National Advertising Co. v. Bradshaw , 60 N.C. App. 745 ( 1983 )

299 S.E.2d 817 (1983)

NATIONAL ADVERTISING COMPANY
v.
Thomas W. BRADSHAW, Jr. as Secretary of Transportation of the State of North Carolina.

No. 8210SC206.

Court of Appeals of North Carolina.

February 15, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas H. Davis, Jr., Raleigh, for the Secretary of the Dept. of Trans., respondent-appellant.

Bailey, Dixon, Wooten, McDonald & Fountain by Kenneth Wooten and Gary S. Parsons, Raleigh, for petitioner, appellee.

HEDRICK, Judge.

The trial court heard this case pursuant to N.C.Gen.Stat. § 136-134.1 which reads in part:

The review of the decision of the Secretary of Transportation under this Article shall be conducted by the court without a jury and shall hear the matter de novo pursuant to the rules of evidence as applied in the General Court of Justice. The court, after hearing the matter may affirm, reverse or modify the decision if the decision is:

(1) In violation of constitutional provisions; or

(2) Not made in accordance with this Article or rules or regulations promulgated by the Department of Transportation; or

(3) Affected by other error of law.

The party aggrieved shall have the burden of showing that the decision was violative of one of the above.

A party to the review proceedings, including the agency, may appeal to the appellate division from the final judgment of the Superior Court under the rules of procedure applicable in civil cases. The appealing party may apply to the Superior Court for a stay for its final determination or a stay of the administrative decision, whichever shall be appropriate, pending the outcome of the appeal to the appellate division.

This statute clearly limits the scope of review in this case to (1) constitutional violations, (2) statutory or regulatory irregularities or (3) other errors of law. After a hearing, the Superior Court judge made findings of fact and pointed to errors of law compelling the reversal of the Secretary of Transportation's decision. Judge Cornelius found no evidence that established that the petitioner, National Advertising Company, or any of its personnel or agents had cut the vegetation surrounding the highway advertising sign in question. He further concluded:

[T]he Court cannot draw any legitimate permissible inference or conclusion from the evidence presented to the Court that National Advertising Company or any person acting under its authority, supervision, or direction did at any time violate the regulation in question and that the revocation of the permit for the sign applying the test of reasonableness and fairness is beyond the powers and authority of the Secretary of Transportation and Department of Transportation to revoke said permit.

We have reviewed the trial court's findings of fact and conclusions of law and the entire record on appeal. We can find no error in the judge's ruling that there was insufficient evidence to support an inference that petitioner had cut vegetation in violation of the Department of Transportation regulations. The evidence presented by the Department of Transportation showed only that vegetation around the petitioner's sign had been cut, that the advertisement on the sign had been changed near the time the vegetation was cut, and that the petitioner had worked on its sign at approximately the same time. The evidence fails to show the identity of those who did the cutting or to connect the petitioner to the cutting in any way. We hold the party aggrieved, National Advertising Company, carried its burden of showing that the decision of the Secretary of the Department of Transportation was not supported by competent evidence in the record.

Affirmed.

JOHNSON and EAGLES, JJ., concur.