An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-754


Filed: 18 February 2003


         v.                        Wake County
                                No. 98 CVS 5611

    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.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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