Administrative – Service of Process – Motion for Extension of Time

The superior court did not err by granting the North Carolina Board of Architecture and Registered Interior Designers’ (Board) motion to dismiss, as there was not strict compliance with N.C. Gen. Stat. § 150B-46.

We affirmed the superior court’s order.

This case concerned the sufficiency of service of a petition for judicial review of a final agency decision pursuant to N.C. Gen. Stat. § 150B-46 (2023). Petitioner appealed from the superior court’s order granting the motion to dismiss his petition for judicial review filed by Respondent Board.

Petitioner argued that the superior court erred by granting the Board’s motion to dismiss because the court “relied on cases where the petitioner did not request additional time to serve the petition for judicial review.” However, Petitioner’s argument failed to persuade. As the Board correctly noted, “[t]he dispositive issue in this case is whether there was strict compliance with N.C. Gen. Stat. § 150B-46.” In the present case, there was not. Petitioner had the statutory right to appeal the Board’s final agency decision pursuant to N.C. Gen. Stat. § 150B-43. Yet in conjunction with that statutory right, there came the responsibility of complying with the specific service-of-process provisions of N.C. Gen. Stat. § 150B-46. Petitioner was thus required to serve the Board by personal service or certified mail within ten days of filing the Petition in Wake County Superior Court. This, Petitioner indisputably did not do. Within the jurisdictional 10-day period, Petitioner served the Board’s registered agent for service of process, counsel, and administrative counsel by email, which § 150B-46 does not authorize. Moreover, to the extent that Petitioner attempted to remedy this jurisdictional error by belatedly serving the Board’s counsel and administrative counsel via certified mail, that effort was ineffective.

Petitioner’s service by email upon the Board’s registered agent for service of process, rather than by personal service or certified mail, was statutorily insufficient. This failing subjected the Petition to dismissal. And to the extent that Petitioner attempted to remedy this jurisdictional flaw, his subsequent and untimely service by certified mail was still ineffective under § 150B-46.

Nevertheless, Petitioner relied upon North Carolina Department of Public Safety v. Owens, in which this Court held that “the superior court has the authority to grant an extension in time, for good cause shown, to a party to serve the petition beyond the ten days provided for under [N.C. Gen. Stat. §] 150B-46.” 245 N.C. App. 230, 234, 782 S.E.2d 337, 340 (2016). Petitioner contended that the superior court abused its discretion by denying his motion for an extension of time and granting the Board’s motion to dismiss because “there was good cause to allow [him] additional time to serve [his] timely filed Petition by certified mail[.]” “The superior court considered Petitioner’s good-faith argument, but concluded that “Petitioner has failed to offer or show good cause for his failure to timely and properly serve” the Petition on the Board. Accordingly, and in the proper exercise of its discretion, the superior court declined to extend the time for service of process. “

Petitioner has not demonstrated that “the decision was manifestly unsupported by reason or was so arbitrary that it could not have been the result of a reasoned decision.” Therefore, Petitioner “has shown no abuse of discretion in the superior court’s good cause determination.

Affirmed.

Ferris v. North Carolina Board of Architecture (Lawyers’ Weekly No. 011-280-24, 8 pp.) (Valerie Zachary, J.) Appealed from Wake County Superior Court (G. Bryan Collins, Jr., J.) The Charleston Group, by R. Jonathan Charleston and Jose A. Coker, for petitioner-appellant; Hedrick Gardner Kincheloe & Garofalo, LLP, by A. Grant Simpkins and M. Jackson Nichols, for respondent-appellee. North Carolina Court of Appeals