Evans v. Fran-Char Corp.

WELLS, Judge. Claimant argues that he was denied a full and fair hearing before the ESC because the ESC lost the recording of the earlier hearing before the Claims Deputy. An administrative agency may not take action adversely affecting the rights of a person without affording the person effective notice and an opportunity to be heard. Brauff v. Commissioners of Revenue, 251 N.C. 452, 111 S.E. 2d 620 (1959). Here, claimant was informed at the beginning of the hearing before the Appeals Deputy that the recording was lost and that all of the evidence adduced at the prior hearing would have to be taken again. The only other witness claimant presented at the prior hearing was also present at the hearing before the Appeals Deputy. Under these circumstances we cannot see how the loss by the ESC of its recording of the hearing before the Claims Deputy denied claimant a substantial right. An appellant must show that technical errors made below have prejudiced his [96] case in order to be entitled to have the decision below set aside. Claimant has clearly not met this burden here. As to the alleged absence from the transcript of a material portion of claimant’s testimony presented at the hearing before the Appeals Deputy, the record fails to disclose that claimant afforded the Deputy Commissioner an opportunity to rule on this matter. The alleged absence of such testimony was also not mentioned by claimant in stating his grounds for appeal from the decision of the Deputy Commissioner to the Superior Court. It appears from the record that claimant raised this issue for the first time in his motion or petition before the Superior Court. The Superior Court was not authorized to hear grounds for remand which could have been presented to the reviewing administrative agency but were not: A litigant may not remain mute in an administrative hearing, await the outcome of the agency decision, and, if it is unfavorable, then attack it on the ground of asserted procedural defects not called to the agency’s attention when, if in fact they were defects, they would have been correctible. Nantz v. Employment Security Comm., 28 N.C. App. 626, 630, 222 S.E. 2d 474, 477 (1976), aff'd, 290 N.C. 473, 226 S.E. 2d 340 (1976). We have examined claimant’s other assignments of error and have found them to be without merit. Affirmed. Judges Hedrick and martin (Robert M.) concur.