Broadhurst v. Tatum, No. COA07-696 (N.C. App. 4/15/2008)
| Decision Date | 15 April 2008 |
| Docket Number | No. COA07-696,COA07-696 |
| Court | North Carolina Court of Appeals |
| Parties | DR. JACK J. BROADHURST, Petitioner, v. GEORGE TATUM, COMMISSIONER, NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES, Respondent. |
Van Camp, Meacham & Newman, PLLC, by Michael J. Newman, for petitioner-appellee.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Christopher W. Brooks, for respondent-appellant.
Petitioner was denied a renewal of his drivers license by respondent, the Division of Motor Vehicles. Petitioner appealed to the superior court which vacated and remanded respondent's decision. Respondent appeals. The dispositive question before this Court is whether respondent acted arbitrarily and capriciously in making its decision not to renew petitioner's drivers license. We find that respondent did act arbitrarily and capriciously, and for the following reasons, we affirm.
The superior court judge made the following uncontested findings of fact: Petitioner was originally licensed to drive in New York. Petitioner turned in his New York drivers license, and on 12 July 1989, petitioner was issued a North Carolina drivers license. On 16 September 1993 and 20 November 1997, petitioner renewed his North Carolina drivers license. On 24 November 2005, petitioner's North Carolina drivers license expired. Petitioner applied to renew his North Carolina drivers license. The North Carolina Department of Motor Vehicle's ("DMV") computer records showed that petitioner had an "unsatisfied judgment" from New York, and the DMV refused to renew petitioner's license pursuant to N.C. Gen. Stat. § 20-9(f) because "its computer records reflect[] a suspended driving privilege in . . . New York, based on an unsatisfied judgment in . . . New York."1 The DMV computer records showed "New York as a [s]tate of [w]ithdrawal for [petitioner's] [r]emote [d]riving [h]istory and reflect a withdrawal date of August 28, 1991." The DMV's "computer records do not reflect when the information about the unsatisfied judgment was received from . . . New York[,] . . . when . . . New York was listed as a [s]tate of [w]ithdrawal under the petitioner's driving record[,] . . . or when information was received concerning the [p]etitioner's driving privilege in . . . New York."
Petitioner appealed the DMV's decision to superior court claiming the DMV's decision had been "unwarranted and unjustified." Petitioner alleged the following: On or about 24 May 1988, while petitioner was living in New York, petitioner's minor daughter was driving petitioner's vehicle when she was in an accident in New York. Petitioner's vehicle was insured at the time by Liberty Mutual Insurance Company. In September of 1988 petitioner moved to North Carolina. In 1989, petitioner surrendered his New York drivers license and received a North Carolina drivers license. In or about March of 1989, a subrogation action was brought against petitioner regarding his daughter's accident. "At no time was [petitioner] ever made aware of the existence of this lawsuit, nor was he ever properly served with summons and complaint from that New York action." Also in March of 1989, a "process sever attempted to serve . . . [petitioner] by nailing a copy of the summons and complaint to the front door of [petitioner's] former residence — despite the fact that [petitioner] had not lived in that residence or owned that residence for over seven months." A default judgment was entered against petitioner for $3,111.61. "At no time prior to, during, or after this `judgment' was sought and entered was [petitioner] ever aware of the existence of this lawsuit in New York." "[Petitioner] first became aware of the existence of this `judgment' when the North Carolina Division of Motor Vehicles told him that the computer system indicated the existence of an unsatisfied judgment in the state of New York."
On 12 December 2006, the DMV filed a motion to dismiss. The superior court treated petitioner's appeal as a petition for certiorari pursuant to Rule 19 of the General Rules of Practice. On 29 December 2006, the superior court denied the DMV's motion to dismiss and vacated and remanded the decision of the DMV which denied petitioner a drivers license. The superior court also ordered that "[t]he [p]etitioner . . . be permitted to apply to the [DMV] for the issuance of a North Carolina drivers license and the [DMV] shall not consider the unsatisfied judgment and/or the [p]etitioner's driving status in the State of New York as a bar in the issuance of a drivers license." The DMV appeals. The DMV argues the superior court (1) utilized an incorrect standard of review, (2) erred in determining the DMV acted arbitrarily and capriciously in denying petitioner a drivers license, and (3) violated the Full Faith and Credit Clause by holding that the court was not bound by a judgment entered in New York.
