IN THE COURT OF APPEALS OF NORTH CAROLINA
2021

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No. COA 20

- 860
Filed 2 November 2021

Wake County, No. 19 CVS 17145 LOST FOREST DEVELOPMENT, L.L.C. and its successors , P etitioner ,

v. COMMISSIONER OF LABOR OF THE STATE OF NORTH CAROLINA , Respondent

. Appeal by petitioner from order entered 19 August 2020 by Judge Rebecca W.
Holt in Wake County Superior Court. Heard in the Court of Appeals 5 October 2021

.
Williams Mullen, by Michael C. Lord, for petitioner

- appellant. Attorney General Joshua H. Stein, by Assistant Attorney General Stacey A. Phipps, for respondent

- appellee.

TYSON , Judge.

¶ 1 Lost Forest Development LLC, (“Lost Forest”) appeals from the superior court’s order affirming the Order of the Review Commission dismissing Lost Forest’s
“Notice of Contest” for lack of timeliness. We affirm

. I. Background
¶ 2 Petitioner , Lost Forest is a limited liability company which operates a worksite in Henderson, North Carolina.
¶ 3 The North Carolina Commissioner of Labor (“ Commissione r” or “NCDOL” )L OST F OREST D EV ., LLC V

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enforc es the Occupational Safety and Health Act of North Carolina (“OSHA”). See
N.C. Gen. Stat. §§ 95

- 1, 126 (m) (2019)

. The Commissioner enforces OSHA through compliance inspections

. N.C. Gen. Stat. § 95

- 126(g) (2019)

. ¶ 4 The Commissioner c onducted an inspection of Lost Forest ’ s Henderson worksite on 20 April 2017. Lost Forest ’ s principal /operator , Greg Sveinsson received at the time of the inspection, and signed a copy of the Employer and Employee Rights and Responsibilities Form (OSHA 59). This form provides in relevant part:

“ Contestment of Citation and/or Penalty

– The employer may contest the citation by notifying the Occupational Safet y and Health Division in writing within 15 working days following receipt of citation. ” (emphasis bold original and italics supplied )

. Lost Forest had no previous OSHA citations.
¶ 5 The Commissioner issued a Citation and Notification of Penalty (“Citation”) on 15 June 2017. The Citation alleged five serious violations, which were immediately repaired, and carried a total proposed penalty of $7,800. Lost Forest received the
Citation on 19 June 2017. The Citation provides in bold letters:

15 working days after you receive this Citation and Notification of Penalty

. . . or 15 working days after you receive the results of the informal conference, the citation(s) and/or proposed penalty(ies) will become a final order of the North Car olina Occupational Safety an d Health Review Commission and may not be reviewed by any court or agency, unless you file a notice of contestment

. (emphasis supplied).L OST F OREST D EV ., LLC V

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¶ 6 Lost Forest timely requested an informal conference as the first step in
“contestment ” of the Citation. A h ealth c ompliance o fficer held the conference by phone with Sveinsson on 27 June 2017

. Sveinsson verbally contested the Citation at the conclusion of the informal conferenc e. No written “ n otice of c ontest ment” follow ed
th is settlement meeting.
¶ 7 The h ealth c ompliance o fficer sent Sveinsson a letter dated 28 June 2017 which
included the p roposed Settlement Agreement. The letter notified Sveinsson he
needed “to submit your letter of contest” within 15 working days , if he d id not accept
the settlement offer. The letter further stated , it “shall serve as your notice of no change” and gave the contact information for NCDOL District Supervisor Bruce Miles
for questions. Sveinsson took no further action upon receipt of the Com missioner’s
formal settlement offer for over a year.
¶ 8 NCDOL Supervisor Miles called Sveinsson o n 22 October 2018 about the
Citation. Sveinsson verbally reiterated Lost Forest wished to contest the Citation and
confirmed his statements via email. The following day, Supervisor Miles forwarded
the email chain with Sveinsson to the OSHA Review Commission (“Review Commission”). The Review Commission docketed it and deemed the communication
to be a “ Notice of Contest. ”
¶ 9 The Commissioner took no acti on on any procedural deficiency. In the interim, Lost Forest timely filed its Statement of Position with the Review Commission.L OST F OREST D EV ., LLC V

