                                 NO. COA13-300

                       NORTH CAROLINA COURT OF APPEALS

                           Filed: 18 February 2014


EQUITY SOLUTIONS OF THE
CAROLINAS, INC.,
          Petitioner,

       v.                                 Wake County
                                          No. 10 CVS 15729
NORTH CAROLINA DEPARTMENT
OF STATE TREASURER,
          Respondent.


       Appeal by petitioner from order entered 11 September 2012 by

Judge W. Osmond Smith, III in Wake County Superior Court.           Heard

in the Court of Appeals 9 September 2013.


       Ward and Smith, P.A., by A. Charles Ellis and Joseph A.
       Schouten, for petitioner-appellant.

       Attorney General Roy Cooper, by Assistant Solicitor General
       Gary R. Govert, Special Deputy Attorney General K.D. Sturgis,
       and Special Deputy Attorney General M.A. Kelly Chambers, for
       respondent-appellee.


       GEER, Judge.


       Petitioner Equity Solutions of the Carolinas, Inc. appeals

from    the   trial   court's   order   affirming   the   North   Carolina

Department of State Treasurer's decision to deny Equity Solutions'

request for a declaratory ruling and dismissing Equity Solutions'

petition for judicial review of the State Treasurer's decision.
                                 -2-
On appeal, while Equity Solutions contends that the trial court

applied an improper standard of review when reviewing the State

Treasurer's decision to deny Equity Solutions' request for a

declaratory ruling, we hold that the trial court employed the

correct standard of review.

     Further, Equity Solutions contends that the State Treasurer

in fact issued a "de facto ruling" against Equity Solutions on the

merits that the trial court should have reviewed.     We disagree.

The State Treasurer never rendered a declaratory ruling, and the

merits of Equity Solutions' arguments were, therefore, not before

the trial court and are not before this Court.

                                Facts

     Equity Solutions is a business that identifies the possible

existence of surplus funds remaining from foreclosure sales and

contacts people or entities it believes are entitled to some or

all of the surplus funds.     After then entering into an agreement

with the owner of the surplus funds, Equity Solutions files before

the clerk of the superior court holding the surplus funds a special

proceeding pursuant to N.C. Gen. Stat. § 1-339.71 (2013).

     Equity Solutions asserts that it attached to its "Petition

for Surplus Funds" initiating the special proceeding a copy of its

agreement with the owner of the surplus funds, which purports to

assign the right to the funds to Equity Solutions in exchange for
                                          -3-
payment of a percentage of the amount of the funds.                 If the clerk

of court allows the petition and directs that the foreclosure

surplus funds be paid to Equity Solutions, then Equity Solutions

pays the owner of the surplus funds the portion of the funds

designated in the agreement.

     The    State      has   contended    that   Equity      Solutions'    business

constitutes      the    recovery    of    abandoned    and    unclaimed    property

governed by the Unclaimed Property Act, N.C. Gen. Stat. §§ 116B-

51 et seq. (2013).           N.C. Gen. Stat. § 116B-78(a1) (2013) governs

an "agreement . . . if its primary purpose is to locate, deliver,

recover,    or    assist       in   the    recovery    of     property    that   is

distributable to the owner or presumed abandoned."                       Agreements

covered by the statute must be in writing and include certain

disclosures regarding the property at issue and the fee being

charged for the property's recovery.                  N.C. Gen. Stat. § 116B-

78(b).     The statute also generally limits the maximum allowable

property finder's fee.              N.C. Gen. Stat. § 116B-78(b)(6).              A

violation of the provisions of the statute constitutes an unfair

or deceptive act or practice in violation of N.C. Gen. Stat. § 75-

1.1 (2013).      N.C. Gen. Stat. § 116B-78(g).

     On 11 May 2010, the Attorney General of North Carolina issued

an investigative demand to Equity Solutions seeking documents

relating to Equity Solutions' business, claiming that it involved
                                -4-
the recovery of abandoned or unclaimed property located in North

Carolina.   In April and June 2010, Allen Martin, an employee of

the State Treasurer's office, sent letters to two county clerks of

court stating that the agreements between Equity Solutions and its

clients filed by Equity Solutions in superior court violated N.C.

