{ "id": 8899733, "name": "JOSEPH J. HARDEE, D.C., Petitioner v. NORTH CAROLINA BOARD OF CHIROPRACTIC EXAMINERS, Respondent", "name_abbreviation": "Hardee v. North Carolina Board of Chiropractic Examiners", "decision_date": "2004-06-01", "docket_number": "No. COA03-860", "first_page": "628", "last_page": "638", "citations": [ { "type": "official", "cite": "164 N.C. App. 628" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "431 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "819", "parenthetical": "citation omitted" }, { "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521035 ], "year": 1993, "pin_cites": [ { "page": "193", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0186-01" ] }, { "cite": "446 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "387-88", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137315 ], "year": 1994, "pin_cites": [ { "page": "597", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0590-01" ] }, { "cite": "397 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "354", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527049 ], "year": 1990, "pin_cites": [ { "page": "502", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0498-01" ] }, { "cite": "420 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "468", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527698 ], "year": 1992, "pin_cites": [ { "page": "465", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0462-01" ] } ], "analysis": { "cardinality": 933, "char_count": 24017, "ocr_confidence": 0.771, "pagerank": { "raw": 7.837509768372651e-08, "percentile": 0.4583585761177582 }, "sha256": "1e39bb1f926d885bf96847f6ebf887bf734f2baa1f0f15f787cc83f342b869e3", "simhash": "1:1fcfe0b294161652", "word_count": 3732 }, "last_updated": "2023-07-14T17:15:16.246957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and THORNBURG concur." ], "parties": [ "JOSEPH J. HARDEE, D.C., Petitioner v. NORTH CAROLINA BOARD OF CHIROPRACTIC EXAMINERS, Respondent" ], "opinions": [ { "text": "LEVINSON, Judge.\nDr. Joseph J. Hardee, D.C., (Hardee) appeals from a superior court order affirming a disciplinary decision of the North Carolina Board of Chiropractic Examiners (the Board) which established Hardee\u2019s sanction for being convicted of two felonies involving moral turpitude. We affirm.\nHardee is a licensed chiropractic physician with a practice in Raleigh, North Carolina. In December 2000, he was convicted of two felony offenses in Wake County Superior Court upon his tender of Alford pleas, one for felony obtaining possession of twelve tablets of Tylenol with Codeine by fraud, and the second for felony embezzlement from a previous employer. Pursuant to N.C.G.S. \u00a7 90-154(b)(2), conviction of these offenses subjected Hardee to discipline by the North Carolina Board of Chiropractic Examiners.\nIn August 2000, the Board initiated disciplinary proceedings against Hardee. Seeking to resolve the issue of professional discipline in an informal manner, the Secretary of the Board and Hardee entered into an \u201cInformal Settlement Agreement\u201d (ISA) that prescribed a truncated chiropractic license suspension and substance dependency treatment requirements.\nHardee and the Secretary of the Board subsequently agreed that the ISA would be rescinded prospectively and that the Board could substitute its original complaint with a new one. Therefore, on 8 October 2001, the Board again initiated disciplinary proceedings against Hardee on the basis of the December 2000 convictions. The parties assented to an extensive pre-hearing agreement in which they stipulated that \u201c[t]he Hearing Panel [could] consider the terms of th[e] Informal Settlement Agreement and issues of whether [Hardee] complied or did not comply, in whole or in part, with the Informal Settlement Agreement.\u201d Moreover, both parties stipulated that one of the issues to be determined was \u201c[w]hether Dr. Hardee possesses the requisite good moral character to be licensed as a doctor of chiropractic by the Board.\u201d The pre-hearing agreement also included a variety of \u201cmitigating factors\u201d Hardee wished for the Board to consider, while the Board sought to have Hardee\u2019s \u201cfailure to fully comply with the Informal Settlement Agreement\u201d considered as an \u201caggravating factor.\u201d\nAt the disciplinary hearing on the 8 October 2001 complaint, evidence was presented concerning numerous topics, including the following evidence related to the ISA: Pursuant to the ISA, Hardee agreed to voluntarily surrender his chiropractic license for a period of three years; however, after only six months of this suspension, he would be permitted to apply for reinstatement of his license if he satisfied certain conditions related to overcoming a drug dependency problem. A letter to Hardee from the Secretary of the Board provided the following clarification as to the applicable restrictions imposed upon Hardee during his license suspension:\nDuring the term of license suspension, an unlicensed chiropractor may not:\n1. Be present during business hours at a chiropractic office or clinic in which he has an ownership interest or which has been advertised to the public as his office or clinic.\n2. Interpret or analyze x-rays.