              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-862

                                 Filed: 7 June 2016

Nash County, No. 15-CVS-217

KIMARLO RAGLAND, Petitioner,

             v.

NASH-ROCKY MOUNT BOARD OF EDUCATION, Respondent.


      Appeal by petitioner from order entered 15 April 2015 by Judge Alma L. Hinton

in Nash County Superior Court. Heard in the Court of Appeals 9 February 2016.


      Kimarlo A. Ragland, B.S., M.S., pro se.

      Tharrington Smith, L.L.P., by Deborah R. Stagner and Colin A. Shive, for
      respondent-appellee.


      BRYANT, Judge.


      Where the trial court’s decision following review of a school board’s termination

of a teacher’s employment was supported by substantial evidence and was not

arbitrary or capricious, and where the decision was made upon lawful procedures and

was not affected by other error of law, we affirm.

      On 6 October 2014, respondent, Nash-Rocky Mount Board of Education

(“respondent-Board”), hired Kimarlo Ragland, petitioner, as a math teacher at Tar

River Academy, respondent-Board’s alternative school. On 17 October 2014, less

than two weeks after starting work, petitioner had a confrontation with a student

(“M”). M had been making threats to another student in the classroom, and petitioner
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was escorting M to the in-school suspension office. Once in the hallway, petitioner

and M exchanged remarks; M became angry, dropped his books, and told petitioner

that petitioner “[was] not going to keep talking to [him] like th[at].” Petitioner

retreated to his classroom and locked the door. M hit and kicked the door, attempting

to get into the classroom. M eventually broke the glass panels of the door, cutting

himself and bleeding profusely.     A teacher from the classroom across the hall,

Charman Pearson, came over and placed herself between M and the door.

      During this time, petitioner remained in the classroom but stripped off his

shirt as though preparing for a fight. Students within the classroom were out of their

seats and moving around as petitioner paced shirtless near the door. A female

student (“S.B.”), told petitioner to put his shirt on or he would get fired. Petitioner

did not respond to S.B., but he did put his shirt back on. Although there was a phone

in the classroom, at no time during the incident did petitioner attempt to notify the

school administration or otherwise obtain assistance. The school’s administrative

office was ultimately notified of the incident by students from another classroom. The

injured student, M, was escorted away by the school resource officer.

      Later, the school principal John Milliner-Williams, obtained written

statements from students. Principal Williams then had the students removed from

the classroom and he reviewed the statements. He also spoke to some of the students

who were in the classroom and learned that another student, S.B., had made a cell



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phone video recording of the incident. Principal Williams then talked to petitioner.

When asked why he had removed his shirt, petitioner stated that he was preparing

for combat and thought that he would have to defend himself.             As a result of

petitioner’s handling of the incident, Principal Williams issued a written letter to

petitioner reprimanding him for his bad judgment, failure to follow standard

procedures, failure to call for assistance, and “complete lack of concern for the safety

of [his] students or the adherence to school and district guidelines.”

      On the next school day, Monday, 20 October 2014, petitioner approached S.B.,

stroked her hair and told her that he had been “thinking about [her] the whole

weekend, how [she] tried to help [him] save [his] job.” At the end of the class period,

as S.B. was leaving, petitioner asked her why she had told him to put his shirt back

on and asked, “[y]ou didn’t want to see my muscles?” In her next class, S.B. shared

with Ms. Pearson that she was uncomfortable and did not want to go back to

petitioner’s class. Ms. Pearson referred S.B. to administration, where she met with

Principal Williams. S.B. was visibly shaken and looked as if she had been crying. In

her statement to Principal Williams and later at the hearing before respondent-

Board, S.B. said that petitioner’s comments and his touching her made her

“uncomfortable,” and she “felt his [comments were] out of line.”

      That same day, Principal Williams called petitioner into his office to question

him about his conduct. Petitioner admitted that he had touched S.B.’s hair, but did



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not seem to think he had done anything wrong by stroking her hair and making the

statements he had made. The combination of the two incidents that day (Monday)

and the previous Friday led Principal Williams to believe it would be impossible for

petitioner to be an effective educator at Tar River Academy. Principal Williams

informed the superintendent, Dr. Anthony Jackson, of petitioner’s actions, and the

superintendent met with petitioner on 22 October 2014 in order to allow him an

opportunity to respond to the allegations against him. Dr. Jackson testified that he

was concerned about the lack of judgment petitioner had shown in such a short time.

After the meeting, Dr. Jackson suspended petitioner with pay effective immediately.

Dr. Jackson then recommended petitioner’s dismissal by written letter dated 25

November 2014.

