Weaver v. NC Dep't of Health & Hum. Servs. , 261 N.C. App. 293 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 17-828
Filed: 4 September 2018
Office of Administrative Hearings, No. 16 OSP 10680
LARA G. WEAVER, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
Appeal by petitioner from final decision entered 12 April 2017 by Judge J.
Randall May in the Office of Administrative Hearings, Johnston County. Heard in
the Court of Appeals 21 February 2018.
Schiller & Schiller, PLLC, by David G. Schiller, for petitioner-appellant.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph E.
Elder, for respondent-appellee.
STROUD, Judge.
Petitioner appeals from a final decision of the Office of Administrative
Hearings (“OAH”) which concluded that petitioner failed to prove by a preponderance
of the evidence she was significantly better qualified for a position with respondent
North Carolina Department of Health and Human Services (“NCDHHS”) than the
selected candidate, because she did not meet the minimum requirements for the
position. On appeal, petitioner raises issue with several findings and argues that the
Administrative Law Judge (“ALJ”) erred in concluding that she did not have
WEAVER V. N.C. DEP’T OF HEALTH & HUM. SERVS.
Opinion of the Court
substantially equal qualifications as the selected candidate. After review, we affirm
the final decision.
Background
Petitioner began working for NCDHHS in January of 2005 in the Microbiology
Unit of the State Laboratory of Public Health. She held the position of a Laboratory
Specialist and worked on the Special Bacteriology bench in the lab, one of many
benches within the lab on which petitioner was trained. Petitioner worked for the
State Lab for 11 years.
In January 2015, petitioner applied for a Medical Laboratory Supervisor II
position, and when she applied she was a career state employee. Dr. Samuel Merritt,
the former unit supervisor for the Microbiology Unit with over 30 years of experience
in laboratory work, was assigned as the hiring manager for the Medical Supervisor
II position. He assessed petitioner’s application. While he found she had much
experience with the day-in and day-out routine of the lab and its benches, she had no
supervisory experience in the job she held at the lab. Dr. Merritt, therefore, did not
find her to be the best fit for the job amongst the other applicants who applied for the
role of Medical Supervisor II. Dr. Merritt also reviewed Thomas Lawson’s
application. Mr. Lawson was not a State employee when he applied but he possessed
the educational, work experience, and supervisory requirements that the hiring
committee found necessary to perform the job. He had a supervisory role in a public
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health lab in Maryland overseeing six to twelve employees. He also had conducted
testing in microbiology which was of clinical importance. Lawson had a degree in
biology and a Master’s degree in biotechnology. Given the totality of Lawson’s
application, the hiring officials considered him to be the best candidate out of the
applications received. After conducting interviews, Merritt informed Lawson he was
selected for the job, and Lawson started his role as Medical Supervisor II in May of
2016.
On 1 November 2016, petitioner filed her petition with the Office of
Administrative Hearings, arguing that NCDHHS failed to give petitioner
promotional priority over a less qualified applicant who was not a career State
employee and that she should have been given veteran’s preference because she was
the spouse of a disabled veteran. A hearing on the matter was heard before the ALJ
on 14 and 15 February 2017. Following the hearing, on 12 April 2017, the ALJ
entered his final decision, concluding that petitioner failed to prove by a
preponderance of the evidence she was significantly better qualified for the position
than the selected candidate and that she did not meet the minimum requirements for
the position, so she was not qualified for veteran’s preference. Petitioner timely
appealed to this Court.
Analysis
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On appeal, petitioner contends that the ALJ erred in making numerous
findings and in concluding that she did not have substantially equally qualifications
as the selected candidate, Mr. Lawson.
I. Standard of Review
“N.C. Gen. Stat. § 150B-51 (2015) governs the scope and standard of this
Court’s review of an administrative agency’s final decision. The standard of review
is dictated by the substantive nature of each assignment of error.” Watlington v. DSS
Rockingham County, __ N.C. App. __, __, 799 S.E.2d 396, 400 (2017) (citations
omitted). Under North Carolina General Statutes § 150B-51(b):
The court reviewing a final decision may affirm the
decision or 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 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.
