IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-303
Filed 19 November 2024
Wake County, No. 23 CVS 12568
ROBERT WARD FERRIS, Petitioner,
v.
NORTH CAROLINA BOARD OF ARCHITECTURE, Respondent.
Appeal by petitioner from order entered 27 September 2023 by Judge G. Bryan
Collins, Jr., in Wake County Superior Court. Heard in the Court of Appeals 24
September 2024.
The Charleston Group, by R. Jonathan Charleston and Jose A. Coker, for petitioner-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by A. Grant Simpkins and M. Jackson Nichols, for respondent-appellee.
ZACHARY, Judge.
This case concerns the sufficiency of service of a petition for judicial review of
a final agency decision pursuant to N.C. Gen. Stat. § 150B-46 (2023). Petitioner
Robert Ward Ferris appeals from the superior court’s order granting the motion to
dismiss his petition for judicial review filed by Respondent North Carolina Board of
Architecture and Registered Interior Designers (“the Board”). After careful review,
we affirm.
I. Background FERRIS V. N.C. BD. OF ARCHITECTURE
Opinion of the Court
“A detailed factual background is not needed for this case as the only issue on
appeal is service.” N.C. State Bd. of Educ. v. Minick, 289 N.C. App. 369, 370, 890
S.E.2d 193, 194 (2023).
On 23 and 24 March 2023, the Board conducted an administrative hearing as
to whether Petitioner had violated various statutes and rules governing the practice
of architecture in North Carolina. On 24 March 2023, the Board issued a final agency
decision in which it concluded, inter alia, that Petitioner willfully violated N.C. Gen.
Stat. § 83A-15, as specifically set forth in 21 N.C. Admin. Code 02.0203(8)(g). The
Board served the final agency decision upon Petitioner on 17 April 2023, which
Petitioner received by certified mail two days later.
On 19 May 2023, Petitioner timely filed a petition for judicial review (“the
Petition”) of the Board’s final agency decision in Wake County Superior Court. That
same day, Petitioner served the Board’s counsel, administrative counsel, and
executive director—the Board’s registered agent for service of process—by email.
Thereafter, on 12 June 2023, Petitioner served a copy of the Petition upon the Board’s
counsel and administrative counsel by certified mail.
On 19 June 2023, the Board filed a motion to dismiss the Petition. The Board
argued that “Petitioner failed to comply with N.C. Gen. Stat. § 150B-46 by serving
the Board with the Petition via electronic mail and serving counsel for the Board via
certified mail.” On 21 June 2023, Petitioner served the Board’s registered agent for
service of process by certified mail, and the next day, Petitioner served the Board by
-2- FERRIS V. N.C. BD. OF ARCHITECTURE
personal service via courier. Petitioner filed an affidavit of service detailing the above
history on 10 July 2023.
On 15 August 2023, the Board’s motion to dismiss came on for a hearing. At
the conclusion of the hearing, the superior court granted the Board’s motion to
dismiss and denied Petitioner’s motion for additional time to serve the Petition. On
27 September 2023, the superior court entered an order memorializing its decision.
Petitioner filed his notice of appeal on 26 October 2023.
II. Discussion
Petitioner argues that the superior court erred by granting the Board’s motion
to dismiss the Petition and by denying his motion for an extension of time to serve
the Board. We disagree.
A. Standards of Review
Whether the trial court erroneously dismissed a petition for judicial review due
to improper service of process is a question of law, which this Court reviews de novo
on appeal. Minick, 289 N.C. App. at 372, 890 S.E.2d at 195. “Strict compliance with
the service requirement of [N.C. Gen. Stat.] § 150B-46 is necessary for the [superior]
court to acquire personal jurisdiction over an appeal from an administrative agency
. . . .” Id. at 373, 890 S.E.2d at 196.
Moreover, here, while conducting de novo review of the superior court’s overall
decision, we must also be mindful that “[t]he determination of whether good cause
exists to extend the time for service rests within the sound discretion of the superior
-3- FERRIS V. N.C. BD. OF ARCHITECTURE
court.” Aetna Better Health of N.C., Inc. v. N.C. Dep’t of Health & Hum. Servs., 279
N.C. App. 261, 267, 866 S.E.2d 265, 269 (2021). “When we review for an abuse of
discretion, this Court cannot reverse the trial court’s decision unless the appellant
shows the decision was manifestly unsupported by reason or was so arbitrary that it
could not have been the result of a reasoned decision.” Id. (cleaned up).