Gen. Stat. § 116B-78 and were, therefore, invalid.

     On 18 June 2010, Equity Solutions submitted a letter to the

State Treasurer describing its business model and attaching two

sets of business documents that Equity Solutions claimed were

representative of those it had used in the past and those it

planned to use in the future.   Equity Solutions requested that the

State Treasurer issue "a declaratory ruling as to the applicability

of N.C. Gen. Stat. § 116B-78 to the assignment agreements which

Equity Solutions has employed in its business operations in the

past . . . and the agreements it intends to employ in the future

. . . ."

     On 13 August 2010, the State, through the Attorney General

and the State Treasurer, filed an action against Equity Solutions

and several individuals alleging claims for racketeering, unfair

and deceptive practices, and unjust enrichment (the "enforcement

action").   The complaint alleged that the assignment agreements

referred to in Equity Solutions' request for a declaratory ruling

were, in fact, "sham agreements" that were not supported by
                                   -5-
consideration.        The   complaint    further   alleged   that   Equity

Solutions' business model included inducing "the apparent owners

to agree to pay defendant Equity Solutions a 'contingency fee' and

other fees and charges" that exceed the statutory maximum property

finder's fee under the Unclaimed Property Act and that those

contingency fee agreements constituted the real agreements between

the parties.   The complaint alleged that since the contingency fee

agreements did not comply with N.C. Gen. Stat. § 116B-78 for

several reasons, they were unenforceable.

     On 16 August 2010, the State Treasurer sent a letter to Equity

Solutions declining to issue a declaratory ruling and stating:

               Pursuant to N.C.G.S. § 150B-4 and 20
          N.C.A.C. 01F 0205, I have determined that the
          issuance   of   a   declaratory   ruling   is
          undesirable.    Therefore, the Petitioner's
          request is denied for the following reasons:

                 1.    The subject matter of the request is
                       the subject of active litigation in
                       Wake    County    between     Equity
                       Solutions, the State Treasurer, and
                       the Attorney General.

                 2.    The request seeks application of
                       N.C.G.S. § 116B-78 to an "Absolute
                       Assignment"      and     "Conveyance
                       Agreement" without disclosing the
                       full factual setting surrounding
                       these   documents,   including   any
                       representations made to induce the
                       apparent   owner   to   sign   these
                       documents, and the manner in which
                       any of these documents may have been
                       used in court proceedings seeking
                               -6-
                     disbursement   of   unclaimed   or
                     abandoned funds.

                3.   The   request   involves  disputed
                     issues of material fact, including
                     whether the "Absolute Assignment"
                     represents   an  actual  agreement
                     between the parties.

                4.   The proposed "Purchase Agreement"
                     offers only blank spaces for its
                     material terms, such as the amount
                     of the finder's fee, and the amount
                     of the costs and expenses to be
                     borne by the apparent owner.

     On 15 September 2010, Equity Solutions filed a petition for

judicial review of the State Treasurer's denial of its request for

a declaratory ruling.    On 15 October 2010, the State Treasurer

moved to dismiss Equity Solutions' petition for judicial review

pursuant to Rules 12(b)(1), (6), and (7) of the Rules of Civil

Procedure.

     On 18 October 2010, the defendants in the enforcement action,

including Equity Solutions, filed an answer, motions to dismiss,

a motion for Rule 11 sanctions, counterclaims against the State,

and a third-party complaint against State Treasurer Janet Cowell,

individually.   On 17 November 2010, the State filed a motion to

dismiss the third-party complaint against the State Treasurer,

individually, and the counterclaims against the State.      On 11

September 2012, the trial court entered an order denying the

defendants' motions to dismiss in the enforcement action, but
                                -7-
granting the State's motion to dismiss the counterclaims and third-

party complaint in the enforcement action.

     Also on 11 September 2012, the trial court entered an order

affirming the State Treasurer's decision to deny Equity Solutions'

request for a declaratory ruling and dismissing Equity Solutions'

petition for judicial review.    Equity Solutions timely appealed

the order to this Court.

