{ "id": 8373379, "name": "ALLIED ENVIRONMENTAL SERVICES, PLLC and DEANS OIL COMPANY, INC. Petitioners-Appellants v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL AND NATURAL RESOURCES, DIVISION OF WASTE MANAGEMENT Respondent-Appellee", "name_abbreviation": "Allied Environmental Services, PLLC v. North Carolina Department of Environmental & Natural Resources", "decision_date": "2007-11-20", "docket_number": "No. COA06-1148", "first_page": "227", "last_page": "235", "citations": [ { "type": "official", "cite": "187 N.C. App. 227" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "426 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549177 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0318-01" ] }, { "cite": "573 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "549" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249637 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/155/0205-01" ] }, { "cite": "593 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917729 ], "year": 2004, "pin_cites": [ { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-215", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "299 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "632" } ], "opinion_index": 1 }, { "cite": "307 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564174 ], "year": 1983, "pin_cites": [ { "page": "568" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0563-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 84-4.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 1 }, { "cite": "321 S.E.2d 908", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "312 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757859, 4758663, 4750349, 4757427, 4754523 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/312/0089-03", "/nc/312/0089-05", "/nc/312/0089-02", "/nc/312/0089-04", "/nc/312/0089-01" ] }, { "cite": "315 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "791" } ], "opinion_index": 1 }, { "cite": "68 N.C. App. 754", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527947 ], "year": 1984, "pin_cites": [ { "page": "756" } ], "opinion_index": 1, "case_paths": [ "/nc-app/68/0754-01" ] }, { "cite": "341 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "522", "parenthetical": "holding that representation of an insured by an attorney employed by the insurer violates N.C. Gen. Stat. \u00a7 84-5" } ], "opinion_index": 1 }, { "cite": "316 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702150 ], "year": 1986, "pin_cites": [ { "page": "293", "parenthetical": "holding that representation of an insured by an attorney employed by the insurer violates N.C. Gen. Stat. \u00a7 84-5" } ], "opinion_index": 1, "case_paths": [ "/nc/316/0285-01" ] }, { "cite": "358 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "89", "parenthetical": "\"[T]he main purpose of [N.C. Gen. Stat. \u00a7 84-5] is to prohibit corporations from performing legal services for others. (Emphasis in original.)" } ], "opinion_index": 1 }, { "cite": "86 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134453 ], "year": 1987, "pin_cites": [ { "page": "472", "parenthetical": "\"[T]he main purpose of [N.C. Gen. Stat. \u00a7 84-5] is to prohibit corporations from performing legal services for others. (Emphasis in original.)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/86/0469-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(2)" }, { "page": "(2)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 84-2.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 84-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 10, "year": 2005, "pin_cites": [ { "parenthetical": "emphasis added." }, { "page": "208" } ], "opinion_index": 1 }, { "cite": "426 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "holding that the one-year statute of limitations under N.C. Gen. Stat. \u00a7 1-54(2) does not apply to administrative assessment of civil penalties pursuant to N.C. Gen. Stat. \u00a7 113A-64(a" } ], "opinion_index": 1 }, { "cite": "333 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549177 ], "year": 1993, "pin_cites": [ { "parenthetical": "holding that the one-year statute of limitations under N.C. Gen. Stat. \u00a7 1-54(2) does not apply to administrative assessment of civil penalties pursuant to N.C. Gen. Stat. \u00a7 113A-64(a" } ], "opinion_index": 1, "case_paths": [ "/nc/333/0318-01" ] }, { "cite": "573 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "549" } ], "opinion_index": 1 }, { "cite": "155 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249637 ], "weight": 2, "year": 2002, "opinion_index": 1, "case_paths": [ "/nc-app/155/0205-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-215", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "opinion_index": 1 } ], "analysis": { "cardinality": 798, "char_count": 21354, "ocr_confidence": 0.745, "pagerank": { "raw": 1.0873401050065135e-07, "percentile": 0.5643485392391603 }, "sha256": "a5530d3d988a91fd3c0a6f2fb448cb2fa495c70f3c4d99bc419dc8c52b6134ef", "simhash": "1:890873e030398b50", "word_count": 3419 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCullough concurs.", "Judge STROUD concurs with a separate opinion." ], "parties": [ "ALLIED ENVIRONMENTAL SERVICES, PLLC and DEANS OIL COMPANY, INC. Petitioners-Appellants v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL AND NATURAL RESOURCES, DIVISION OF WASTE MANAGEMENT Respondent-Appellee" ], "opinions": [ { "text": "CALABRIA, Judge.\nAllied Environmental Services, PLLC (\u201cAllied Environmental\u201d), and Deans Oil Company, Inc. (\u201cDeans Oil Company\u201d) (collectively \u201cappellants\u201d) appeal from an order entered 22 May 2006. We reverse the trial court and remand for further proceedings.\nDeans Oil Company is the owner of a property located on Highway 121 North in Farmville, Pitt County, known as the Hustle Mart No. 3 (\u201cthe site\u201d). Petroleum contamination originating from previously removed underground storage tanks was discovered at the site in June of 1996. Deans Oil Company hired Allied Environmental to clean up the contaminated land. Following the cleanup, appellants applied for and received reimbursement in the amount of $33,410.15 from the North Carolina Commercial Leaking Underground Storage Tank Cleanup Fund (\u201cTrust Fund\u201d).\nThe Leaking Petroleum Underground Storage Tank Cleanup Act was enacted by the General Assembly 30 June 1988 to provide reimbursement to landowners as well as owners and operators of underground storage tanks containing petroleum for costs associated with cleaning up petroleum discharges from the underground tanks. N.C. Gen. Stat. \u00a7 143-215.94A (2005), et seq. On 3 May 2004, the North Carolina Department of Environmental and Natural Resources, Division of Waste Management (\u201cappellee\u201d), sent a letter notifying the appellants that appellee was retracting the eligibility for reimbursement from the Trust Fund for cleanup costs and demanded repayment from Deans Oil Company to the Trust Fund for all the costs received from appellee as a reimbursement. In a letter dated 10 June 2004, Allied Environmental as agent and Deans Oil Company, requested a contested case hearing to appeal the retraction of eligibility. The request was made within sixty days of receiving notice of the retraction as required by N.C. Gen. Stat. \u00a7 150B-23(f) (2003).\nOn 16 July 2004, appellee filed a motion to dismiss the contested case petition on the grounds that the Office of Administrative Hearings (\u201cOAH\u201d) lacked subject matter jurisdiction over the dispute alleging Allied Environmental was not a proper party pursuant to the Statute to represent Deans Oil Company. On 15 October 2004, appellants, through legal counsel, filed and served a motion to amend the contested case petition. Administrative Law Judge Fred G. Morrison, Jr. (\u201cJudge Morrison\u201d) entered a final decision dismissing the claim on 30 December 2004 (\u201cFinal Order\u201d). On 21 January 2005, appellants petitioned for judicial review in Pitt County Superior Court. On 22 May 2006 Judge Thomas D. Haigwood affirmed Judge Morrison\u2019s Final Order. From that order, appellants appeal.\nOn appeal appellants argue the trial court erred by affirming the administrative law judge\u2019s order dismissing the appellants\u2019 petition for a contested case hearing on the grounds that the petition was not signed by a proper party. We agree.\nThe issue of \u201cwhether a [] court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo.\u201d Ales v. T.A. Loving Co., 163 N.C. App. 350, 352, 593 S.E.2d 453, 455 (2004). The North Carolina Administrative Code establishes that an \u201cowner or operator or landowner who has been denied eligibility for reimbursement from the appropriate fund\u201d has the statutory right to petition for a contested case in the Office of Administrative Hearings. 15A N.C.A.C. 2P.0407(b) (2007); N.C. Gen. Stat. \u00a7 143-215.94E (e2) (2005). The code states that the petition must be in accordance with N.C. Gen. Stat. \u00a7 150B-23 (2005), which states: \u201c[a] petition shall be signed by a party or a representative of the party. . . .\u201d 15A N.C.A.C. 2P.0407(b) (2007).