      Petitioner appealed Dr. Jackson’s dismissal recommendation to respondent-

Board, which conducted a hearing that lasted over three hours on 8 January 2015.

Three students, including S.B., along with Ms. Pearson, Principal Williams, and Dr.

Jackson, testified at the hearing. Respondent-Board viewed the video recording.

Respondent-Board     also   received   documentary      evidence   from   both   the

superintendent, Dr. Jackson, and petitioner. The documentary evidence included,

inter alia, copies of petitioner’s written reprimand, the dismissal letter, students’

handwritten statements regarding the incident, copies of pertinent statutes (N.C.G.S.




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§§ 115C-325.4, -325.6, -325.7), and applicable pages from the Nash-Rocky Mount

Board of Education Policy Manual.

      Following the hearing, respondent-Board voted to terminate petitioner based

on grounds of inadequate performance, neglect of duty, failure to comply with such

reasonable requirements as respondent-Board may prescribe, and failure to fulfill the

duties and responsibilities imposed upon teachers by state law. On 12 January 2015,

respondent-Board notified petitioner in writing of its decision to dismiss him from his

position as a teacher on the grounds listed above. Petitioner filed a “Petition for

Judicial Review and Notice of Appeal” and later an Amended Petition in the Superior

Court. Petitioner asserted that he was seeking review of respondent-Board’s decision

pursuant to N.C. Gen. Stat. §§ 150B-45 and 115C-325.8.

      Respondent-Board timely filed in the Superior Court the Administrative

Record from petitioner’s 8 January 2015 dismissal hearing before respondent-Board.

Respondent-Board also filed a Response to the Petition for Judicial Review pursuant

to N.C. Gen. Stat. § 150B-46.

      Meanwhile, petitioner filed a Motion to Enter Default, a Motion for Judgment

by Default, a Motion for Summary Judgment, and later a revised Motion for

Summary Judgment. Petitioner noticed these three motions for hearing on 13 April

2015, and respondent-Board subsequently filed a Notice of Hearing on the Petition.




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      On 13 April 2015, the case came on for hearing before the Honorable Alma

Hinton, Superior Court Judge presiding. By order entered 15 April 2015, Judge

Hinton denied petitioner’s three motions, dismissed the Petition for Judicial Review,

and affirmed respondent-Board’s decision dismissing petitioner from his position as

a teacher. Petitioner timely filed Notice of Appeal to this Court.

              ____________________________________________________

                  Petitioner’s Motion to Strike the Video Recording

      The Record on Appeal was deemed settled by operation of Rule 11(c) of the

North Carolina Rules of Appellate Procedure. Included in the Record on Appeal filed

with the Clerk of the Court of Appeals was a “CD of video evidence filed pursuant to

Rule 9(d)” (“video recording”). Petitioner filed a Motion to Strike the video recording,

arguing, inter alia, that the trial court did not view or examine the recording, and

therefore, it is not properly before this Court. Thereafter, respondent-Board filed a

response to petitioner’s Motion to Strike.

      “Pursuant to the North Carolina Rules of Appellate Procedure, our review is

limited to the record on appeal . . . and any other items filed with the record in

accordance with Rule 9(c) and 9(d).” N.C. Concrete Finishers, Inc. v. N.C. Farm

Bureau Mut. Ins. Co., Inc., 202 N.C. App. 334, 337, 688 S.E.2d 534, 536 (2010)

(emphasis added) (quoting Kerr v. Long, 189 N.C. App. 331, 334, 657 S.E.2d 920, 922

(2008)). Rule 9(d) states in relevant part:



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             Any exhibit filed, served, submitted for consideration,
             admitted, or made the subject of an offer of proof may be
             made a part of the record on appeal if a party believes that
             its inclusion is necessary to understand an issue on appeal.

             ...

             (2) Exhibits Not Included in the Printed Record on Appeal.
             A documentary exhibit that is not included in the printed
             record on appeal can be made a part of the record on appeal
             by filing three copies with the clerk of the appellate court.

N.C. R. App. P. 9(d)(2) (2014).

      Here, the CD video recording was part of the Administrative Record, which

was filed by respondent-Board pursuant to N.C. Gen. Stat. § 150B-47 for review by

the trial court and filed with this Court pursuant to Rule 9(d)(2). Petitioner concedes

that the CD video recording is part of the administrative record. Because the CD was

part of the Administrative Record, which in turn was before and reviewed by the trial

court, it is properly a part of the record here. See Batch v. Town of Chapel Hill, 326

N.C. 1, 12, 387 S.E.2d 655, 662 (1990) (making “an examination of the administrative

record which was correctly before the trial court on review”). Accordingly, petitioner’s

Motion to Strike the CD video recording is denied.