. . . With regard to asserted errors pursuant to subdivisions
(1) through (4) of subsection (b) of this section, the court
shall conduct its review of the final decisions using the de
novo standard of review. With regard to asserted errors
pursuant to subdivisions (5) and (6) of subsection (b) of this
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section, the court shall conduct its review of the final
decision using the whole record standard of review.
N.C. Gen. Stat. § 150B-51(b)-(c) (2017). Thus,
[i]t is well settled that in cases appealed from
administrative tribunals, questions of law receive de novo
review, whereas fact-intensive issues such as sufficiency of
the evidence to support an agency’s decision are reviewed
under the whole-record test. The court engages in de novo
review where the error asserted is pursuant to § 150B-
51(b)(1), (2), (3), or (4).
Watlington, __ N.C. App. at __, 799 S.E.2d at 400 (citations and quotation marks
omitted).
Under the whole record test, [t]he 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.
Rather, a court must examine all the record evidence -- that
which detracts from the agency’s findings and conclusions
as well as that which tends to support them -- to determine
whether there is substantial evidence to justify the
agency’s decision. Substantial evidence is relevant
evidence a reasonable mind might accept as adequate to
support a conclusion.
Harris v. NC Dept. of Public Safety, __ N.C. App. __, __, 798 S.E.2d 127, 133 (citation,
quotation marks, and brackets omitted), aff’d per curiam, 370 N.C. 386, 808 S.E.2d
142 (2017).
II. Lack of Minimum Qualifications for the Supervisor II Position
Petitioner first argues that the ALJ erred in making these findings related to
whether petitioner had the necessary supervisory experience for the position:
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23. The minimum education and experience
requirements for the MLS II position required the
successful candidate to have a Bachelor’s degree in medical
technology, chemistry, or biological science, and four years
of laboratory experience, one of which is in a supervisory
capacity.
24. The [Knowledge, Skills and Abilities (KSAs)] for the
MLS II position required the successful applicant to have a
background in microbiology, including basic lab methods
for cultivating and identifying microorganisms and
microscopic analysis. As the hiring manager, Dr. Merritt
developed the KSAs required for the MLS II position.
....
29. The KSAs established by the hiring manger
specifically required the successful candidate to have
supervisory and management experience. Petitioner
testified that she did not have such experience; therefore,
she did not meet the minimum qualifications for the Med
Lab Supervisor II position.
30. Though petitioner initially indicated that she had
supervisory experience on her application, her own
testimony made it clear that she did not have this
minimum experience.
31. Petitioner’s application was initially screened into
the pool of minimally qualified applicants because she
inaccurately stated in her application that she had
supervisory experience. Upon review by Dr. Merritt, who
was familiar with her work, an appropriate determination
was made that Petitioner did not meet the minimum job
qualifications because she did not have the required
management and supervisory experience.
....
40. Petitioner was not included in the most qualified
pool of candidates. She did not have the necessary
laboratory experience in a supervisory and management
capacity.
Petitioner contends that the ALJ erred in making the above findings of fact regarding
her experience and lack of a supervisory role at the lab. Ultimately, the ALJ found
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that her experience as a Lab Tech in the State lab for 11 years, paired with her
education, without any managerial role, did not amount to the minimum
requirements for the job posting.
Petitioner argues that she covered several other benches during the months
between when the position became vacant and was filled and that the hiring
committee did not properly weigh the evidence of her supervisory role in the lab. She
argues that she “checked the work of the people on the other benches in the unit” and
had to write her own evaluations and conduct monthly quality control. Thus “when
[petitioner] applied for the Supervisor II position, she had been trained on all the
benches in the Microbiology Unit, could work all of them, and had done quality control
on all of the benches.” But even if petitioner did take on more responsibility with that
vacancy, she still had no official managerial or supervisory role. She did a portion of
the work a supervisor would do, such as overseeing the work on the benches, but she
did not hire or fire employees.
When asked at the hearing whether she ever held a position with a supervisory
title to it, petitioner responded, “No.” Petitioner was again asked “[d]id you have two
years of supervisory experience at the time you applied?” and she responded, “No.”
