Star Automobile Co. v. Saab-Scania of America, Inc. , 84 N.C. App. 531 ( 1987 )

ORR, Judge.

Respondent contends that the superior court exceeded the bounds of appropriate judicial review by engaging in independent fact finding when it reversed the Commissioner’s decision. We do not agree.

Since this case began before 1 January 1986, N.C.G.S. § 150A-51, recodified as N.C.G.S. § 150B-51, governs the scope of judicial review of the superior court with respect to its review of final agency decisions. It provides in pertinent part that:

The court . . . may reverse or modify the decision if the substantial rights of the [petitioner] may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:

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

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If the court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become a part of the record, the reasons for such reversal or modification.

In determining whether an agency decision should be reversed or modified, the reviewing court must use the “entire record” test. This test requires that the reviewing court examine all of the competent evidence, pleadings, etc., to determine if there is “substantial evidence” in the record to support the agency’s findings. Savings & Loan Assoc, v. Savings & Loan Comm., 43 N.C. App. 493, 259 S.E. 2d 373 (1979). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. ... It is more than a scintilla or a permissible inference.” Lackey v. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E. 2d 171, 176 (1982).

When there are two reasonably conflicting views of the evidence, the superior court cannot replace the agency view of the evidence with its own. Chestnutt v. Peters, Comr. of Motor Vehicles, 300 N.C. 359, 266 S.E. 2d 623 (1980).

On the other hand, the “whole record” rule requires the court, in determining the substantiality of evidence supporting the Board’s decision, to take into account whatever in the record fairly detracts from the weight of the Board’s evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board’s result, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.

Thompson v. Board of Education, 292 N.C. 406, 410, 233 S.E. 2d 538, 541 (1977).

The trial court was faced with the task of determining whether the Commissioner’s decision was supported by substantial evidence. Upon a review of the whole record, Judge Farmer found that the findings of fact and conclusions of law set out by the Commissioner were unsupported by substantial evidence.

In particular, there was one critical finding of fact in the Hearing Officer’s Order that was not supported by substantial evidence. The Hearing Officer found “[t]hat no evidence has been offered by petitioner or respondent as to when said petition was received in the offices of the Division of Motor Vehicles in Raleigh, North Carolina.” However, an essential fact may be established by circumstantial evidence alone. Bridges v. Graham, 246 N.C. 371, 98 S.E. 2d 492 (1957).

The record shows the existence of the following circumstances: Petitioner mailed its petition to the Division of Motor Vehicles on 26 October 1982, by United States mail. Robert A. Pruett, the party responsible for processing petitions for the Division of Motor Vehicles, testified that he was on vacation the week preceding 1 November 1982 and that no documents were processed in his absence. Pruett was also uncertain as to whether he was in his office on Monday, 1 November 1982. Pruett further testified that when he got to his desk on the morning of 2 November 1982, the petition was already there, prior to the receipt of the morning mail. In addition, Pruett, who was familiar with the mail handling process at the Division of Motor Vehicles, testified that in his opinion, the petition was received before 2 November 1982. Therefore, there was circumstantial evidence as to when the petition was received by the Division of Motor Vehicles.

The Hearing Officer concluded “[t]hat Star Automobile Company’s petition was filed with the Division of Motor Vehicles in Raleigh on November 2, 1985 [sic].” In fact, Pruett stamped the petition filed on that day but the critical evidentiary point is when the petition was received by the Division of Motor Vehicles. “File” is defined as, “[t]o deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file by him ... in the proper place.” Black’s Law Dictionary 566 (rev. 5th ed. 1979) (citations omitted). Therefore, the actual stamping of the petition on 2 November 1982 did not constitute the required filing but instead the receipt of the petition by the Division of Motor Vehicles.

Since there was circumstantial evidence, as well as Pruett’s opinion testimony as to the receipt of the petition by the Division of Motor Vehicles, the trial court properly concluded that the Hearing Officer’s decision that the petition was not timely filed was unsupported by substantial evidence in view of the entire record.

Having made this determination, the court reversed the Commissioner’s decision and concluded that the petition in this matter was timely filed.

As required by N.C.G.S. § 150A-51, the court set out its reasons for reversing the Commissioner’s decision, denominating them as findings of fact.

We conclude, therefore, that the trial court did not exceed the bounds of appropriate judicial review and its decision should be affirmed.

Affirmed.

Judges Wells and Becton concur.