B. Analysis
Petitioner argues that the superior court erred by granting the Board’s motion
to dismiss because the court “relied on cases where the petitioner did not request
additional time to serve the petition for judicial review.” However, Petitioner’s
argument fails to persuade. As the Board correctly notes, “[t]he dispositive issue in
this case is whether there was strict compliance with N.C. Gen. Stat. § 150B-46.” In
the present case, there was not.
For approximately 70 years, our Supreme Court has held that “there can be no
appeal from the decision of an administrative agency except pursuant to specific
statutory provisions therefore. Obviously then, the appeal must conform to the statute
granting the right and regulating the procedure.” Minick, 289 N.C. App. at 373, 890
S.E.2d at 196 (citation omitted). The failure to do so is fatal because the “[s]ervice
requirements under [N.C. Gen. Stat.] § 150B-46 are jurisdictional; a case is properly
dismissed where a party is not properly served.” Id.
Here, Petitioner had the statutory right to appeal the Board’s final agency
decision pursuant to N.C. Gen. Stat. § 150B-43. Yet in conjunction with that statutory
-4- FERRIS V. N.C. BD. OF ARCHITECTURE
right, there came the responsibility of complying with the specific service-of-process
provisions of N.C. Gen. Stat. § 150B-46. See id. Section 150B-46 provides that
“[w]ithin 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.” N.C. Gen. Stat. § 150B-46.
Petitioner was thus required to serve the Board by personal service or certified
mail within ten days of filing the Petition in Wake County Superior Court. See id.
This, Petitioner indisputably did not do. Within the jurisdictional ten-day period,
Petitioner served the Board’s registered agent for service of process, counsel, and
administrative counsel by email, which § 150B-46 does not authorize. See id.; see also
Aetna, 279 N.C. App. at 268, 866 S.E.2d at 270 (affirming the superior court’s denial
of the petitioner’s motion for an extension of time to serve a petition for judicial review
where the petitioner “did not accomplish proper service” by serving the respondent’s
counsel via email).
Moreover, to the extent that Petitioner attempted to remedy this jurisdictional
error by belatedly serving the Board’s counsel and administrative counsel via
certified mail, that effort was ineffective.
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-303
Filed 19 November 2024
Wake County, No. 23 CVS 12568
ROBERT WARD FERRIS, Petitioner,
v.
NORTH CAROLINA BOARD OF ARCHITECTURE, Respondent.
Appeal by petitioner from order entered 27 September 2023 by Judge G. Bryan
Collins, Jr., in Wake County Superior Court. Heard in the Court of Appeals 24
September 2024.
The Charleston Group, by R. Jonathan Charleston and Jose A. Coker, for petitioner-appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by A. Grant Simpkins and M. Jackson Nichols, for respondent-appellee.
ZACHARY, Judge.
This case concerns the sufficiency of service of a petition for judicial review of
a final agency decision pursuant to N.C. Gen. Stat. § 150B-46 (2023). Petitioner
Robert Ward Ferris appeals from the superior court’s order granting the motion to
dismiss his petition for judicial review filed by Respondent North Carolina Board of
Architecture and Registered Interior Designers (“the Board”). After careful review,
we affirm.
I. Background FERRIS V. N.C. BD. OF ARCHITECTURE
Opinion of the Court
“A detailed factual background is not needed for this case as the only issue on
appeal is service.” N.C. State Bd. of Educ. v. Minick, 289 N.C. App. 369, 370, 890
S.E.2d 193, 194 (2023).
On 23 and 24 March 2023, the Board conducted an administrative hearing as
to whether Petitioner had violated various statutes and rules governing the practice
of architecture in North Carolina. On 24 March 2023, the Board issued a final agency
decision in which it concluded, inter alia, that Petitioner willfully violated N.C. Gen.
Stat. § 83A-15, as specifically set forth in 21 N.C. Admin. Code 02.0203(8)(g). The
Board served the final agency decision upon Petitioner on 17 April 2023, which
Petitioner received by certified mail two days later.
On 19 May 2023, Petitioner timely filed a petition for judicial review (“the
Petition”) of the Board’s final agency decision in Wake County Superior Court. That
same day, Petitioner served the Board’s counsel, administrative counsel, and
executive director—the Board’s registered agent for service of process—by email.