              ____________________________________________________

      On appeal, petitioner asserts the following arguments (condensed for purposes

of clarity and ease of reading): (I) the trial court erred in committing various errors

of law and procedure in hearing and deciding the petition; and (II) respondent-Board’s



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decision to terminate petitioner’s employment was not supported by substantial

evidence in the record, was arbitrary or capricious, and was made upon unlawful

procedures or affected by other error of law.

      This case arises from a judicial review of respondent-Board’s decision to

terminate petitioner’s employment as a teacher with the Tar River Academy. A

superior court sitting in review of a local school board’s decision to dismiss a teacher

may reverse the school board’s decision if it determines that the decision:

                (1)     Is in violation of constitutional provisions.

                (2)     Is in excess of the statutory authority or jurisdiction
                        of the board.

                (3)     Was made upon unlawful procedure.

                (4)     Is affected by other error of law.

                (5)     Is unsupported by substantial evidence in view of
                        the entire record as submitted.

                (6)     Is arbitrary or capricious.

N.C. Gen. Stat. § 115C-325.8 (2015).

      The language of N.C. Gen. Stat. § 115C-325.8 is nearly identical to the

language set forth in N.C. Gen. Stat. § 150B-51(b) of the Administrative Procedure

Act (“APA”).1 Prior to the adoption of N.C. Gen. Stat. § 115C-325.8, effective 1 July


      1   N.C. Gen. Stat. § 150B-51(b) of the APA states as follows:

                (b) The court reviewing a final decision may affirm the decision or



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2014, the right of appeal to superior court for a dismissed teacher was previously

codified in N.C. Gen. Stat. § 115C-325(n).2 Under N.C. Gen. Stat. § 115C-325(n),



                 remand the case for further proceedings. It may also reverse or modify
                 the decision if the substantial rights of the petitioners may have been
                 prejudiced because the findings, inferences, conclusions, or decisions
                 are:

                         (1) In violation of constitutional provisions;

                         (2) In excess of the statutory authority or jurisdiction of
                         the agency or administrative law judge;

                         (3) Made upon unlawful procedure;

                         (4) Affected by other error of law;

                        (5) Unsupported by substantial evidence admissible under
                 G.S 150B-29(a), 150B-30, or 150B-31 in view of the  entire record as
                 submitted; or

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

N.C.G.S. § 150B-51(b) (2015); see also Joyner v. Perquimans Cnty. Bd. of Educ., 231 N.C. App. 358,
364–65, 752 S.E.2d 517, 521–22 (2013) (holding the trial court was correct in applying the “whole
record test” in undertaking its review of the Board of Education’s decision and citing N.C. Gen. Stat.
§ 150B-51(b) for the appropriate standard of review).

       2   N.C. Gen. Stat. § 115C-325(n) states as follows:

                 (n) Appeal. – Any career employee who has been dismissed or demoted
                 under G.S. 115-325(e)(2), or under G.S. 115C-325(j2), or who has been
                 suspended without pay under G.S. 115C-325(a)(4a), or any school
                 administrator whose contract is not renewed in accordance with G.S.
                 115C-287.1, or any probationary teacher whose contract is not renewed
                 under G.S. 115C-325(m)(2) shall have the right to appeal from the
                 decision of the board to the superior court for the superior court district
                 or set of districts as defined in G.S. 7A-41.1 in which the career
                 employee is employed. This appeal shall be filed within a period of 30
                 days after notification of the decision of the board. The cost of
                 preparing the transcript shall be determined under G.S. 115C-
                 325(j2)(8) or G.S. 115C-325(j3)(10). A career employee who has been
                 demoted or dismissed, or a school administrator whose contract is not
                 renewed, who has not requested a hearing before the board of



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North Carolina’s appellate courts consistently applied the standards for judicial

review set out in N.C.G.S. § 150B-51(b) of the APA to appeals from school boards to

the courts. See, e.g., Moore v. Charlotte-Mecklenburg Bd. of Educ., 185 N.C. App. 566,

572, 649 S.E.2d 410, 414 (2007) (“On appeal of a decision of a school board, pursuant

to the amended N.C. Gen. Stat. § 115C-325(n), ‘a trial court sits as an appellate court

and reviews the evidence presented to the school board.’ ” (citation omitted)); Joyner

v. Perquimans Cnty. Bd. of Educ., 231 N.C. App. 358, 363–64, 752 S.E.2d 517, 521

(citing to N.C.G.S. § 150B-51(b) for the standard of review where a probationary

teacher whose contract had not been renewed appealed the decision pursuant to

N.C.G.S. § 115C-325(n)).         Accordingly, the case law developed under the prior

statutory framework of N.C.G.S. § 115C-325(n) is instructive, particularly where no

appellate court has addressed the standard of review for N.C.G.S. § 115C-325.8 and

where N.C.G.S. § 115C-325.8 is practically indistinguishable from the standard of

review set forth in N.C.G.S. § 150B-51(b).