And petitioner acknowledged at the hearing that she made no hiring decisions in her
position and that she had never been assigned to evaluate other employees or
evaluated other employees. But on her application, when asked whether she had
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supervisory and management experience, petitioner wrote “Yes.” This evidence
supports the findings as entered by the ALJ -- and in turn provides substantial
evidence to justify the agency’s final decision that petitioner did not meet the
minimum qualifications for the position as posted. See Harris, __ N.C. App. at __,
798 S.E.2d at 133.
Petitioner also contends that the ALJ ignored the full text of the job
description, because the description included the language “or an equivalent
combination of education and experience.” There were apparently several versions of
the job posting listed in various places at different times, but petitioner argues that
all versions contained this equivalency language. For example, petitioner’s Exhibit
4 refers to a job bulletin posting for the position which listed as minimum education
and experience requirements a “Bachelor’s degree . . . and four years of laboratory
experience in the assigned area, one of which is in a supervisory capacity; or an
equivalent combination of education and experience[.]” Petitioner’s Exhibit 8
indicated that the “Education and Experience Required” section of the job posting for
the position stated:
Preferably graduation from a four-year college or
university with a B.A./B.S. or equivalent degree in medical
technology, microbiology, or biological sciences. And three
years of supervisory laboratory experience, preferably
microbiology-related.
Alternatively, an equivalent combination of education and
experience that includes an Associate degree in medical
technology, microbiology or microbiology-related.
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Coursework must include at least one class in general
microbiology or basic medical microbiology. Additional
courses in biochemistry, chemistry, biology, immunology,
or microbiology are preferred.
Continuing education courses in any of the above subjects
would also be beneficial.
Position requires a background in microbiology with at
least 3 years of work experience in supervision and
management. . . .
But petitioner has not shown that the trial court’s findings regarding her
experience as it related to that required for the position were erroneous. Petitioner’s
application erroneously stated that she had supervisory experience. She later
testified that she has never held a supervisory title. Moreover, Dr. Merritt testified
that he wrote the knowledge, skills, and ability section (“KSAs”) of the job description,
and that portion of the job description never stated an equivalency would be
acceptable. The KSA was consistently written to reflect a requirement that the
applicant have knowledge and background “in supervision and management.” The
ALJ did not err in ultimately concluding that petitioner did not meet this
requirement. The trial court’s findings are supported by the evidence. See, e.g.,
Teague v. Western Carolina University, 108 N.C. App. 689, 692-93, 424 S.E.2d 684,
686-87 (1993) (“The evidence presented in the case at hand does not lead this Court
to the conclusion that the Commission’s decision to uphold Mr. McClure’s
determination was patently in bad faith or whimsical. Mr. McClure had to make his
decision based on the qualifications he found in the applications and elicited during
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Opinion of the Court
the interviews. Ms. Teague’s application did not state that she held an advanced
degree, nor did it contain any references to her relevant and substantial experience.
. . . Based upon the information he had before him, Mr. McClure reasonably
concluded that Ms. Teague’s qualifications were not ‘substantially equal’ to Ms.
Murchison’s.” (Citation and quotation marks omitted)).
III. Additional Findings Regarding Required Supervisory Experience
Petitioner also contends that the ALJ erred in making these findings, Findings
of Fact No. 34, 39, and 45, in relation to the qualifications sought for the position:
34. The MLS II position has both technical and
supervisory aspects; however, the supervisory
responsibilities are primary and present in the other
responsibilities of the job. While the MLS II would perform
some lab testing, this was not the expected primary role.
Specialists are the subject matter experts and expected to
perform the bench testing and to trouble shoot issues
arising on the bench. The MLS II would oversee and
coordinate these activities.
....
39. At the time Dr. Merritt was hiring for the MLS II
position, he was looking for a candidate with previous
supervisory experience. While the candidate needed broad
knowledge of the testing areas that would be supervised,
the candidate did not need to be an expert in performing
the various tests.
....
