Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA07-298
                
                                            
NORTH CAROLINA COURT OF APPEALS
        

Filed: 4 December 2007


KENNETH CURTIS EDWARDS,
        Petitioner,

v .                         Buncombe County
                            No. 05 CVS 2484
STATE OF NORTH CAROLINA,
Ex Rel the North Carolina
Department of Motor Vehicles,
George Tatum, Commissioner,
        Respondent.

    Appeal by petitioner from judgment entered 27 November 2006 by Judge James L. Baker, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 11 October 2007.

    Long, Parker, Warren & Jones, P.A., by Robert B. Long, Jr., for petitioner-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for respondent-appellee.

    BRYANT, Judge.

    Kenneth Curtis Edwards (petitioner) appeals from a judgment entered 27 November 2006 dismissing petitioner's petition with prejudice and affirming the revocation of petitioner's salesman license by the North Carolina Department of Motor Vehicles (respondent). For the reasons stated herein, we affirm the judgment of the trial court.

Facts and Procedural History

    In 1996, petitioner opened up a business, Ken Edwards Auto Sales, selling used cars and trucks in Asheville, North Carolina. In late 2001, petitioner's business began to have financial difficulties which continued through 5 May 2003, when petitioner declared bankruptcy, closed his business, voluntarily surrendered his Motor Vehicle Dealers' License, and began work as a motor vehicle salesman for his brother.
    In early 2003, the Division of Motor Vehicles License and Theft Bureau commenced an investigation into the petitioner's dealership. The purpose of the investigation was to determine why consumers who had purchased vehicles from the dealership were not receiving their car titles and why finance companies had not been paid for the sold vehicles. At the culmination of the investigation regarding Ken Edwards Auto Sales, it was determined that petitioner had completed lost title applications with notarized signatures of previous owners of four vehicles sold by Ken Edwards Auto Sales in order to obtain clear titles for the new purchasers without actually contacting the previous owners.
    In December 2003, petitioner was indicted in Buncombe County Superior Court with four felony counts of taking a fraudulent notary verification for acknowledgment, knowing the signatures to be false, pursuant to N.C. Gen. Stat. § 10A-12(c)   (See footnote 1)  ; four felony counts of obtaining property by false pretenses; and four felony counts of title fraud. On 4 February 2004, petitioner pleaded guilty to the four felony counts of taking a fraudulent notary verification for acknowledgment, and the remaining eight felonycriminal charges were dismissed in their entirety. The trial court placed petitioner on supervised probation and ordered petitioner to make restitution in the amount of $47,319.64 to three separate finance companies.
    Subsequent to petitioner's guilty pleas, the Buncombe County District Attorney's Office notified respondent's agents of the felony notary convictions. On 14 March 2005, respondent sent petitioner a Notice of Hearing and Order to Show Cause why petitioner's Motor Vehicle Salesman License should not be revoked for his felony conviction involving moral turpitude. After a hearing held on 13 April 2005, before a Division of Motor Vehicles hearing officer, a Decision and Order was entered that the Motor Vehicle Salesman License issued to petitioner be revoked for a period of five years and a civil penalty of $250.00 be assessed against petitioner.
    Petitioner filed a Petition for Judicial Review with the Buncombe County Superior Court on 8 June 2005, and the next day the Court entered an Order staying operation of the Decision and Order pending the outcome of judicial review sought by petitioner. Respondent filed its response on 22 July 2005, and the matter came on for hearing at the 28 August 2006 Civil Session of the Buncombe County Superior Court before the Honorable James L. Baker, Judge presiding. The Superior Court entered a judgment on 27 November 2006, affirming the decision to revoke petitioner's Motor Vehicle Salesman License and ordering the Petition be dismissed with prejudice. Petitioner appeals.
_________________________

    Petitioner raises the issues of whether the trial court erred: (I) in concluding the petitioner's acts involving improper notarizations in violation of N.C. Gen. Stat. § 10A-12(c) were felonies involving moral turpitude; (II) in concluding the decision of respondent was not in violation of petitioner's constitutional due process rights, was not in excess of statutory authority, and was not made upon unlawful procedure; and (III) in entering the judgment dismissing petitioner's petition with prejudice and affirming the revocation of petitioner's salesman license.
    
Standard of Review

    Appeals from final administrative decisions of North Carolina State Agencies are subject to judicial review under Article 4 of Chapter 150B of the North Carolina General Statutes. N.C. Gen. Stat. § 150B-43 (2005). “The standard of review for the superior court of a final agency decision depends upon the particular issues presented on appeal.” Dew v. State ex rel. North Carolina DMV, 127 N.C. App. 309, 310, 488 S.E.2d 836, 837 (1997) (citations and quotations omitted). Pursuant to Article 4 of Chapter 150B,
        [A]n agency's final decision may be reversed or modified only if the reviewing court determines that the petitioner's substantial rights may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:

            (1)    In violation of constitutional provisions;

            (2)    In excess of the statutory authority or jurisdiction of the agency;
            (3)    Made upon unlawful procedure;

            (4)    Affected by other error of law;

            (5)    Unsupported by substantial evidence admissible . . . in view of the entire record as submitted; or

            (6)    Arbitrary[,] capricious[, or an abuse of discretion].

