IN RE TWIN COUNTY MOTORSPORTS, INC.
No. 552PA13
IN THE SUPREME COURT
(Filed 19 December 2014)
[367 N.C. 613 (2014)]
BEASLEY, Justice.
Administrative Law—administrative agency hearing—pro se representation of corporation by nonattorney—not unauthorized practice of law
The Court of Appeals erred by holding that a nonattorney had engaged in unauthorized practice of law under
On discretionary review pursuant to
Jessica C. Williams, PLLC, by Ralph E. Stevenson, III, for petitioner-appellee Twin County Motorsports, Inc.
BEASLEY, Justice.
In this appeal we consider whether a corporation may appear or proceed at hearings before the Division of Motor Vehicles (“DMV“) without being represented by an attorney. Because we have determined that a hearing before an administrative agency is not an “action or proceeding,” we hold that a nonattorney may appear or proceed on behalf of a corporation before an administrative hearing officer without engaging in the unauthorized practice of law under
Twin County Motorsports, Inc. (“Twin County“) is licensed by the DMV to perform vehicle emissions and equipment inspections. On 7 October 2010, the DMV charged Twin County with six violations of
Twin County retained legal counsel and sought review of the hearing officer‘s decision by the Commissioner of the DMV. The Commissioner upheld the hearing officer‘s order on 5 August 2011. Twin County appealed the Commissioner‘s decision to the Superior Court of Nash County. In its appeal to the trial court, Twin County asserted that Twin County, as a corporation, should not have been represented by Cherry, a nonattorney, at the DMV hearing. The trial court agreed, concluded that Cherry‘s pro se representation of Twin County as an agent of Twin County constituted the unauthorized practice of law in violation of
The Court of Appeals affirmed the trial court. In re Twin Cnty. Motorsports, Inc., ___ N.C. App. ___, 749 S.E.2d 474 (2013). The court reasoned that its earlier holding in Lexis-Nexis, Division of Reed Elsevier, Inc. v. Travishan Corp. that ” ‘a corporation must be represented by a duly admitted and licensed attorney-at-law and cannot proceed pro se’ ” controlled here. Id. at ___, 749 S.E.2d at 476 (quoting Lexis-Nexis, 155 N.C. App. 205, 209, 573 S.E.2d 547, 549 (2002)). The Court of Appeals explained that even though it had determined that a corporation may represent itself pro se in “contested case” proceedings under
The State sought our discretionary review of the court‘s decision, which we allowed on 6 March 2014. ___ N.C. ___, 755 S.E.2d 627 (2014). In its appeal to this Court, the State asks that we conclude that
In pertinent part,
it shall be unlawful for any person or association of persons, except active members of the Bar of the State of North Carolina admitted and licensed to practice as attorneys-at-law, to appear as attorney or counselor at law in any action or proceeding before any judicial body, including the North Carolina Industrial Commission, or the Utilities Commission. . . .
In Ocean Hill Joint Venture v. North Carolina Department of Environment, Health & Natural Resources, 333 N.C. 318, 426 S.E.2d 274 (1993), this Court addressed the definition of “action or proceeding.” We addressed whether a one-year statute of limitations,
An “action” as defined in
N.C.G.S. § 1-2 “is an ordinary proceeding in a court of justice . . . .” Although “proceeding” itself is not defined in Chapter 1, the terms “ordinary proceeding” and “special proceeding” are both used. The definition of “action” encompasses “ordinary” proceedings while a “special proceeding” includes every other remedy in a court of justice. From these definitions we conclude that, as the term is used in Chapter 1 of the General Statutes, a “proceeding,” like an “action,” must take place in a court of justice.
Id. (emphasis added by court) (citations omitted). We then contemplated whether an agency, when empowered by the General Assembly with judicial authority, may constitute such a “court of justice“:
We have recognized that “[a]rticle IV, section 3 of the Constitution contemplates that discretionary judicial authority may be granted to an agency when reasonably necessary to accomplish the agency‘s purposes.” In the Matter of Appeal from the Civil Penalty Assessed for Violations of the SPCA, 324 N.C. 373, 379, 379 S.E.2d 30, 34 (1989). However, an agency so empowered is not a part of the “general court of justice.” N.C. Const. art. IV, § 2 . In fact, “[a]ppeals from administrative agencies shall be to the general court of justice.”N.C. Const. art. IV, § 3 (emphasis added). Thus, the grant of limited judicial authority to an administrative agency does not transform the agency into a court for purposes of the statute of limitations.
Id. (brackets in original). We concluded that the agency‘s “issuance . . . of a notice of civil penalty” was “not the institution of an action or proceeding in a court [of justice]” and therefore, was not “within the meaning of
Our holding in Ocean Hill governs the question before us today. As in Ocean Hill, a prerequisite for the statute at issue is that there be an “action or proceeding.”
We further note that our conclusion that a nonattorney may appear before an administrative hearing officer without violating
The trial court erred in reversing the DMV‘s final agency decision in this case. For the reasons stated above, we reverse the decision of the Court of Appeals affirming the trial court‘s order and remanding this matter for a new hearing before the DMV.
REVERSED.