20230911 Order Awarding Attnys Fees

FILED
OFFICE OF ADMINISTRATIVE HEARINGS
09/11/2023 4:01 PM
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 22 EHR 00952
Wake Stone Corporation,
Petitioner,
V. ORDER AWARDING
North Carolina Department of Environmental ATTORNEY'S FEES
Quality, Division of Energy Mineral& Land
Resources,
Respondent.
On August 11, 2023, the Undersigned issued a Final Decision in this matter ordering
Respondent to grant the modified Permit 92-10, within thirty days from the date of this decision,
incorporating the proposed sound wall as mitigation and all other site and erosion control plans
as last agreed to by Petitioner and to pay Petitioner's reasonable attorneys' fees.
Upon consideration of the filings and all relevant evidence in the record, the Undersigned
hereby makes the following:
FINDINGS OF FACT
1. This matter came to be heard pursuant to Petitioner's Petition for a Contested Case
Hearing filed in the Office of Administrative Hearings on March 15, 2022.
2. On August 11, 2023, the Tribunal entered its Final Decision, finding that
Respondent "substantially prejudiced Petitioner's rights and that Respondent acted erroneously,
arbitrarily or capriciously, used improper procedure, or failed to act as required by law or rule."
3. In its Final Decision, the Tribunal ordered Responded to pay Petitioner's
reasonable attorney's fees. Petitioner was ordered to submit an affidavit with documentation
necessary to allow the Undersigned to determine the amount of those fees within 30 days.
4. On September 7, 2023, Petitioner's attorney, Mr. A. Charles Ellis, submitted an
affidavit and supporting documentation in support of attorney's fees.
5. Mr. Ellis is an attorney in good standing, licensed to practice in the State of North
Carolina since 1983.
6. The affidavit and supporting documentation contain the time expended by
Petitioner's attorneys of record, a statement of the labor expended, and the hourly rates of the
personnel concerned, as well as the costs and expenses.

7. This information is supported by the Affidavit of I. Clark Wright, partner in the
law firm of Davis Hartman Wright, LLP and is a licensed attorney in good standing in the State
of North Carolina. The supporting affidavit details the experience and ability of Petitioner's
counsel and the customary fee for the work performed related to this case.
8. Petitioner seeks a total of $766,848.85 in attorneys' fees plus $112, 117.73 in
litigation costs and additional expense, for a total recovery in the amount of$878, 966.58.
CONCLUSIONS OF LAW
1. To the extent that portions of the foregoing Findings of Fact include conclusions
of law, such are incorporated by reference into these Conclusions of Law.
2. Respondent acted arbitrarily and capriciously when it denied the Petitioner's
Application to modify Mining Permit 92-10.
3. Respondent's actions, or lack thereof, substantially prejudiced Petitioner's rights.
4. The Tribunal's decision to award attorneys' fees is discretionary. Stilwell v. Gust,
148 N.C. App. 128, 130, 557 S.E.2d 627, 629 (2001). However, if attorneys' fees are awarded,
the court "must make findings of fact to support the award. These findings must include the time
and labor expended, the skill required, the customary fee for like work, and the experience or
ability of the attorney." Hunt v. N.C. Dep't of Pub. Safety, 266 N.C. App. 24, 32, 830 S.E.2d
865, 870—71 (2019). The Tribunal has done so.
5. Under N.C. Gen. Stat. § 150B-33(11), the Office of Administrative Hearings
(OAH) may award attorneys' fees and witness fees against the State Agency for time and labor
spent at OAH, where the agency has substantially prejudiced the petitioner's rights and has acted
arbitrarily or capriciously.
6. The Petitioner has established reasonable attorney's fees for time and labor spent
at OAH in the amount of$878,966.58.
AWARD OF ATTORNEY'S FEES
Based on the foregoing, and upon consideration of Mr. Ellis's affidavit and supporting
documentation detailing the time and labor expended, the skill required, the customary fee for
like work, and the experience of Mr. Ellis as demonstrated through his affidavit, the Undersigned
finds that the requested hourly fees and related costs are reasonable.
The undersigned hereby AWARDS and ORDERS that Respondent pay to Petitioner's
attorney, the sum of $878,966.58 in reimbursement of reasonable attorney's fees and related
costs incurred in this contested case.

NOTICE OF APPEAL
This Order Awarding Attorney's Fees is issued under the authority of N.C. Gen. Stat. §
150B-33 (11).
Under the provisions of North Carolina General Statute § 15013-45, any party wishing to appeal
the Administrative Law Judge's final decision award of attorney fees must file a Petition for
Judicial Review in the Superior Court of the county where the person aggrieved by the
administrative decision resides, or in the case of a person residing outside the State, the county
where the contested case which resulted in the final decision was filed. The appealing party
must file the petition within 30 days after being served with a written copy of the
Administrative Law Judge's Final Decision.
In conformity with the Office of Administrative Hearings' rule, 26 N.C. Admin. Code
03.0102, and the Rules of Civil Procedure, N.C. General Statute IA-1, Article 2, this Final
Decision was served on the parties as indicated by the Certificate of Service attached to this
Final Decision. N.C. Gen. Stat. § 150B-46 describes the contents of the Petition and requires
service of the Petition on all parties. Under N.C. Gen. Stat. § 15013-47, the Office of
Administrative Hearings is required to file the official record in the contested case with the Clerk
of Superior Court within 30 days of receipt of the Petition for Judicial Review. Consequently, a
copy of the Petition for Judicial Review must be sent to the Office of Administrative Hearings at
the time the appeal is initiated in order to ensure the timely filing of the record.
IT IS SO ORDERED.
This the 1 lth day of September, 2023.
Donald R van der Vaart
Administrative Law Judge

CERTIFICATE OF SERVICE
The undersigned certifies that, on the date shown below, the Office of Administrative
Hearings sent the foregoing document to the persons named below at the addresses shown
below, by electronic service as defined in 26 NCAC 03 .0501(4), or by placing a copy thereof,
enclosed in a wrapper addressed to the person to be served, into the custody of the North
Carolina Mail Service Center who subsequently will place the foregoing document into an
official depository of the United States Postal Service:
A Charles Ellis Kyle Peterson
Ward and Smith, P.A. NC Dept. of Justice
[e-mail] kpetersonnncdoj.gov
Attorney For Petitioner Attorney For Respondent
Hayley R. Wells Shannon Marie Arata
Ward and Smith, P.A. Calhoun, Bhella& Sechrest
hrwkwardandsmith.com sarata(&cbsattorne, s
Attorney For Petitioner Attorney for Non-Parry Movant
Carolyn Ann McLain James L Conner
N.C. Department of Justice Calhoun Bhella& Sechrest LLP
cmclain(c�r�,ncdoj.gov [e-mail]
Attorney For Respondent Attorney for Non-Party Movant
Marc D Bernstein
NC Department of Justice
mbernstein(&ncdoi.gov
Attorney For Respondent
This the 1 lth day of September, 2023.
Julie B. Eddins
Paralegal
N. C. Office of Administrative Hearings
1711 New Hope Church Road
Raleigh,NC 27609-6285
Phone: [phone]