\n3. Make a diagnosis or perform any component of physical examination that requires clinical judgment or interpretation.\n4. Perform any adjustment or manipulation, either by hand or by instrument. . . .\n[5]. Consult with, make any report of findings to, or develop any treatment plan for a patient.\n6. Sign or submit any insurance claim form.\n7. Own an interest in a chiropractic office or clinic after twelve months have elapsed without reinstatement of license.\n8. Purchase an interest in any chiropractic office or clinic until his license is reinstated.\nThere was evidence that, prior to the beginning of his license suspension under the ISA, Hardee transferred nominal ownership of his clinic to other parties, removed his name from the signs and stationary of his clinic, and hired a relatively inexperienced chiropractor, Dr. Alicia Nossov, to perform adjustments on patients at his clinic at a rate of $7.50 per adjustment.\nAn undercover investigator, hired by the Board to pose as a new patient, testified that he visited Hardee\u2019s clinic five times. The undercover investigator observed Hardee at the clinic and noticed him perform a series of tasks, including: pressing on the investigator\u2019s neck and back to determine whether the investigator was sore in a particular place, interpreting x-rays, reporting chiropractic findings to the investigator, recommending a plan of treatment, and using an Acuspark device and a massager on the investigator. According to the investigator, Hardee informed him that he could pay for his visits by drafting a check payable to \u201cDr. Hardee.\u201d\nDr. Nossov testified that Hardee told her that his problem with the Board was attributable to the fraudulent conduct of another chiropractor for whom he once worked and that his agreement with the Board only prohibited him from performing adjustments for patients. She further testified that during the term of his proposed suspension under the ISA, Hardee was present during business hours, greeted patients, performed initial physical examinations, interpreted and analyzed x-rays, developed diagnoses and treatment plans, performed adjustments on some of his friends, and provided written instructions to Dr. Nossov specifying adjustments to be performed on patients. According to Dr. Nossov, Hardee also discussed personal injury claims with patients\u2019 attorneys, prepared and mailed billing statements to insurers and attorneys, and prepared patients\u2019 personal injury treatment narratives for Dr. Nossov to sign.\nHardee testified on his own behalf at the hearing. Though he admitted to performing adjustments on a few of his friends during his suspension under the ISA, he denied practicing as a chiropractor during his suspension and characterized his activities at the clinic as those of a chiropractic assistant.\nFollowing the hearing, the Board rendered a decision including findings of fact and the following conclusions of law:\n3. G.S. [\u00a7] 90-154(b)(2) states that conviction of a felony or of a crime involving moral turpitude is grounds for disciplinary action by the Board.\n4. G.S. [\u00a7] 90-143 requires an applicant for licensure as a chiropractic physician in this State to present satisfactory evidence of good moral character. After licensure, a chiropractic physician has an affirmative duty to maintain good moral character.\n6. Obtaining a Controlled Substance by Fraud, in violation of G.S. [\u00a7] 90-108, is both a felony and a crime involving moral turpitude.\n7. Embezzlement, in violation of G.S. [\u00a7] 14-90, is both a felony and a crime involving moral turpitude.\n8. A respondent\u2019s willful violation of an Informal Settlement Agreement entered into with the Secretary of the Board is evidence of a lack of trustworthiness and the loss of good moral character.\nThe Board determined Hardee was \u201cguilty of having been convicted of two felonies, in violation of G.S. [\u00a7] 90-154(b)(2)\u201d and imposed a five-year chiropractic license suspension, the implementation of which was stayed on condition that Hardee comply with certain, probationary terms. Specifically, Hardee\u2019s license was to be placed on \u201cprobationary status\u201d for five years, during which time he would serve a three year active license suspension, seek Board approval of professional business arrangements, have a mentor appointed, and submit to quarterly urine drug screens. While on probationary status, Hardee would be permitted to perform the duties of a chiropractic assistant.\nPursuant to N.C.G.S. \u00a7 150B-45, Hardee appealed to the Wake Comity Superior Court, which entered an order affirming the Board\u2019s decision. From the superior court\u2019s order, Hardee appeals to this Court, contending (1) the Board\u2019s decision unlawfully imposes punishment for his non-compliance with the ISA, (2) the Board\u2019s sanction is arbitrary and capricious, and (3) the Board committed other miscellaneous errors that merit reversal. We conclude these contentions lack merit.\nThe following principles govern judicial review of the Board\u2019s disciplinary decision: The Board of Chiropractic Examiners is an \u201coccupational licensing agency\u201d as defined by N.C.G.S. \u00a7 150B-2(4b) (2003). Accordingly, hearings conducted by the Board are governed by Article 3A of the North Carolina Administrative Procedure Act. N.C.G.S. \u00a7 150B-38(a)(l) (2003). \u201cTo obtain judicial review of a final agency decision ..., the person seeking review must file a petition in the Superior Court of Wake County. . . .