Earthmovers Equip. v NC Dept. of Crime
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA08-693 NORTH CAROLINA COURT OF APPEALS Filed: 3 February 2009 EARTHMOVERS EQUIPMENT COMPANY, Plaintiff v. Wake County No. 07CVS5022 NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, DIVISION OF STATE HIGHWAY PATROL, Defendant Court of Appeals Appeal by defendant from an order entered 26 February 2008 by Slip Opinion Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 19 November 2008. Parker Poe Adams & Bernstein LLP, by Kevin L. Chignell and Susan L. Dunathan, for plaintiff-appellee. Attorney General Roy A. Cooper, III, by Assistant Attorneys General John W. Congleton and Tamara S. Zmuda, for defendantappellant. HUNTER, Robert C., Judge. This case arises out of a violation of N.C. Gen. Stat. § 20119 (2007), whereby plaintiff trucking company was fined $1,000.00 for two operational violations of a special permit and $22,120.00 for a weight violation based on the statutory weight parameters of N.C. Gen. Stat. § 20-118 (2007). Pursuant to litigation, the trial court interpreted these two statutes, held that the $22,120.00 fine -2was unlawful, granted summary judgment for plaintiff, and ordered defendant North Carolina Department of Crime Control and Public Safety ( defendant $22,120.00. plaintiff. or NCDCCPS ) to reimburse plaintiff the Defendant appeals this grant of summary judgment for After careful review, we affirm. Background On 1 December 2006, Earthmovers Equipment Company ( plaintiff or Earthmovers ), obtained a special single trip permit ( the permit ) from the North Carolina Department of Transportation, Division of Highways, to transport a truck and trailer with a gross weight of no more than 165,000 pounds through the state. Without this permit, the truck and trailer could not legally exceed 80,000 pounds. N.C. Gen. Stat. § 20-118(b)(3). On 7 December 2006, plaintiff s driver, Mark Duck ( Mr. Duck ) was stopped on the west bound side of Interstate 40 when a State Highway Patrol officer drove by and noticed that the truck did not have any escorts. weigh station. plaintiff s Mr. Duck was instructed to proceed to the nearby Upon examination, a second officer noted that special permit required a rear escort, and an additional front escort if the gross weight exceeded 149,999 pounds. The gross weight of the truck and trailer at the time was 160,260 pounds, thus requiring a rear and front escort. It is undisputed that no escorts accompanied the truck. It is further undisputed the that the truck dimensional restrictions. did not comply with permit s -3Plaintiff was fined $1,000.00 pursuant to N.C. Gen. Stat. § 20-119(d)(1) for not having the proper number of escorts and for failing to comply with the permit s dimensional restrictions. In addition, plaintiff was penalized $22,120.00 as a weight violation based on the failure to travel with an escort pursuant to section 20-119(d) and sections 20-118(e)(1) and (3). This weight violation was calculated based on the difference between 80,000 pounds (the statutory pound limit for a truck without a special permit) and the 160,260 pounds it actually weighed. Plaintiff s truck was not in excess of the 165,000 pounds listed on the special permit. After receiving the citations, Mr. Duck paid the fines with a company check, obtained two escorts, and was allowed to resume his trip with the original permit. No modifications of weight or dimensions were required. On 3 January 2007, Earthmovers, though its attorney, filed a letter with NCDCCPS protesting the overweight vehicle penalty. 23 February 2007, NCDCCPS informed Earthmovers that On its administrative review revealed that the officer followed state law and patrol policy in issuing the citation and penalty. Plaintiff filed a complaint in Wake County Superior Court on 30 March 2007 seeking a refund of the $22,120.00 penalty. Plaintiff filed a motion for summary judgment on 7 January 2008 alleging, inter alia, that defendant had no authority to impose the weight citation under the statutory scheme set out in section 20119(d) and section 20-118(e). Defendant filed a motion for summary -4judgment on 12 February 2008 claiming that the citations issued were authorized by law. On 26 February 2008, the trial judge ordered summary judgment in favor of plaintiff, finding that there is no legal basis for the State Highway Patrol to impose penalties for overweight violations based on the statutory weight limits set forth in N.C. Gen. Stat. § 20-118(b) when the offending vehicle operator has a lawfully acquired special requirements. permit Having exempting found that the vehicle defendant from those unlawfully cited plaintiff for the weight violation, the court ordered defendant to refund plaintiff the amount of $22,120.00, plus interest. Defendant appeals this order. I. Pursuant to our holding in Daily Express, Inc. v. N.C. Dep t of Crime Control & Public Safety, ___ N.C. App. ___, ___ S.E.2d ___ (No. COA08-562 filed 3 February 2009), we affirm the trial court s grant of summary judgment for plaintiff. Affirmed. Judges ELMORE and JACKSON concur. Report per Rule 30(e).
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