                            Discussion

     "This Court's review of 'a superior court order entered upon

review of an administrative agency decision, . . . [involves a]

two-fold task: (1) [to] determine whether the trial court exercised

the appropriate scope of review and, if appropriate; (2) [to]

decide whether the court did so properly.'"    In re Denial of NC

IDEA's Refund of Sales, 196 N.C. App. 426, 433-34, 675 S.E.2d 88,

94-95 (2009) (quoting Cnty. of Wake v. N.C. Dep't of Env't &

Natural Res., 155 N.C. App. 225, 233–34, 573 S.E.2d 572, 579

(2002)).

     Here, Equity Solutions sought a declaratory ruling from the

State Treasurer pursuant to N.C. Gen. Stat. § 150B-4(a) (2009).1


     1The General Assembly enacted a revised version of N.C. Gen.
Stat. § 150B-4 in 2011 N.C. Sess. Law ch. 398, § 56 (effective
June 18, 2011). Given the date of Equity Solutions' request for
a declaratory ruling and the State Treasurer's denial of Equity
Solutions' request, the revised version of N.C. Gen. Stat. § 150B-
4 does not apply to this case.
                                 -8-
N.C. Gen. Stat. § 150B-4(a) provides in relevant part: "On request

of a person aggrieved, an agency shall issue a declaratory ruling

as to the validity of a rule or as to the applicability to a given

state of facts of a statute administered by the agency or of a

rule or order of the agency, except when the agency for good cause

finds issuance of a ruling undesirable."

     After the State Treasurer denied Equity Solutions' request

for a declaratory ruling, Equity Solutions petitioned the trial

court for judicial review.    The trial court's review of the State

Treasurer's denial was governed by N.C. Gen. Stat. § 150B-51(b)

(2009).2    N.C. Gen. Stat. § 150B-51(b) provides that the trial

court may

            reverse or modify the agency's decision . . .
            if the substantial rights of the petitioners
            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;



     2The General Assembly's revised version of N.C. Gen. Stat. §
150B-51, enacted in 2011 N.C. Sess. Law ch. 398, § 27, applies "to
contested cases commenced on or after" 1 January 2012 and,
therefore, does not apply to this case. Id.
                                    -9-
                 (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.

     "During judicial review of an administrative agency's final

decision, the substantive nature of each assignment of error

dictates the standard of review."         In re Denial, 196 N.C. App. at

432, 675 S.E.2d at 94.        The first four grounds for reversing or

modifying an agency's decision provided in N.C. Gen. Stat. § 150B-

51(b)   give   rise    to   questions   of   law   and   the   trial   court,

accordingly, reviews arguments based on those grounds de novo.             In

re Denial, 196 N.C. App. at 433, 675 S.E.2d at 94.             However, the

fifth and sixth grounds for reversing or modifying an agency's

decision set out in N.C. Gen. Stat. § 150B-51(b) involve factual

inquiries, and the trial court, therefore, reviews arguments on

those two grounds under the whole record test.           In re Denial, 196

N.C. App. at 433, 675 S.E.2d at 94.

     "Under the       de novo   standard of review, the trial court

'consider[s] the matter anew[] and freely substitut[es] its own

judgment for the agency's[.]'"          Id. (quoting Mann Media, Inc. v.

Randolph Cnty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17

(2002)).   "In conducting 'whole record' review, the trial court

must examine all the record evidence in order to determine whether
                                     -10-
there is substantial evidence to support the agency's decision."

Id. "When the trial court reviews an administrative decision under

the whole record test, it '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.'"       Id. (quoting Watkins v. N.C. State Bd. of Dental

Exam'rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004)).

      In this case, in reviewing the State Treasurer's decision,

the   trial    court    concluded   (1)   that   "[t]here   is   substantial,

competent evidence to support each of the State Treasurer's reasons

for denying the requested declaratory rulings" and (2) that "[t]he

State Treasurer's reasons for denying the request, each standing

alone or taken together, constitute 'good cause' for the denial."