\u201d N.C.G.S. \u00a7 150B-45 (2003). \u201cThe review by a superior court of agency decisions ... [is] conducted by the court without a jury.\u201d N.C.G.S. \u00a7 150B-50 (2003).\n[I]n reviewing a final decision, the court may affirm the decision of the agency or remand the case . . . for further proceedings. It may also reverse or modify the agency\u2019s decision ... if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence ... in view of the entire record as submitted; or\n(6) Arbitrary, capricious, or an abuse of discretion.\nN.C.G.S. \u00a7 150B-51(b) (2003). As to matters of fact, a reviewing court must apply the \u201cwhole record test\u201d and \u201cis bound by the findings of the [agency] if they are supported by competent, material, and substantial evidence in view of the entire record as submitted.\u201d Bashford v. N.C. Licensing Bd. for General Contractors, 107 N.C. App. 462, 465, 420 S.E.2d 466, 468 (1992) (citations and internal quotation marks omitted). \u201cIf it is alleged that an agency\u2019s decision was based on an error of law then a de novo review is required.\u201d Walker v. N.C. Dep\u2019t of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 354 (1990) (citation omitted). \u201cA party to a review proceeding in a superior court may appeal to the appellate division from the final judgment of the superior court. . . . The scope of review to be applied by the appellate court ... is the same as it is for other civil cases.\u201d N.C.G.S. \u00a7 150B-52 (2003). Thus, this Court examines the trial court\u2019s order for errors of law; this \u201ctwofold task\u201d involves: \u201c(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d Eury v. N.C. Employment Sec. Comm\u2019n, 115 N.C. App. 590, 597, 446 S.E.2d 383, 387-88 (1994) (citation omitted).\nWith these principles in mind, we address Hardee\u2019s first argument on appeal, in which he contends that the Board\u2019s discipline was \u201cprimarily based upon consideration of the ISA\u201d and that the alleged reliance on the ISA \u201cwas an error of law and in excess of the Board\u2019s statutory authorityf.]\u201d This is so, Hardee contends, because (1) the ISA does not comply with the North Carolina General Statues and is, therefore, an unenforceable document that \u201ccannot be used as a basis for discipline^]\u201d and (2) even assuming arguendo that the ISA is enforceable, the Board still erred in using it as a basis for discipline because the Board does not have the statutory authority to impose discipline for breach of contract. We conclude that the Board did not err in considering whether Hardee\u2019s willful refusal to comply with the ISA evinced dishonesty such that his sanction should be aggravated in the interests of protecting the public and preserving the integrity of the chiropractic profession.\nAs an initial matter, we note that, inasmuch as Hardee argues that he was disciplined for breaching the ISA, he mischaracterizes the adjudication made by the Board. In its order, the Board expressly provides that the grounds for professional discipline are Hardee\u2019s two convictions for felonies involving moral turpitude. The Board\u2019s order does not purport to enforce the ISA, and Hardee has produced, at best, unprepossessing evidence in favor of his argument that the Board\u2019s disciplinary order is a pretext for enforcement of the ISA. Therefore, the issue before us is not whether the Board erred in imposing discipline for breach of the ISA, and we need not pass on the validity of the ISA.\nHowever, it is implicit in the Board\u2019s order, and the Board\u2019s attorney admitted to the superior court, that Hardee\u2019s sanction was aggravated because of a pattern of dishonesty, evinced in part by his willful refusal to keep his word with respect to the ISA. Accordingly, the issue for this Court, properly characterized, is whether the Board erred in considering Hardee\u2019s noncompliance with the ISA as evidence of dishonesty and in intensifying the punishment he received as a result of the dishonesty.\nChapter 90, Article 8 of the North Carolina General Statutes governs the licensing and regulation of chiropractors. Located within this article, N.C.G.S. \u00a7 90-154(b)(2) (2003) provides that \u201c[cjonviction of a felony or of a crime involving moral turpitude\u201d is \u201cgrounds for disciplinary action by the Board[.]\u201d N.C.G.S. \u00a7 90-154(a) (2003) sets forth the disciplinary options available to the Board:\nThe Board of Chiropractic Examiners may impose any of the following sanctions, singly or in combination, when it finds that a practitioner or applicant is guilty of any offense described in subsection (b):\n(1) Permanently revoke a license to practice chiropractic;\n(2) Suspend a license to practice chiropractic;\n(3) Refuse to grant a license;\n(4) Censure a practitioner;\n(5) Issue a letter of reprimand;\n(6) Place a practitioner on probationary status and require him to report regularly to the Board upon the matters which are the basis of probation.