       In reviewing administrative proceedings like those conducted by school boards,

the trial court acts as an appellate court and may not substitute its judgment for that

of a school board. See, e.g., Rector v. N.C. Sheriffs’ Educ. & Training Stds. Comm’n,

103 N.C. App. 527, 532, 406 S.E.2d 613, 617 (1991). Further, “the substantive nature



               education pursuant to this section shall not be entitled to judicial
               review of the board’s action.

Id. § 115C-325(n) (2015).

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of each assignment of error dictates the standard of review.” N.C. Dep’t of Env’t and

Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004) (citations

omitted). “When this court reviews appeals from superior court either affirming or

reversing the decision of an administrative agency, 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.” Mayo v. N.C. State Univ., 168 N.C. App. 503, 507, 608 S.E.2d 116, 120

(2005) (citing In re Appeal by McCrary, 112 N.C. App. 161, 166, 435 S.E.2d 359, 363

(1993)).

      De novo review applies to a petitioner’s claims regarding the violation of

subsections (1) through (4) of N.C.G.S. § 115C-325.8. See Carroll, 358 N.C. at 659,

599 S.E.2d at 895 (interpreting similar provisions of N.C.G.S. § 150B-51(b)). “Under

the de novo standard of review, the trial court considers the matter anew and freely

substitutes its own judgment” for that of the board. Id. at 660, 559 S.E.2d at 895

(citation and quotation marks omitted).

      The remaining two grounds for violations under N.C.G.S. § 115C-325.8, claims

that respondent-Board’s decision was unsupported by substantial evidence

(subsection (5)) or was arbitrary or capricious (subsection (6)), are subject to the whole

record test. See Davis v. Macon Cnty. Bd. of Educ., 178 N.C. App. 646, 652, 632 S.E.2d

590, 594 (2006). The whole record test requires a reviewing court to consider the



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entire record to determine whether there is “substantial evidence” to support a school

board’s final decision.    Joyner, 231 N.C. App. at 365, 752 S.E.2d at 521–22

“Substantial evidence is that which a reasonable mind would regard as adequately

supporting a particular conclusion.” Walker v. N.C. Dep’t of Human Res., 100 N.C.

App. 498, 503, 397 S.E.2d 350, 354 (1990) (citation omitted). “[T]he reviewing court

must examine all competent evidence, including that which contradicts the agency’s

findings, to determine if the agency decision is possessed of a rational basis in the

evidence.” Beauchesne v. Univ. of N.C. at Chapel Hill, 125 N.C. App. 457, 465, 481

S.E.2d 685, 691 (1997) (citation omitted).

      In applying the whole record test, the reviewing trial court “may not substitute

its judgment for the agency’s as between two conflicting views, even though it could

reasonably have reached a different result had it reviewed the matter de novo.”

Carroll, 358 N.C. at 660, 599 S.E.2d at 895 (citation omitted). The decisions of local

school boards may be reversed as arbitrary or capricious only if they are “patently in

bad faith, or whimsical in the sense that they indicate a lack of fair and careful

consideration or fail to indicate any course of reasoning and the exercise of judgment.”

Alexander v. Cumberland Cnty. Bd. of Educ., 171 N.C. App. 649, 660, 615 S.E.2d 408,

416 (2005) (citations and quotation marks omitted).

      Additionally, “[i]n all actions brought in any court against a local board of

education, the order or action of the board shall be presumed to be correct and the



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burden of proof shall be on the complaining party to show to the contrary.” N.C. Gen.

Stat. § 115C-44(b) (2015); see also Alexander, 171 N.C. App. at 660, 615 S.E.2d at 416

(citing statutory presumption of correctness in administrative review of school board

decisions). The burden is on petitioner to show that the school board acted arbitrarily

or capriciously. Abell v. Nash Cnty. Bd. of Educ., 89 N.C. App. 262, 265, 365 S.E.2d

706, 708 (1988) (Abell II) (citing Edward L. Winn, Teacher Nonrenewal in North

Carolina, 14 Wake Forest L. Rev. 739, 762 (1978)). Arbitrary or capricious reasons

“are those without any rational basis in the record . . . .” Abell v. Nash Cnty. Bd. of

Educ., 71 N.C. App. 48, 52, 321 S.E.2d 502, 506 (1984) (Abell I).

