In re Suttles Surveying, P.A.
Kеnneth Suttles (“Appellant”) and his surveying company, Suttles Surveying, P.A., appeal from an Order on Judicial Review affirming the decision of the North Carolina Board of Examiners for Engineers and Surveyors (“the Board”) suspending Appellant’s license for six months and reprimanding Suttles Surveying. Appellant contends that the trial court erred in affirming the decision of the Board because (1) the Board’s decision exceeded the scope of its statutory authority and (2) the Board’s decision violated constitutional provisions. For the following reasons, we uphold the trial court’s affirmance of the Board’s decision.
In the fall of 2008, John R. Smith (“Smith”) was involved, in a property dispute with his neighbor Ruby Revis (“Revis”). Revis hired A&T Surveying, who determined that a mobile home Smith believed to be situated on his property was in fact on Revis’ proрerty. In an effort to challenge Revis’ survey, Smith’s daughter, Angela Piercy (“Piercy”) contacted Suttles Surveying. Piercy met Appellant, the proprietor of Suttles Surveying, and paid him $50.00 to view the disputed property and meet with Smith. Appellant met with Smith to discuss the surveying work that would be needed. Appellant agreed to establish the disputed boundary between the properties, and Smith paid Appellant a down payment of $1,000.00 to begin the surveying work.
Appellant then began the process of surveying the lot. However, a payment dispute subsequently arose between Appellant and Smith. Smith claimed that Appellant had agreed to perform the work for a total dollar amount between $3,000.00 and $4,000.00, not to exceed $4,000.00. Appellant claimed that he told Smith that the $3,000.00-$4,000.00 quote was merely a starting figure. Appellant also claimed that he informed Smith that he would be billed “periodically throughout the process,” i.e. on a time and materials basis.
On 20 November 2008 Smith received a $6,206.15 bill from Appellant, noting the $1,000.00 already paid, leaving a balance of $5,206.15. Smith called Appellant and informed him that the bill was not in the amount that they had agreed upon. Appellant responded by reducing the disputed bill to $4,125.60. However, the record reflects that Appellant did not inform Smith that there was additional work to be done or inform Smith of the anticipated cost of this additional work. At a 17 December 2008 meeting Appellant requested that Smith pay the outstanding November bill, but did not inform Smith that more than $8,000.00 in additional fees had accrued.
On 31 December 2008, Appellant wrote Smith a letter requesting payment of the Nоvember invoice. This letter informed Smith that the surveying work would not be continued unless the invoice was paid, and noted that the invoice constituted only a “partial billing.” Smith responded on 2 January 2009 with a letter asking that the job be completed for the agreed upon amount, between $3,000.00 and $4,000.00. Smith had also obtained two written estimates to do the survey from other surveyors: one was for $3,100.00 and the other was for $2,500.00. On 5 January 2009 Appellant responded to Smith with another letter claiming that the surveying work was 99% complete and that the rest would be completed when the November “partial billing” was paid.
On 16 January 2009, in response to a request by Smith, Appellant prepared a letter claiming that the total amount due as of that date was $15,109.87. Appellant offered to settle the account for the work already performed for a payment of $11,961.68. On 26 January 2009 Smith sent Appellant a letter stating that he was willing to pay $3,000.00 (what Smith believed to be the original agreement) if the work was completed. On 5 February 2009, Appellant’s attorney sent a letter to Smith including a bill for $10,984.27 for work done between the date of the November invoice and the 17 December 2008 meeting. This letter also reiterated Apрellant’s offer to settle the account for payment of $11,961.68.
Smith filed a formal complaint with the Board, which was received on 19 February 2009. The Board initially replied that the matter “appears to be a contractual issue, which is outside the jurisdiction of the Board,” but that the matter would be presented to the Review Committee for its consideration. In the interim, Appellant sent a lettеr to Smith threating to place a lien on Smith’s property if the account was not settled. Piercy contacted Appellant and negotiated a settlement for $8,000,000 in addition to Smith’s previous $1,000.00 deposit.
The terms of the settlement agreement reached between Smith and Appellant contained a confidentiality provision. This confidentiality clause required the parties to keеp the terms of the dispute confidential, required that Smith and Piercy waive any right to file a complaint with the Board, and required
Appellant provided Piercy a map as well as a mylar copy for rеcording purposes. The map was marked “Preliminary Plat Only Not for Conveyance.” The map was incomplete because Appellant failed to place the northwest comer. Nevertheless, Appellant informed Piercy the map would “stand up in court.” Piercy recorded the map soon thereafter.
On 30 July 2009, the Board sent Smith a letter informing him that the Review Committee decidеd to investigate his complaint. In keeping with the terms of the settlement agreement, Piercy contacted the Board to attempt to withdraw the complaint. Additionally, Smith and Piercy initially refused to meet with Board investigator Cathy Kirk (“Kirk”) in light of the settlement agreement’s confidentiality clause. Smith and Piercy eventually agreed to speak to Kirk after Appellant’s counsel sent a letter waiving thе confidentiality portion of the settlement.
After a hearing, the Board found that by issuing a map marked “preliminary,” Appellant had failed “to conduct his practice in order to protect the public health, safety and welfare.” The Board found this harmful to the public because Smith and third parties cannot rely on the data recorded on the map. The Board also found that the terms of the confidentially clause in the settlement agreement constituted a failure by Appellant to “conduct his practice in order to protect the public health, safety and welfare,” was a failure by Appellant “to recognize the primary obligation to protect the public in the performance of his professional duties,” and constituted the “performance of services in an unethical manner.” The Board also concluded that Appellant’s actions in failing to communicate the cost and services to be provided and already provided was a “failure to be objective and truthful in all professional reports and statements, a failure to include relevant and pertinent information in all professional statements and rеports, and was the performance of services in an unethical manner, in violation of 21 NCAC 56.0701(d)(1) and 56.0701(g).”