The   trial     court     further   observed     that   "material    factual

representations in, and omissions from, Equity Solutions' request

. . . presented merely hypothetical circumstances and did not

provide 'a given state of facts' regarding genuine and legally

valid 'assignments' about which Equity Solutions is presently

'aggrieved' within the meaning of N.C. Gen. Stat. § 150B-4."

      The order additionally found:

              Regarding Equity Solutions' proposed new
              "Purchase Contracts," on the face of the
              record and Equity Solutions' pleadings, these
              documents   are   simply    possible   future
              contracts, with several material terms not
              provided by Equity Solutions.      Therefore,
                                   -11-
          Equity Solutions is not presently "aggrieved"
          regarding the possible validity or invalidity
          of those potential contracts under N.C. Gen.
          Stat. § 116B-78 (whatever their material terms
          may end up being), and the State Treasurer
          therefore could not have lawfully rendered an
          advisory opinion on that matter as well.

The trial court ultimately concluded that "[t]he State Treasurer's

denial of the request for declaratory rulings was not arbitrary,

capricious, an abuse of discretion, or otherwise in violation of

substantive or procedural law."

                                    I

     Equity Solutions first argues that the trial court erred in

limiting its decision to whether the State Treasurer properly

declined to give a declaratory ruling.         Equity Solutions argues

that the trial court should have reached -- and this Court should

reach -- the merits of Equity Solutions' request for a declaratory

ruling and hold that N.C. Gen. Stat. § 116B-78 does not apply to

its business model.       Equity Solutions contends that the State

Treasurer issued a "de facto ruling" denying its request on the

merits since the State Treasurer "made [her] position very clear,

through [her] Complaint in the State Action and by the actions

taken by Allen Martin and the Attorney General's Office, that

Section   116B-78   did    apply    to    Equity   Solutions'   business

arrangements."
                                 -12-
     However,    investigative actions by the Attorney General's

Office, letters from a State Treasurer's Office employee to two

county clerks of court, and allegations in the enforcement action

complaint do not individually or collectively constitute a formal

decision by a State agency that is legally binding on Equity

Solutions and the State Treasurer, as a formal declaratory ruling

would be.     See N.C. Gen. Stat. § 150B-4(a) ("A declaratory ruling

is binding on the agency and the person requesting it unless it is

altered or set aside by the court.").       Since there has been no

declaratory ruling that actually binds Equity Solutions and the

State Treasurer, there was no decision on the merits before the

trial court or this Court.

     Equity    Solutions   nonetheless   contends   that   because   its

request sought a decision on a solely legal issue -- whether N.C.

Gen. Stat. § 116B-78 applies to its business model as described in

its request to the State Treasurer -- and because this Court

reviews legal issues de novo, this Court can properly reach the

merits of the request for a declaratory ruling.      Equity Solutions'

argument appears to confuse the concept of a trial de novo, in

which a court conducts a "'new trial on the entire case . . . as

if there had been no trial in the first instance[,]'" N.C. Dep't

of Env't & Natural Res. v. Carroll, 358 N.C. 649, 661 n.3, 599

S.E.2d 888, 895 n.3 (2004) (quoting Black's Law Dictionary 1512
                                 -13-
(7th ed. 1999)), with the concept of a de novo standard of review

"that applies when the trial court acts, as here, in the capacity

of an appellate court and reviews an agency decision for errors of

law and procedure," id. (internal citation omitted).              Again,

because there has been no agency decision on the merits in this

case, there is no decision to which this Court can apply a de novo

standard of review.

     We, therefore, offer no opinion on the merits of Equity

Solutions' request for a declaratory ruling.          That issue was not

before the trial court and is not before this Court.

                                  II

     Equity Solutions next argues that the trial court applied an

improper standard of review when reviewing the petition from the

State Treasurer's denial of its request for a declaratory ruling.

We disagree.