                                            I

      Petitioner first argues that the trial court’s decision was made upon unlawful

procedures and was affected by error of law. Specifically, petitioner contends that

the trial court (1) erred and violated his rights by not “adjudicating” his subpoena; (2)

improperly denied petitioner’s motions to enter default, judgment by default, and for

summary judgment; (3) erred in its review and resulting order because the order was

not “factual in nature”; and (4) erred in hearing from respondent-Board’s

“impromptu” counsel at the 13 April 2015 hearing. On all points, we disagree.

                                     (1) Subpoena

      Once petitioner’s case was before the trial court for review, petitioner sought

to compel (1) the addresses of two students, as petitioner claimed the students



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assaulted him, and (2) the minutes of the Board’s closed session deliberation following

petitioner’s dismissal. Respondent-Board filed a Motion to Quash Subpoena on the

grounds that the subpoena (1) required disclosure of privileged or other protected

matter to which no exception or waiver applied and (2) was otherwise unreasonable

or oppressive. However, there is nothing in the record before this Court to indicate

whether the trial court ruled on respondent-Board’s Motion to Quash Subpoena. As

petitioner failed to “obtain a ruling upon the . . . motion,” he has failed to preserve

this issue for appeal. N.C. R. App. P. 10(a)(1) (2014).

      Nevertheless, assuming arguendo the issue is preserved for review, petitioner

could not prevail. Section 115C-325.8 explicitly provides that a teacher’s appeal of a

dismissal “shall be decided on the administrative record.” N.C.G.S. § 115C-325.8(b).

In the instant case, at petitioner’s dismissal hearing before respondent-Board,

petitioner was permitted to subpoena witnesses, and he did so. He subpoenaed three

students to testify—the female student who recorded the video, a male student who

observed petitioner’s exchange with S.B. where petitioner touched her hair, and

another female student who was in the classroom when petitioner removed his shirt.

Petitioner questioned those students, and he was also given the opportunity to

present documentary evidence. Once the administrative record was closed, petitioner

had no right to request additional discovery or to subpoena additional witnesses

before the Superior Court. Indeed,



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             when a superior court judge sits as an appellate court to
             review an administrative agency decision the judge is not
             required to make findings of fact. . . . If the superior court
             judge does make findings of fact and conclusions of law,
             these will not be considered in our appellate review.

Shepherd v. Consolidated Judicial Retirement Sys., 89 N.C. App. 560, 562, 366 S.E.2d

604, 605–06 (1988) (emphasis added) (internal citations omitted). Thus, even if

petitioner had obtained a ruling from the trial court on respondent-Board’s Motion to

Quash petitioner’s subpoena, the ruling would not have been favorable to petitioner

as petitioner could not have presented additional evidence to the superior court that

had not been presented to respondent-Board. See id.; see also Macon Cnty. Bd. of

Educ., 178 N.C. App. at 651, 632 S.E.2d at 594 (“On appeal of a decision of a school

board, a trial court sits as an appellate court and reviews the evidence presented to

the school board.” (emphasis added) (citation omitted)).

      Accordingly, there is no basis for petitioner’s assertion that he was entitled to

subpoena records or was otherwise entitled to additional discovery on appeal once the

matter was before the trial court. The trial court was permitted to review respondent-

Board’s decision only on the administrative record before it, see N.C.G.S. § 115C-

325.8(b), and thus, the trial court did not err in concluding that it was “only

empowered to consider the record . . . .”

                                (2) Petitioner’s Motions




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      Petitioner next contends that the trial court erred in determining that his

motions—Motion to Enter Default, Motion for Judgment by Default, and Motion for

Summary Judgment—were inappropriate as respondent-Board’s “answer” failed to

set forth affirmative defenses and deny allegations set forth in his Petition, which

petitioner considers to be a “complaint.” Specifically, petitioner contends that there

was “no genuine issue of any material fact” as respondent-Board failed to deny any

of petitioner’s allegations set forth in his petition. Thus, petitioner argues, as there

was “no genuine issue of any material fact,” the trial court should have granted

default, default judgment, and summary judgment in favor of petitioner. Petitioner’s

argument is without merit.