On 10 May 2011 the Board suspended Appellant’s surveyor’s license for a period of six months and reprimanded Suttles Surveying. Appellant petitioned for judicial review, and on 21 August 2012 the trial court affirmed the decision of the Board. Appellant filed timely notice of appeal from the trial cоurt’s order.
II. Jurisdiction and Standard of Review
We have jurisdiction over this appeal. See
The standard of review on an appeal from the decision of an administrative agency is determined by the nature of the error asserted by the appellant. ACT-UP Triangle v. Comm’n for Health Servs.,
Here, Appellant argues only that the Board’s decision was affected by errors of law. As such, we review the decision of the Board de novo. Id. Because Appellant does not allege that the Board’s findings were unsupported by competent evidence in the record, the Board’s findings of fact are binding on Appeal. See N. C. State Bar v. McLaurin,
III. Analysis
A. Board’s Jurisdiction
Appellant first contends that the Board exceeded its statutoiy authority when it suspended Appellant’s license for six months and reprimanded Suttles Surveying. Specifically, Appellant asserts that the Board lacks statutoiy authority to adjudicate a purely contractual dispute. We disagree with Appellant’s characterization of the Board’s decision.
“The powers and authority of administrative officers and agencies are derived from, defined and limited by constitution, statute, or other legislative enactment.” State ex rel. Comm’nr of Ins. v. N.C. Rate Bureau,
The Legislature has granted the Board the power to adopt and enforce rules of professional conduct.
The Board’s rules of professional conduct require, inter alia, that a licensee be “objective and truthful in all professional reports, statements, or testimony. The licensee shall include all relevant and pertinent information in such reports, statements оr testimony.” 21 NCAC 56.0701(d)(1). Moreover, a licensee is required to “perform services in an ethical... and... lawful manner.” 21 NCAC 56.0701(g).
Appellant contends that the Board’s decision impermissibly adjudicated a contractual fee dispute between Appellant and Smith. Appellant’s argument mischaracterizes the nature of the Board’s decision. It is indeed true that the Board does not have the statutory authоrity to resolve disputes between private parties regarding payments made for surveying work; such decisions are the province of the courts. However, here the Board’s decision does not render judgment on whether the Appellant breached any contract with Smith. The Board’s decision focuses on Appellant’s actions throughout his business dealings with Smith. The Board held that Appellant did not perform his services in an ethical manner and was not truthful in all of his interactions with Smith, thus falling short of the professional standards promulgated by the Board. See 21 NCAC 56.0701(d)(1); 21 NCAC 56.0701(g). Such questions of truthfulness and ethical behavior are the very issues for which the Legislature granted the Board power to promulgate professional rules protecting the “safety, health, and welfare of the public.”
Appellant clаims that the conduct at issue “in no way implicates the public health, safety, or welfare” and thus disciplining Appellant constitutes ultra vires action by the Board. This argument also fails because, as
Appellant cites Blaylock Grading Co. v. Smith,
The Legislature has expressly endowed the Board with the authority to promulgate Rules of Professional Conduct and to discipline licensees that violatе those rules. See
B. Due Process
Appellant’s second contention is that the Board’s decision violates the due process provided by both the state and federal сonstitutions, in that the rules of the Board are unconstitutionally vague and over-broad. Appellant asserts that he was not provided adequate notice that he would be in violation of Board rules (1) by entering into a settlement agreement that prevented Smith from filing or maintaining a disciplinary complaint against him and (2) by issuing a map marked “preliminary” that Appellant knew would be recorded. Aсcordingly, Appellant claims that the Board’s disciplinary actions violate the constitutional requirements of procedural due process.
“Procedural due process requires that an individual receive adequate notice and a meaningful opportunity to be heard before he is deprived of life, liberty, or property.” In re Magee,
Appellant correctly notes that the test for constitutional vagueness is “whether a reasonably intelligent member of the profession would understand that the conduct in question is forbidden.” In re Wilkins,
However,
The record also reflects that Appеllant issued Piercy a preliminary map knowing that she intended to record it. The Board found that “the recording of a preliminary plat is harmful to the public because Smith and third parties cannot rely on the data recorded on the map.” As a result, the Board held that Appellant’s actions regarding the preliminary plat also violated the Board’s requirement that he “protect the рublic in the performance of [his] professional duties.” See 21 NCAC 56.0701(b).
In order to be recordable in North Carolina, a plat must bear the certification of aland surveyor.
Here, Appellant instead provided Piercy with a preliminary map bearing the marking: “Preliminary Plat Only, Not for Conveyances.” Such marking omitted the Board’s standard language that would have indicated to Piercy that the preliminary plat may not properly be used for recordation purposes. Thus, by marking the map ‘‘preliminary,’’ Appellant essentially negated the effect of his certification. The record also reflects that Appellant had not used this kind of notation before, and that Appellant knew that preliminary maps are not to be recorded (excepting Appellant’s experience with previous instances where preliminary subdivision maps are replaсed by final maps shortly thereafter). As such, Appellant must have understood, as any reasonably intelligent member of the profession would have understood, that issuing a preliminary plat with knowledge that it would be improperly recorded violated the Board’s rules.
IV. Conclusion
The Legislature has granted the Board broad discretion to adjudicate disciplinary matters. See
AFFIRMED.