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II. Procedural History
¶ 10 On 16 May 2019, the Commissioner moved to dismiss the n otice of c ontest as untimely before the OSHA Review Commission

. The Administrative Law Judge ( “ ALJ ” ) denied the Commissioner ’ s motion after an evidentiary hearing in an Order entered 11 July 2019

. ¶ 11 T he Commissioner appealed the ALJ ’ s Order to the Review Commission in August 2019

. The Review Commission reversed the ALJ ’s decision by Order of the
Commissioners in November 2019 and dismissed Lost Forest’s “ n otice of

c ontest ment” as untimely.
¶ 12 Lost Forest filed a Petition for Judicial Review in the Wake County Superior
Court in December 201 9

. The trial court overruled Lost Forest ’ s exceptions and
affirmed the Order of the Review Commission. Lost Forest timely filed this appeal on 17 September 2020.
III. Jurisdiction
¶ 13 Jurisdiction in this Court is proper p ursuant to N.C. Gen. Stat. § 7A

- 27(b)(l) (2019).
IV. Issues
¶ 14 Lost Forest argues : (1) its notice of contest is timely; (2) alternativel y if not timely , the Commissioner forfeited the right to claim that Lost Forest did not properlyL OST F OREST D EV ., LLC V

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contest the citation; and, (3) alternatively, good c ause exists for Lost Forest to have its day in court.
¶ 15 Lost Forest also lists five other issues on appeal but fails to argue or provide authority for those issues in its brief.

The function of all briefs required or permitted by these rules is to define clearly the issues presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon. The scope of review on appeal is limited to issues so presented in the se veral briefs. Issues not presented and discussed in a party’s brief are deemed abandoned. N.C. R. App. P. 28(a) (2019). Those five unsupported and unargued issues “ are deemed abandoned ” on appeal. Id

. V. Standard of Review
¶ 16 “When the issue on appeal is whether a state agency erred in interpreting a statutory term, an appellate court may freely substitute its judgment for that of the agency and employ de novo review.” Brooks v. McWhirter Grading Co ., 303 N.C. 573,
580

- 581, 28 1 S.E.2d 24, 29 (2012).
VI. Analysis A. Timeliness of Notice of Contest
¶ 17 Lost Forest argues its “ n otice of c ontest ment” is timely because on 27 June
2017 Sveinsson verbally notified the Commissioner’s representative of its desire to contest during an irregu lar informal conference. Lost Forest argues verbal notice isL OST F OREST D EV ., LLC V

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sufficient because N.C. Gen. Stat. § 95

- 137(b)(1) (2019) does not require written
notice: [T] he employer has 15 working days within which to notify

the Director that the employer wishes to: a. C ontest the citation or proposed assessment of penalty; or b. Request an informal conference. Following an informal conference, unless the employer and Department have entered into a settlement agreement, the Director shall send the employer an amended cita tion or notice of no change. The employer has 15 working days from the receipt of the amended citation or notice of no change to notify the Director that the employer wishes to contest the citation or proposed assessment of penalty, whether or not amended. If, within 15 working days from the receipt of the notice issued by the Director, the employer fails to notify the Director that the employer requires an informal conference to be held or intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under the provisions of this Article within such time, the citation and the assessment as proposed to the Commissioner shall be deemed final and not subject to review by any court. (emph asis supplied).
¶ 18 The North Carolina Administrative Code provides :

An employer has 15 working days from receipt of a citation to notify the Director in writing that the employer wishes to either contest under the provisions of G.S. 95

- 137(b)(1) or request an informal conference.
13 N.C. A dmin

. C ode 7A.0802 (202 0 ) (emphasis supplied). “[S] tatutes dealing with the same subject matter must be construed in pari materia and harmonized, ifL OST F OREST D EV ., LLC V

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possible, to give effect to each. ” Brisson v. Santoriello , 351 N .C. 589, 595, 528 S.E.2d 568, 571 (2000).