      Based on his motions before the trial court and his arguments before this

Court, petitioner is trying to assume the status of one who has filed a “complaint” in

the superior court. However, what petitioner actually sought in the superior court

was an administrative review of respondent-Board’s decision. Both the Petition and

the Amended Petition specifically state that they are brought pursuant to N.C. Gen.

Stat. §§ 150B-45 and 115C-325.8. Petitioner did not file a complaint or commence a

civil action under Rule 3 of the North Carolina Rules of Civil Procedure. See N.C.

Gen. Stat. § 1A-1, Rule 3 (2015) (“A civil action is commenced by filing a complaint

with the court.” (emphasis added)). Thus, respondent-Board was not required to

respond in accordance with the Rule of Civil Procedure applicable to a party in a civil



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action after service of a summons and a complaint. See N.C. Gen. Stat. § 1A-1, Rule

12(a)(1) (2015) (“A defendant shall serve his answer within 30 day after service of the

summons and complaint against him.” (emphasis added)).

      Indeed, the Rules of Civil Procedure “shall govern the procedure in the superior

and district courts of the State of North Carolina in all actions and proceedings of a

civil nature except when a differing procedure is prescribed by statute.” N.C. Gen.

Stat. § 1A-1, Rule 1 (2015) (emphasis added). Thus, “when a statute under which an

administrative board has acted provides an orderly procedure for an appeal to the

superior court for review of the board’s action, this procedure is the exclusive means

for obtaining such judicial review.” Presnell v. Pell, 298 N.C. 715, 722, 260 S.E.2d

611, 615 (1979) (citations and quotation marks omitted). Here, N.C. Gen. Stat. §

150B-46 provides that, in response to a petition filed following administrative

proceedings, “parties to the proceeding may file a response to the petition within 30

days of service. Parties, including agencies, may state exceptions to the decision or

procedure and what relief is sought in the response.” Id. § 150B-46 (2015).

      Respondent-Board responded in a timely manner to the Petition. Respondent-

Board was served with a copy of the Amended Petition by certified mail on 24

February 2015 and respondent-Board filed a copy with the trial court on 25 March

2015, within thirty days after receipt of the Petition (twenty-nine days later).

Respondent-Board had no duty to respond to petitioner’s improper motions.



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Accordingly, petitioner’s arguments are overruled as his motions for default and

summary judgment were inappropriate and properly denied by the trial court.

                         (3) Trial Court’s Review and Order

      Petitioner also contends that the trial court failed to review the Petition,

Administrative Record, and other materials. This contention is without merit. The

Order dismissing the Petition and affirming respondent-Board’s decision clearly

states as follows: “The Court has reviewed the Petition and Amended Petition, the

Administrative Record filed by Respondent[-Board] . . . and Respondent[-Board’s]

Response . . . and has considered the arguments of Petitioner and counsel for

Respondent[-Board], as well as the briefs and legal authorities submitted.” There is

nothing in the record before this Court that would suggest the trial court neglected

its duty and failed to perform the review required by law. See Moore, 185 N.C. App.

at 573, 649 S.E.2d at 415 (noting that the appellate court’s task “is essentially

twofold: (1) determining whether the trial court exercised the appropriate scope of

review and, if appropriate, (2) deciding whether the court did so properly.”)

      Petitioner also argues that the trial court’s order was not “factual in nature.”

However, when a trial court sits as an appellate court to review an administrative

agency decision, the court is not required to make findings of fact, and if the court

does make such findings, they may be disregarded on appellate review. See id.;

Shepherd, 89 N.C. App. at 562, 366 S.E.2d at 605–06 (1988); see also Area Mental



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Health Auth. v. Speed, 69 N.C. App. 247, 250, 317 S.E.2d 22, 25 (1984) (noting that

“it is unnecessary for a trial judge who reviews administrative action . . . to explain

the reasons for his decision to affirm such action”). We find nothing in the record to

suggest the trial court erred in its review of the administrative record or in its order.

Accordingly, petitioner’s argument is overruled.

                (4) Respondent’s Counsel at the 13 April 2015 Hearing

      Petitioner also argues that the trial court erred in allowing “impromptu”

counsel for respondent-Board and contends that he was prejudiced by the fact that

respondent-Board was represented by a different attorney, albeit from the same law

firm, at the 13 April 2015 hearing. The record, however, establishes that counsel

filed a Notice of Appearance and properly served petitioner with the notice in advance

of the hearing.    Petitioner cites to no authority to support his argument that

respondent-Board’s counsel was not properly before the court, nor does he put forth

any basis for his claim of prejudice other than accusations that the change in

attorneys was made in order to personally attack petitioner. This argument, which

is wholly without merit and is not supported by the record, is overruled.