45. Shadia Rath was hired as a Med Lab Supervisor II
without prior supervisory experience. This was in the
bioterrorism area that was previously part of the
microbiology unit. Rath served in this position during
2004-2007, nine years prior to the posting of the position at
issue in this case. The fact that she was hired nine years
ago, by a different supervisor into a different Med Lab
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Supervisor II position, is not relevant to a determination of
whether Petitioner met the minimum qualifications for the
Med Lab Supervisor II position at issue in this case.
In relation to Finding of Fact No. 34, testimony from Dr. Merritt and Dr. Scott
Zimmerman supported the ALJ’s finding that the focus in filling the Supervisor II
position was on the supervisory and managerial aspects of the position, more so than
the technical aspects. And this was reflected in the job posting description, which
reiterated a need for supervisory and management experience. Finding of Fact No.
39, which focuses specifically on what Dr. Merritt was looking for in candidates, again
reiterates the need for supervisory experience. This finding is supported by his
testimony.
On Finding of Fact No. 45, Ms. Rath testified that she served in a Supervisory
II position from 2004 to 2007. She also testified that when she was promoted to the
Supervisor II position, she had never held a supervisory title. But Ms. Rath was hired
almost a decade earlier, by someone other than Dr. Merrit, and no evidence was
presented of the job posting for the Supervisor II position at the time she applied or
whether it listed a requirement of prior supervisory experience. Therefore, we hold
these findings are supported by substantial evidence.
IV. Business Records Exception to Hearsay
Petitioner next contends the ALJ erred in making findings of fact No. 28, 43,
and 46 -- which pertain to Mr. Lawson’s credentials -- because they are based on
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hearsay. Petitioner argues that Lawson’s credentials are all hearsay because the
credentials were presented on notes and paper the hiring officials -- including Dr.
Merritt -- compiled during Lawson’s interview for the Medical Supervisor II job. The
ALJ found as fact:
28. Thomas G. Lawson met the minimum education
requirements as he has a Bachelor’s degree in biology and
a Master’s degree in biotechnology. Lawson also had
several years of laboratory experience in a supervisory
capacity. This exceeded the MLS II position requirement
for at least a year of laboratory experience in a supervisory
capacity.
....
43. Review of Lawson’s application revealed that he
exceeded the minimum qualifications for the MLS II
position:
a. Lawson oversaw the laboratory operations for
a clinical and environmental testing laboratory. He
designed, implemented, and managed components
for quality assurance programs.
b. Lawson developed and maintained standard
operating procedures; competency assessment for
testing; proficiency testing; corrective action
reporting; specimen turnaround time optimizations;
compliance auditing; and new assay performance
verification.
c. Lawson hosted and directed federal auditors
during Clinical Laboratory Improvement
Amendment inspections.
d. Lawson was involved in budgeting activities
and established relationships within the biotech
industry. He communicated with stakeholders,
public health officials, vendors, and news media.
e. Lawson conducted recruitment, selection, and
orientation procedures for new employees;
conducted employee performance evaluations; and
managed employee promotions and discharges.
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Lawson provided technical oversight and training of
between 6 and 12 scientists in several testing areas.
f. Lawson had several years of testing
experience as a microbiologist. He conducted
molecular testing for the detection of bio-threat
agents and infectious organisms. He performed
quality control for testing he conducted. He worked
as a senior microbiologist at the Texas Department
of State Health Services performing biological tests
to detect infectious organisms using testing
techniques utilized in the SLPH.
....
46. Lawson was offered the MLS II position and he
accepted the offer. He started in the MLS II position in
May 2016. Lawson was not a career state employee of the
State of North Carolina at the time he was hired into the
MLS II position. Dr. Merritt, in conjunction with the
interview team, concluded that Lawson was the most
qualified candidate; and that he was significantly better
suited to the position than Petitioner. Lawson possessed
the laboratory experience in a supervisory and
management capacity that Petitioner did not have.
At the OAH hearing, petitioner objected several times to the admission of
evidence regarding Lawson’s credentials, arguing this evidence was hearsay because
Mr. Lawson was not present to testify. Hearsay is defined as, “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule
801(c) (2017). “However, statements offered for other purposes are not hearsay.”