In order to ensure “ the orderly transaction of its proceedings ” , the Board is authorized to make Rules of Procedure and to follow the Rules of Civil Procedure when a situation arises that is not covered by its own Rules of Procedure. N.C.G.S. 95

- 135(d). The Board like any other court cannot function unless its Rules of Procedure are followed. Master Woodcraft, Inc . OSHANC 2002

- 4109. ¶ 19 Here, Lost Forest received the Citation which contained two paragraphs expla ining the right to contest:

Right to Contest

– You have the right to contest this Citation and Notification of Penalty now or after an informal conference.

. . . . 15 working days after you received this Citation and Notification of Penalty (if you do not request an informal conference) or 15 working days after you receive the results of the informal conference, the citation(s) and/or proposed penalty(ies) will become a final order of the North Carolina Occupational Safety and Health Review Commission a nd
m a y not be review ed by any court or agency, unless you file a notice of contestment

. (emphasis supplied).
¶ 20 Lost Forest requested and participated in an informal conference on 27 June
2017 and received a proposed settlement agreement on 8 July 2017

. Lost Forest was given another 15 days to file “ a notice of contest ment” providing, “If this agreement is not signed and returned with three (3) working days, this letter shall serve as yourL OST F OREST D EV ., LLC V

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notice of no change and you shall have fifteen (15) working day s, from the receipt of
this letter to submit your letter of contest .” (emphasis supplied).
¶ 21 At the initial hearing, the h earing e xaminer inquired of Sveinsson, the principal of Lost Forest , whether he recalled reading the various notices sent to him.
Sveinsson testified he , “called someone to help me fill it out because I really didn’t understand it;” “I probably didn’t go into great detail reading this;” and “I probably went straight to th e numbers. I apologize. I just

- - you know, I kind of skimmed through it, and signed it, and sent it back.”
¶ 22 The North Carolina Administrative Code requires written notice of contest,
and the Commissioner supplied reasonable notice to Lost Forest tw ice within the allotted time for the notice to be filed, and even complied with an extension request , once Lost Forest had received the settlement agreement. Sveinsson admitted he did not read the notices thoroughly and took no further action s . This argu ment is
overruled.
B. Commissioner Accepting Notice of Contest
¶ 23 Lost Forest argues because Supervisor Miles called Sveinsson to confirm Lost
Forest wanted to contest the Citation , and because the Commissioner docketed Lost Forest’s email response as “ a notice of contest ment” in October 2018 , the
Commissioner waive d or forfeited the procedural defense of untimeliness.
¶ 24 The NCDOL Field Operations Manual advises that a supervisor should notL OST F OREST D EV ., LLC V

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make further contact once notification is mailed to the empl oyer . NCDOL is an agency with respect to the Administrative Procedure Act. See N.C. Gen. Stat. § 150B

1 (c) (2019). “ The APA defines “Rule” as “any agency regulation, standard, or
statement of general applicability that implements or interprets an enactment of the General Assembly or Congress or a regulation adopted by a federal agency or that describes the procedure or practice requirements of an agency.” Wal

- Mart Stores E.,
Inc. v. Hinton , 197 N.C. App. 30, 56, 67 6 S.E.2d 634, 652 (2009)

. A rule is not a
statement “ concerning only the internal management of an agency

. . . including policies and procedures manuals, if the statement does not directly or substantially affect the procedural or substantive rights or d uties of a person not employed by the agency or group of agencies. ” N.C. Comm’r of Labor v. Weekley Homes, L.P. , 169 N.C. App. 17, 28

– 29, 609 S.E.2d 407, 416 (2005) (citation omitted)