     When reviewing the issue whether an agency had good cause to

decline to issue a declaratory ruling, the reviewing court must

first determine whether the record supports the reasons given by

the agency for declining to issue a ruling.              Cf. Charlotte-

Mecklenburg Hosp. Auth. v. Bruton, 145 N.C. App. 190, 191-92, 550

S.E.2d 524, 525-26 (2001) (setting out pertinent facts in record

supporting   agency's   determination   that   good   cause   existed   to

decline to issue declaratory ruling).          If the reviewing court
                                   -14-
determines there is record support for the reason given by the

agency, the reviewing court then reviews de novo whether the reason

given constitutes good cause to decline to issue a ruling.            Id. at

193, 550 S.E.2d at 526.

     Here, the trial court's order detailed the facts in the record

supporting the State Treasurer's reasons for declining to issue a

ruling.   The court then determined that there was "substantial,

competent evidence to support each of the State Treasurer's reasons

for denying the requested declaratory rulings."          Thus, the order

demonstrates that the court properly reviewed the record and found

there was evidence supporting the State Treasurer's reasons for

declining to issue a ruling.

     After determining that the record supported the reasons given

by the State Treasurer, the trial court further concluded, in a

separately numbered conclusion of law, that the "State Treasurer's

reasons for denying the request, each standing alone or taken

together, constitute 'good cause' for the denial."             Given this

language, we hold that the trial court properly applied a de novo

standard of review to the issue whether the reasons set forth by

the trial court constituted good cause to decline to issue a

ruling.   We note, however, that the better practice is for a trial

court   reviewing   an   agency   decision   to   expressly   state   which
                                     -15-
standard of review it has applied to each distinct issue decided

in an order.

     Equity Solutions nonetheless points to the language in the

trial court's order stating that the court "reviewed the whole

record    to   determine   whether    there   is   substantial,   competent

evidence to support the denial of the request for declaratory

rulings" in support of its contention that the court erroneously

applied the whole record test rather than de novo review. However,

this language supports our determination that the trial court first

properly concluded that the record contained evidence supporting

the State Treasurer's reasons for declining to issue a ruling, and

it does not demonstrate that the trial court erroneously applied

whole record review to the legal issue before the trial court:

whether the reasons given by the State Treasurer constituted good

cause.    The trial court, therefore, applied the proper standard of

review.

                                     III

     Equity Solutions next contends that even if the trial court

did apply the proper standard of review, the court erred in

affirming the State Treasurer's determination that good cause

existed to decline to issue a ruling.          We, like the trial court,

review this issue de novo.      Id.
                                       -16-
     The first three reasons given by the State Treasurer in

declining to issue a ruling were (1) that the subject matter of

the request was "the subject of active litigation in Wake County

between Equity Solutions, the State Treasurer, and the Attorney

General"; (2) that the request failed to disclose the "full factual

setting"   of   Equity   Solutions'      business   model,     including   "any

representations made to induce the apparent owner" to sign the

conveyance and assignment agreements used by Equity Solutions; and

(3) that the request involved "disputed issues of material fact,"

including whether the assignment agreements represented "an actual

agreement between the parties."          The trial court agreed.

     Equity Solutions has conceded on appeal that this declaratory

ruling action concerns "the same subject matter" as the enforcement

action   and    that   the    issues   presented    in   its   request   for   a

declaratory ruling will probably be decided in the course of the

enforcement action.      In addition, in its request for a declaratory

ruling, Equity Solutions did not disclose that it entered into

contingency fee agreements with the owners of surplus funds prior

to entering into subsequent conveyance and assignment agreements.

Equity Solutions later filed an affidavit of its vice president in

superior court that acknowledged its practice of entering into an

initial "Authority to Represent & Contingency Fee Agreement" with

the apparent owners.         It was these contingency fee agreements that
                                       -17-
the   Attorney   General   and    State       Treasurer   contended,   in     the

enforcement action, constituted, in whole or in part, the actual

agreements between the parties.

      This Court has previously held that an agency had good cause

to decline to issue a ruling where the agency had already issued

a ruling on the same matter and issuing a second ruling would,

therefore, constitute a waste of administrative resources.              Id. at

192-93, 550 S.E.2d at 526-27; Catawba Mem'l Hosp. v. N.C. Dep't of

Human Res., 112 N.C. App. 557, 563, 436 S.E.2d 390, 393 (1993).

