IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-303
Filed 20 June 2023
Orange County, No. 21 CVS 448
NORTH CAROLINA STATE BOARD OF EDUCATION, Petitioner,
v.
MATTHEW J. MINICK, Respondent.
Appeal by petitioner from order entered 21 September 2021 by Judge Mark E.
Klass in Superior Court, Orange County. Heard in the Court of Appeals 4 October
2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Zach Padget, for petitioner-appellant.
Mary-Ann Leon for respondent-appellee.
The McGuinness Law Firm, by J. Michael McGuinness and Verlyn Chesson Porte, for amicus curiae N.C. Association of Educators.
STROUD, Chief Judge.
Petitioner appeals an order granting respondent’s motion to dismiss. Because
petitioner failed to properly serve respondent, we affirm.
I. Background
A detailed factual background is not needed for this case as the only issue on
appeal is service. In relevant part, petitioner is the North Carolina Board of
Education (“Board”), and respondent (“Mr. Minick”) is a North Carolina teacher. N.C. STATE BD. OF EDUC. V. MINICK
Opinion of the Court
Respondent was suspended from his job as a teacher and filed a “Petition for a
Contested Case Hearing” (“CCH Petition”) with the Office of Administrative Hearings
(“OAH”) in August 2020. On the CCH Petition form, Mr. Minick printed the address
of his attorney in the space labeled “Print your full address,” and in the space labeled
“Print your name” Mr. Minick printed “Matthew J. Minick, by and through his
attorney, Narendra K. Ghosh[.]” In September 2020, on the same day, Attorney
Ghosh withdrew and Mr. Minick’s second counsel, Attorney Mary-Ann Leon, filed a
Notice of Appearance.
In January of 2021, an Administrative Law Judge (“ALJ”) heard the CCH
Petition. On 23 March 2021, the ALJ filed a final decision reversing the Board’s
suspension of Mr. Minick. On 21 April 2021, the Board then filed a Petition for
Judicial Review of the ALJ’s final decision (“Petition”). The Certificate of Service for
the Petition was filed 23 April 2021, and indicates the Petition was served on OAH
and Mr. Minick in care of his attorney Mary-Ann Leon:
Matthew Minick c/o Mary-Ann Leon1 The Leon Law Firm, P.C. 704 Cromwell Drive, Suite E Greenville, NC 27858
Nothing in the record indicates the Board attempted to serve the Petition on Mr.
1 “C/o” in a mailing address means the enclosed document is addressed to the first party listed and has been placed “in the care of” the second party listed, to be forwarded to the first party. See, e.g., Huggins v. Hallmark Enterprises, Inc., 84 N.C. App. 15, 17-18, 351 S.E.2d 779, 780-81 (1987) (using “c/o” to send mail to the second listed party, to be directed to the first listed party).
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Minick in any manner other than through his attorney.
On 9 June 2021, Mr. Minick filed a motion to dismiss the Petition because he
was not served but rather only his attorney had been served. Mr. Minick requested
that the Petition be “dismissed for lack of personal jurisdiction” under North Carolina
General Statute § 150B-46.2
The Board filed a response to Mr. Minick’s motion on 25 June 2021. The
response asserted service was adequate because the CCH Petition listed Mr. Minick’s
own name, “by and through his attorney” on the line for his name. Further, Mr.
Minick’s second attorney’s Notice of Appearance filed with OAH directed that any
documents filed should be served on her, not on Mr. Minick:
MARY-ANN LEON, of The Leon Law Firm, P.C., gives notice to the Court of her appearance on behalf of the Petitioner in this matter, MATTHEW J. MINNICK, [sic] and requests all future documents, calendars, or other information relating to this matter, either transmitted by the court or by counsel, be served upon her.
The Board asserted its service upon Ms. Leon was sufficient for personal jurisdiction.
