{ "id": 4168485, "name": "WARREN R. FOLLUM, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent", "name_abbreviation": "Follum v. North Carolina State University", "decision_date": "2009-07-21", "docket_number": "No. COA08-1291", "first_page": "389", "last_page": "395", "citations": [ { "type": "official", "cite": "198 N.C. App. 389" } ], "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": "673 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12643047, 12643048, 12643049, 12643050, 12643051, 12643052, 12643053, 12643054, 12643055, 12643056, 12643057 ], "opinion_index": 0, "case_paths": [ "/se2d/673/0884-03", "/se2d/673/0884-01", "/se2d/673/0884-02", "/se2d/673/0884-04", "/se2d/673/0884-05", "/se2d/673/0884-06", "/se2d/673/0884-07", "/se2d/673/0884-08", "/se2d/673/0884-09", "/se2d/673/0884-10", "/se2d/673/0884-11" ] }, { "cite": "363 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "195 N.C. App. 785", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 }, { "cite": "423 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "751" } ], "opinion_index": 0 }, { "cite": "333 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550326 ], "year": 1992, "pin_cites": [ { "page": "154-55" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0148-01" ] }, { "cite": "505 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571572 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0208-01" ] }, { "cite": "485 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1997, "pin_cites": [ { "page": "345" }, { "parenthetical": "alteration in original" }, { "page": "345-46" }, { "page": "388" }, { "page": "345" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710839 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0383-01" ] } ], "analysis": { "cardinality": 525, "char_count": 14691, "ocr_confidence": 0.72, "pagerank": { "raw": 1.0599897330993742e-07, "percentile": 0.5568336223463222 }, "sha256": "1cc16408d56f73a61258076ef8b60731bcc5d0ca8188d5ab73eaa738e48f4ee8", "simhash": "1:2868f144351aaefb", "word_count": 2361 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BEASLEY concur." ], "parties": [ "WARREN R. FOLLUM, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nPetitioner, Warren R. Follum (\u201cpetitioner\u201d) appeals pro se from an order entered 18 June 2008 by Judge Michael R. Morgan in Wake County Superior Court, which granted respondent North Carolina State University\u2019s \u201cMotion to Dismiss\u201d based on insufficiency of process and dismissed \u201cPetitioner\u2019s Petition for Judicial Review\u201d with prejudice. After careful review, we affirm.\nI. Background\nOn 26 November 2007, petitioner filed a \u201cPetition for Contested Case Hearing\u201d in the Office of Administrative Hearings (\u201cOAH\u201d) asserting that, in violation of the State Personnel Act, respondent North Carolina State University (\u201crespondent\u201d or \u201cNCSU\u201d): (1) demoted him without just cause in June and November 2006 respectively; and (2) failed to adequately post two employment positions for Director of Capital Design and Director of Capital Design and Construction. Petitioner further alleged that respondent took these actions against him based on his age and sex.\nOn 19 December 2007, respondent filed a \u201cMotion to Dismiss and Motion to Stay Proceedings\u201d based on: (1) lack of personal jurisdiction; (2) lack of subject matter jurisdiction; and (3) failure to state a claim. On 26 February 2008, Administrative Law Judge Joe L. Webster (\u201cAU Webster\u201d) entered a \u201cFinal Decision Order of Dismissal],]\u201d which dismissed petitioner\u2019s Petition for Contested Case Hearing with prejudice \u201con the grounds set forth in [respondent\u2019s] Motion to Dismiss].]\u201d On the same date, OAH mailed a copy of AU Webster\u2019s final decision/order to petitioner and to respondent\u2019s attorney of record, Kimberly D. Potter (\u201cMs. Potter\u201d).\nOn 11 March 2008, petitioner filed a Petition for Judicial Review in Wake County Superior Court seeking review of AU Webster\u2019s 26 February 2008 final decision/order. On the same date, petitioner served the Petition for Judicial Review and a civil summons on Ms. Potter; however, he did not serve respondent\u2019s process agent nor any other individual employed by respondent.\nOn 1 April 2008, respondent filed a \u201cMotion to Dismiss\u201d the Petition for Judicial Review for insufficiency of process pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(4) (2007), asserting that petitioner had failed to properly serve the Petition for Judicial Review. On 2 April 2008, petitioner served the Petition for Judicial Review, the civil summons and a \u201cGeneral Civil Action Cover Sheet\u201d on respondent\u2019s process agent, Mary Elizabeth Kurz (\u201cMs. Kurz\u201d).\nOn 30 May 2008, a hearing was held in which the parties solely addressed the insufficiency of process issue. Respondent asserted, inter alia, that N.C. Gen. Stat. \u00a7 1A-1, Rule 4 (2007) controlled this issue and that petitioner was required to serve his Petition for Judicial Review upon respondent\u2019s process agent, which he had failed to do in a timely manner. Petitioner contended that the issue was controlled by N.C. Gen. Stat. \u00a7 150B-46 (2007) and that he had complied with the statute by serving his Petition for Judicial Review upon Ms. Potter and Ms. Kurz. After extensively examining this Court\u2019s opinion in Davis v. N.C. Dept. of Human Resources, 126 N.C. App. 383, 485 S.E.2d 342, (1997), aff\u2019d in part and rev\u2019d in part on other grounds, 349 N.C. 208, 505 S.E.2d 77 (1998), the trial court concluded, inter alia, that: (1) section 150B-46, not Rule 4, controlled the issue of what constitutes proper service of a petition for judicial review of a final administrative/agency decision; (2) pursuant to section 150B-46 and Davis, Ms. Potter \u201cwas not an individual who could properly receive service\u201d; and (3) pursuant to section 150B-46, the 2 April 2008 service, upon Ms. Kurz was not timely. Consequently, the court entered an 18 June 2008 order granting respondent\u2019s motion to dismiss based upon petitioner\u2019s failure to properly serve his Petition for Judicial Review in accordance with section 150B-46. Petitioner appeals.