\nHere, the petition was signed by Brian Gray (\u201cGray\u201d), president of Allied Environmental, as agent for Deans Oil Company. Thus, the issue before this Court is whether the term \u201crepresentative\u201d is limited to attorneys or whether it is broad enough to include non-attorney agents.\nAppellee contends Gray could not act as agent for Deans Oil Company in signing the petition because Deans Oil Company is a corporation and corporations can only be represented by an attorney. Lexis-Nexis v. Travishan Corp., 155 N.C. App. 205, 573 S.E.2d 547 (2002). In Lexis-Nexis, we determined that a corporation must be represented by counsel and cannot appear pro se. In that case, we stated three exceptions apply to the general rule: 1) an employee of a corporate entity may prepare legal documents; 2) a corporation may appear pro se in small claims court; and 3) a corporation may make an appearance through a corporate officer in order to avoid default. Id. at 208-09, 573 S.E.2d at 549. Since none of those exceptions apply in this case, it appears that Gray could not represent Deans Oil Company in any legal proceedings.\nHowever, Lexis-Nexis dealt with representation in the context of North Carolina\u2019s general courts of justice, not in the context of administrative hearings. We have previously recognized that administrative hearings are separate and distinct from judicial proceedings. Ocean Hill Joint Venture v. N.C. Dept. of E.H.N.R., 333 N.C. 318, 426 S.E.2d 274 (1993). As such, we determine that the rule articulated in Lexis-Nexis is wholly inapplicable to most appeals arising before the OAH.\nWhile some administrative appeals, such as Property Tax Commission appeals, specifically require licensed attorneys to represent corporations, see 17 N.C.A.C. 11.0217 (2007), there is no general rule in the administrative code requiring corporations to be represented by counsel at administrative hearings. In fact, the applicable rule states: \u201c[a] party need not be represented by an attorney.\u201d 26 N.C.A.C. 3.0120(e) (2007). This rule makes no distinction between individuals and corporations and inherently contemplates that corporations may be represented by non-attorneys.\nAdditionally, it is clear to us that the term \u201crepresentative\u201d as used in N.C. Gen. Stat. \u00a7 150B-23 is not coterminous with the term \u201cattorney.\u201d Black\u2019s Law Dictionary defines \u201crepresentative\u201d as \u201c[o]ne who stands for or acts on behalf of another . . . .\u201d Black\u2019s Law Dictionary 1304 (7th ed. 1999). The legislature, in drafting N.C. Gen. Stat. \u00a7 150B-23, could have chosen the word \u201cattorney,\u201d but instead chose \u201crepresentative,\u201d a word whose plain meaning is broader than \u201cattorney.\u201d\nOther sections of the administrative code shed light on the legislature\u2019s choice of the word \u201crepresentative\u201d as well.\nIn the event that any party or attorney at law or other representative of a party engages in behavior that obstructs the orderly conduct of proceedings or would constitute contempt if done in the General Court of Justice, the administrative law judge presiding may enter a show cause order returnable in Superior Court for contempt proceedings. . . .\n26 N.C.A.C. 3.0114(b) (2007) (emphasis supplied). Likewise, 26 N.C.A.C. 3.0118 (2007) speaks of a \u201crepresentative or attorney of. a party\u201d in defining certain terms. These sections indicate that the legislature intended for parties to be represented before the OAH by attorneys and non-attorney representatives. If the General Assembly\u2019s intent is otherwise, it retains the ability to amend the statute accordingly.\nSince we determined that the trial court erred in affirming the administrative law judge\u2019s decision to dismiss the appeal for lack of subject matter jurisdiction, we need not address appellants\u2019 remaining argument that the court erred in affirming the administrative law judge\u2019s decision to deny appellants\u2019 motion to amend their petition. The judgment of the trial court is reversed and the case remanded for additional proceedings consistent with this opinion.\nReversed.\nJudge McCullough concurs.\nJudge STROUD concurs with a separate opinion.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "STROUD, Judge,\nconcurring.\nI would also reverse the order of the superior court affirming the Final Order of Dismissal, but on different grounds, because I believe the majority, perhaps inadvertently, permits the unauthorized practice of law by a corporation, in violation of N.C. Gen. Stat. \u00a7 84-5 (2005).\nThe majority opinion defines the issue as \u201cwhether the term \u2018representative\u2019 is limited to attorneys or whether it is broad enough to include non-attorney agents.