\nThe discipline imposed upon chiropractors is consigned to the discretion of the Board. In exercising this discretion, the Board may consider evidence concerning a chiropractor\u2019s truthfulness and character. Indeed, honesty and good moral character are prevalent themes in the North Carolina Chiropractic Act. Pursuant to N.C.G.S. \u00a7 90-143 (2003), a chiropractic license applicant must produce \u201c[sjatisfactory evidence of good moral character\u201d as a precondition to being licensed. Further, many of the grounds for discipline listed in G.S. \u00a7 90-154(b) are concerned directly or indirectly with honesty and good character on the part of chiropractic practitioners. Where the legislature has taken steps to ensure that only those of good moral character become licensed chiropractors and to provide for discipline for actions evincing poor moral character, it follows that the Board may consider evidence concerning honesty and good character, or a lack thereof, when determining the scope, length and/or nature of the sanction for a chiropractor adjudged guilty of disciplinary infractions.\nIn the present case, Hardee committed two felonies involving moral turpitude, which subjected him to professional discipline by the Board under G.S. \u00a7 90-154(b). Though the Board imposed discipline only for the felony convictions, its choice of sanction was more severe than it otherwise may have been due to dishonesty on Hardee\u2019s part, evidenced by, inter alia, his furtive and willful violation of the ISA. As the Chiropractic Act makes the honesty of practitioners a proper concern of the Board of Chiropractic Examiners, we conclude that the Board did not err in considering this evidence of dishonesty as relevant to the scope, length and/or nature of discipline.\nMoreover, Hardee\u2019s argument that the Board could not consider his dishonest noncompliance with the ISA is unavailing, as he stipulated that the Board could consider such evidence as relevant to his discipline for the felony convictions. On appeal, Hardee\u2019s counsel contends that evidence of Hardee\u2019s noncompliance with the ISA could be admissible for other purposes, but did not suggest what those purposes might be. As Hardee pled \u201cguilty and responsible\u201d to having been convicted of two felonies, the central issue before the Board was the scope, length and/or nature of the discipline. This, together with Hardee\u2019s stipulation that the hearing panel could consider evidence of his noncompliance with the ISA, helps us easily conclude that Hardee stipulated that his noncompliance with the ISA was relevant for the Board to consider in fixing the penalty for his conviction of two felonies.\nFurthermore, we note that Hardee\u2019s position is internally inconsistent. Hardee cites a previous Board disciplinary decision, In re Moore, in support of his argument that his own sanction is unusually harsh. In that case, the Board made a finding that the chiropractor who was subject to discipline presented the testimony of four character witnesses, tendered approximately 115 additional character witnesses, and submitted written statements from approximately 150 patients and members of his community attesting to his good character. The Board may have considered this evidence of good character in arriving at a lenient sanction for the chiropractor in that case. However, there is no statutory allowance for the Board to consider such material, and it is not directly related to the commission of a felony for which discipline may be imposed pursuant to G.S. \u00a7 90-154(b)(2). Rather, the Board considered this evidence of good character as relevant to the appropriate professional discipline, much as it considered Hardee\u2019s furtive and willful noncompliance with the ISA as evidence of bad character and untruthfulness. This assignment of error is overruled.\nWe next address Hardee\u2019s argument that the discipline imposed by the Board was arbitrary and capricious because it is (1) severe in comparison to previous Board decisions imposing discipline for felony convictions, and (2) not rationally related to his misconduct. We are unpersuaded by these arguments.\n\u201cThe arbitrary and capricious standard is a difficult one to meet.\u201d McCollough v. N.C. State Bd. of Dental Examiners, 111 N.C. App. 186, 193, 431 S.E.2d 816, 819 (1993) (citation omitted).\nThese imposing terms apply when . . . decisions are whimsical because they indicate a lack of fair and careful consideration; when they fail to indicate any course of reasoning and exercise of judgment, or when they impose or omit procedural requirements that result in manifest unfairness in the circumstances though within the letter of statutory requirements.\nId. (citations and internal quotation marks omitted).\nIn support of his argument that his sanction is more severe than the sanctions previously imposed for the same transgression, Hardee has produced two Board decisions imposing discipline upon chiropractors for felony convictions. These decisions do not support Hardee\u2019s argument that the sanction at issue in the present case is arbitrary and capricious.