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

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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Opinion of the Court

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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N.C. STATE BD. OF EDUC. V. MINICK

Opinion of the Court

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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Opinion of the Court

(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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

§ 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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