Appeal by petitioner and respondent from judgment entered 22
February 2002 by Judge W. Osmond Smith, III, in Wake County
Superior Court. Heard in the Court of Appeals 20 January 2003.
Barringer, Barringer & Schiller, PLLC, by Marvin Schiller and
David G. Schiller, for respondent-appellant.
Attorney General Roy Cooper, by Assistant Attorney General
Edwin Lee Gavin, II, and Special Deputy Attorney General David
Roy Blackwell, for petitioner-appellee.
TYSON, Judge.
I. Background
The North Carolina Department of Environment and Natural
Resources (“petitioner”) terminated James Fred Swain (“respondent”)
from his position as chief of law enforcement of the Division of
Marine Fisheries on 31 January 1996. Respondent filed a contested
case petition in the Office of Administrative Hearings (OAH) on 16
April 1996. The administrative law judge granted summary judgment
in favor of respondent on 2 October 1997. The State Personnel
Commission adopted the recommended decision of the administrative
law judge on 24 March 1998. Petitioner then filed a petitionseeking judicial review in Wake County Superior Court on 23 April
1998. Judge Osmond Smith heard the matter at the 11 January 1999
session of court. On 22 February 2002, Judge Smith entered the
subject judgment in which he reversed the decision of the State
Personnel Commission and remanded the matter to the OAH for a full
evidentiary hearing. Respondent filed notice of appeal from the
judgment on 27 February 2002. Petitioner filed notice of appeal
from the judgment on 6 March 2002.
II. Issue
The threshold question we must decide is whether an immediate
appeal lies from Judge Smith's judgment.
Bailey v. Gooding, 301
N.C. 205, 208, 270 S.E.2d 431, 433 (1980).
III. Final Judgment
“A party to a review proceeding in a superior court may appeal
to the appellate division from the
final judgment of the superior
court as provided in G.S. 7A-27.” N.C. Gen. Stat. § 150B-52 (2001)
(emphasis added). Because the judgment at bar directs the holding
of an evidentiary hearing in the tribunal below, it is not final
and is interlocutory.
Veazey v. Durham, 231 N.C. 357, 362, 57
S.E.2d 377, 381,
reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950).
An appeal from an interlocutory order generally “will be dismissed
as fragmentary and premature unless the order affects some
substantial right and will work injury to appellant if not
corrected before appeal from final judgment.”
Stanback v.
Stanback, 287 N.C. 448, 453, 215 S.E.2d 30, 34 (1975).
This appeal is in a similar procedural posture as
HeritagePointe Bldrs. v. N.C. Licensing Bd. of General Contractors,
120
N.C. App. 502, 462 S.E.2d 696 (1995),
disc. review denied, 342 N.C.
655, 467 S.E.2d 712 (1996), in which the Wake County Superior
Court, on judicial review of a decision of the North Carolina
Licensing Board of General Contractors (Board), entered a judgment
remanding the matter for a rehearing by the Board. The Board
immediately appealed to this Court. This Court dismissed the
appeal as interlocutory and not affecting a substantial right.
Id.
at 504, 462 S.E.2d at 698.
We conclude the present interlocutory judgment does not affect
a substantial right that would work injury to the appealing parties
if the judgment is not corrected by an immediate appeal. If an
immediate appeal is not allowed, the parties, at most, face a
hearing. Avoidance of an administrative hearing, rehearing, or
trial is not a substantial right.
Blackwelder v. Dept. of Human
Resources, 60 N.C. App. 331, 336, 299 S.E.2d 777, 781 (1983).
Neither party has filed a petition for a writ of certiorari. This
appeal is dismissed.
Dismissed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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