\nIn one decision, In re Cobb, a chiropractor was convicted of felony wire fraud in federal district court. The Board imposed a five year active license suspension, stayed in favor of placing him on probationary status with a ninety-day active license suspension. In that case, a co-conspirator masterminded the conduct for which the chiropractor was convicted, and the chiropractor\u2019s participation in the felony was limited. As such, there were factors counseling in favor of mitigation.\nThe other Board\u2019s decision cited by Hardee is In re Moore, previously discussed in this opinion. In Moore, a chiropractor was convicted of four counts of obtaining property by false pretenses, for which the Board imposed a ninety-day active license suspension followed by five years on probationary status. In imposing discipline, the Board made a finding that the chiropractor offered the testimony of four character witnesses, tendered approximately 115 additional character witnesses, and submitted written statements from approximately 150 patients and members of his community attesting to the chiropractor\u2019s good character. As such, there were factors counseling in favor of mitigation.\nIn the instant case, Hardee played a substantial role in the commission of the felonies for which he was convicted. In addition, there was considerable evidence of bad character. Specifically, the evidence before the Board tended to show that, inter alia, Hardee agreed to abide by the terms of an informal agreement in order to avoid more severe discipline, and, in addition to not complying with the terms to which he had agreed, dishonestly represented to the Board that he had complied with \u201cthe letter and spirit\u201d of the agreement. Accordingly, we easily conclude that the Board did not act arbitrarily and capriciously in imposing a more severe punishment in the instant case as compared with past decisions of the Board.\nWith respect to Hardee\u2019s argument that the Board\u2019s discipline is not rationally related to his misconduct, we conclude that Board\u2019s discipline is not inappropriate in light of the facts and circumstances of the instant case. Hardee was convicted of embezzlement and obtaining a controlled substance by fraud, both of which are felonies involving dishonesty. He has a prior misdemeanor conviction for obtaining a prescription drug by fraud, which is a crime involving dishonesty. Additionally, Hardee\u2019s furtive and wilful violation of the ISA provided additional evidence of dishonesty. This assignment of error is overruled.\nWe have also reviewed Hardee\u2019s remaining assignments of error and conclude that they lack merit. These assignments of error are overruled.\nAffirmed.\nJudges TIMMONS-GOODSON and THORNBURG concur.\n. During oral argument, counsel for Hardee stated that if the active suspension was shorter, his argument that the discipline was really grounded upon Hardee\u2019s noncompliance with the ISA would have less force. This illustrates the fallacy in Hardee\u2019s central argument on appeal, as it is tantamount to a request of this Court to replace its judgment concerning an appropriate sanction for that of the Board. Indeed, the statements by Hardee\u2019s counsel correctly acknowledge that the Board exercises discretion in fashioning appropriate sanctions within the parameters of G.S. \u00a7 90-154(a).\n. There is no citation for this opinion, but it is a part of the records of the Board of Chiropractic Examiners.\n. There is no citation for this opinion, but it is a part of the records of the Board of Chiropractic Examiners.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Johnson, Hearn, Vinegar, Gee & Mercer, PLLC, by George G. Hearn and Frank X. Trainor, III, for petitioner-appellant.", "Vance C. Kinlaw for respondent-appellee." ], "corrections": "", "head_matter": "JOSEPH J. HARDEE, D.C., Petitioner v. NORTH CAROLINA BOARD OF CHIROPRACTIC EXAMINERS, Respondent\nNo. COA03-860\n(Filed 1 June 2004)\n1. Chiropractors\u2014 Board of Examiners \u2014 governed by Administrative Procedure Act\nThe Board of Chiropractic Examiners is an occupational licensing agency and its hearings are governed by the North Carolina Administrative Procedure Act.\n2. Chiropractors\u2014 disciplinary hearing \u2014 evidence of dishonesty\nThe Board of Chiropractic Examiners did not err by considering evidence of dishonesty (failure to comply with an informal agreement intended to avoid more severe discipline) as relevant to the scope, length, and nature of the discipline imposed for felonies involving moral turpitude. Discipline is in the discretion of the Board, and the Board may consider evidence of truthfulness and character.\n3. Chiropractors\u2014 discipline \u2014 not arbitrary and capricious\nThe Board of Chiropractic Examiners did not act arbitrarily and capriciously in imposing a more severe punishment in this case than in others. This petitioner played a substantial role in committing felonies and there was considerable evidence of bad character; furthermore, the discipline here is rationally related to the misconduct.\nAppeal by petitioner from judgment entered 2 April 2003 by Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 15 March 2004.\nJohnson, Hearn, Vinegar, Gee & Mercer, PLLC, by George G. Hearn and Frank X. Trainor, III, for petitioner-appellant.\nVance C. Kinlaw for respondent-appellee." }, "file_name": "0628-01", "first_page_order": 660, "last_page_order": 670 }