\u201d I believe the issue is whether the North Carolina Administrative Code (N.C.A.C.) can create an exception to N.C. Gen. Stat. \u00a7 84-5 and N.C. Gen. Stat. \u00a7 84-2.1, which expressly forbid a corporation from filing a petition with an administrative tribunal on behalf of any other corporation. Because I conclude that the N.C.A.C. cannot create such an exception, I concur in the result only. I would reverse the order of the superior court affirming the dismissal of the petition on the grounds that the petition was not signed by a proper party, but on the basis that even though the petition was defective, respondent needed to move to strike the petition in order to prevail, which it did not do.\nPursuant to N.C. Gen. Stat. \u00a7 143-215.94E(e2) (2005), only the owner or operator has the right to appeal the denial of a claim for reimbursement under the Leaking Petroleum Underground Storage Tank Cleanup Fund (\u201cTrust Fund\u201d) Act (N.C. Gen. Stat. \u00a7 143-215.94A-94N). The Trust Fund Act further provides that such an appeal is governed by \u201cArticle 3 of Chapter 150B of the General Statutes,\u201d N.C. Gen. Stat. \u00a7 143-215.94E(e2), thereby making such an appeal a petition for a \u201ccontested case,\u201d N.C. Gen. Stat. \u00a7 150B-23(a) (2005). As correctly noted by the majority opinion, a petition for a contested case must be signed by \u201ca party or a representative of the party.\u201d Id.\nThe majority relies on secondary legal sources and on various provisions in the North Carolina Administrative Code which refer to a \u201crepresentative,\u201d to define the meaning of \u201crepresentative\u201d in N.C. Gen. Stat. \u00a7 150B-23(a). From that definition, the majority reasons that Allied Environmental Services (\u201cAllied\u201d), acting as an \u201cagent\u201d for Deans Oil Company (\u201cDeans Oil\u201d), could file a petition as the \u201crepresentative\u201d of Deans Oil, thereby rendering Allied a proper party to sign the petition in the case sub judice.\nDeans Oil is the owner of the site in question, and respondent concedes that Deans Oil, as owner of the site, was a proper party to file the petition for a contested case. Allied is a separate entity from Deans Oil, identified as a PLLC (professional limited liability company), with no standing as the owner or operator under the Trust. Fund Act. I note at the outset that the record does not contain any contract or agreement between Deans Oil and Allied. The record does contain a letter from Brian E. Gray, President, Allied Environmental Services, PLLC, on Allied letterhead, to the Office of Administrative Hearings, in which Allied requests a contested hearing, reading in its entirety:\nAllied Environmental Services, PLLC as. agent and Deans Oil Company are requesting a hearing for the appeal of eligibility retraction status for the above referenced site. Both parties wish to be present and heard at the hearing. Please schedule the hearing enough in advance so that both parties can attend.\nThe letter does not state that Allied is acting as a \u201crepresentative\u201d for Deans Oil. The letter includes the words \u201cas agent\u201d but does not say for whom Allied is an agent. It states that \u201cboth parties\u201d are requesting a hearing, not that only Deans Oil is requesting a hearing, through its representative. In spite of these potential deficiencies, I agree with the majority in construing the letter as Allied filing a petition for a contested case hearing as representative of Deans Oil.\n\u201cIt shall be unlawful for any corporation to practice law or appear as an attorney.\u201d N.C. Gen. Stat. \u00a7 84-5 (2005) (emphasis added.) Under N.C. Gen. Stat. \u00a7 84-2.1 (2005), the term \u201cpractice law\u201d is defined to include \u201cperforming any legal service for any other person, firm, or corporation, with or without compensation, specifically including . . . the preparation and filing of petitions for use in any court, including administrative tribunals and other judicial or quasi-judicial bodies.\u201d (Emphasis added.) Clearly, the preparation and filing of a petition before an administrative tribunal on behalf of another is the practice of law.