\nII. Analysis\nOn appeal, petitioner asserts that he properly served respondent with his Petition for Judicial Review in accordance with section 150B-46 and Rules 4 and 5 of the North Carolina Rules of Civil Procedure. Consequently, he contends that the trial court erred in granting respondent\u2019s motion to dismiss his Petition for Judicial Review. As discussed infra, we disagree.\nThis Court\u2019s opinion in Davis is clear that section 150B-46 controls the issue before us. Id. at 388, 485 S.E.2d at 345. In that case, this Court addressed whether the petitioner properly served the respondent agency, the North Carolina Department of Human Resources, with his petition for judicial review when he served said petition on the Secretary of the Department of Human Resources and not the agency\u2019s registered process agent. Id. The respondent asserted that, in accordance with Rule 4 of the North Carolina Rules of Civil Procedure, a petitioner seeking judicial review from a final agency decision was required to serve his petition for judicial review on the agency\u2019s process agent. Id. This Court disagreed and determined that section 150B-46, not Rule 4, was the controlling law. Specifically, this Court concluded:\n\u201c[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.\u201d 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 G.S. 150B-46 is more specific and there is no legislative intent to the contrary, its terms control. If the General Assembly had intended that petitions for judicial review be served only upon an agency\u2019s process agent, it could have put language mimicking that of Rule 4 in G.S. 150B-46. It did not.\nId. (alteration in original) (quoting Nucor Corp. v. General Bearing Corp., 333 N.C. 148, 154-55, 423 S.E.2d 747, 751 (1992)).\nSection 150B-46 provides in pertinent part:\nThe petition [for judicial review] shall explicitly state what exceptions are taken to the decision or procedure and what relief the petitioner seeks. 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. Any party to the administrative proceeding is a party to the review proceedings unless the party withdraws by notifying the court of the withdrawal and serving the other parties with notice of the withdrawal. Other parties to the proceeding may file a response to the petition within 30 days of service. Parties, including agencies, may state exceptions to the decision or procedure and what relief is sought in the response.\nN.C. Gen. Stat. \u00a7 150B-46 (emphasis added). Hence, according to section 150B-46, a petitioner seeking judicial review of an agency decision must serve his petition for judicial review upon all \u201cparties of record to the administrative proceedings\u201d within ten days of filing said petition with the trial court. Id.\nRespondent asserts that petitioner did not comply with section 150B-46 because: (1) Ms. Potter is neither an employee of NCSU nor a party to the administrative proceedings; and (2) petitioner did not serve any of respondent\u2019s employees until he served Ms. Kurz on 2 April 2008, which was outside the ten-day window mandated by section 150B-46. We agree.\nIn Davis, this Court determined that the petitioner had complied with section 150B-46 by serving his petition for judicial review \u201cupon C. Robin Britt, Secretary of the Department of Human Resources, the person at the agency to whom the Office of Administrative Hearing sent copies of its orders during the administrative proceeding].]\u201d Davis, 126 N.C. App. at 388, 485 S.E.2d at 345-46. While Davis is clear that, in the instant case, petitioner did not have to serve his Petition for Judicial Review upon respondent\u2019s process agent, Ms. Kurz, it is equally clear that in order to comply with section 150B-46, at the very least, petitioner did have to serve said petition upon a \u201cperson at the agency[,]\u201d i.e., a person at the agency that was a party to the administrative proceedings. Id. at 388, 485 S.E.2d at 345. Here, as respondent\u2019s counsel of record, Ms. Potter was charged with representing respondent\u2019s interests; however, Ms. Potter is an employee of the Department of Justice and a member of the Attorney General\u2019s staff, not of NCSU. As such, as set out in Davis, Ms. Potter does not qualify as a \u201cperson at the agency[,]\u201d and service of the Petition for Judicial Review upon her does not comply with section 150B-46. Id.