2 Mr. Minick’s motion to dismiss also cited North Carolina Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction but did not cite North Carolina Rule of Civil Procedure 12(b)(5) for insufficiency of service of process. This appears to be a procedural distinction without a difference. In this case, North Carolina General Statute § 150B-46 governs service, but according to our precedent this statute is a jurisdictional rule; failure to effect service pursuant to North Carolina General Statute § 150B-46 deprives the trial court of personal jurisdiction. See, e.g., Tobe-Williams v. New Hanover County Bd. of Educ., 234 N.C. App. 453, 460-61, 759 S.E.2d 680, 687 (2014) (concluding that, although the petitioner failed to serve the petition pursuant to North Carolina General Statute § 150B-46, the respondent board waived the issue of lack of personal jurisdiction by submitting to the jurisdiction of the trial court by arguing the merits of the case at the hearing).
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On 21 September 2021, without findings of fact or conclusions of law, the trial
court granted Mr. Minick’s motion to dismiss:
The Court, having considered the relevant pleadings in this matter, the arguments of the parties’ counsel, and the proffered and other relevant authorities, and, in particular, having reviewed N.C. Gen. Stat. § 150B-46, GRANTS [Mr. Minick’s] Motion to Dismiss.
The Board appealed.
II. Service
The Board contends that by serving Mr. Minick through his attorney, the
service was “consistent with [Mr. Minick’s] own directives in this matter[.]” Mr.
Minick counters that service on his attorney does not satisfy the conditions of North
Carolina General Statute § 150B-46.
A. Standard of Review
We review the Board’s appeal de novo for whether Mr. Minick was properly
served:
Plaintiff asserts the trial court erred by granting Defendant’s motion to dismiss for lack of personal jurisdiction. This Court has previously held “[w]here there is no valid service of process, the court lacks jurisdiction over a defendant, and a motion to dismiss pursuant to Rule 12(b) should be granted.” Davis v. Urquiza, 233 N.C. App. 462, 463-64, 757 S.E.2d 327, 329 (2014) (citation omitted). “On a motion to dismiss for insufficiency of process where the trial court enters an order without making findings of fact, our review is limited to determining whether, as a matter of law, the manner of service of process was correct.” Thomas & Howard Co. v. Trimark Catastrophe Servs., 151 N.C. App. 88, 90, 564 S.E.2d 569, 571 (2002)
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(alteration and citations omitted).
Patton v. Vogel, 267 N.C. App. 254, 256-57, 833 S.E.2d 198, 201 (2019). Further,
questions of statutory interpretation are questions of law also reviewed de novo.
Applewood Properties, LLC v. New South Properties, LLC, 366 N.C. 518, 522, 742
S.E.2d 776, 779 (2013).
B. Service under North Carolina General Statute § 150B-46
Both parties agree that Mr. Minick was to be served pursuant to North
Carolina General Statute § 150B-46 which states in relevant part:
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.
N.C. Gen. Stat. § 150B-46 (2021) (emphasis added).
Strict compliance with the service requirement of North Carolina General
Statute § 150B-46 is necessary for the trial court to acquire personal jurisdiction over
an appeal from an administrative agency:
For seventy years, our Supreme Court has held: 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.
Aetna Better Health of North Carolina, Inc. v. North Carolina Department of Health
and Human Services, 279 N.C. App. 261, 268, 866 S.E.2d 265, 270 (2021) (emphasis
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in original) (citation, quotation marks, and brackets omitted). Service requirements
under North Carolina General Statute § 150B-46 are jurisdictional; a case is properly
dismissed where a party is not properly served. Id. at 269, 866 S.E.2d at 270 (citation
omitted). For the trial court to exercise personal jurisdiction over Mr. Minick, as a
“part[y] of record to the administrative proceedings,” the Board was required to serve
the Petition upon Mr. Minick within 10 days of the Petition being filed with the trial
court, by personal service or certified mail. N.C. Gen. Stat. § 150B-46.
There is no dispute Mr. Minick was a party to the administrative proceeding
and service upon him was required. The dispositive question here is whether service
upon Mr. Minick’s attorney, by certified mail, constitutes service upon Mr. Minick for
purposes of satisfying the jurisdictional prerequisites set forth in North Carolina
General Statute § 150B-46: if so, Mr. Minick was properly served; if not, Mr. Minick
was not properly served.