Thereafter, on 12 June 2023, Petitioner served a copy of the Petition upon the Board’s
counsel and administrative counsel by certified mail.
On 19 June 2023, the Board filed a motion to dismiss the Petition. The Board
argued that “Petitioner failed to comply with N.C. Gen. Stat. § 150B-46 by serving
the Board with the Petition via electronic mail and serving counsel for the Board via
certified mail.” On 21 June 2023, Petitioner served the Board’s registered agent for
service of process by certified mail, and the next day, Petitioner served the Board by
-2- FERRIS V. N.C. BD. OF ARCHITECTURE
personal service via courier. Petitioner filed an affidavit of service detailing the above
history on 10 July 2023.
On 15 August 2023, the Board’s motion to dismiss came on for a hearing. At
the conclusion of the hearing, the superior court granted the Board’s motion to
dismiss and denied Petitioner’s motion for additional time to serve the Petition. On
27 September 2023, the superior court entered an order memorializing its decision.
Petitioner filed his notice of appeal on 26 October 2023.
II. Discussion
Petitioner argues that the superior court erred by granting the Board’s motion
to dismiss the Petition and by denying his motion for an extension of time to serve
the Board. We disagree.
A. Standards of Review
Whether the trial court erroneously dismissed a petition for judicial review due
to improper service of process is a question of law, which this Court reviews de novo
on appeal. Minick, 289 N.C. App. at 372, 890 S.E.2d at 195. “Strict compliance with
the service requirement of [N.C. Gen. Stat.] § 150B-46 is necessary for the [superior]
court to acquire personal jurisdiction over an appeal from an administrative agency
. . . .” Id. at 373, 890 S.E.2d at 196.
Moreover, here, while conducting de novo review of the superior court’s overall
decision, we must also be mindful that “[t]he determination of whether good cause
exists to extend the time for service rests within the sound discretion of the superior
-3- FERRIS V. N.C. BD. OF ARCHITECTURE
court.” Aetna Better Health of N.C., Inc. v. N.C. Dep’t of Health & Hum. Servs., 279
N.C. App. 261, 267, 866 S.E.2d 265, 269 (2021). “When we review for an abuse of
discretion, this Court cannot reverse the trial court’s decision unless the appellant
shows the decision was manifestly unsupported by reason or was so arbitrary that it
could not have been the result of a reasoned decision.” Id. (cleaned up).
B. Analysis
Petitioner argues that the superior court erred by granting the Board’s motion
to dismiss because the court “relied on cases where the petitioner did not request
additional time to serve the petition for judicial review.” However, Petitioner’s
argument fails to persuade. As the Board correctly notes, “[t]he dispositive issue in
this case is whether there was strict compliance with N.C. Gen. Stat. § 150B-46.” In
the present case, there was not.
For approximately 70 years, our Supreme Court has held that “there can be no
appeal from the decision of an administrative agency except pursuant to specific
statutory provisions therefore. Obviously then, the appeal must conform to the statute
granting the right and regulating the procedure.” Minick, 289 N.C. App. at 373, 890
S.E.2d at 196 (citation omitted). The failure to do so is fatal because the “[s]ervice
requirements under [N.C. Gen. Stat.] § 150B-46 are jurisdictional; a case is properly
dismissed where a party is not properly served.” Id.
Here, Petitioner had the statutory right to appeal the Board’s final agency
decision pursuant to N.C. Gen. Stat. § 150B-43. Yet in conjunction with that statutory
-4- FERRIS V. N.C. BD. OF ARCHITECTURE
right, there came the responsibility of complying with the specific service-of-process
provisions of N.C. Gen. Stat. § 150B-46. See id. Section 150B-46 provides that
“[w]ithin 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.” N.C. Gen. Stat. § 150B-46.
Petitioner was thus required to serve the Board by personal service or certified
mail within ten days of filing the Petition in Wake County Superior Court. See id.
This, Petitioner indisputably did not do. Within the jurisdictional ten-day period,
Petitioner served the Board’s registered agent for service of process, counsel, and
administrative counsel by email, which § 150B-46 does not authorize. See id.; see also
Aetna, 279 N.C. App. at 268, 866 S.E.2d at 270 (affirming the superior court’s denial
of the petitioner’s motion for an extension of time to serve a petition for judicial review
where the petitioner “did not accomplish proper service” by serving the respondent’s
counsel via email).
