSON, Judge, dissenting.

The Superior Court properly applied the Mailbox Rule and held the petition

contesting the license revocation was timely filed when adding the statutorily

mandated three additional days to the date the agency purportedly placed the notice

in the mail. N.C. R. Civ. P. 6(e) (2023). The Superior Court properly concluded, due

to Petitioner’s timely notice, the Office of Administrative Hearings (“OAH”) possessed

subject matter jurisdiction to hear the merits regarding the license revocations,

reversed the OAH’s decision, and remanded the matter to the OAH. I vote to affirm

the Superior Court’s decision and respectfully dissent.

IV. N.C. R. Civ. P. 6(e)

Rule 6 of the North Carolina Rules of Civil Procedure is the default rule of

general applicability regarding the computation of time limits in civil proceedings.

See N.C. R. Civ. P. 6(e). “Whenever a party has the right to do some act or take some

proceedings within a prescribed period after the service of a notice or other paper

upon him and the notice or paper is served upon him by mail, three days shall be

added to the prescribed period.” Id. (emphasis supplied). “Rule 6(e) was designed to

‘alleviate the disparity between constructive and actual notice when the mailing of

notice begins a designated period of time for the performance of some right.’”

Precision Fabrics Grp. v. Transformer Sales & Serv., 344 N.C. 713, 721, 477 S.E.2d

166, 170 (1996) (citation omitted). BRADLEY HOME V. N.C. DEP’T OF HEALTH & HUM. SERVS.

TYSON, J., dissenting

Rule 1 qualifies the applicability of the Rules of Civil Procedure and explains

the Rules apply “in all actions and proceedings of a civil nature except when a differing

procedure is prescribed by statute.” N.C. R. Civ. P. 1 (2023) (emphasis supplied).

V. N.C. Gen. Stat. § 150B-23(f)

N.C. Gen. Stat. § 150B-23(f) provides the time limitation for filing a petition:

Unless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case is 60 days. The time limitation, whether established by another statute, federal statute, or federal regulation, or this section, commences when notice is given of the agency decision to all persons aggrieved that are known to the agency by personal delivery, electronic delivery, or by the placing of the notice in an official depository of the United States Postal Service wrapped in a wrapper addressed to the person at the latest address given by the person to the agency. The notice shall be in writing, shall set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition.

N.C. Gen. Stat. § 150B-23(f) (2023) (emphasis supplied).

VI. In Pari Materia

“Statutes in pari materia are to be construed together, and it is a general rule

that courts must harmonize such statutes, if possible, and give effect to each[.]” Town

of Blowing Rock v. Gregorie, 243 N.C. 364, 371, 90 S.E.2d 898, 904 (1956). “[I]t is our

duty to give effect to the words actually used in a statute and not to delete words used

or to insert words not used.” Lunsford v. Mills, 367 N.C. 618, 623, 766 S.E.2d 297,

2 BRADLEY HOME V. N.C. DEP’T OF HEALTH & HUM. SERVS.

301 (2014). This Court presumes the General Assembly “chose its words with due

care and comprehension of their ordinary meaning.” C Invs. 2, LLC v. Auger, 383

N.C. 1, 10, 881 S.E.2d 270, 278 (2022) (citation omitted). A provision of a statute

cannot be read “in a way that renders another provision of the same statute

meaningless.” State v. Daw, 277 N.C. App. 240, 254, 860 S.E.2d 1, 12 (2021).

N.C. Gen. Stat. § 150B-23(f) establishes the “general [time] limitation” to file

a petition at sixty days, unless superseded by another statute or regulation. It then

notes “the time limitation” commences when the notice is placed in the mail. Id.

Contrary to the majority’s assertion, this statute is not incompatible with Rule

6(e), and the two statutes are simultaneously applied. The word “general” implies

exceptions exist to any sixty-day, absolute deadline established by § 150B-23(f).

Interpreting the sixty-day limitation as a hard deadline fails to give effect to the word

“general” in the statute. Rather, the section of the statute only clarifies the time

limitation commences on the date the notice was mailed. It does not apply the general

sixty-day limitation to mailed petitions, because Rule 6(e) applies to notices delivered

by mail to extend the time limitation for up to three additional days. N.C. R. Civ. P.

6(e).

The majority’s opinion references Smith v. Daniels Int’l, which held Rule 6(e)

did not apply to the statutory time limitation for appeals from the Employment

Security Commission. 64 N.C. App. 381, 383, 307 S.E.2d 434, 435 (1983). This case

and facts are inapposite and distinguishable from those in Smith, in which the

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applicable statute imposed a hard ten-day time limitation regardless of “whether the

conclusion [was] delivered manually or mailed.” Id. The use of the disjunctive “or”

precluded the Mailbox Rule in Rule 6(e). See id. The language in Smith clearly

demonstrated a legislative intent separate and distinct to create a uniform time

limitation, regardless of delivery method the agency used, and established a different

procedure from that set out in the North Carolina Administrative Procedure Act

(“NCAPA”), N.C. Gen. Stat. §§ 150B-1 to 52 (2023), and Rule 6(e).