We first address the parties’ arguments regarding Follum v. North Carolina
State University, 198 N.C. App. 389, 679 S.E.2d 420 (2009), and Butler v. Scotland
County Board of Education, 257 N.C. App. 570, 811 S.E.2d 185 (2018); the cases relied
upon by Mr. Minick in his motion to dismiss the Petition. The Board seeks to
distinguish these cases and asserts “[t]his Court’s holdings in the cases of Follum and
Butler do not support dismissal of the Board’s Petition” because “[t]he facts in Follum
and Butler are inapplicable to this case.” The Board argues that, although the
petitioner in Follum served his petition for judicial review on the respondent’s
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attorney of record in that case, see Follum, 198 N.C. App. at 391, 679 S.E.2d at 421,
and although the petitioner in Butler also served his petition for judicial review upon
the attorney for the respondent, see Butler, 257 N.C. App. at 571, 811 S.E.2d at 187,
these cases are distinguishable from the present case because the Board “did serve
[Mr. Minick] with a copy of its Petition” when the Board “specifically directed its
certified mailing to [Mr. Minick] at his attorney’s address,” (emphasis added),
consistent with Mr. Minick’s “directive” to serve him at his second attorney’s address
as established by his use of his first attorney’s address on the CCH Petition. The
Board also notes Mr. Minick’s motion to dismiss shows Mr. Minick had actual
knowledge of the Petition. Mr. Minick argues both cases are controlling and not
distinguishable. Mr. Minick asserts “[i]n both cases, as here, the dispositive issue
was that the attorney [served] was not the party.” (Brackets added.)
Although both Follum and Butler are cases where the petitioner was the
individual party, and not the respective licensing board or employer, the procedural
posture for both cases is similar. In Follum, the petitioner filed a contested case
petition alleging North Carolina State University (“NCSU”), the respondent, demoted
him without cause and failed to post employment positions he qualified for. Follum,
198 N.C. App. at 390-91, 679 S.E.2d at 421. OAH dismissed the petition after NCSU
filed a motion pursuant to North Carolina Rule of Civil Procedure 12(b) to dismiss for
lack of personal jurisdiction, subject matter jurisdiction, and failure to state a claim.
Id. at 391, 679 S.E.2d at 421. OAH mailed a copy of the decision to Mr. Follum and
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to NCSU’s attorney of record, Ms. Potter. Id.
Mr. Follum then filed a petition for judicial review seeking review of the
decision. Id. Mr. Follum served the petition on NCSU’s attorney but “did not serve
respondent’s process agent nor any other individual employed by respondent.” Id.
NCSU filed a motion to dismiss for insufficiency of process “asserting that petitioner
had failed to properly serve the [p]etition for [j]udicial [r]eview.” Id. Mr. Follum then
served the petition on NCSU’s process agent. Id. at 391, 679 S.E.2d at 421-22. The
trial court held a hearing and concluded, among other issues not applicable to this
appeal, that NCSU’s attorney of record “was not an individual who could properly
receive service.” Id. at 391-92, 679 S.E.2d at 422. Mr. Follum appealed to this Court.
Id. at 392, 679 S.E.2d at 422.
On appeal, Mr. Follum asserted he properly served NCSU the petition by
serving NCSU’s attorney of record, although by the time he later did serve NCSU’s
process agent the petition was untimely. Id. This Court disagreed. Id. After a review
of Davis v. North Carolina Dept. of Human Resources, 126 N.C. App. 383, 485 S.E.2d
342 (1997), aff’d in part, rev’d in part on other grounds, 349 N.C. 208, 505 S.E.2d 77
(1998) (affirmed in part as to issue of service), this Court determined:
that in order to comply with section 150B-46, at the very least, petitioner did have to serve said petition upon a “person at the agency[,]” i.e., a person at the agency that was a party to the administrative proceedings. [Davis, 126 N.C. App.] at 388, 485 S.E.2d at 345. Here, as respondent’s counsel of record, Ms. Potter was charged with representing respondent’s interests; however, Ms. Potter is
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an employee of the Department of Justice and a member of the Attorney General’s staff, not of NCSU. As such, as set out in Davis, Ms. Potter does not qualify as a “person at the agency[,]” and service of the Petition for Judicial Review upon her does not comply with section 150B-46. Id.