Taylor v. Abernethy, 174 N.C. App. 93, 99, 620 S.E.2d 242, 246 (2005) (citations,
quotation marks, and brackets omitted). Also, hearsay evidence may be admissible
if it falls under one of the exceptions to the hearsay rule listed in North Carolina
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Rules of Evidence Rule 803. See N.C. Gen. Stat. § 8C-1, Rule 803 (2017). Business
records are one such exception. See, e.g., N.C. R. Evid. Rule 803 (6) (“The following
are not excluded by the hearsay rule, even though the declarant is available as a
witness: . . . (6) Records of Regularly Conducted Activity.”).
Here, the ALJ overruled Petitioner’s objection based upon the “records of
regularly conducted activity” exception to the hearsay rule because Mr. Lawson’s job
application and the hiring officials’ notes taken during the interview about Lawson’s
credentials were business records kept as a part of the usual hiring process. As noted
above, records of regularly conducted activity are addressed in Rule 803(6), which
states,
A memorandum, report, or data compilation, in any form,
of acts, events, conditions, opinions, or diagnoses, made at
or near the time by, or from information transmitted by, a
person with knowledge, if (i) kept in the course of a
regularly conducted business activity and (ii) it was the
regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified
witness, or by affidavit or by document under seal . . . made
by the custodian or witness, unless the source of
information or the method or circumstances or preparation
indicate lack of trustworthiness.
Id.
NCDHHS presented several exhibits which petitioner claims are inadmissible
hearsay, including Mr. Lawson’s application for the job and interview notes, which
also include information on his credentials and experience. Petitioner’s first objection
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came after Ms. Shanda Snead began testifying about Mr. Lawson’s education based
upon his job application. Ms. Snead was the “recruiter for Public Health,” a
department within NCDHHS that includes the State Lab of Public Health. Her job
was to
work with the hiring managers when there’s a vacancy or
a new position that needs to be filled. In going through that
process, I would create the posting, working with the
applicant tracking system, requesting -- receiving the
applications, reviewing them, screening them, and then
sending them the qualified applicants and then following
up with them later on if there’s questions with the hiring,
interview process.
She testified about the usual process used by NCDHHS for hiring, including the
entire process of posting the job, collecting information on the applicants, screening
the applicants, and selecting the applicant. The information is collected in the
“NEOGOV system[,]” which is an electronic system. She would then screen the
applications for minimum qualifications, and those that met the minimum job
qualifications would be transmitted to the hiring manager, who is normally the
supervisor who will decide which applicants to interview and ultimately hire. She
described specifically the job posting for the position at issue in this case, as well as
the receipt and screening of the applications, including those from Mr. Lawson and
petitioner. Both of these applications were collected and transmitted to the hiring
manager -- in this case, Dr. Merritt -- in the usual manner.
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Petitioner objected to this testimony and the job application as hearsay
because “Mr. Lawson is not here to verify and -- which statement -- call for the truth
of the matter, sir.” Counsel for respondent noted that the job application was
admissible hearsay under the business records exception. He noted that the
application and information submitted to the hiring manager comes from the
applications submitted by the applicants through the NEOGOV system.
Business records made in the ordinary course of business
at or near the time of the transaction involved are
admissible as an exception to the hearsay rule if they are
authenticated by a witness who is familiar with them and
the system under which they are made. The authenticity
of such records may, however, be established by
circumstantial evidence. There is no requirement that the
records be authenticated by the person who made them.
State v. Wilson, 313 N.C. 516, 533, 330 S.E.2d 450, 462 (1985) (citations omitted).
The evidence here showed that the job applications and other information
about the qualifications of the job applicants, including Mr. Lawson, were “(i) kept in
the course of a regularly conducted business activity,” N.C. R. Evid. 803(6),
specifically, NCDHHS’s process for posting new jobs and hiring new employees. “[I]t
was the regular practice of” NCDHHS to collect applications in the NEOGOV system
and to use this data compilation to make the hiring decisions. See id. Ms. Snead was
a “custodian or other qualified witness” who testified about the business practice of
collecting the applications and transmitting them to the hiring manager. Id.
