Gaskill v. State ex rel. Cobey

McCRODDEN, Judge. Respondent contends that the trial court erred by reversing the final decision of OAH finding that it lacked subject matter jurisdiction over the petition for a contested case. In ruling on this contention, we must decide whether petitioner met the requirements for commencing a contested case hearing which are found at N.C.G.S. § 113A-126(d)(3) of CAMA and N.C.G.S. § 150B-23(a) of the APA. We hold that he did not, and we reverse the Superior Court’s decision. In order to commence a contested case, petitioner must follow the requirements in CAMA. That Act requires that a petition for a contested case be filed under N.C.G.S. § 150B-23 of the APA within the statutory period, which is twenty days after receiving notice of assessment. N.C.G.S. § 113A-126(d)(3). North Carolina cases interpreting administrative laws have consistently held that a contested case petition to challenge an agency’s decision must be filed within the statutory deadline. Gummels v. N. C. Dept. of Human Resources, 98 N.C. App. 675, 392 S.E.2d 113 (1990), upheld the dismissal of a petition which was mailed but not received by OAH until after the thirty day statutory deadline. Lewis v. N.C. Dept. of Human Resources, 92 N.C. App. 737, 375 S.E.2d 682 (1989), upheld the dismissal of a petition filed one day after the statutory deadline. Smith v. Daniels Int'l, 64 N.C. App. 381, 307 S.E.2d 434 (1983), [659] upheld the dismissal of a petition filed two days after the statutory deadline. N.C.G.S. § 150B-23 of the APA, which is incorporated in CAMA, requires that a petition for a contested case be properly verified in order to commence a contested case hearing. N.C.G.S. § 150B-23(a) states in pertinent part that “[a] contested case shall be commenced by filing a petition with the Office of Administrative Hearings . . . .” The then-applicable portion of that statute added that “[a]ny petition filed by a party other than an agency shall be verified or supported by affidavit . . . .” (This provision was deleted by an amendment of the APA which applies to contested cases commenced on or after 1 October 1991. N.C.G.S. § 150B-23(a) (editor’s note). Since petitioner filed the petition for a contested case prior to 1 October 1991, the above provision is applicable.) In order for petitioner to have a contested case hearing, therefore, he was required to file a verified petition with OAH within 20 days after he received notice of the penalty from DCM. The ALJ based his dismissal of petitioner’s petition on the absence of such verification. Petitioner contends, however, that contrary to the ALJ’s ruling, his petition for a contested case hearing was properly verified pursuant to Rule 11 of the North Carolina Rules of Civil Procedure because it was signed by him and his attorney. Rule 11(b) sets forth the language to be used when a party verifies a pleading: In any case in which verification of a pleading shall be required by these rules or by statute, it shall state in substance that the contents of the pleading verified are true to the knowledge of the person making the verification .... Such verification shall be by affidavit of the party ; . . . Such affidavit may be made by the agent or attorney of a party in the cases and in the manner provided in section (c) of this rule. N.C.R. Civ. P. 11(b). Rule 11(c) limits the situations in which an attorney may verify a pleading. The pertinent situation in this case is one in which “the material allegations of the pleadings are within the personal knowledge” of the attorney. Subsection (c)(2) clearly provides, however, that a verifying attorney in this situation must state in an affidavit that the material allegations of the pleadings are true to his personal knowledge, and the reasons the affidavit is not made by the party. Thus, according to Rule 11(b) and (c), a party or attorney may verify a pleading only by [660] affidavit of the party or attorney, and signatures alone are not sufficient. On 21 September 1990, petitioner filed a petition for a contested case hearing containing his and his attorney’s signatures. This petition failed to include either an affidavit executed by him or an affidavit executed by his attorney. Therefore, the petition that was timely filed was not verified under Rule 11(b) and (c) when it was filed. Although petitioner filed a verification on 3 October 1990, this was inadequate because the twenty day statutory period to file a petition for a contested case hearing had run. In Boyd v. Boyd, 61 N.C. App. 334, 336, 300 S.E.2d 569, 570 (1983), the Court upheld the dismissal of plaintiffs complaint for lack of jurisdiction, and held that under N.C. Gen. Stat. § 50-8 (1987), a verified complaint for divorce must be filed before a civil action may be commenced and a court may obtain jurisdiction. The Court ruled that the complaint was properly dismissed under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure because the complaint was not verified at the time it was filed. Id. The Court stated that although Rule 11 does not state a time period in which verification must occur, when read in conjunction with N.C.G.S. § 50-8, the complaint must be verified at the time it is filed in order to commence a civil action. Id. We follow the logic of the Boyd ruling in determining that petitioner’s petition must be both verified and filed within the statutory time period in order to commence a contested case hearing. In summary, N.C.G.S. § 113A-126(a)(3) and N.C.G.S. § 150B-23(a) require the filing of a verified petition for a contested case hearing with OAH within 20 days after petitioner receives notice of assessment. In this case, petitioner did not meet this requirement and, consequently, OAH never obtained subject matter jurisdiction. The trial court erred in reversing OAH’s dismissal of petitioner’s petition. Since we have decided that OAH never obtained subject matter jurisdiction, we need not address respondent’s remaining three assignments of error. This case is remanded to Superior Court with directions to enter an order upholding OAH’s dismissal of petitioner’s petition. Reversed and remanded. Chief Judge ARNOLD and Judge GREENE concur.