Follum, 198 N.C. App. at 394, 679 S.E.2d at 423 (emphasis added). This Court
determined serving a party’s attorney is not sufficient under North Carolina General
Statute § 150B-46. See id.
Mr. Follum also argued, similar to the Board’s argument here, that service in
Follum satisfied North Carolina General Statute § 150B-46 because he was unable
to acquire a physical street address to which he could mail the petition; he was only
able to find a post office box address. Id. Mr. Follum claimed a private letter carrier
would not deliver to a post office box, and a provision of Rule of Civil Procedure 4
therefore allowed service upon NCSU’s attorney. Id. This Court rejected the
argument that service on a party’s attorney was sufficient when a petitioner could
not secure a mailing address for a respondent. Id. First, the issue was controlled by
North Carolina General Statute § 150B-46, not Rule of Civil Procedure 4(j)(4)(c), and
second, the record indicated “petitioner was aware of [NCSU’s process agent’s]
physical street address[.]” Id. at 395, 679 S.E.2d at 424. The Court ultimately
concluded “petitioner’s service of his [p]etition for [j]udicial [r]eview upon Ms. Potter
. . . did not comply with the mandates of section 150B-46 because Ms. Potter is not a
party of record to the administrative proceedings,” id. (emphasis added), even though
she had been “charged with representing [NCSU’s] interests,” id. at 394, 679 S.E.2d
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at 423, and the petitioner failed to serve the petition on any proper party within the
10-day window provided in North Carolina General Statute § 150B-46. Id. at 395,
679 S.E.2d at 424. Service under North Carolina General Statute § 150B-46 requires
service upon a party of record, and not upon an attorney representing the party’s
interests. See id.
This Court’s analysis in Butler is equally instructive. See generally Butler, 257
N.C. App. 570, 811 S.E.2d 185. The petitioner, Mr. Butler, was a career teacher; he
was placed on suspension and the school board later terminated his employment
during a review hearing. Id. at 571, 811 S.E.2d at 187. Mr. Butler filed a “Notice of
Appeal and Petition for Judicial Review” from the hearing before the school board.
Id. The school board filed a motion to dismiss asserting Mr. Butler failed to properly
serve the petition upon the school board. Id. The trial court held a hearing, then
entered an order granting the motion to dismiss, and Mr. Butler appealed to this
Court. Id.
After a brief discussion determining that North Carolina General Statute §
150B-46 controlled the issue of service, this Court concluded that: “It is undisputed
that Butler’s petition failed to comply with N.C. Gen. Stat. § 150B-46 in several
respects. . . . Second, Butler failed to personally serve the Board within ten days of
the filing of the petition by means of either personal service or certified mail.” Id. at
573, 811 S.E.2d at 188. After further review of the applicability of provisions of the
Administrative Procedures Act in school board appeals, this Court, citing Follum, 198
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N.C. App. at 395, 679 S.E.2d at 424, held the petitioner’s “appeal was deficient in”
the same manner because 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. Thus, his petition for judicial review was properly dismissed by the trial court.
Butler, 257 N.C. App. at 578, 811 S.E.2d at 191 (emphasis altered).
While facts of these cases vary, as noted by the Board, the dispositive issue
does not. In each case, the petitioners failed to comply with North Carolina General
Statute § 150B-46 because they failed to personally serve respondents as parties to
the administrative proceedings below but instead served an attorney representing
the respondents. Although service on an attorney of record would be appropriate in
many other types of cases under Rule 4 of the North Carolina Rules of Civil
Procedure, North Carolina General Statute § 150B-46 controls service in this context.