. ¶ 25 Supervisor Miles’ notifying Lost Forest regarding the no tice of c ontest more than a year after last contact was an action contrary to an administrative precaution provided in the NCDOL Field Operations Manual and is not a rule by which the Commissioner, the Review Commission, or this Court is bound. See Weekley Homes,
L.P. , 169 N.C. App. at 31, 609 S.E.2d at 41 6 (holding “ the Operations Manual is a

non - binding interpretive statement, not a rule requiring formal rule

- making procedures

. . . the Operations Manual merely established guidelines that directed
OSHA [.]”).L OST F OREST D EV ., LLC V

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¶ 2 6 The record clearly shows after Lost Forest received notice of the Citation it had 15 working days to provide a written contestment. The Commissioner received the

“ contestment ” email 15 months after Lost Forest’s time to file n otice of c ontest had
ended

. Lost Forest references N.C. Gen. Stat. § 150B

- 51(b)(5) (2019) (stating “The

court .

. . may . . . reverse . . . if .

. . decisions are: unsupported by substantial
evidence [

. ] ”). O verwhelming evidence in the record support s the contention that Lost
Forest was on notice of the deadline s to contest the Citation

. ¶ 27 Lost Forest provides no applicable case la w, statute , or rule to show the Commissioner’s acceptance of the no tice of c ontest or Supervisor Miles’ late contact is fatal to Commissioner’s Motion to Dismiss. The Commissioner , with in the authority granted by the legislature , provided multiple notices to Lost Forest . Lost Forest’s argument that N.C . Gen. Stat . § 95

- 137(b)(1) does not require written notice
is without merit when considered with the other N orth Carolina Administrative Code and statutory requirements. The trial court properly affirmed the Review
Commission’s conclusion that Lost Forest did not file a timely notice of contest. Petitioner’s argume nt is overruled

.

C. Good Cause for Lost Forest’s Day in Court
¶ 28 Lost Forest argues good cause exists to allow its n otice of c ontest , and it should be permitted pursuant to N.C. Gen. Stat. § 1A

- 1, Rule 60.
¶ 29 If Lost Forest had filed a Rule 60(b) Motion, the Rule potentially provides reliefL OST F OREST D EV ., LLC V

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from a judgment or order only in limited circumstances, including for mistake, inadvertence or excusable neglect. T he Supreme Court of the United States supplies
a test for e xcusable neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P ’ship, 507 U.S. 380, 395, 123 L. Ed. 2d. 74, 89

- 90 (1993).

[W]hat sorts of neglect will be considered “excusable,” we conclude that the determination is at bottom an equitable one, takin g account of all relevant circumstances surrounding the party’s omission

. . . . the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Id

. ¶ 30 In Best Rate Tree & Lawn Serv. , the employer failed to comply with OSHA reporting requirements. Best Rate Tree & Lawn Serv. , OSHANC 2006

- 4672. The

s afety c ompliance officer attempted to contact the employer many times. Finally, the officer and the employer met on 19 September 2006 and the employer received his
OSHA 59 form with instructions to file his notice of contest. The citation was issued
16 October 2006. The employer filed a notice of extension to conte s t on 9 November, two days after the deadline. The employer did not contest until 14 December 2006.
The Review Commission found:

The [employer] has failed to prove by the greater weight of the evid ence that it should be allowed to contest the citations .

. . There is no evidence that [the employer]L OST F OREST D EV ., LLC V

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conducted the handing (sic) of this matter with the degree of care that a business person gives his or her important business matters. Id

. ¶ 31 Sveinss on did not act as a reasonable business person. He neither paid the penalty he sought to contest nor contacted the NCDOL for more than a year. Lost
Forest never contacted the NCDOL to ask questions, to discuss payment, or to seek additional time to respo nd or to verify his notice of contest was timely received.
¶ 32 Lost Forest’s made no efforts to submit any written contest and admittedly did not give the Citation the attention i t deserved. Supervisor Miles’ late contact with
Lost Forest is not determinative of the facts before us. Petitioner’s notice of contest was officially filed on 22 October 2018, 15 months after the settlement agreement. Lost Forest has failed to show by greater weight of the evidence it had acted in g ood
faith.
VII. Legal Inadequacy
¶ 33 L ost Forest failed to respond to the Motion to Dismiss within ten days from
service as is required by OSHRC Rule .0308(a): “parties upon whom a motion is
served shall have 10 days from service to file a response .” 24 N .C. Admin. Code 3.0308 (2020).
¶ 34 Lost Forest argues it was originally pro se , a small business without a legal department, had no frame of reference to contest OSHA, believed it had satisfied theL OST F OREST D EV ., LLC V

