Utilities--jurisdiction--interlocutory appeal_no final decision by Commission
An appeal from a Utilities Commission determination that Buck Island was a public
utility and subject to the Commission's jurisdiction was dismissed as interlocutory. The Court of
Appeals has no jurisdiction to consider appeals of interlocutory orders of the Utilities
Commission, even where an appellant challenges the Commission's exercise of jurisdiction.
Moreover, the Court of Appeals has no authority to issue a writ of certiorari to review these
issues where there is no final order or decision of the Commission. N.C.G.S. §§ 62-90, 7A-29.
North Carolina Utilities Commission _- Public Staff, by Chief
Counsel Antoinette R. Wike and Staff Attorney Elizabeth
Szafran, for intervenor-appellees.
Nelson Mullins Riley & Scarborough, LLC, by James H. Jeffries,
IV, for complainant-appellee Ocean Club Ventures, LLC.
Hunton & Williams, by Edward S. Finley, Jr., and Sabrina
Presnell Rockoff, for appellee Carolina Water Service, Inc.
John S. O'Connor, for intervenor-appellees Monteray Shores,
Inc., and Robert and Laurie DeGabrielle.
Trimpi, Nash & Harman, L.L.P., by Thomas P. Nash, IV, and John
G. Trimpi, for respondent-appellant Buck Island, Inc.
MARTIN, Judge.
Complainant-appellee Ocean Club Ventures, L.L.C., (“O.C.V.”)
a developer, filed a complaint before the North Carolina Utilities
Commission (“the Commission”) against respondent-appellee Carolina
Water Service, Inc., (“C.W.S.”) after it had been unable to
successfully negotiate with C.W.S. and intervenor-appellee MonterayShores, Inc., another developer, for the provision of water and
sewer service to O.C.V.'s future planned development known as
Corolla Shores. The only water and sewer processing facilities
convenient to Corolla Shores are owned jointly by Monteray Shores
and appellant Buck Island, Inc., and leased and operated by C.W.S.
The facilities are currently adequate to serve only Buck Island and
Monteray Shores' respective developments, but would not be adequate
to serve Corolla Shores without expansion. Monteray Shores moved
to intervene in the proceeding; the motion was allowed by the
Commission. By orders dated 20 March 2001 and 1 April 2002, the
Commission, inter alia, declared that, as part owner of the water
and sewer processing facilities, Buck Island was a public utility
as defined in G.S. § 62-3(23)a.2 and was thus subject to the
Commission's jurisdiction. Buck Island gave notice of appeal.
Neither of the orders from which Buck Island appeals are final
orders of the Commission. G.S. § 62-90 states in pertinent part:
(a) Any party to a proceeding before the
[Utilities] Commission may appeal from any
final order or decision of the Commission . .
. .
(d) The appeal shall lie to the appellate
division of the General Court of Justice as
provided in G.S. 7A-29 . . . .
N.C. Gen. Stat. § 62-90 (2003) (emphasis added). G.S. § 7A-29
provides for appeals of right from certain administrative agencies
as follows:
(a) From any final order or decision of the
North Carolina Utilities Commission not
governed by subsection (b) of this section,
the Department of Health and Human Services
under G.S. 131E-188(b), the Commissioner of
Banks under Articles 17, 18, 18A, and 21 of
Chapter 53 of the General Statutes, theAdministrator of Savings and Loans under
Article 3A of Chapter 54B of the General
Statutes, the North Carolina Industrial
Commission, the North Carolina State Bar under
G.S. 84-28, the Property Tax Commission under
G.S. 105-290 and G.S. 105-342, the
Commissioner of Insurance under G.S. 58-2-80,
or the Secretary of Environment and Natural
Resources under G.S. 104E-6.2 or G.S.
130A-293, appeal as of right lies directly to
the Court of Appeals.
(b) From any final order or decision of the
Utilities Commission in a general rate case,
appeal as of right lies directly to the
Supreme Court.
N.C. Gen. Stat. § 7A-29 (2003) (emphasis added). In contrast, G.S.
§ 7A-27 provides for appeals of right from certain interlocutory
orders of the superior or district courts. N.C. Gen. Stat. § 7A-
27(d) (2003); see also N.C. Gen. Stat. § 1-277 (2003). We must
conclude from the absence of any exceptions to § 62-90 or § 7A-29
allowing review of interlocutory orders of the Utilities Commission
that the omission was intentional on the part of the General
Assembly. Thus, this Court has no jurisdiction to consider appeals
of interlocutory orders of the Utilities Commission. State, ex
rel. Utilities Comm. v. Public Staff, 111 N.C. App. 251, 431 S.E.2d
880 (1993). This is true even where an appellant challenges the
Commission's exercise of jurisdiction over it. See The North
Carolina State Bar v. Du Mont, 298 N.C. 564, 566, 259 S.E.2d 280,
281 (1979) (no appeal of right under G.S. § 7A-29 from
interlocutory denial of motion to dismiss for lack of jurisdiction
by disciplinary hearing commission of State Bar); State ex rel.
Utilities Comm. v. Southern Bell Tel. & Tel. Co., 93 N.C. App. 260,
268, 377 S.E.2d 772, 776 (1989) (noting in opinion addressing
appeal of final order by Utilities Commission that two priorappeals in same action of orders asserting jurisdiction over
appellant had been dismissed as interlocutory), rev'd on other
grounds, 326 N.C. 522, 391 S.E.2d 487 (1990). Moreover, this Court
has no authority to issue a writ of certiorari pursuant to G.S. §
7A-32(c) to review the issues raised by appellant where there is no
final order or decision of the Commission. See Martin v. Piedmont
Asphalt & Paving, 337 N.C. 785, 788, 448 S.E.2d 380, 381
(interpreting provisions of G.S. § 7A-29 and 7A-32 with regard to
appeals from Industrial Commission), writ of supersedeas dismissed,
337 N.C. 801, 449 S.E.2d 473 (1994). Therefore, Buck Island's
appeal is dismissed.
Dismissed.
Judges HUNTER and GEER concur.
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