See Davis, 126 N.C. App. at 388, 485 S.E.2d at 345 (“‘[W]here one statute deals with
a particular subject or situation in specific detail, while another statute deals with
the subject in broad, general terms, the particular, specific statute will be construed
as controlling, absent a clear legislative intent to the contrary.’ Nucor Corp. v. General
Bearing Corp., 333 N.C. 148, 154-55, 423 S.E.2d 747, 751 (1992). In the present case,
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
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G.S. 150B-46 is more specific and there is no legislative intent to the contrary, its
terms control.”).
Here, the Board only “served” Mr. Minick by mailing a copy of the Petition to
his attorney’s address. The Board argues that service upon Mr. Minick’s second
attorney was appropriate because Mr. Minick “directed” the Board to do so by listing
his first attorney’s address on the original CCH Petition. The Board argues Mr.
Minick’s decision to print his first attorney’s address on the line labeled “Print your
full address here” on the CCH Petition was a “directive” to serve Mr. Minick at that
address, or apparently any future counsel’s address. In the cases discussed above,
the attorneys who were served all had appeared in the proceedings and were already
representing the respondents, but this Court in each case held service upon the
attorney was not sufficient. See Butler, 257 N.C. App. at 578, 811 S.E.2d at 191;
Follum, 198 N.C. App. at 395, 679 S.E.2d at 424. Thus, the mere appearance of the
attorney as counsel in the case does not constitute a “directive” to serve the attorney
for purposes of North Carolina General Statute § 150B-46. The CCH Petition does
not include any language to indicate that, by printing an address other than his own
on the CCH Petition, Mr. Minick waived the statutory service requirements in North
Carolina General Statute § 150B-46. See Aetna, 279 N.C. App. at 268, 866 S.E.2d at
270 (noting that after the petitioner asserted an agreement existed for counsel to
serve all pleadings via email, “[t]he superior court explicitly rejected these assertions
and found, ‘there was no such agreement’ and ‘with respect to this judicial review
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proceeding in particular, there was no evidence or argument that the Department or
any other party agreed to waive the statutory service requirements necessary to vest
jurisdiction in the superior court for a petition for judicial review’”). The fact that the
Board “directed” the Petition to Mr. Minick after mailing it to his attorney’s office
does not change the fact that the Board only sent a copy of the Petition to Mr. Minick’s
attorney, but not Mr. Minick.3
The Board also noted, “Moreover, [Mr. Minick’s] Motion to Dismiss
acknowledged timely receipt of the Board’s Petition.” But in each case discussed
above, it appears the respondent had actual notice of the petitions for review. See
Butler, 257 N.C. App. at 571, 811 S.E.2d at 187; Follum, 198 N.C. App. at 391, 679
S.E.2d at 421-22. Even if Mr. Minick had actual notice of the Petition, this notice
does not render service upon his attorney compliant with North Carolina General
Statute § 150B-46. See Butler, 257 N.C. App. at 571, 811 S.E.2d at 187; Follum, 198
N.C. App. at 391, 679 S.E.2d at 421-22.
Strict compliance with North Carolina General Statute § 150B-46 is required
for proper service of a party, and without such compliance there is no personal
jurisdiction. Aetna, 279 N.C. App. at 268-69, 866 S.E.2d at 270 (determining service
upon counsel was inadequate to serve a party under North Carolina General Statute
3 There was no dispute regarding Mr. Minick’s address or the Board’s knowledge of his address. The record shows the Board previously served Mr. Minick correspondence related to his license suspension at Mr. Minick’s home address.
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§ 150B-46). Accordingly, the trial court correctly concluded Mr. Minick was not
properly served and thus granted his motion to dismiss.
III. Conclusion
Service upon Mr. Minick’s attorney did not satisfy the North Carolina General
Statute § 150B-46 service requirement. We affirm the trial court’s order granting
Mr. Minick’s motion to dismiss.
AFFIRMED.
Judges MURPHY and GORE concur.
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