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requirements, and was prejudiced by the trial court’s order. Being fully cognizant of
these asserted disadvantages, Lost Forest did not obtain counsel until receiving the Notice of Appearance to OSH A R eview C ommission on 31 May 2019

. ¶ 35 Evidence shows Sveinsson “ was not a prudent business person in the handling of this matter, which he admitted during the hearing.” Best Rate Tree & Lawn Serv , OSHANC 2006

- 4672

. Petitioner’s argument is overruled

. VIII. Finding of Fact 6
¶ 36 Lost Forest argues the trial court failed to comply with N.C. Gen. Stat. § 150B

51(b)(5) because none of the notices spec ific ally said its failure to respond would result
in a final order. That language is verbatim on the Citation and on the cover letter to the proposed Settlement Agreement. The Citation provided in bold letters if Lost Forest did not file a notice of contest in 15 days the Citation “will become a final order.” Further, the settlement letter notified Sveinsson that if he did not accept the proposed settlement offer, he needed “to submit your letter of contest” within 15 working days

. The letter further provided , it “shall serve as your notice of no change

. ” This argument has no merit.
IX. Inconsistencies in Statute & Rules of Required Form of Notices
¶ 37 Several of Lost Fore st’s arguments center upon ambiguities and inconsistencies of the unspecified and varying type of notices required , whether verbal or written, in the statutes and rules governing and , forms from theL OST F OREST D EV ., LLC V

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Commissioner , it is bound by as a small pro se business. The OSHA 59 Form Sveinsson signed provides t he employer may contest the citation by notifying the Occupational Safety and Health Division in writing within 15 working days following receipt of the citation. The Commissioner received Lost Fores t’s “Contestment” email 15 months after Lost Forest’s time to file n otice of c ontest had ended.
¶ 38 T he j udicial b ranch and governmental agencies at all levels are transitioning away from requiring written “hard” copies and service documents to electro nic notices and filing in the trial and appellate divisions . A gencies are encouraged to review their controlling statutes, rules, and forms for consistency of notice and service requirements prevalent in electronic communications and interactions with
constituents and consumers. See N

. C

. Gen

. Stat

. § 1A

- 1, Rule 5 (b)(1)(a) ( “ Service may also be made on the attorney by electronic mail (e

- mail) to an e

- mail address of
record with the court in the case. Such e

- mail must be sent by 5 :00 P.M. Eastern
Time ” ); N.C. Gen. Stat. § 1A

- 1, Rule 5 (e)(2) ( “ If electronic filing is available in the county of filing, filing shall be made in accordance with Rule 5 of the General Rules of Practice for the Superior and District Courts. ” ).
X. Conclusion
¶ 39 The matters of timeliness are the only issues argued in Lost Forest’s brief and
before th is Court. U nder de novo review , s ubstantial evidence support s the trial
court’s findings and conclusions to affirm the Review Commission’s d ecisionL OST F OREST D EV ., LLC V

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concluding Lost Forest’s written notice of contest filed 15

- 16 months after the deadline should be dismissed as untimely. Lost Forest has failed to show t he
Commissioner’s docketing of Lost Forest’s no tice of c ontest is a procedural forfeiture or waiver to challenge

. G ood cause has not been shown to entitle Lost Forest to a Rule 60(b) review. We affirm the trial court ’s order

. It is so ordered.
AFFIRMED.
Chief Judge STROUD and Judge INMAN concur.