Stewart v NC Dept. of Juvenile Justice, (04-431) 01/04/2005

Appeal by plaintiff from judgment entered 3 June 2003 by Judge Albert Diaz in Cabarrus County Superior Court. Heard in the Court of Appeals 8 December 2003.

    Ferguson Stein Chambers Adkins Gresham & Sumter, P.A., by S. Luke Largess, for petitioner-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Valerie L. Bateman, for respondent-appellee.

    Tharrington Smith, L.L.P., by Ann L. Majestic and Kara Grice; and General Counsel Allison B. Schafer for North Carolina School Boards Association, amicus curiae.

    STEELMAN, Judge.

    Petitioner, Brenda H. Stewart, appeals the trial court's failure to award her relief based upon respondent's decision not to renew her employment contract. For the reasons discussed herein, we dismiss this appeal as interlocutory.
    Petitioner worked as a special education teacher at Stonewall Jackson Youth Development Center from 1 July 2001 until 30 June 2002. Her employment was pursuant to a one-year probationary contract, which could be renewed at the end of each school year. On 21 May 2002, school superintendent Dr. Jane D. Young recommended to Secretary George Sweat, the head of the North Carolina Department of Juvenile Justice and Delinquency Prevention, that petitioner's contract as a probationary teacher not be renewed for the 2002-03 school year. Based on this recommendation, petitioner's contract was not renewed.
    Pursuant to N.C. Gen. Stat. § 115C-325(n), petitioner sought judicial review of the non-renewal of her contract. Respondent filed a record composed of the information relied upon by Secretary Sweat in making his decision not to renew petitioner's contract. The trial court heard this matter on 12 May 2003 and entered an order on 3 June 2003. The trial court found that the process by which the record on appeal was developed was inadequate. The trial court vacated the decision of Secretary Sweat and remanded the matter for further proceedings. On 13 June 2003, petitioner filed a motion pursuant to Rule 59(e) of the Rules of Civil Procedure, requesting the trial court alter or amend its order. The trial court denied this motion. Petitioner appeals.
    “A ruling is interlocutory if it does not determine the issues but directs some further proceeding preliminary to a final decree.”
Murphy v. First Union Capital Mkts. Corp., 152 N.C. App. 205, 207 567 S.E.2d 189, 191 (2002). In its 3 June 2003 order, the trial court expressly stated it was not ruling on the merits of the case, but remanded the matter for further proceedings. The appeal of such an order is interlocutory. There is no right to an immediate appeal of an interlocutory order. However, an interlocutory ordermay be heard if it affects a substantial right. See N.C. Gen. Stat. § 1-277(a) (2004). We consider whether a substantial right is affected on a case-by-case basis. Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002). Since permitting a fragmentary appeal runs counter to the policy of discouraging such appeals, what constitutes a substantial right is to be strictly construed. Id. In keeping with this strict construction, a right will be deemed substantial only if that right would clearly be lost or if it would work injury to the appellant if the order is not reviewed before a final judgment is rendered. Banner v. Hatcher, 124 N.C. App. 439, 442, 477 S.E.2d 249, 251 (1996). The burden is on the party seeking review of the order to establish that a substantial right will be affected if they are denied immediate appeal. See Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000).
    Petitioner's only assignment of error is that the trial court failed to award her damages pending a final determination regarding whether respondent's decision not to renew her contract was arbitrary and capricious. It is well established that a determination as to damages is not a substantial right that is immediately appealable. See Johnston v. Royal Indemnity Co., 107 N.C. App. 624, 625, 421 S.E.2d 170, 171 (1992). Furthermore, even if it were a substantial right, “if an appellant's rights may 'be fully and adequately protected by an exception to the order that could then be assigned as error on appeal after final judgment,' . . . there is no right to immediate appellate review.” Yang v.Three Springs, Inc., 142 N.C. App. 328, 330, 542 S.E.2d 666, 667 (2001). In the instant case, petitioner has preserved the question of entitlement to damages for review and will suffer no prejudice.
    Petitioner appealed from an interlocutory order, and failed to identify a substantial right affected by the order, thus her appeal is dismissed.
    We expressly do not reach the question of whether the trial court had the authority to remand this matter for further hearings.
    DISMISSED.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e).

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