\nDespite the differences between administrative tribunals and courts for purposes of a statute of limitations in Ocean Hill Joint Venture v. N. C. Dept of E.H.N.R., 333 N.C. 318, 426 S.E.2d 274 (1993) (holding that the one-year statute of limitations under N.C. Gen. Stat. \u00a7 1-54(2) does not apply to administrative assessment of civil penalties pursuant to N.C. Gen. Stat. \u00a7 113A-64(a) because the statute of limitations applies only to an \u201caction or proceeding\u201d in the general court of justice), noted in the majority opinion, the definition of practicing] law specifically includes filing petitions before administrative tribunals and quasi-judicial bodies. The difference between the case sub judice and Ocean Hill Joint Venture is that N.C. Gen. Stat. \u00a7 84-2.1 specifically applies to \u201cadministrative tribunals and other . . . quasi-judicial bodies,\u201d whereas N.C. Gen. Stat. \u00a7 1-54(2) (2005) specifically applies only to an \u201caction or proceeding\u201d before the general court of justice.\nIn addition, the majority opinion states that the rule established by Lexis-Nexis v. Travishan Corp., 155 N.C. App. 205, 573 S.E.2d 547 (2002) does not apply in the context of administrative hearings. In Lexis-Nexis, this Court reversed a trial court order denying a motion to strike an answer and counterclaim when the corporate defendant was represented by its- president and sole shareholder, not by a licensed attorney, in filing the answer and counterclaim. Id. Applying N.C. Gen. Stat. \u00a7 84-5, this Court held that a corporation must be represented by a licensed attorney and cannot appear pro se, noting three exceptions which had already been recognized by our appellate courts: (1) an employee of a corporation may prepare legal documents in furtherance of the corporation\u2019s own business; (2) an employee of a corporation may appear on behalf of the corporation in small claims court; and (3) a corporation may make an appearance in court through a corporate officer to avoid default. Id. at 208, 573 S.E.2d at 549. Only in those three instances may an employee or officer of a corporation, acting on behalf of the corporation, engage in the practice of law in North Carolina. I note that those exceptions all involve an employee or officer acting on behalf of his own corporation, and none of them involve, as in the case sub judice, one corporation acting on behalf of another.\nLexis-Nexis did not include an exception allowing a corporation to \u201cprepar[e] and fil[e] petitions for use in any . . . administrative tribunals\u201d on behalf of another corporation because that is specifically prohibited by N.C. Gen. Stat. \u00a7 84-2.1 and N.C. Gen. Stat. \u00a7 84-5. I do not believe \u00a7 84-5 and Lexis-Nexis even allow an employee of a corporation to file a petition with an administrative tribunal on behalf of the corporation which employs him, let alone as an employee of one corporation acting on behalf of another corporation. See Duke Power Co. v. Daniels, 86 N.C. App. 469, 472, 358 S.E.2d 87, 89 (1987) (\u201c[T]he main purpose of [N.C. Gen. Stat. \u00a7 84-5] is to prohibit corporations from performing legal services for others. (Emphasis in original.)). Additionally, North Carolina has a strong public policy preference in favor of personal, as opposed to corporate, representation. Gardner v. N. C. State Bar, 316 N.C. 285, 293, 341 S.E.2d 517, 522 (1986) (holding that representation of an insured by an attorney employed by the insurer violates N.C. Gen. Stat. \u00a7 84-5).\nThe majority opinion, perhaps inadvertently, creates a fourth exception to N.C. Gen. Stat. \u00a7 84-5 in addition to the Lexis-Nexis rule, and permits corporations to practice law on behalf of other corporations before administrative tribunals. The majority opinion cites 26 N.C.A.C. 3.0120(e), which states that \u201c[a] party need not be represented by an attorney\u201d for the proposition that since a party to an administrative contested hearing is not required to be represented by an attorney, that corporations may be represented by a \u201cnon-attorney representative.\u201d The majority misinterprets the rule as saying that \u201ca corporation may be represented by a non-attorney representative,\u201d including another corporation, in an administrative proceeding. But N.C. Gen. Stat. \u00a7 84-2.1 provides that representation before an administrative tribunal is the practice of law, expressly prohibited to corporations by \u00a7 84-5. The majority has thus permitted a rule in the administrative code to overrule a statute enacted by our legislature. I see no basis for holding that a rule in the administrative code, which is clearly intended to permit parties who are otherwise permitted by law to appear pro se, to appear pro se, permits the unauthorized practice of law by a corporation.