Coulter v Earl Tindol Ford, Inc., (04-34) 04/05/2005

Appeal by Employment Security Commission of North Carolina (respondent) from an order remanding for the taking of additional evidence entered 17 September 2003 by Judge Nathaniel J. Poovey in Gaston County Superior Court. Heard in the Court of Appeals 1 March 2005.

Terry L. Coulter, pro se.

Employment Security Commission Legal Department by Thomas H. Hodges, Jr., for respondent-appellant.

    STEELMAN, Judge.

    Petitioner filed a claim 18 August 2002 for unemployment insurance benefits after she was terminated from her position with Earl Tindol Ford (employer). Adjudicator Helyn Watson initially ruled that petitioner was not disqualified from receiving unemployment benefits. Employer appealed, and Appeals Referee Betsy McCormick entered a decision holding that respondent was discharged for substantial fault on her part and was disqualified from receiving unemployment benefits for a period of nine weeks. Petitioner appealed and the Commission affirmed the decision of the appeals referee. Petitioner appealed the decision of the Commission to the Gaston County Superior Court pursuant to N.C. Gen. Stat. § 96-15(h) (2003). At the hearing before Judge Poovey, petitioner attempted to present additional evidence. The trial court determined that N.C. Gen. Stat. § 96-15(i) prevented it from receiving new evidence. Judge Poovey treated petitioner's attempt to offer new evidence as a motion to remand to the Commission for the taking of additional evidence. This motion was allowed, and the matter was remanded to the Commission. The Commission appeals.
    The dispositive issue is whether respondent's appeal of the trial court's interlocutory order is proper. Respondent acknowledges that the appeal is interlocutory, but argues that both N.C. Gen. Stat. § 96-15(i) (2003) and this Court's decision in Tastee Freez Cafeteria v. Watson, 64 N.C. App. 562, 307 S.E.2d 800 (1983), establish its right of appeal in this matter. N.C. Gen. Stat. § 96-15(i) states in relevant part:
        An appeal may be taken from the judgment of the superior court, as provided in civil cases. The Commission shall have the right to appeal to the appellate division from a decision or judgment of the superior court and for such purpose shall be deemed to be an aggrieved party. . . . When an appeal has been entered to any judgment, order, or decision of the court below, no benefits shall be paid pending a final determination of the cause, except in those cases in which the final decision of the Commission allowed benefits.

Respondent first argues that the express language of N.C. Gen. Stat. § 96-15(i) establishes its right to appeal the order of thesuperior court. Respondent reasons that it is given the express right to appeal a decision or judgment as an aggrieved party, and further language suggests that right also includes appeal from an order of the superior court. However, when read as a whole, the statute clearly stands for the proposition that the Commission may appeal “as provided in civil cases.” Thus, to the extent that the facts of the case permit an appeal of an interlocutory order under established statutory or case law, the Commission has the same right of appeal as any other aggrieved party. There is nothing in the statute suggesting that the Commission, or any other party, has a right to appeal every interlocutory order rendered by the superior court. Thus, in order for respondent's appeal to lie, there must be some additional authority supporting it in our established civil law.
    In order for the Commission to have the right to appeal from an interlocutory order, it must show that the order deprives it of a “substantial right which [it] would lose absent immediate review.” Wade S. Dunbar Ins. Agency, Inc. v. Barber, 147 N.C. App. 463, 466, 556 S.E.2d 331, 334 (2001). Respondent makes no argument that the order in question deprives it of a substantial right, or that any such right would be lost absent immediate review. “An order of the trial court remanding an action to an agency for hearing is interlocutory because it directs further action prior to a final decree. Furthermore, such an order is not immediately appealable because avoidance of a hearing does not affect a substantial right.” Byers v. N.C. Sav. Insts. Div., 123 N.C. App.689, 693, 474 S.E.2d 404, 407 (1996) (citation omitted); see also Sack v. N.C. State Univ., 155 N.C. App. 484, 490, 574 S.E.2d 120, 126 (2002); Heritage Pointe Builders v. N.C. Licensing Bd. of Gen. Contractors, 120 N.C. App. 502, 462 S.E.2d 696 (1995).
    Respondent also cites Tastee Freez, 64 N.C. App. 562, 307 S.E.2d 800, as support for its argument that it has an immediate right of appeal. In Tastee Freez the Employment Security Commission argued that there was no right of appeal from the superior court's order remanding the case to the Commission for a de novo hearing because “(a) the same referee presided over both hearings; (b) some references were made to the prior hearing; (c) leading questions were permitted; and (d) the referee took a 'zealous and participatory' role in the hearing.” Tastee Freez, 64 N.C. App. at 566, 307 S.E.2d at 802. It is clear that in Tastee Freez the superior court was remanding for an entirely new hearing, including a new referee. On these facts the Tastee Freez Court held: “We reject the Commission's argument that this appeal is interlocutory and must be dismissed. An appeal from an order granting a new trial is specifically allowed by N.C. Gen. Stat. §§ 1-277(a) (Cum. Supp. 1981) and 7A-27(d)(4) (1981).” 64 N.C. App. at 564, 307 S.E.2d at 801; but see Sack, 155 N.C. App. 484, 574 S.E.2d 120; Heritage Pointe, 120 N.C. App. 502, 462 S.E.2d 696. The Court thus held that the de novo hearing in that case was analogous to a de novo trial, and therefore appeal from the order was appropriate.     Tastee Freez does not help respondent. The trial court's order states: “The petitioner's motion to remand for additional evidence is allowed. This case is hereby remanded to the North Carolina Employment Commission for the purposes of taking additional evidence, as either party may deem necessary.” The instant case was not remanded for a new hearing. The case was remanded in order for the hearing to continue for the purpose of receiving additional evidence. The rationale of Tastee Freez does not apply to this case.
    We hold that there is no substantial right involved in the instant case.
    DISMISSED.
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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