An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
C. PHIL WAGONER,
No. 01 CVS 1366
N.C. BOARD OF EXAMINERS FOR
ENGINEERS AND SURVEYORS,
Appeal by petitioner from an order filed 4 August 2003 by
Judge W. Douglas Albright in Surry County Superior Court. Heard in
the Court of Appeals 1 September 2004.
McElwee Firm, PLLC, by John M. Logsdon, for petitioner-
Bailey & Dixon, L.L.P., by Patricia P. Kerner, for respondent-
C. Phil Wagoner (Wagoner-petitioner) appeals from an order
filed 4 August 2003 affirming the final agency decision of the
North Carolina Board of Examiners for Engineers and Surveyors
(Board-respondent) suspending Wagoner's land surveyor license and
fining him a $1,000.00 civil penalty for gross negligence and
misconduct. The Board is an agency of the State of North Carolina created
pursuant to Chapter 89C of the North Carolina General Statutes, and
is charged with the administration of the statutes, rules and
regulations affecting the practice of engineering and land
surveying. Since 1976
, Wagoner has been registered with the Board
as a professional land surveyor. Effective June 1998
appointed to the Board. In early 1999, the Board received three
written complaints against Wagoner. Following an investigation,
the Board served Wagoner with notices of numerous violations of
Board rules relating to Wagoner's professional conduct.
Consequently, the Board referred the hearing of the charges to the
Office of Administrative Hearings by filing a petition for a
contested case pursuant to N.C. Gen. Stat. § 150 B-40(e).
Donald W. Overby, Special Administrative Law Judge (ALJ)
conducted a hearing regarding several charges against Wagoner, most
of which involved his professional conduct in preparing surveys.
On 11 July 2001, the ALJ issued a Proposal for Decision, which was
served on Wagoner on 16 July 2001.
On 27 July 2001, the Board
served the final order and notice of appeal rights and found
Wagoner liable for gross negligence and misconduct, suspended
Wagoner's license for three months, and imposed a civil penalty in
the amount of $1,000.00. From this final agency decision, Wagoner filed a petition for
judicial review. Following a hearing before Judge W. Douglas
Albright of Surry County
Superior Court, an order
was entered on 4
August 2003 finding the whole record test was the appropriate
standard of review, and affirming the final agency decision. From
this decision, Wagoner appeals.
Wagoner contends the trial court erred in applying the whole
record test in its review of the agency decision and in
the agency decision
. We disagree.
When this Court reviews appeals from superior court our scope
of review is twofold, and is limited to determining: (1) whether
the superior court applied the appropriate standard of review and,
if so, (2) whether the superior court properly applied this
standard. In re Appeal by McCrary, 112 N.C. App. 161, 166, 435
S.E.2d 359, 363 (1993). However, this Court's obligation to review
a superior court order for errors of law can be accomplished by
addressing the dispositive issue(s) before the agency and the
superior court without examining the scope of review utilized by
the superior court and remanding the case if the standard of review
utilized by the superior court cannot be ascertained. Capital
Outdoor, Inc. v. Guilford County Bd. of Adjustment, 152 N.C. App.
474, 475, 567 S.E.2d 440, 441 (2002).
When a petitioner alleges an agency's decision is based upon
an error of law, the superior court must undertake a de novo
review. Air-A-Plane Corp. v. North Carolina Dep't of Env't, Health
& Natural Res., 118 N.C. App. 118, 124, 454 S.E.2d 297, 301 (1995).
Under the de novo standard of review, the trial court considers
the matter anew and freely substitutes its own judgment for the
agency's. N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C.
649, 660, 599 S.E.2d 888, 895 (2004) (internal quotation marks
omitted) (citation omitted). Where, however, a petitioner alleges
an agency's decision is unsupported by substantial evidence in the
record or is arbitrary and capricious, the superior court must
review the whole record to determine if the agency's decision is
supported by substantial evidence. Id.
The whole record test requires the board's judgment to be
affirmed if upon consideration of the whole record as submitted,
the facts found by the board are supported by competent, material
and substantial evidence, taking into account any contradictory
evidence, or evidence from which conflicting inferences could be
drawn. Boehm v. North Carolina Bd. of Podiatry Exmrs., 41 N.C.
App. 567, 255 S.E.2d 328, cert. denied, 298 N.C. 294, 259 S.E.2d
Our Supreme Court has stated:
A court applying the whole record test may not
substitute its judgment for the agency's as
between two conflicting views, even though itcould reasonably have reached a different
result had it reviewed the matter de novo.
Rather, a court must examine all the record
evidence -- that which detracts from the
agency's findings and conclusions as well as
that which tends to support them -- to
determine whether there is substantial
evidence to justify the agency's decision.
Substantial evidence is defined as relevant
evidence a reasonable mind might accept as
adequate to support a conclusion.
Watkins v. N.C. State Bd. of Dental Exam'rs, 358 N.C. 190, 199, 593
S.E.2d 764, 769 (2004) (citations omitted).
Here the superior court properly employed the whole record
test to review the pleadings, official record of administrative
proceedings, briefs and all other documents as submitted by the
parties, and thereafter affirmed the Board's decision to fine
plaintiff and suspend his license.
We have reviewed the record and
uphold the superior court's findings as supported by substantial
evidence adduced at the hearing before the ALJ. We hold
court applied the correct standard of review and properly reviewed
the evidence upon which the Board's decision was based.
Plaintiff's assignments of error, as set forth and argued in his
and TYSON concur.
Report per Rule 30(e).
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