Allied Environmental v. Dept. of Env. , 187 N.C. App. 227 ( 2007 )

CALABRIA, Judge.

Allied Environmental Services, PLLC ("Allied Environmental"), and Deans Oil Company, Inc. ("Deans Oil Company") (collectively "appellants") appeal from an order *12entered 22 May 2006. We reverse the trial court and remand for further proceedings.

Deans Oil Company is the owner of a property located on Highway 121 North in Farmville, Pitt County, known as the Hustle Mart No. 3 ("the site"). 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 ("Trust Fund").

The 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. § 143-215.94A (2005), et seq. On 3 May 2004, the North Carolina Department of Environmental and Natural Resources, Division of Waste Management ("appellee"), 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. § 150B-23(f) (2003).

On 16 July 2004, appellee filed a motion to dismiss the contested case petition on the grounds that the Office of Administrative Hearings ("OAH") 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. ("Judge Morrison") entered a final decision dismissing the claim on 30 December 2004 ("Final Order"). 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's Final Order. From that order, appellants appeal.

On appeal appellants argue the trial court erred by affirming the administrative law judge's order dismissing the appellants' petition for a contested case hearing on the grounds that the petition was not signed by a proper party. We agree.

The issue of "whether a[ ] court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo." 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 "owner or operator or landowner who has been denied eligibility for reimbursement from the appropriate fund" 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. § 143-215.94E (e2) (2005). The code states that the petition must be in accordance with N.C. Gen.Stat. § 150B-23 (2005), which states: "[a] petition shall be signed by a party or a representative of the party. . . ." 15A N.C.A.C. 2P.0407(b)(2007).

Here, the petition was signed by Brian Gray ("Gray"), president of Allied Environmental, as agent for Deans Oil Company. Thus, the issue before this Court is whether the term "representative" is limited to attorneys or whether it is broad enough to include non-attorney agents.

Appellee 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;

*132) 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.

However, Lexis-Nexis dealt with representation in the context of North Carolina's 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.

While 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: "[a] party need not be represented by an attorney." 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.

Additionally, it is clear to us that the term "representative" as used in N.C. Gen.Stat. § 150B-23 is not coterminous with the term "attorney." Black's Law Dictionary defines "representative" as "[o]ne who stands for or acts on behalf of another . . . ." Black's Law Dictionary 1304 (7th ed.1999). The legislature, in drafting N.C. Gen.Stat. § 150B-23, could have chosen the word "attorney," but instead chose "representative," a word whose plain meaning is broader than "attorney."

Other sections of the administrative code shed light on the legislature's choice of the word "representative" as well.

In 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. . . .

26 N.C.A.C. 3.0114(b) (2007) (emphasis supplied). Likewise, 26 N.C.A.C. 3.0118 (2007) speaks of a "representative or attorney of a party" 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's intent is otherwise, it retains the ability to amend the statute accordingly.

Since we determined that the trial court erred in affirming the administrative law judge's decision to dismiss the appeal for lack of subject matter jurisdiction, we need not address appellants' remaining argument that the court erred in affirming the administrative law judge's decision to deny appellants' motion to amend their petition. The judgment of the trial court is reversed and the case remanded for additional proceedings consistent with this opinion.

Reversed.

Judge McCULLOUGH concurs.

Judge STROUD concurs with a separate opinion.