Here, the relevant NCAPA statute sets out a “general” time limitation and sets

the commencement, but it does not assert the “general” time limitation is to be

applied in all cases. See N.C. Gen. Stat. § 150B-23(f). As the Superior Court properly

concluded, nothing “clearly indicates legislative intent to establish ‘a differing

procedure’ from that prescribed by G.S. 1A-1, Rule 6(e).” Smith, 64 N.C. App. at 383,

307 S.E.2d at 435. The two statutes are properly read in pari materia, and Rule 6(e)

applies to notices delivered by mail. N.C. R. Civ. P. 6(e).

VII. Contested Case

In addition, 26 NCAC 03 .0116 provides “time computations in contested cases

before the Office of Administrative Hearings shall be governed by G.S. 1A-1, Rule 6.”

26 NCAC 03 .0116. (emphasis supplied). N.C. Gen. Stat. § 150B-23(a), provides the

method for initiating a “contested case.”

The majority’s opinion cites N.C. Gen. Stat. § 150B-23(a), which states “[a]

contested case shall be commenced by paying a fee in an amount established in G.S.

4 BRADLEY HOME V. N.C. DEP’T OF HEALTH & HUM. SERVS.

150B-23.2 and by filing a petition with the Office of Administrative Hearings[.]” The

majority’s opinion then asserts the plain meaning of N.C. Gen. Stat. § 150B-23(a)

“indicates a contested case does not start until the filing of a petition.”

Another section of the same NCAPA chapter, however, defines a “contested

case” as “an administrative proceeding pursuant to this Chapter to resolve a dispute

between an agency and another person that involves the person’s rights, duties, or

privileges, including licensing or the levy of a monetary penalty.” N.C. Gen. Stat.

§ 150B-2(2) (2023). Our Supreme Court held a “contested case” has two main

elements: “(1) an agency proceeding, (2) that determines the rights of a party or

parties.” Lloyd v. Babb, 296 N.C. 416, 424-25, 251 S.E.2d 843, 850 (1979).

This Court, citing Lloyd, held “the pivotal question in determining whether [a

matter] is a “contested case,” is whether the [agency’s actions] and investigation

constitute[d] an agency proceeding.” Charlotte Truck Driver Training School, Inc. v.

N.C. DMV, 95 N.C. App. 209, 212, 381 S.E.2d 861, 863 (1989) (citing id.).

In Charlotte Truck Driver, the petitioner’s license was revoked following an

interview and investigation by the Department of Motor Vehicles. Id. at 212, 381

S.E.2d at 862-63. This Court held the investigative actions conducted by the

Department of Motor Vehicles, a government agency, and the subsequent revocation

of a license constituted an “agency proceeding” and the matter was a “contested case.”

Id.

The North Carolina Department of Health and Human Services (“NC DHHS”)

5 BRADLEY HOME V. N.C. DEP’T OF HEALTH & HUM. SERVS.

aggressively suspended admissions to petitioner’s facilities, imposed a $7,000 fine,

and revoked the petitioner’s licenses, following a survey of petitioner’s facilities. As

occurred in Charlotte Truck Driver, NC DHHS conducted an investigation into

petitioner’s facilities and initiated an “agency proceeding.” Id. (“As the in-person

interview and the investigation were conducted by a hearing officer of the North

Carolina Division of Motor Vehicles, a State agency, we conclude that they constitute

‘an agency proceeding.’”).

The revocation of petitioner’s license following their agency investigatory

action also determined the rights of petitioner. See id. NC DHHS conducted an

investigation, after which the petitioner’s rights were determined, meeting the

definition of a “contested case” as outlined in Lloyd. Id. (citing Lloyd, 296 N.C. at

424-25, 251 S.E.2d at 850).

NC DHHS’ actions taken against petitioner constitute a “contested case” and

26 NCAC 03 .0116 applies. Because 26 NCAC 03 .0116 applies, the three-day

extension was properly “added to the prescribed period” of time for petitioner to

timely file his appeal to the OAH. N.C. R. Civ. P. 6(e).

The matter before us can be fairly categorized as a “contested case,” and is

governed by N.C. Gen. Stat. § 1A-1, Rule 6. 26 NCAC 03 .0116 (providing “time

computations in contested cases before the Office of Administrative Hearings shall

be governed by G.S. 1A-1, Rule 6.”). The Superior Court correctly held the petition

contesting the license revocation was timely filed by adding the statutory three

6 BRADLEY HOME V. N.C. DEP’T OF HEALTH & HUM. SERVS.

additional days to the sixty days after the agency placed the notice in the mail. See

id.; N.C. R. Civ. P. 6(e); Charlotte Truck Driver, 95 N.C. App. at 212, 381 S.E.2d at

862-63; Lloyd, 296 N.C. at 424-25, 251 S.E.2d at 850.