The DMV argues "[t]he trial court erred as a matter of law in its final order directing the [DMV] to issue a drivers license to [petitioner] without consideration of [petitioner's] driving privilege in . . . New York in contradiction to the requirements of N.C.G.S. § 20-9(f)." The DMV assigns error to the standard of review utilized by the superior court in making its decision and in finding the DMV's decision was arbitrary and capricious and thus granting petitioner's requested relief.
The DMV argues the superior court improperly applied the "whole record" test when it "considered matters outside the record before the [DMV]." Both parties to the action and the superior court agreed that the appropriate standard of review was the "whole record" test. "When the petitioner questions . . . whether the decision was arbitrary or capricious, then the reviewing court must apply the `whole record' test." ACT-UP Triangle v. Comm'n for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citation and internal quotation marks omitted).
The whole record test requires the reviewing court to examine all competent evidence (the whole record) in order to determine whether the agency decision is supported by substantial evidence. Substantial evidence is evidence that a reasonable mind would deem adequate to support a particular conclusion. In conducting a whole record review, a trial court may not substitute its judgment for the agency's, even if a different conclusion may result under a whole record review.
Teague v. N.C. Dep't. of Transp., 177 N.C. App. 215, 223, 628 S.E.2d 395, 400 (internal citations, internal quotation marks, and brackets omitted) (quoting ACT-UP Triangle v. Comm'n for Health Servs, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)), disc. rev. denied, 360 N.C. 581, 636 S.E.2d 199 (2006).
Significantly, the whole record test requires the court to consider both evidence justifying the agency's decision and contrary evidence that could lead to a different result. However, the test does not allow the reviewing court to replace the agency's judgment when there are two reasonably conflicting views, although the court could have justifiably reached a different result under de novo review.
Cole v. Faulkner, 155 N.C. App. 592, 596-97, 573 S.E.2d 614, 617 (2002) (internal citations omitted). Under the whole record test, "[t]he trial court may not consider evidence outside of the record." Northfield Dev. Co. v. City of Burlington, 165 N.C. App. 885, 888, 599 S.E.2d 921, 924 (citing Batch v. Town of Chapel Hill, 326 N.C. 1, 11, 387 S.E.2d 655, 662 (1990)), disc. rev. denied, 359 N.C. 191, 607 S.E.2d 278 (2004).
However, the "record" which was before the DMV when it made its determination to deny renewal of petitioner's drivers license was, as best we can tell, the petitioner's driving record as it appeared upon the DMV's computer screen when petitioner's renewal application was being considered. Petitioner had no opportunity to see this "record" at the time of the denial of his license renewal, much less any opportunity to refute it. We also note that the printouts of the DMV's documents, including a "RDLSI/Motor Vehicle Record Check," a "Remote Driver History Display," and a "Remote Driver License Match Display," which were before the superior court and which are in our record were printed approximately a year and six months after petitioner was denied the renewal of his license; thus we have no way of knowing if these documents are the same as those the DMV actually considered when refusing to renew petitioner's license. If any court is to review the record before the DMV at the time it made its decision, it should have the documents or information as they existed on the date of the decision. However, the appellee does not raise this issue on appeal, and thus we will consider the DMV's documentary evidence as it was presented to the superior court.
For years, "[w]hen reviewing an appeal from a petition for writ of certiorari in superior court, this Court's scope of review [has been] two-fold: (1) examine whether the superior court applied the appropriate standard of review; and, if so, (2) determine whether the superior court correctly applied the standard." Cole v. Faulkner, 155 N.C. App. 592, 596, 573 S.E.2d 614, 617 (2002); see Shackleford-Moten v. Lenoir Cty. DSS, 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002), disc. rev. denied, 357 N.C. 252, 582 S.E.2d 609 (2003). Recent case law suggests that a failure of the superior court to state or apply the correct standard of review does not require remand if this Court is still able to sufficiently examine the record pursuant to the correct standard of review. See Shackleford-Moten at 572, 573 S.E.2d at 770 (...
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