Although the State Treasurer had not, in this case, already decided

the issue presented in Equity Solutions' request, we believe that

the principle underlying the holdings in Charlotte-Mecklenburg

Hospital and Catawba Memorial Hospital is also applicable here.

      It would be a waste of administrative resources for the State

Treasurer to issue a ruling on a matter that would likely be

judicially determined during the course of pending litigation

between   Equity   Solutions     and    the    State   Treasurer.      This    is

particularly true since the trial court ruling on the issues in

the enforcement action will have the benefit of a fully developed

factual   record   following     discovery,       while   Equity    Solutions'

request to the State Treasurer presented only an alleged factual

basis for a ruling that did not mention the contingency fee

agreements that Equity Solutions has since admitted were part of
                                   -18-
its business model.     Indeed, the State Treasurer was aware that

the request submitted by Equity Solutions presented the State

Treasurer with an inadequate record from which to issue a ruling.

     Equity Solutions, however, asserts that the State Treasurer

should not be allowed to "manufacture 'good cause' to avoid issuing

a ruling" by, as here, "filing a complaint on the same subject

matter after receiving the request for a ruling."             However, the

record shows that the Attorney General and State Treasurer were

openly investigating Equity Solutions at least one month prior to

the time of Equity Solutions' request and that Equity Solutions

was aware of that investigation.           We do not believe that the

Attorney   General     or    the   State    Treasurer's     discretion   in

determining when to file their enforcement action resulting from

months of investigation should have been curtailed because of the

timing of Equity Solutions' decision to request a declaratory

ruling from the State Treasurer.           The State Treasurer was not

required to allow Equity Solutions to preempt the enforcement

proceedings by requesting a declaratory ruling.

     With respect to the issue of a factual dispute, Equity

Solutions contends that the "sole purpose" of N.C. Gen. Stat. §

150B-4 is for an agency to aid an aggrieved person by applying the

statute to a "given set of facts."         Equity Solutions asserts that

"[t]he   agency   is   not   charged   with   a   broader    authority   to
                                   -19-
investigate the 'given set of facts' to determine whether other

legal issues exist or to otherwise assess the legal validity or

viability of the proposed transaction . . . ."

       However, in Catawba Memorial Hospital, this Court determined

that the set of facts provided by the petitioner in its belated

request for a declaratory ruling would not control where the agency

had already closed the record of a contested case hearing on the

same matter, and the agency had determined, in the contested case,

the actual facts to be inconsistent with the set of facts provided

in the petitioner's request.      See 112 N.C. App. at 563, 436 S.E.2d

at 393 ("Whereas a declaratory ruling by definition involves the

application of a statute or agency rule to a given state of facts,

the facts regarding [the petitioner's] proposed surgical services

were    established   by   the   record   in   the   contested   case.").

Similarly, here, the State Treasurer was not obligated to ignore

the existence of the information regarding this same matter that

had been discovered during the investigation that led to the

enforcement action when deciding whether good cause existed to

decline to issue a ruling on Equity Solutions' request.

       Equity Solutions also cites Hope-A Women's Cancer Ctr., P.A.

v. N.C. Dep't of Health & Human Servs., 203 N.C. App. 276, 691

S.E.2d 421 (2010), disc. review denied, 365 N.C. 87, 706 S.E.2d

254 (2011), in support of its argument that its failure to provide
                                   -20-
a more factually complete request for a declaratory ruling did not

constitute good cause for the State Treasurer to decline to issue

a ruling.    However, the Court in Hope did not address whether

circumstances existed, in that case, that would have constituted

good cause to deny issuing a ruling since the agency, in fact,

issued a ruling on the relevant request.         Id. at 279, 282, 691

S.E.2d at 423, 425.      Hope does not, therefore, support Equity

Solutions' argument.