VIII. Trial Court’s Conclusions of Law

The trial court’s Conclusions of Law correctly state, in part:

22. Section 150B-23(f) does not provide for how the time period is to be calculated for purposes of the 60-day deadline.

23. Section 150B-23(f) also does not indicate whether or not the computation of time differs depending on whether the Agency provides notice via personal delivery, electronic delivery, or by mail.

24. The OAH Rules governing contested cases provide that “[u]nless otherwise provided in the rules of the Office of Administrative Hearings or in a specific statute, time computations in contested cases before the Office of Administrative Hearings shall be governed by G.S. 1A-1, Rule 6.” 26 NCAC 03 .0116.

27. “Rule 6(e) was designed to ‘alleviate the disparity between constructive and actual notice when the mailing of notice begins a designated period of time for the performance of some right.’” Precision Fabrics Grp., Inc. v. Transformer Sales & Serv., Inc., 344 N.C. 713, 721, 477 S.E.2d 166, 170 (1996).

28. The facts of this case illustrate the very reason the mailbox rule exists and must apply. The Agency mailed the Revocation Notices on August 10, 2021. Thus, the disparity of Petitioner’s constructive and actual notice exists here.

29. N.C.G.S. § 150B-23(f) does not clarify whether the

7 BRADLEY HOME V. N.C. DEP’T OF HEALTH & HUM. SERVS.

60-day time period to appeal the mailed notice would commence on August 3, 2021[,] or August 10, 2021. Rule 6(e) provides the needed clarification by instructing the Agency and Bradley Home to start the clock when the notice is placed in the mail and to add three days to the time period to accommodate the inherent delay in receipt due to the mailing of the notice. Thus, when calculating the 60-day deadline to appeal the Revocation Notices, three days must be added, making the deadline October 5, 2021, the date Petitioner filed its Petition.

31. The Rules of Civil Procedure apply in “all actions and proceedings of a civil nature except when a differing procedure is prescribed by statute.” N.C.G.S. § 1A-1, 1. In Smith v. Daniels International, the Court of Appeals analyzed whether Rule 6(e) applied to the statutory 10-day time period in N.C.G.S. § 96-15(b)(2) for the complainant to appeal a notice of benefits disqualification. 64 N.C. App. 381, 383, 307 S.E.2d 434, 435 (1983). The claimant argued he had thirteen days under Rule 6(e) because the benefits disqualification notice was mailed to him. Id., 307 S.E.2d at 435. However, N.C.G.S. § 96-15(b)(2), which prescribes the ten days, expressly stated that an appeal was untimely unless the claimant files the appeal “within [ten] days after notification of the conclusion of the adjudicator, whether the conclusion be delivered manually or mailed.” Id. (emphasis in original). The Court relied on this italicized language to conclude that the complainant would have had thirteen days to appeal but for the language in the statute, which “clearly indicates legislative intent to establish ‘a differing procedure’ from that prescribed by G.S. 1A–1, Rule 6(e).” Id. Thus, the Court could not apply Rule 6(e) in that particular instance based solely on that specific language in the statute.

32. There is no such language in N.C.G.S. § 150B-23(f) that would provide a differing procedure from Rule 6(e). Therefore, the default Mailbox Rule in Rule 6(e) applies, which gave [Bradley Home] until October 5, 2021[,] to timely appeal the Revocation Notices.

8 BRADLEY HOME V. N.C. DEP’T OF HEALTH & HUM. SERVS.

NC DHHS has shown nothing inconsistent or ambiguous about either statute

or error in reading both in pari materia. See Brown v. Flowe, 349 N.C. 520, 523-24,

507 S.E.2d 894, 896 (1998) (“When multiple statutes address a single subject, this

Court construes them in pari materia to determine and effectuate the legislative

intent.”). Consistent with both statutes and applying both equally, the OAH Rules

governing contested cases provide: “. . . time computations in contested cases before

the Office of Administrative Hearings shall be governed by G.S. 1A-1, Rule 6.” 26

NCAC 03 .0116.

IX. Conclusion

NC DHHS has shown nothing inconsistent or ambiguous about either statute,

both have equal dignity, and are properly read in pari materia. Both are applicable

where the agency chose to provide required notice by mail. NC DHHS has also shown

no reversible error or prejudice in the Superior Court’s order.

We all agree the Superior Court utilized the correct standard of review when

addressing the ALJ’s order. Petitioner’s timely notice under the statutes and Rules

invoked OAH’s subject matter jurisdiction to hear the merits challenging Petitioner’s

license revocations. The trial court’s order is properly affirmed. I respectfully

dissent.