The opinion
Judge ARNOLD
dissenting.
The majority cites the following statement made by our Supreme Court after its careful review of the record in this case:
We express no opinion as to whether the Commission should set aside its former judgment against Hogan. While we have mentioned certain equities which weigh in Hogan’s favor, we have done so only for the purpose of justifying our remand of this case for the Commission’s consideration. The decision whether to set aside the judgment rests, in the first instance, within the judgment of the Commission. If the Commission refuses to set aside the former judgment, Hogan’s claim will be barred by res judicata. If, on the other hand, the Commission does set aside the former judgment, no final judgment on the merits will exist to bar this action under N.C.G.S. § 97-53(13).
Hogan v. Cone Mills Corp., 315 N.C. 127, 142 , 337 S.E. 2d 477, 486 (1985).
The Supreme Court clearly directs the Commission to make a discretionary ruling whether to set aside judgment in this case. The majority ably discusses the parameters for appellate review when a lower tribunal has refused, in its discretion, to set aside judgment. It then proceeds to substitute its own judgment for that of the Commission. Given the heavy burden demanded under either an abuse of discretion test, or a test which would require a finding that there is no competent evidence to support the findings of the Commission, I dissent.
These are the pertinent findings of fact of the Commission from its order dated 4 January 1977:
4. . . . Mr. Hogan did not object to the Commission’s entry of the order of dismissal and did not appeal from same.
* * * *
*649 7. The decision not to appeal the order of dismissal of January 4, 1977 was a mutual decision, reached by Hogan and his attorney at the time ....
Based on these and other findings of fact the Commission concluded that:
1. No grounds exist in the judgment or discretion of the Commission to set aside the order of dismissal of January 4, 1977.
2. Plaintiffs claim is barred by res judicata.
In its opinion the Supreme Court stated:
It appears to us the reason plaintiff did not contest defendants’ motion to dismiss is because he decided he did not have a viable claim under the law then in effect. That plaintiff determined for whatever reason not to oppose defendants’ motion does not transform what is otherwise a dismissal on the merits into a voluntary dismissal.
Hoga3n at 136, 337 S.E. 2d at 482 . The record and the 1987 deposition of Hogan’s former counsel could support an interpretation that Hogan did not contest dismissal because he agreed with his attorney that there was no viable claim at that time. The fact that the record also makes clear that Hogan did not understand that by agreeing not to contest, he agreed to a dismissal with prejudice is not enough ammunition for this Court to overturn a finding of fact which is based on any competent evidence. Further, when the Commission makes a discretionary ruling this Court cannot substitute its own judgment for that of the Commission. See Worth-ington v. Bynum, 305 N.C. 478, 485-86 , 290 S.E. 2d 599, 604 (1982).
Had it been this Court’s place to rule on plaintiff’s motion “in the first instance,” I would agree with the majority that the equities weigh in favor of granting plaintiff’s motion. That is not our function as an appellate court. I would affirm.