     We, accordingly, hold that the State Treasurer, and the trial

court, properly determined that good cause existed to decline to

issue a ruling on Equity Solutions' request, based on the first

three grounds asserted by the State Treasurer, as it related to

the business practices already used by Equity Solutions at the

time of the request.

     The issue remains whether the State Treasurer had good cause

to decline to issue a ruling as to the business practice that

Equity Solutions planned to employ in the future.       With respect to

the agreements that Equity Solutions' request stated that it

proposed to use, the State Treasurer declined to issue a ruling

regarding   the   propriety   of   those   agreements   because   "[t]he

proposed 'Purchase Agreement[]' offer[ed] only blank spaces for

its material terms, such as the amount of the finder's fee, and

the amount of the costs and expenses to be borne by the apparent
                                      -21-
owner."     As the State Treasurer noted, the purchase agreement

Equity Solutions claimed it planned to use in the future had blank

spaces for material terms, including the percentage of the surplus

funds which would be paid by Equity Solutions to the apparent owner

in exchange for the apparent owner's selling Equity Solutions the

owner's right to the funds -- in other words, Equity Solutions'

fee.

       In Diggs v. N.C. Dep't of Health & Human Servs., 157 N.C.

App. 344, 345, 578 S.E.2d 666, 667 (2003), the petitioner was a

custodial parent of three children and had previously been the

caretaker   of   her   niece,   and    she   petitioned   an   agency   for   a

declaratory ruling that the practice of calculating the debt owed

to the State when an adult caretaker accepts payment of benefits

under certain government programs was invalid.                  In order to

demonstrate that she was a "person aggrieved" under N.C. Gen. Stat.

§ 150B-4, the petitioner set out "two hypothetical situations

involving whether child support paid by the biological father of

petitioner's children . . . pursuant to a court order for the

support of their biological children may be taken by the State for

reimbursement of earlier and separate public assistance grants

made solely for the use and benefit of petitioner's niece . . . ."

Diggs, 157 N.C. App. at 347, 578 S.E.2d at 668.
                                  -22-
       On appeal, this Court held that the petitioner was not

entitled to a declaratory ruling since she was "not presently

aggrieved."     Id. at 348, 578 S.E.2d at 668.      The Court reasoned

that    the   petitioner's   request   presented   merely   hypothetical

scenarios that were not certain to occur and, therefore, the

petitioner could not show that her legal rights had, in some way,

been impaired.     Id., 578 S.E.2d at 668-69.       Because the agency

had, nonetheless, issued a ruling on the petitioner's request, the

court further held that "the request was ineffective to trigger

the issuance of a declaratory ruling, and the declaratory ruling

has no effect, binding or otherwise, on petitioner . . . ."          Id.

at 349, 578 S.E.2d at 669.

       Similarly, here, the State Treasurer could properly determine

that good cause existed to deny Equity Solutions' request for a

declaratory ruling as to the potential future agreements since,

given the missing material terms of the contracts, any ruling on

whether the contracts were in compliance with N.C. Gen. Stat. §

116B-78 would be purely hypothetical.      Notably, the allegations in

the enforcement action that the agreements actually used by Equity

Solutions in the past violated N.C. Gen. Stat. § 116B-78 are

focused, in part, on allegations that the fees charged by Equity

Solutions exceeded the statutory limit for property finder's fees.
                              -23-
Yet, the proposed purchase agreements did not specify the amount

of the finder's fee.

    In the absence of a proposed agreement setting out all terms

material to the request for a declaratory ruling,      the State

Treasurer did not have authority to issue a ruling because, as in

Diggs, she was presented only with a hypothetical scenario, and

Equity Solutions could not show that any of its legal rights were

legally impaired.   We, therefore, hold that the State Treasurer

had good cause to decline to issue a ruling as to the future

purchase agreements based upon the fourth ground provided by the

State Treasurer.

    In sum, the trial court applied the proper standard of review

and did not err in affirming the State Treasurer's decision to

decline to issue a ruling on Equity Solutions' request based upon

all four grounds provided by the State Treasurer.   Consequently,

we affirm the trial court's order.


    Affirmed.

    Chief Judge MARTIN and Judge STROUD concur.