\nI find no precedent for a corporation being permitted to file a petition on behalf of another corporation in a contested administrative hearing, and conclude that this practice violates N.C. Gen. Stat. \u00a7 84-5. However, I do concur in the result, because I believe respondent did not take the proper procedural step to prevail in this case. I would therefore affirm the order of the superior court for the reason that follows.\nThe original, albeit defective, petition which was filed in this case by Allied on behalf of Deans Oil is not a nullity, and therefore not ripe for dismissal. \u201cA pleading which is a nullity has absolutely no legal force or effect, and may be treated by the opposing party as if it had not been filed.\u201d Theil v. Detering, 68 N.C. App. 754, 756, 315 S.E.2d 789, 791, disc. review denied, 312 N.C. 89, 321 S.E.2d 908 (1984). However, this Court has held that a complaint filed by an attorney who was not licensed to practice law in North Carolina, in violation of N.C. Gen. Stat. \u00a7 84-4.1, was not a nullity and the complaint was effective to toll the statute of limitations, where the plaintiff later retained counsel who was licensed in the State of North Carolina. Id. The petition by Allied was filed, and respondent did not file a motion to strike the petition, which would have been necessary to avoid its effect. N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 568, 299 S.E.2d 629, 632 (1983); Lexis-Nexis v. Travishan Corp., 155 N.C. App. 205, 573 S.E.2d 547 (2002).\nFor the foregoing reasons, I respectfully concur in the result only, reversing the order of the superior court which affirmed the dismissal of the petition for a contested case hearing by the administrative law judge. I acknowledge that my concurrence is based on technical procedural grounds, but I believe that is the result which is compelled by Thiel v. Detering and N.C.N.B. v. Virginia Carolina Builders.\n. N.C. Gen. Stat. \u00a7 143-215.94A(8) defines \u201coperator\u201d as \u201cany person in control of, or having responsibility for, the operation of an underground storage tank.\u201d\n. N.C. Gen. Stat. \u00a7 143-215.94A(9) defines \u201cowner\u201d as:\nIn the case of an underground storage tank in use on 8 November 1984, or brought into use after that date, any person who owns an underground storage tank used for the storage, use, or dispensing of petroleum products; and [i]n the case of an underground storage tank in use before 8 November 1984, but no longer in use on or after that date, any person who owned such tank immediately before the discontinuation of its use.\n. I note that Allied may have had its own right as a \u201cprovider of service\u201d to receive reimbursement (although not standing to bring the claim) pursuant to 15A N.C.A.C. 2P.0405(a), which provides that \u201c[reimbursement for cleanup costs shall be made only to an owner or operator or landowner of a petroleum underground storage tank, or jointly to an owner or operator or landowner and a provider of service.\u201d However, pursuant to 15A N.C.A.C. 2P.0405(c), \u201c[j]oint reimbursement of cleanup costs shall be made to an owner or operator or landowner and a provider of service only upon receipt of a written agreement acknowledged by both parties. Any reimbursement check shall be sent directly to the owner or operator or landowner.\u201d (Emphasis added.) The record does not contain any such agreement between Deans Oil and Allied.", "type": "concurrence", "author": "STROUD, Judge," } ], "attorneys": [ "Simonsen Law Firm, P.G., by Lars P. Simonsen, forpetitioners-appellants.", "Attorney General Roy Cooper, by Assistant Attorney General Kimberly Duffley, for respondent-appellee." ], "corrections": "", "head_matter": "ALLIED ENVIRONMENTAL SERVICES, PLLC and DEANS OIL COMPANY, INC. Petitioners-Appellants v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL AND NATURAL RESOURCES, DIVISION OF WASTE MANAGEMENT Respondent-Appellee\nNo. COA06-1148\n(Filed 20 November 2007)\nAdministrative Law\u2014 petition \u2014 corporations\u2014not required to be represented by attorney\nThere is no general rule in the administrative code requiring corporations to be represented by counsel at administrative hearings, and the trial court erred by affirming an administrative law judge\u2019s decision to dismiss for lack of subject matter jurisdiction because the petition was signed by a noh-attomey agent of petitioner.\nJudge STROUD concurring.\nAppeal by petitioners from order entered 22 May 2006 by Judge Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of Appeals 28 March 2007.\nSimonsen Law Firm, P.G., by Lars P. Simonsen, forpetitioners-appellants.\nAttorney General Roy Cooper, by Assistant Attorney General Kimberly Duffley, for respondent-appellee." }, "file_name": "0227-01", "first_page_order": 257, "last_page_order": 265 }