Tilley v State, ex rel, Ross, (05-524) 01/03/2006

Appeal by appellant from judgment entered 3 February 2005 by Judge Wade Barber in Orange County Superior Court. Heard in the Court of Appeals 16 November 2005.

Thomas E. Tilley, pro se.

Attorney General Roy Cooper, by Associate Attorney General Nancy R. Dunn, for the State.

    CALABRIA, Judge.

    Thomas E. Tilley (“appellant”) appeals the 3 February 2005 order granting summary judgment to the State of North Carolina (“appellee”) affirming appellee's damage award of $2,087.86 plus interest. We affirm.
    On 6 November 2001, Kenneth Schuster, the Water Quality Regional Supervisor for the Raleigh Region of the Division of Water Quality of the North Carolina Department of Environmental and Natural Resources (“NC-DENR”), assessed $1,043.93 as a civil penalty and enforcement cost against appellant for dischargingwaste into North Carolina waters in violation of both N.C. Gen. Stat. § 143-215.1(a)(6) and National Pollutant Discharge Elimination System Permit No. NC 0038784 (“permit”). A second penalty of $1,043.93 against the appellant for a substantially similar violation was assessed on 22 July 2002.
    Appellant filed two petitions for contested case hearings pursuant to Article 3 of N.C. Gen. Stat. § 150B regarding both assessed penalties. In both instances, DENR moved to dismiss all of appellant's claims. The Administrative Law Judge (“ALJ”) presiding over the first petition issued a Final Decision Order of Dismissal (“Order I”) on 22 November 2002. Order I dismissed appellant's varied constitutional claims regarding due process and separation of powers. Moreover, as to his factual assertions the permit was not timely issued and its limits not exceeded, appellant “admitted...he had no evidence [to] support [these] claims.”
    On 10 March 2003 the same ALJ issued a substantially similar Final Decision Order of Dismissal (“Order II”) for appellant's second petition. Both Order I and Order II provided notice informing appellant (1) this was “a Final Decision pursuant to N.C. Gen. Stat. § 150B-36(c)” and consequently, (2) “any party wishing to appeal [this] final decision of the ALJ may...appeal by filing a petition for judicial review in...Superior Court...within 30 days after being served with a...copy of the ALJ's Decision and Order.” Appellant failed to appeal either of the ALJ's final decisions and orders and also failed to pay both fines.    On 20 May 2004 pursuant to N.C. Gen. Stat. § 143-215.6A(g) appellee filed a complaint in Superior Court to recover the unpaid civil penalties owed by appellant. On 3 February 2005, the trial court granted summary judgment to appellee and ordered appellant to pay $2,087.86 plus interest for both violations. Appellant appeals.
    The first question this Court must address is whether the Superior Court properly granted summary judgment in favor of appellee. We hold the Superior Court acted properly.
    Summary judgment is appropriate and “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact....” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). “The party moving for summary judgment must establish...that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Branks v. Kern, 320 N.C. 621, 623, 359 S.E.2d 780, 782 (1987) (citations omitted). The movant can carry this burden “by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim.” Zimmerman v. Hogg & Allen, 286 N.C. 24, 29, 209 S.E.2d 795, 798 (1974).
    In the instant case, the Secretary of DENR requested the Attorney General institute a civil action in Superior Court to recover from appellant the assessed penalties. Thus, the onlyquestion presented to the Superior Court was whether appellant had paid his fine within the time allotted. Furthermore, as part of appellee's summary judgment motion there existed no substantive questions regarding the validity of the ALJ's two final decisions. In fact, appellee's complaint clearly alleged the following: appellant was assessed multiple fines he had yet to pay; appellant was issued two final decisions via contested case hearings dismissing all of his claims; and appellant failed to properly appeal these final decisions to a Superior Court for judicial review. Therefore, as to appellee's motion for summary judgment there existed no issue of material fact in that appellant was assessed multiple civil fines he had yet to pay and, as a matter of law, appellant's allegations were adjudicated, dismissed and not properly preserved for appeal. The court properly granted summary judgment to the State.
    Appellant argues reasons ranging from an alleged lack of due process to violation of the separation of powers that the Office of Administrative Hearing, the Environmental Management Commission, and N.C. Gen. Stat. §§ 150B-45 through 51 are unconstitutional. We disagree.
    Appellant, of his own volition, sought contested case hearings regarding the issuance of two fines pursuant to N.C. Gen. Stat. § 143-215.6A(d). The ALJ presiding at each hearing dismissed all of appellant's claims. N.C. Gen. Stat. §§ 150B-36(c)(1),(4) (2003) authorizes appeals directly to Superior Court in the following cases:
        (1) A determination that the Office of Administrative Hearings lacks jurisdiction.

        (4) An order entered pursuant to a prehearing motion to dismiss the contested case in accordance with G.S. 1A-1, Rule 12(b) when the order disposes of all issues in the contested case.

However, the “person seeking review must file the petition within 30 days after the person is served with a written copy of the decision. A person who fails to file a petition within the required time waives the right to judicial review under this Article.” N.C. Gen. Stat. § 150B-45 (2003) (emphasis added).
    None of the assignments of error brought by appellant were properly appealed. Both Order I and Order II made clear to appellant “[t]his is a Final Decision pursuant to N.C. Gen. Stat. § 150B-36(c).” Consequently, appellant had thirty days to appeal to Superior Court the ALJ's dual determination that one, the ALJ had no jurisdiction to answer appellant's multiple constitutional questions, see N.C. Gen. Stat. § 150B-36(c)(1), supra, and two, appellant's other factual claims were subject to dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), see N.C. Gen. Stat. § 150B-36(c)(4), supra. Despite appellant's failure to object to the ALJ's dismissals of his several claims, it was incumbent upon appellant to appeal Order I and Order II because as each Order was a “Final Decision pursuant to N.C. Gen. Stat. § 150B-36(c),” N.C. Gen. Stat. § 150B-36(c) provided the exclusive statutory means to obtain judicial review in Superior Court. Therefore, when appellant failed to appeal either ALJ order within the thirty daywindow, according to N.C. Gen. Stat. § 150B-45, supra, he waived the right to Superior Court review of his constitutional questions. All of appellant's assignments of error pertaining to due process and separation of powers are overruled.
    Affirmed.
    Judges Bryant and Steelman concur.
    Report per Rule 30(e).

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