                                           II

      In petitioner’s next argument, he contends that the trial court’s order affirming

respondent-Board’s decision to terminate petitioner’s employment was in error as

respondent-Board’s decision was not supported by substantial evidence in the record



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and was arbitrary and capricious; that respondent-Board’s decision was based on

improper evidence; that respondent-Board was required to make findings of fact; and

that respondent-Board’s decision was unconstitutional and otherwise made upon

improper procedures or affected by error of law. We disagree.

      Petitioner challenges the evidence relied upon to sustain his termination

based on “inadequate performance” and “neglect of duty” as insufficient.

             It is well settled that the credibility of witnesses and the
             probative value of particular testimony are for the
             administrative body to determine, and it may accept or
             reject in whole or in part the testimony of any witness.
             While an administrative body must consider all of the
             evidence and may not disregard credible undisputed
             evidence, it is not required to accept particular testimony
             as true.

State ex rel. Utils. Comm’n v. Duke Power Co., 305 N.C. 1, 21, 287 S.E.2d 786, 798

(1982) (citation omitted). Moreover, “it is the responsibility of the administrative

agency,” here respondent-Board, “to determine the weight and sufficiency of the

evidence and the credibility of witnesses, to draw inferences from the facts, and to

appraise conflicting and circumstantial evidence. See Watkins v. N.C. State Bd. of

Dental Exam’rs, 358 N.C. 190, 202, 593 S.E.2d 764, 771 (2004) (citation and quotation

marks omitted).

      During the hearing held on 8 January 2015, respondent-Board heard

testimony from a female student S.B. and two other students, Ms. Pearson, Principal

Williams, and Superintendent Anthony Jackson. Respondent-Board reviewed the


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                                   Opinion of the Court



video recording of the 17 October 2015 incident, considered the handwritten

statements and other documentary evidence presented by both petitioner and the

superintendent, and heard petitioner’s statements and arguments. The evidence,

which petitioner argues is not substantial and, therefore, cannot support respondent-

Board’s dismissal of petitioner, is summarized below.

      Petitioner does not dispute the essential facts, he only challenges the

conclusions to be drawn therefrom.       Petitioner has never denied that during a

situation with an out-of-control student, he removed his shirt and prepared for a

physical confrontation. Instead of calling a school administrator, the school resource

officer, or other assistance, petitioner became agitated, stripped to his bare torso, and

“prepared for combat.” Meanwhile, another teacher, Ms. Pearson, placed herself

between the door and the violent student, trying to calm him down, while also

entreating petitioner to please call “downstairs” for assistance. Ultimately, another

student contacted the main office and summoned help.

      Ms. Pearson testified that on 17 October 2015 there was no order in petitioner’s

classroom during the incident and that it is a teacher’s “responsibility to keep order

in a classroom at all points in time.” Principal Williams testified as follows:

             Based on the statements I had from the students and my
             conversation with [petitioner], I had determined that he
             had not acted in the best interests of the students, which is
             always our primary objective. He didn’t call the front office
             when – when the incident occurred. And I just felt like him
             preparing for combat instead of mitigating the


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             circumstances, he was actually adding to the situation at
             that time.

      Following the incident with the violent student and petitioner’s removal of his

shirt in the classroom on 17 October 2014, the following Monday, petitioner

approached a female student S.B., stroked her hair, and told her that he had been

thinking about her over the weekend. Petitioner also asked S.B., “[y]ou didn’t want

to see my muscles?” When questioned by Principal Williams, petitioner never denied

this conduct but instead claimed he was being “friendly” towards S.B.

      S.B. was extremely upset by petitioner’s actions towards her, testifying that he

had made her uncomfortable. Principal Williams testified that he was concerned that

petitioner did not seem to think he had done anything wrong and he further felt that

he could not risk petitioner possibly engaging in other inappropriate behavior with

students.

      Superintendent Jackson also testified regarding the applicable policies that

petitioner had failed to follow, including the Board’s policy against sexual

harassment. The Board also considered the North Carolina State Board of Education

policy outlining the Code of Ethics for professional educators.

      Reviewing the entire record, there is substantial evidence to support

respondent-Board’s decision to terminate petitioner’s employment as a teacher for

neglect of duty, inadequate performance, failure to fulfill the duties and

responsibilities imposed upon teachers by state law, and failure to comply with


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reasonable requirements prescribed by the Board, any of which, standing alone,

would be sufficient to support respondent-Board’s decision. See N.C. Gen. Stat. §§

115C-325.4(a)(1), (4), (9), (10) (2014), amended by 2015 N.C. Sess. Laws 2015-24, §

8.38(a) (“No teacher shall be dismissed . . . except for one or more of the following: (1)

Inadequate performance. . . . (4) Neglect of duty. . . . (9) Failure to fulfill the duties

and responsibilities imposed upon teachers . . . . (10) Failure to comply with such

reasonable requirements as the board may prescribe.”).

