I would also reverse the order of the superior court affirming the Final Order of Dismissal, but on different grounds, because I believe the majority, perhaps inadvertently, permits the unauthorized practice of law by a corporation, in violation of N.C. Gen.Stat. § 84-5 (2005).
The majority opinion defines the issue as "whether the term `representative' is limited to attorneys or whether it is broad enough to include non-attorney agents." I believe the issue is whether the North Carolina Administrative Code (N.C.A.C.) can create an exception to N.C. Gen.Stat. § 84-5 and N.C. Gen. Stat. § 84-2.1, which expressly forbid a corporation from filing a petition with an administrative tribunal on behalf of any other corporation.
*14Because I conclude that the N.C.A.C. cannot create such an exception, I concur in the result only. I would reverse the order of the superior court affirming the dismissal of the petition on the grounds that the petition was not signed by a proper party, but on the basis that even though the petition was defective, respondent needed to move to strike the petition in order to prevail, which it did not do.
Pursuant to N.C. Gen.Stat. § 143-215.94E(e2) (2005), only the owner1 or operator2 has the right to appeal the denial of a claim for reimbursement under the Leaking Petroleum Underground Storage Tank Cleanup Fund ("Trust Fund") Act (N.C.Gen. Stat. § 143-215.94A-94N). The Trust Fund Act further provides that such an appeal is governed by "Article 3 of Chapter 150B of the General Statutes," N.C. Gen.Stat. § 143-215.94E(e2), thereby making such an appeal a petition for a "contested case," N.C. Gen. Stat. § 150B-23(a) (2005). As correctly noted by the majority opinion, a petition for a contested case must be signed by "a party or a representative of the party." Id.
The majority relies on secondary legal sources and on various provisions in the North Carolina Administrative Code which refer to a "representative," to define the meaning of "representative" in N.C. Gen. Stat. § 150B-23(a). From that definition, the majority reasons that Allied Environmental Services ("Allied"), acting as an "agent" for Deans Oil Company ("Deans Oil"), could file a petition as the "representative" of Deans Oil, thereby rendering Allied a proper party to sign the petition in the case sub judice.
Deans Oil is the owner of the site in question, and respondent concedes that Deans Oil, as owner of the site, was a proper party to file the petition for a contested case. Allied is a separate entity from Deans Oil, identified as a PLLC (professional limited liability company), with no standing as the owner or operator under the Trust Fund Act. I note at the outset that the record does not contain any contract or agreement between Deans Oil and Allied. The record does contain a letter from Brian E. Gray, President, Allied Environmental Services, PLLC, on Allied letterhead, to the Office of Administrative Hearings, in which Allied requests a contested hearing, reading in its entirety:
Allied Environmental Services, PLLC as agent and Deans Oil Company are requesting a hearing for the appeal of eligibility retraction status for the above referenced site. Both parties wish to be present and heard at the hearing. Please schedule the hearing enough in advance so that both parties can attend.
The letter does not state that Allied is acting as a "representative" for Deans Oil.3 The letter includes the words "as agent" but does not say for whom Allied is an agent. It states that "both parties" are requesting a hearing, not that only Deans Oil is requesting a hearing, through its representative. In spite of these potential deficiencies, I agree with the majority in construing the letter as Allied filing a petition for a contested case hearing as representative of Deans Oil.
*15"It shall be unlawful for any corporation to practice law or appear as an attorney." N.C. Gen.Stat. § 84-5 (2005) (emphasis added.) Under N.C. Gen.Stat. § 84-2.1 (2005), the term "practice law" is defined to include "performing any legal service for any other person, firm, or corporation, with or without compensation, specifically including . . . the preparation and filing of petitions for use in any court, including administrative tribunals and other judicial or quasi-judicial bodies." (Emphasis added.) Clearly, the preparation and filing of a petition before an administrative tribunal on behalf of another is the practice of law.
Despite the differences between administrative tribunals and courts for purposes of a statute of limitations in Ocean Hill Joint Venture v. N.C. Dept. of E.H.N.R., 333 N.C. 318, 426 S.E.2d 274 (1993) (holding that the one-year statute of limitations under N.C. Gen.Stat. § 1-54(2) does not apply to administrative assessment of civil penalties pursuant to N.C. Gen.Stat. § 113A-64(a) because the statute of limitations applies only to an "action or proceeding" in the general court of justice), noted in the majority opinion, the definition of practic[ing] law specifically includes filing petitions before administrative tribunals and quasi-judicial bodies. The difference between the case sub judice and Ocean Hill Joint Venture is that N.C. Gen. Stat. § 84-2.1 specifically applies to "administrative tribunals and other . . . quasi-judicial bodies," whereas N.C. Gen.Stat. § 1-54(2) (2005) specifically applies only to an "action or proceeding" before the general court of justice.
In addition, the majority opinion states that the rule established by Lexis-Nexis v. Travishan Corp., 155 N.C.App. 205, 573 S.E.2d 547 (2002) does not apply in the context of administrative hearings. In Lexis-Nexis, this Court reversed a trial court order denying a motion to strike an answer and counterclaim when the corporate defendant was represented by its president and sole shareholder, not by a licensed attorney, in filing the answer and counterclaim. Id. Applying N.C. Gen.Stat. § 84-5, this Court held that a corporation must be represented by a licensed attorney and cannot appear pro se, noting three exceptions which had already been recognized by our appellate courts: (1) an employee of a corporation may prepare legal documents in furtherance of the corporation's own business; (2) an employee of a corporation may appear on behalf of the corporation in small claims court; and (3) a corporation may make an appearance in court through a corporate officer to avoid default. Id. at 208, 573 S.E.2d at 549. Only in those three instances may an employee or officer of a corporation, acting on behalf of the corporation, engage in the practice of law in North Carolina. I note that those exceptions all involve an employee or officer acting on behalf of his own corporation, and none of them involve, as in the case sub judice, one corporation acting on behalf of another.