Therefore, the ALJ correctly overruled petitioner’s objection based on hearsay, since
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Mr. Lawson’s application and the other records regarding his qualifications were
business records admissible under Rule 803(6). Id.
This situation is similar to State v. Cagle, 182 N.C. App. 71, 76, 641 S.E.2d 705,
709 (2007), where the Director of Security for Biltmore Mall testified about the Mall’s
“procedures and processes for handling problematic checks” in a prosecution for
obtaining property by writing worthless checks. The defendant objected to her
testimony about the worthless checks since “she did not witness their processing at
the bank.” Id. But this Court held that her testimony about the bad checks was
admissible under Rule 803(6) because she testified about “the Mall’s handling of the
checks” based upon her first-hand knowledge of the Mall’s procedures. Id.
The same analysis would apply to the interview notes taken during Mr.
Lawson’s interview for the job. These notes were a “memorandum, report, record, or
data compilation” of the “opinions” of the interviewer “made at or near the time” of
the interview, and it was also part of the regular practice of NCDHHS to keep a record
of the interview notes. See N.C. R. Evid. 803(6). In addition, essentially the same
information was included in the interview notes as in Mr. Lawson’s application. See
generally Thanogsinh v. Board of Educ., 462 F.3d 762, 775-76 (7th Cir. 2006) (“The
district court abused its discretion when it excluded the interviewers’ score sheet from
Cain’s interview and the handwritten notes on that sheet. This document is
admissible under the business record exception to the hearsay rule. . . . In this case,
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Cain’s score sheet is precisely the type of memorandum or record that falls within the
ambit of the business record exception.” (Citations, quotation marks, and footnote
omitted)).
Petitioner contends that when Mr. Lawson completed his application, he did
not work for NCDHHS, so any document he created could not fall under the business
record exception to the general rule of exclusion of hearsay. But the focus is not on
Lawson’s position, but on the authentication of the records, including the information
collected by NCDHHS as part of its regular hiring process. “There is no requirement
that the records be authenticated by the person who made them.” Wilson, 313 N.C.
at 533, 330 S.E.2d at 462. Petitioner’s argument that Mr. Lawson did not create the
record has the same flaw as the defendant’s argument in Cagle, as noted above, that
the Mall Directory of Security “did not witness” the processing of the checks at the
bank. Cagle, 182 N.C. App. at 76, 641 S.E.2d at 709. Petitioner has not noted any
reason for exclusion of this information on the theory that “the source of information
or the method or circumstances of preparation indicate lack of trustworthiness.” N.C.
R. Evid. Rule 803(6). In addition, Dr. Merritt’s interviews were taken in the usual
course of his role as hiring manager to interview applicants for the open position. Dr.
Merritt made a “data compilation” of his “opinions” regarding the qualifications of the
applicants, including Mr. Lawson, “at or near the time” of the interview, and these
were kept as part of the “regular practice” of NCDHHS to keep records of the hiring
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process. Id. Both Dr. Merritt and Ms. Snead testified at length about this process.
Therefore, the ALJ correctly overruled Petitioner’s objection to the testimony and
evidence regarding Mr. Lawson’s qualifications as they were shown on his application
and as reflected in Dr. Merritt’s interview notes when he was making the hiring
decision. In addition, the ALJ’s findings of fact regarding Mr. Lawson’s credentials
and experience were supported by the record.
V. Substantially Equal Qualifications
Finally, petitioner argues that the ALJ erred in concluding that she did not
have substantially equal qualifications as Mr. Lawson and in failing to give her
priority consideration as a career State employee for the position. Because we have
concluded that the ALJ did not err in finding that petitioner failed to meet the
minimum qualifications for the position, she also did not qualify for priority
consideration. Therefore, it was not error for the ALJ to decline to give her priority
consideration as a career State employee, as an employee must meet the minimum
qualifications for the position for the priority to apply. See 25 N.C.A.C. 01H.0635(a)
(“The employee or applicant must possess at least the minimum qualifications set
forth in the class specification of the vacancy being filled.”).
Conclusion
We affirm the final decision of the Office of Administrative Hearings.
AFFIRMED.
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Judges DAVIS and ARROWOOD concur.
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