\nNevertheless, petitioner asserts that the 11 March 2008 service of his Petition for Judicial Review upon Ms. Potter complied with section 150B-46 because when he requested the address for respondent\u2019s registered agent from the Attorney General\u2019s office, he was only provided with a post office box and not a physical street address. Petitioner notes that without a physical street address, he was unable to effectuate service via his preferred method of certified mail from a private letter carrier, such as Federal Express, because private letter carriers will not deliver certified mail to post office boxes. Petitioner claims, as he did below, that respondent denied him the right to serve his Petition for Judicial Review by certified mail via a private letter carrier. As a result, he contends that the service of the Petition for Judicial Review upon Ms. Potter, who is an assistant attorney general, complied with section 150B-46 because pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j)(4)(c), where an agency fails to file with the Attorney General the name and address of an agent upon whom process may be served, service may be made upon the Attorney General or an assistant attorney general. We disagree.\nAt the outset, we note that petitioner does not cite any case law in support of his argument, nor does he base his argument upon section 150B-46; rather, he bases his argument entirely upon Rule 4. Nevertheless, section 150B-46 does provide that names and addresses of the parties of record to the administrative proceedings must be given \u201cto the petitioner by the agency upon request.\u201d N.C. Gen. Stat. \u00a7 150B-46.\nIn the instant case, nothing in the record demonstrates that petitioner requested respondent\u2019s address directly from respondent or that respondent agency itself failed to provide him with it; rather, petitioner requested the address of respondent\u2019s process agent from the Attorney General\u2019s office. In addition, while respondent concedes that a private letter carrier will not deliver certified mail to a post office box, a post office box is an address, and petitioner does not cite a single case to support the argument that either section 150B-46 or N.C.R. Civ. P. 4(j)(4) require an agency to provide a physical street address and/or that a petitioner\u2019s choice to effectuate service by certified'mail via a private letter carrier renders the service of a petition for judicial review upon an agency\u2019s attorney of record in compliance with section 150B-46. Furthermore, as respondent notes and as indicated by the record, petitioner was aware of Ms. Kurz\u2019s physical street address as petitioner had written the physical street address for Ms. Kurz on his Petition for Contested Hearing and personally delivered said petition to this address prior to filing and serving his Petition for Judicial Review. Accordingly, we conclude that the fact that the Attorney General\u2019s office only provided petitioner with a post office box for Ms. Kurz and not a physical street address did not render the service of petitioner\u2019s Petition for Judicial Review upon Ms. Potter in compliance with section 150B-46.\nIn sum, we hold that petitioner\u2019s service of his Petition for Judicial Review upon Ms. Potter on 11 March 2008 did not comply with the mandates of section 150B-46 because Ms. Potter is not a party of record to the administrative proceedings, and that his 2 April 2008 service of said petition upon Ms. Kurz did not comply with section 150B-46 as it was served outside of the ten-day window mandated by the statute. Consequently, the trial court did not err by granting respondent\u2019s motion to dismiss and dismissing petitioner\u2019s Petition for Judicial Review.\nAffirmed.\nJudges McGEE and BEASLEY concur.\n. Recently, this Court filed an opinion affirming the denial of unemployment benefits for petitioner for a period of nine weeks because he was discharged from his employment at NCSU due to substantial fault. Follum v. N.C. State Univ., 195 N.C. App. 785, 673 S.E.2d 884 (unpublished), appeal dismissed and disc. review denied, 363 N.C. 374, - S.E.2d - (2009).", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Warren R. Follum, petitioner-appellant, pro se.", "Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for respondent-appellee." ], "corrections": "", "head_matter": "WARREN R. FOLLUM, Petitioner v. NORTH CAROLINA STATE UNIVERSITY, Respondent\nNo. COA08-1291\n(Filed 21 July 2009)\nProcess and Service\u2014 sufficiency of process \u2014 service on counsel of record\nThe superior court did not err by granting respondent university\u2019s motion to dismiss based on insufficiency of process and by dismissing a petition for judicial review with prejudice because: (1) N.C.G.S. \u00a7 150B-46 provides that a petitioner seeking judicial review of an agency decision must serve his petition for judicial review upon all parties of record to the administrative proceedings within ten days of filing said petition with the trial court; (2) while defendant did not have to serve his petition for judicial review upon respondent\u2019s process agent, serving respondent\u2019s counsel of record was insufficient since she was not a party of record to the administrative proceedings when she was an employee of the Department of Justice and a member of the Attorney General\u2019s staff instead of the university; (3) the fact that the Attorney General\u2019s office only provided petitioner with a post office box for the university\u2019s process agent and not a physical address did not render the service of the petition for judicial review upon the university\u2019s counsel in compliance with N.C.G.S. \u00a7 150B-46; and (4) petitioner\u2019s service of the petition on respondent\u2019s process agent outside of the ten-day window did not comply with N.C.G.S. \u00a7 150B-46.\nAppeal by respondent from an order entered 18 June 2008 by Judge Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals 8 April 2009.\nWarren R. Follum, petitioner-appellant, pro se.\nAttorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for respondent-appellee." }, "file_name": "0389-01", "first_page_order": 415, "last_page_order": 421 }