Blackwelder v. State Dept. of Human Resources

• Decision Date: 18 January 1983
• Docket Number: No. 8210SC6,8210SC6
• Citation: Blackwelder v. State Dept. of Human Resources, 299 S.E.2d 777, 60 N.C.App. 331 (N.C. App. 1983)
• Court: North Carolina Court of Appeals
• Parties: Linda L. BLACKWELDER, President and member of Steel Creek Residents Association for herself and all other interested persons and William B. Young, Member Arrowood Industrial Park Association for himself and all other interested members v. STATE of North Carolina DEPARTMENT OF HUMAN RESOURCES, Sarah T. Morrow, M.D., M.P.H., Secretary and Hugh H. Tilson, M.D., Director and SCA Chemical Services, Inc.

Page 777

299 S.E.2d 777

60 N.C.App. 331

Linda L. BLACKWELDER, President and member of Steel Creek Residents Association for herself and all other interested persons and William B. Young, Member Arrowood Industrial Park Association for himself and all other interested members v. STATE of North Carolina DEPARTMENT OF HUMAN RESOURCES, Sarah T. Morrow, M.D., M.P.H., Secretary and Hugh H Tilson, M.D., Director and SCA Chemical Services, Inc.

No. 8210SC6.

Court of Appeals of North Carolina.

Jan. 18, 1983.

Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by William E. Poe and Irvin W. Hankins, III, Charlotte, for respondent-appellant, SCA Chemical Services, Inc.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. Robert R. Reilly and Thomas G. Meacham, Jr., Raleigh, for the State respondent-appellee.

Peter A. Foley, Charlotte, for petitioner-appellee.

JOHNSON, Judge.

This is an appeal from a Superior Court order determining the scope of review for an administrative hearing involving a contested hazardous waste treatment facility. Appellant SCA argues that the court erred by determining that the fitness of the applicant to operate the facility could be considered in the permitting process when there is no requirement of "fitness" set out in the applicable rules and regulations. The petitioners correctly contend that the threshold question presented by this appeal is whether the appellant's appeal from an interlocutory order is allowable. For the reasons set forth below, we conclude that the attempted appeal is premature. The action must run its course in the administrative agency.

General Statutes 1-277 and 7A-27, taken together, provide that no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless such ruling or order deprives the appellant of a substantial right which he would lose if the ruling or order is not reviewed before final judgment. Consumers Power v. Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974); accord, Funderburk v. Justice, 25 N.C.App. 655, 214 S.E.2d 310 (1975). A ruling is interlocutory in nature if it does not determine the issues but directs some further proceeding preliminary to final decree. Greene v. Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82 (1961); Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377 (1950).

SCA concedes that Judge Brannon's ruling is interlocutory as it merely determines an issue to be addressed at the permit hearing, but contends that is immediately appealable because it affects a substantial right. SCA argues that introduction of the fitness issues into the administrative proceeding "drastically" changed its posture to the prejudice of SCA. In support of its argument, SCA makes the following assertions: (1) prior to entry of the order, the DHR's Division of Health Services had refused to take the owner's "fitness" into consideration in either the permitting or review process; (2) accordingly, the Division had defended SCA's permit against the third party challenge of the petitioners; and (3) as a result of the order, the Division has conducted a review of SCA's fitness and now refuses to defend the issuance of the permit, in a reversal of its earlier position. SCA contends that the order deprived SCA of "its right to have the State defend the issuance of the permit," altering the procedural posture of the administrative review process, and permitting the interjection of irrelevant material into that process, thus affecting a substantial right to SCA's prejudice. Therefore, an immediate appeal is needed to protect SCA's "right" to have the State defend its permit and to prevent the "unnecessary" course of procedure in case where the question in need of appellate review is a strictly legal one, not requiring any factual analysis or support. SCA relies upon Edwards v. Raleigh, 240 N.C. 137, 81 S.E.2d 273 [60 N.C.App. 334] (1954) and Borden, Inc. v. FTC, 495 F.2d 785 (7th Cir.1974) to establish an exception to the general rule against interlocutory appeals of agency decisions where the only issue needing resolution is a legal one.

The Department of Human Resources, appellee in this appeal, joins SCA in requesting immediate review of Judge Brannon's order due to the "time and cost an administrative hearing would involve" and in the interests of judicial economy and consistency.

As the Supreme Court recently noted, "the 'substantial right' test for appealability of interlocutory orders in more easily stated than applied." Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). "It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered." Id. The case sub judice presents a somewhat unique factual situation and procedural context. Our research discloses no case directly on point. However, it is apparent that our courts have recently taken a restricted view of the "substantial right" exception to the general rule prohibiting immediate appeals from interlocutory orders. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979); Waters v. Qualified Personnel, Inc., supra; Davis v. Mitchell, 46 N.C.App. 272, 265 S.E.2d 248 (1980). See also Smart v. Smart, 59 N.C.App. 533, 297 S.E.2d 135 (1982); Leasing Corp. v. Myers, 46 N.C.App. 162, 265 S.E.2d 240 (1980).

In Waters the defendant attempted to appeal from an order setting aside summary judgment in defendant's favor. The Supreme Court concluded that the defendant's rights are fully and adequately protected by an exception to the order which may then be assigned as error on appeal should final judgment go against it, and held that the appeal was premature. Regarding the defendant's claim that a substantial right had been affected, the Court stated:

"All defendant suffers by its inability to appeal Judge Long's order is the necessity of rehearing its motion. The avoidance of such a hearing is not a 'substantial right' entitling defendant to an immediate appeal. Neither, for that matter, is the avoidance of trial which defendant might have to undergo should its motion and plaintiff's motion for summary judgment (which is still pending) both be denied."

Waters, 294 N.C. at 208, 240 S.E.2d at 344. Similarly, in Industries the Supreme Court held that a partial summary judgment rendered on the issue of liability alone is not appealable on the theory that it affects a substantial right of defendant and will work injury to it if not corrected before an appeal from the final judgment. The Court again noted that if the ruling is in error, the defendant can preserve its right to complain of the error on appeal from the final judgment by a duly entered exception. "Even if defendant is correct on its legal position, the most it will suffer from being denied an immediate appeal is a trial on the issue of damages." Industries, 296 N.C. at 491, 251 S.E.2d at 447.

"The reason for these rules is to prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division." Waters, 294 N.C. at 207, 240 S.E.2d at 343.

Taken together, Waters and Industries establish that avoidance of a rehearing or trial is not a "substantial right" entitling a party to an immediate appeal. Accord, Davis v. Mitchell, supra. The right must be one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment. In other words, the right to immediate appeal is reserved for those cases in which the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed.

Turning to the case under discussion, SCA argues that the order affected its "right" to have the State defend the issuance of the permit. No authority is cited in support of SCA's contention that it has a right to the State's defense. The record discloses that the permit was initially issued without DHR's observance of the proper administrative procedures designed to protect the petitioners' rights of due process. Accordingly, the petitioners were granted an administrative hearing to review issuance of the permit. Until the time of a final agency decision, the agency is free to reconsider its decision concerning the issuance of a permit. In re Savings and Loan Assoc., 53 N.C.App. 326,...