Keen Transport 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA08-910 NORTH CAROLINA COURT OF APPEALS Filed: 3 February 2009 KEEN TRANSPORT, INC., Plaintiff v. Wake County No. 07 CVS 12922 NORTH CAROLINA DEPARTMENT OF CRIME CONTROL & PUBLIC SAFETY, DIVISION OF STATE HIGHWAY PATROL, MOTOR CARRIER ENFORCEMENT SECTION, Defendant Court of Appeals Appeal by defendant from an order entered 16 April 2008 by Slip Opinion Judge A. Leon Stanback, Jr. in Wake County Superior Court. Heard in the Court of Appeals 3 December 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 $500.00 for an operational violation of a special permit and $24,449.271 1 Plaintiff s complaint and the issued citation state that plaintiff received an overweight fine in the amount of $24,327.27. However, the payment receipt indicates plaintiff paid $24,449.27 for the overweight fine, which is also the amount the trial court -2for an overweight violation based on the statutory parameters of N.C. Gen. Stat. § 20-118 (2007). litigation, the trial court: weight Pursuant to Interpreted these two statutes; held that the $24,880.00 overweight fine was unlawful; granted summary judgment for Department of plaintiff; Crime and ordered Control & defendant Public Safety North Carolina ( defendant or NCDCCPS ) to reimburse plaintiff the overweight fee plus interest. Defendant plaintiff. appeals the order 28 summary judgment for We affirm. I. On granting November 2006, Background Keen Transport, Inc. ( plaintiff ) 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 212,000 pounds through North Carolina. Without this permit, the truck and trailer could not legally exceed 80,000 pounds. N.C. Gen. Stat. § 20-118(b)(3). The permit required plaintiff s truck and trailer to be accompanied by two certified escorts if its gross weight exceeded 149,999 pounds. On 1 December 2006, plaintiff s driver, John Jennings ( the driver ), stopped at a weigh station in Orange County, North Carolina, accompanied by two escort vehicles; however, only one of the escorts was North Carolina certified. The gross weight of the truck and trailer was 193,700 pounds; thus, plaintiff was required to utilize certified rear and front escorts. used in its order. -3An officer with the Division of State Highway Patrol, Motor Carrier Enforcement Section issued plaintiff two civil citations. The first citation fined plaintiff $500.00 pursuant to N.C. Gen. Stat. § 20-119(d)(1) for failing to comply with the permit s escort requirement. In addition, plaintiff was fined $24,449.27 for an overweight violation pursuant to N.C. Gen. Stat. §§ 20-119(d) and 20-118(e)(1) and (e)(3). This overweight violation was calculated based on the difference between 80,000 pounds (the statutory pound limit for a vehicle without a special permit) and the 193,700 pounds it actually weighed. Plaintiff s truck was not in excess of the 212,000 pounds listed on the permit. After plaintiff s driver arranged for payment of the fines, he was allowed to resume travel under the original permit. On 27 December 2006, plaintiff s vice president of operations Paul Ross ( Mr. Ross ) filed a letter of protest with defendant regarding the imposition of the overweight penalty. On 27 February 2007, defendant sent a letter informing Mr. Ross that its administrative review revealed that the officer followed State law and Patrol policy in issuing the citations and penalties. Plaintiff filed a complaint in Wake County Superior Court on or about 13 August 2007 seeking, inter alia, a refund of the overweight penalty plus interest. Plaintiff filed a motion for summary judgment on or about 15 February 2008 alleging, inter alia, the State had no authority to issue the overweight citation under the statutory scheme set out in section 20-119(d) and section 20118(e). Defendant filed a motion for summary judgment on or about -420 March 2008 claiming that the issued citations were authorized by law. On 16 April 2008, the trial judge entered an order granting summary judgment in plaintiff s favor, concluding that: There is no legal basis for [defendant] to issue citations and impose penalties for overweight violations based on the statutory license weight set forth in N.C. Gen. Stat. § 20-118 when the vehicle operator has a lawfully acquired special permit exempting the vehicle from those limitations. [And, t]he penalty provisions of N.C. Gen. Stat. § 20119(d) and § 20-118(e)(1) and (3) do not authorize [defendant] to impose penalties on vehicles for exceeding the statutory weight limitations in situations where the vehicle is properly permitted, and does not exceed the weight limitations set out in the permit, even if operation of the vehicle violates other non-weight related aspects of the permit addressed by § 20-119(d). Having concluded that the imposition of the overweight penalty was outside [defendant s] statutory authority[,] the court ordered defendant plaintiff. to refund the overweight penalty plus interest to Defendant appeals this order. II. Analysis 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 order granting summary judgment for plaintiff. Affirmed. Judges ELMORE and JACKSON concur. Report per Rule 30(e).

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