An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 ure.

                    NO. COA03-1489        


Filed: 16 August 2005


v .                         Surry County
                            No. 01 CVS 1366

    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- appellant.

    Bailey & Dixon, L.L.P., by Patricia P. Kerner, for respondent- appellee.

    BRYANT, Judge.

    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 Wagoner was 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 affirming 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 298 (1979). 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 the trial 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 brief are overruled.
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).

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