N.C. State Bd. of Educ. v. Minick

890 S.E.2d 193

NORTH CAROLINA STATE BOARD OF EDUCATION, Petitioner, v. Matthew J. MINICK, Respondent.

No. COA22-303

Court of Appeals of North Carolina.

Filed June 20, 2023

Attorney General Joshua H. Stein, by Special Deputy Attorney General Zach Padget, for petitioner-appellant.

Mary-Ann Leon, Greenville, for respondent-appellee.

The McGuinness Law Firm, Elizabethtown, 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. 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 Leon ¹ 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. 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.

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) (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 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 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 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...