Midway Grading v. Dept. of Environment

Annotate this Case

473 S.E.2d 20 (1996)

MIDWAY GRADING COMPANY, INC. v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES, DIVISION OF LAND RESOURCES.

No. COA95-443.

Court of Appeals of North Carolina.

August 6, 1996.

*21 Robbins & Hamby, P.A. by Dale L. Hamby and Donald T. Robbins, Granite Falls, for petitioner-appellee.

Attorney General Michael F. Easley by Assistant Attorney General Jay L. Osborne, for respondent-appellant.

EAGLES, Judge.

I.

Respondent first argues that the superior court erred by concluding that respondent's service of process did not comply with G.S. 1-75.10 and with the North Carolina Rules of Civil Procedure. G.S. 1-75.10 provides:

Where the defendant appears in [an] action and challenges the service of the summons upon him, proof of the service of process shall be as follows: .... (4) Service by Registered or Certified Mail.In the case of service by registered *22 or certified mail, by affidavit of the serving party averring: a. That a copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested; b. That it was in fact received as evidenced by the attached registry receipt or other evidence satisfactory to the court of delivery to the addressee; and c. That the genuine receipt or other evidence of delivery is attached.

The superior court concluded that respondent did not satisfy the requirements of G.S. 1-75.10 because "the record d[id] not contain an original delivery receipt for any of the notices which Respondent attempted to serve on Petitioner ... [and] the record d[id] not contain an Affidavit in proof of service by mail for any of the notices which Respondent attempted to serve on Petitioner." Although the superior court did not specify which provision of the Rules of Civil Procedure respondent violated, petitioner argues on appeal that respondent violated Rule 4(b). G.S. 1A-1, Rule 4(b) specifies the appropriate contents of a summons and provides in part that a summons "shall be directed to the defendant or defendants." Petitioner argues that respondent violated Rule 4(b) because the NOV was "not served on the addressee."

The Rules of Civil Procedure apply in administrative proceedings "unless another specific statute or rule ... provides otherwise." N.C. Admin. Code tit. 26, r. 3.0101(1) (Nov. 1994). Here, respondent never sent a copy of a summons and complaint to petitioner because this was an administrative action regarding alleged violations of the SPCA. Because Rule 4(b) of the Rules of Civil Procedure deals with the contents of a summons, we conclude that it was inapplicable to respondent's service of the NOV.

G.S. 1-75.10 sets out requirements a party must fulfill in order to show that the court has personal jurisdiction over the opposing party when the opposing party contests jurisdiction and argues that service of process was not carried out properly. The North Carolina Administrative Code provides the procedure a party must follow when sending a NOV to an alleged violator of the SPCA. At the time of petitioner's alleged violations, N.C. Admin. Code tit. 15A, r. 4C.0007(a) provided that:

Prior to the assessment of any civil penalty, notice of the violation shall be given the alleged violator(s) or his (their) agent(s) by registered or certified mail, describing the violation with reasonable particularity, specifying a time period for compliance and stating that upon failure to comply the person responsible for the violation shall become subject to the assessment of a civil penalty.

Because the North Carolina Administrative Code provides the procedure a party must follow when sending a NOV, the validity of respondent's service of the NOV must be determined according to the specifications of the North Carolina Administrative Code section instead of G.S. 1-75.10(4).

Rena Kiziah, an officer of petitioner, signed the certified mail return receipt for the NOV which respondent mailed to petitioner on 16 May 1989. The governing regulation regarding proper notice to alleged violators of the SPCA provides that notice must be given to "the alleged violator(s) or his (their) agent(s)." An officer is defined as a "[p]erson holding [an] office of trust, command or authority in [a] corporation." Black's Law Dictionary 1083 (6th ed. 1990). An agent is defined as "[a] person authorized by another (principal) to act for or in place of him; one intrusted with another's business." Black's Law Dictionary 63 (6th ed. 1990). Based on these definitions, we conclude that Rena Kiziah, an officer of petitioner, was also an agent of petitioner for purposes of receiving notice of petitioner's alleged violations of the SPCA. After reviewing the NOV which respondent sent to petitioner, we also conclude that the NOV described petitioner's alleged violations "with reasonable particularity" as required by the applicable provision of the North Carolina Administrative Code set out above. Accordingly, respondent's method of notifying petitioner of its alleged violations satisfied the requirements of N.C. Admin. Code tit. 15A, r. 4C.0007(a) and the superior court erred in concluding that respondent's service of process was insufficient.

*23 II.

Respondent also argues that the superior court erred by concluding that petitioner was not required to file a soil erosion and sedimentation plan because petitioner did not own more than one acre of land on which land-disturbing activity was being conducted. G.S. 113A-57(4) provides that "[n]o person shall initiate any land-disturbing activity on a tract if more than one acre is to be uncovered unless, 30 or more days prior to initiating the activity, an erosion and sedimentation control plan for such activity is filed with the agency having jurisdiction." The plain language of G.S. 113A-57(4) requires that a party must file an erosion and sedimentation control plan if its actions will cause more than one acre of land to be uncovered. The statute does not require that the party causing the disturbance has to own more than one acre of the land being uncovered. Accordingly, we conclude that the superior court erred in its interpretation of G.S. 113A-57(4).

This case is remanded to the superior court for further proceedings consistent with this opinion.

Reversed and remanded.

JOHN C. MARTIN and MARK D. MARTIN, JJ., concur.