N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 658-59, 599 S.E.2d 888, 894 (2004); see also N.C. Gen. Stat. § 150B-51(b) (2005).
    The first four grounds for reversing or modifying an agency's decision are considered “law based inquiries” and receive de novo review. Carroll, 358 N.C. at 659, 599 S.E.2d at 894. “Under the de novo standard of review, the trial court considers the matter[s] anew and freely substitutes its own judgment for the agency's.” Id. at 660, 599 S.E.2d at 895 (citations and quotations omitted). The final two grounds for reversing or modifying an agency's decision are characterized as “fact-based” inquiries and are reviewed under the whole-record test. Id. at 659, 599 S.E.2d at 894. Under the whole-record test, the reviewing 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.” Watkins v. N.C. State Bd. of Dental Exam'rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004) (citation omitted). Substantial evidence is “relevant evidence a reasonable mind mightaccept as adequate to support a conclusion.” Id. (citation and quotations omitted).
I

    Petitioner first argues the Superior court erred in concluding petitioner's acts involving improper notarizations in violation of N.C. Gen. Stat. § 10A-12(c) were felonies involving moral turpitude. We disagree.
    At the time of petitioner's convictions, N.C. Gen. Stat. § 10A-12(c) provided that, “[a]ny notary who takes an acknowledgment or performs a verification or proof knowing it is false or fraudulent is guilty of a Class I felony.” N.C. Gen. Stat. § 10A- 12(c) (2003). It is well established that crimes involving moral turpitude are characterized by “'acts of baseness, vileness, or depravity in the private and social duties that a man owes to his fellowman or to society in general.'” Dew, 127 N.C. App. at 311, 488 S.E.2d at 837 (quoting Jones v. Brinkley, 174 N.C. 23, 25, 93 S.E. 372, 373 (1917)). It is similarly well established that offenses involving fraud and theft may involve moral turpitude. Ledford v. Emerson, 143 N.C. 527, 531, 55 S.E. 969, 970 (1906) (“Fraud is an offense involving moral turpitude[.]”); State v. Shelly, 176 N.C. App. 575, 584, 627 S.E.2d 287, 295 (2006) (holding “felonious larceny and credit card fraud, [are] crimes which have long been recognized to implicate dishonesty, deceit and moral turpitude.”).
    Here, petitioner, subsequent to his guilty pleas, was convicted of four counts of felonious false or fraudulentverification by a notary pursuant to N.C.G.S. § 10A-12(c). Petitioner's offenses caused three separate finance companies to lose $47,319.64, which defendant was ordered to pay in restitution. Given the fraudulent nature of petitioner's acts, the Superior Court did not err in holding petitioner's felonies involved moral turpitude. This assignment of error is overruled.
II

    Petitioner next argues the trial court erred in concluding the decision of respondent was not in violation of petitioner's constitutional due process rights, was not in excess of statutory authority, and was not made upon unlawful procedure. Petitioner contends that because the Notice of Hearing only informed petitioner to show cause why his Motor Vehicle Salesman License should not be revoked for the convictions under N.C.G.S. § 10A- 12(c) as being “felonies involving moral turpitude[,]” respondent committed reversible error by finding that petitioner's license could be revoked because petitioner “secured funds by notarizing fraudulent signatures on title documents”. We disagree.
    However, even if petitioner's contention is correct, petitioner was not prejudiced by this error as respondent was within its rights to revoke petitioner's Motor Vehicle Salesman License. Respondent “may deny, suspend, or revoke a license issued under [the Motor Vehicle Dealers and Manufacturers Licensing Law] for any one or more of the following grounds:
    . . .    (9) . . . being convicted of a felony involving moral turpitude under the laws of this State, another state, or the United States.”
N.C. Gen. Stat. § 20-294 (2005) (emphasis added). Respondent revoked petitioner's Motor Vehicle Salesman License pursuant to a Decision and Order in which it was found that sufficient evidence existed to sustain that petitioner violated N.C.G.S. § 20-294(9) based upon petitioner's guilty pleas to “four felony counts of notary fraud” and that petitioner “secured funds by notarizing fraudulent signatures on title documents.”
    As discussed in Issue I, supra, petitioner's convictions of four counts of felonious false or fraudulent verification by a notary pursuant to N.C.G.S. § 10A-12(c) involved moral turpitude. Petitioner was given notice to show cause as to why his Motor Vehicle Salesman License should not be revoked pursuant to this charge. Respondent's revocation of petitioner's Motor Vehicle Salesman License is independently supported by the finding that, pursuant to his guilty pleas, petitioner's convictions involved moral turpitude. Thus, petitioner could not have been prejudiced by the additional finding that he “secured funds by notarizing fraudulent signatures on title documents.” This assignment of error is overruled.
III

    Petitioner lastly argues the trial court erred in entering the judgment dismissing petitioner's petition with prejudice and affirming the revocation of petitioner's salesman license becauserespondent's decision to revoke petitioner's Motor Vehicle Salesman License was arbitrary and capricious. We disagree.
    The North Carolina Legislature adopted our Motor Vehicle Dealers and Manufacturers Licensing Law in part “to prevent frauds, impositions and other abuses upon its citizens and to protect and preserve the investments and properties of the citizens of this State.” N.C. Gen. Stat. § 20-285 (2005). Respondent has been given the authority to revoke licenses issued under this Law, and petitioner's admitted acts of committing four offenses of felonious false or fraudulent verification by a notary constitute sufficient grounds to revoke his Motor Vehicle Salesman License. Defendant's remorse for his actions and subsequent payment of restitution pursuant to his probationary sentence do not negate that he committed criminal offenses involving moral turpitude. Looking at the whole record of evidence before the Court, there is substantial evidence to justify respondent's decision to revoke petitioner's Motor Vehicle Salesman License and we cannot say respondent's decision was arbitrary or capricious. This assignment of error is overruled.
    Affirmed.
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).


Footnote: 1
    Effective 1 December 2005, Chapter 10A of the North Carolina General Statutes was repealed and replaced by Chapter 10B. 2005 N.C. Sess. Laws ch. 391, §§ 3,4.

*** Converted from WordPerfect ***