Moreover, to the extent that Petitioner attempted to remedy this jurisdictional
error by belatedly serving the Board’s counsel and administrative counsel via
certified mail, that effort was ineffective. This Court has consistently affirmed
dismissals of petitions for judicial review where “petitioners failed to comply with
[N.C. Gen. Stat.] § 150B-46 because they failed to personally serve respondents as
parties to the administrative proceedings below but instead served an attorney
representing the respondents.” Minick, 289 N.C. App. at 376, 890 S.E.2d at 198. Our
-5- FERRIS V. N.C. BD. OF ARCHITECTURE
precedent instructs that this is insufficient under § 150B-46, which “requires service
upon a party of record, and not upon an attorney representing the party’s interests.”
Id. at 375, 890 S.E.2d at 197; see also N.C. Gen. Stat. § 150B-46.
In Follum v. North Carolina State University, for example, the petitioner
served the respondent’s counsel of record, rather than its registered agent for service
of process. 198 N.C. App. 389, 394, 679 S.E.2d 420, 423 (2009). This Court determined
that the counsel of record was “an employee of the Department of Justice and a
member of the Attorney General’s staff, not of NCSU.” Id. As such, the counsel of
record did not qualify as a “person at the agency” under § 150B-46. Id.; see also, e.g.,
Butler v. Scotland Cty. Bd. of Educ., 257 N.C. App. 570, 578, 811 S.E.2d 185, 191
(affirming the dismissal of a petition for judicial review where the petitioner “failed
to comply with N.C. Gen. Stat. § 150B-46’s service requirements in that instead of
personally serving the Board with his petition within the ten-day time limit he simply
served a copy of his petition upon the attorney for the Board”), disc. review denied,
371 N.C. 339, 813 S.E.2d 853 (2018).
Petitioner’s service by email upon the Board’s registered agent for service of
process, rather than by personal service or certified mail, was statutorily insufficient.
See N.C. Gen. Stat. § 150B-46. This failing subjected the Petition to dismissal. See
Minick, 289 N.C. App. at 373, 890 S.E.2d at 196. And to the extent that Petitioner
attempted to remedy this jurisdictional flaw, his subsequent and untimely service by
certified mail was still ineffective under § 150B-46. See, e.g., Butler, 257 N.C. App. at
-6- FERRIS V. N.C. BD. OF ARCHITECTURE
578, 811 S.E.2d at 191.
Nevertheless, Petitioner relies upon North Carolina Department of Public
Safety v. Owens, in which this Court held that “the superior court has the authority
to grant an extension in time, for good cause shown, to a party to serve the petition
beyond the ten days provided for under [N.C. Gen. Stat. §] 150B-46.” 245 N.C. App.
230, 234, 782 S.E.2d 337, 340 (2016). Petitioner contends that the superior court
abused its discretion by denying his motion for an extension of time and granting the
Board’s motion to dismiss because “there was good cause to allow [him] additional
time to serve [his] timely filed Petition by certified mail[.]”
“When the [superior] court acts within its discretion, this Court may not
substitute its own judgment for that of the [superior] court.” Aetna, 279 N.C. App. at
268, 866 S.E.2d at 270 (cleaned up). In this case, the superior court considered
Petitioner’s good-faith argument, but concluded that “Petitioner has failed to offer or
show good cause for his failure to timely and properly serve” the Petition on the
Board. Accordingly, and in the proper exercise of its discretion, the superior court
declined to extend the time for service of process.
“The [superior] court’s decision was not arbitrary. It was a reasoned decision
rendered after careful evaluation of the parties’ competing positions.” Id. Petitioner
has not demonstrated that “the decision was manifestly unsupported by reason or
was so arbitrary that it could not have been the result of a reasoned decision.” Id. at
267, 866 S.E.2d at 269. Therefore, Petitioner “has shown no abuse of discretion in the
-7- FERRIS V. N.C. BD. OF ARCHITECTURE
superior court’s good cause determination. [His] argument is overruled.” Id. at 268,
866 S.E.2d at 270 (citation omitted).
III. Conclusion
For the foregoing reasons, the superior court’s order is affirmed.
AFFIRMED.
Judges STROUD and HAMPSON concur.
-8-