Lexis-Nexis did not include an exception allowing a corporation to "prepar[e] and fil[e] petitions for use in any . . . administrative tribunals" on behalf of another corporation because that is specifically prohibited by N.C. Gen.Stat. § 84-2.1 and N.C. Gen.Stat. § 84-5. I do not believe § 84-5 and Lexis-Nexis even allow an employee of a corporation to file a petition with an administrative tribunal on behalf of the corporation which employs him, let alone as an employee of one corporation acting on behalf of another corporation. See Duke Power Co. v. Daniels, 86 N.C.App. 469, 472, 358 S.E.2d 87, 89 (1987) ("[T]he main purpose of [N.C. Gen.Stat. § 84-5] is to prohibit corporations from performing legal services for others." (Emphasis in original.)). Additionally, North Carolina has a strong public policy preference in favor of personal, as opposed to corporate, representation. Gardner v. N.C. State Bar, 316 N.C. 285, 293, 341 S.E.2d 517, 522 (1986) (holding that representation of an insured by an attorney employed by the insurer violates N.C. Gen.Stat. § 84-5).
The majority opinion, perhaps inadvertently, creates a fourth exception to N.C. Gen. Stat. § 84-5 in addition to the Lexis-Nexis rule, and permits corporations to practice law on behalf of other corporations before administrative tribunals. The majority opinion cites 26 N.C.A.C. 3.0120(e), which states that "[a] party need not be represented by an attorney" for the proposition that since a *16party to an administrative contested hearing is not required to be represented by an attorney, that corporations may be represented by a "non-attorney representative." The majority misinterprets the rule as saying that "a corporation may be represented by a non-attorney representative," including another corporation, in an administrative proceeding. But N.C. Gen.Stat. § 84-2.1 provides that representation before an administrative tribunal is the practice of law, expressly prohibited to corporations by § 84-5. The majority has thus permitted a rule in the administrative code to overrule a statute enacted by our legislature. I see no basis for holding that a rule in the administrative code, which is clearly intended to permit parties who are otherwise permitted by law to appear pro se, to appear pro se, permits the unauthorized practice of law by a corporation.
I find no precedent for a corporation being permitted to file a petition on behalf of another corporation in a contested administrative hearing, and conclude that this practice violates N.C. Gen.Stat. § 84-5. However, I do concur in the result, because I believe respondent did not take the proper procedural step to prevail in this case. I would therefore affirm the order of the superior court for the reason that follows.
The original, albeit defective, petition which was filed in this case by Allied on behalf of Deans Oil is not a nullity, and therefore not ripe for dismissal. "A pleading which is a nullity has absolutely no legal force or effect, and may be treated by the opposing party as if it had not been filed." Theil v. Detering, 68 N.C.App. 754, 756, 315 S.E.2d 789, 791, disc. review denied, 312 N.C. 89, 321 S.E.2d 908 (1984). However, this Court has held that a complaint filed by an attorney who was not licensed to practice law in North Carolina, in violation of N.C. Gen. Stat. § 84-4.1, was not a nullity and the complaint was effective to toll the statute of limitations, where the plaintiff later retained counsel who was licensed in the State of North Carolina. Id. The petition by Allied was filed, and respondent did not file a motion to strike the petition, which would have been necessary to avoid its effect. N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 568, 299 S.E.2d 629, 632 (1983); Lexis-Nexis v. Travishan Corp., 155 N.C.App. 205, 573 S.E.2d 547 (2002).
For the foregoing reasons, I respectfully concur in the result only, reversing the order of the superior court which affirmed the dismissal of the petition for a contested case hearing by the administrative law judge. I acknowledge that my concurrence is based on technical procedural grounds, but I believe that is the result which is compelled by Theil v. Detering and N.C.N.B. v. Virginia Carolina Builders.
N.C. Gen.Stat. § 143-215.94A(8) defines "operator" as "any person in control of, or having responsibility for, the operation of an underground storage tank."
N.C. Gen.Stat. § 143-215.94A(9) defines "owner" as:
In the case of an underground storage tank in use on 8 November 1984, or brought into use after that date, any person who owns an underground storage tank used for the storage, use, or dispensing of petroleum products; and [i]n the case of an underground storage tank in use before 8 November 1984, but no longer in use on or after that date, any person who owned such tank immediately before the discontinuation of its use.
I note that Allied may have had its own right as a "provider of service" to receive reimbursement (although not standing to bring the claim) pursuant to 15A N.C.A.C. 2P.0405(a), which provides that "[r]eimbursement for cleanup costs shall be made only to an owner or operator or landowner of a petroleum underground storage tank, or jointly to an owner or operator or landowner and a provider of service." However, pursuant to 15A N.C.A.C. 2P.0405(c), "[j]oint reimbursement of cleanup costs shall be made to an owner or operator or landowner and a provider of service only upon receipt of a written agreement acknowledged by both parties. Any reimbursement check shall be sent directly to the owner or operator or landowner." (Emphasis added.) The record does not contain any such agreement between Deans Oil and Allied.