      Further, there is nothing in the record to suggest that respondent-Board failed

to consider and weigh all of the evidence or that respondent-Board’s decision was

“patently in bad faith, or whimsical.” In re Alexander, 171 N.C. App. at 660, 615

S.E.2d at 416 (citation omitted).       Accordingly, respondent-Board’s decision to

terminate petitioner was supported by substantial evidence in the record and was not

arbitrary or capricious.

      Petitioner complains that the evidence relied upon by respondent-Board was

“incompetent, unsubstantial, unreliable, and/or inadmissible.” In a dismissal hearing

before a school board, the board “may give probative effect to evidence that is of a

kind commonly relied on by reasonably prudent persons in the conduct of serious

affairs.” N.C. Gen. Stat. § 115C-325.7(4) (2014). Here, the testimony of students, a

teacher, the principal, the superintendent, written student statements, a video

recording of petitioner’s actions, and school board policies all constitute the type of



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probative evidence to which respondent-Board was entitled to give consideration.

Petitioner’s argument on this point is without merit.

      Petitioner also challenges what he deems respondent-Board’s lack of required

findings of fact. However, the procedures for a teacher dismissal hearing that govern

petitioner’s case do not require the board to make specific findings of fact or

conclusions of law. See N.C. Gen. Stat. §§ 115C-325.4 through -325.8 (2014). Rather,

a teacher “may not be dismissed . . . except upon the superintendent’s

recommendation based on one or more of the grounds in G.S. 115C-325.4.” Id. § 115C-

325.6(a). Those grounds include, inter alia, inadequate performance, neglect of duty,

and failure to fulfill the duties and responsibilities imposed upon teachers or

administrators.   See id. §§ 115C-325.4(a)(1)–(9).        Prior to a recommendation of

dismissal or demotion, written notice to the teacher, setting forth “the grounds upon

which [the superintendent] believes such dismissal or demotion is justified,” id. §

115C-325.6(b), is also required.

      Respondent-Board’s written notice to petitioner of the basis for his dismissal

included the following:

             The board determined that your conduct in your classroom
             at Tar River Academy on Friday, October 17, and Monday,
             October 20, required your termination. Your failure to
             appropriately respond to a student who became agitated in
             your classroom on Friday, October 17, created an unsafe
             situation during which the student injured himself. Rather
             than maintaining order in your classroom and contacting
             the front office for assistance with the student in the


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             hallway, you created additional commotion inside the
             classroom by removing your shirt.

             Despite being provided an opportunity to prove that the
             Friday incident was an aberration, on the following
             Monday, you made an inappropriate comment to a female
             student while touching her hair. Despite testimony at the
             January 8 hearing about the effect that your conduct had
             on the student in question and a student who witnessed the
             interaction, you continued to maintain that you had done
             nothing wrong.

The above written notice clearly conveys respondent-Board’s determination that

petitioner’s conduct warranted dismissal and the precise facts upon which that

determination was based. Accordingly, as respondent-Board provided the requisite

notice to petitioner pursuant to N.C.G.S. § 115C-325.6, petitioner’s argument that

respondent-Board was required to make “findings of fact and conclusions of law” is

overruled.

      Finally, petitioner makes a generalized argument that his constitutional rights

were violated and his property taken without due process. He neglects to cite to any

authority in support of these assertions. See State v. Hunter, 305 N.C. 106, 112, 286

S.E.2d 535, 539 (1982) (“[A] constitutional question which is not raised and passed

upon in the trial court will not ordinarily be considered on appeal.” (citations

omitted)). Further, because the record fully establishes that petitioner was afforded

the process and procedure to which he was entitled pursuant to N.C. Gen. Stat. §§

115C-325.4 through -325.8, petitioner’s argument is overruled, and we find that



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respondent-Board’s decision was not unconstitutional or otherwise made upon

improper procedures or affected by error of law.

       Thus, as the trial court’s order affirming respondent-Board’s termination of

petitioner was made upon lawful procedures, was not affected by error of law, was

supported by substantial evidence, and was not arbitrary or capricious, the order of

the trial court is

       AFFIRMED.

       Judges DILLON and ZACHARY concur.




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