Heritage Pointe Builders, Inc. v. North Carolina Licensing Bd. of General Contractors

• Decision Date: 17 October 1995
• Docket Number: No. COA94-816,COA94-816
• Citation: 462 S.E.2d 696,120 N.C.App. 502
• Court: North Carolina Court of Appeals
• Parties: HERITAGE POINTE BUILDERS, INC., and Patrick E. Hannon, Jr. v. NORTH CAROLINA LICENSING BOARD OF GENERAL CONTRACTORS.

Page 696

462 S.E.2d 696

120 N.C.App. 502

HERITAGE POINTE BUILDERS, INC., and Patrick E. Hannon, Jr. v. NORTH CAROLINA LICENSING BOARD OF GENERAL CONTRACTORS.

No. COA94-816.

Court of Appeals of North Carolina.

Oct. 17, 1995.

M. Jackson Nichols, Raleigh, for petitioner-appellees.

Bailey & Dixon, L.L.P. by Carson Carmichael, III and Denise Stanford Haskell, Raleigh, for respondent-appellant.

GREENE, Judge.

North Carolina Licensing Board of General Contractors (the Board) appeals from an Order of Remand entered 2 May 1994 in Wake County Superior Court vacating the Board's decision in the matter of Carolina Cape Fear Builders, Inc. (Cape Fear) and Heritage Pointe Builders, Inc. (Heritage Pointe) and granting petitioners, Heritage Pointe and Patrick E. Hannon, Jr. (Hannon), attorney fees.

Cape Fear was licensed to practice general contracting on 17 July 1985, with Hannon as the qualifying party. The license expired in December 1991. On 17 September 1992, Heritage Pointe filed an application with the Board for licensure as a limited residential contractor, requesting that Hannon serve as its qualifying party, and his examination be transferred from Cape Fear. On 17 May 1993, Heritage Pointe amended its application, requesting an unlimited residential license. On 30 July 1993, Heritage Pointe filed a second application for a limited residential license and requested that Michael Hannon serve as qualifier.

Prior to a hearing before the Board, Heritage Pointe filed an Affidavit of Disqualification & Motion for Hearing or Referral to OAH seeking to disqualify members of the Board pursuant to N.C.Gen.Stat. § 150B-40 and 21 NCAC 12 .0825. The affidavit claimed that certain unnamed Board members had received information about Hannon's criminal history that would prejudice those members against Hannon and Heritage Pointe. At the hearing the Board denied Heritage Pointe's request to question Board members as to any possible bias. In closed chambers, Chairman Richard T. Howard appointed a Board member to poll all the members as to whether they would be able to render an impartial decision. All agreed they would be able to give an impartial decision. The Board found that due to Hannon's pleading guilty to second degree rape in 1981, and pleading no contest to misdemeanor assault and battery in 1992, the applicant Heritage Pointe, with Hannon serving as qualifying party, is not of "good character" and "integrity," and therefore the application was denied. The Board granted the application of Heritage Pointe with Michael Hannon serving as the qualifying party. The Board took no action with regard to the expired license of Cape Fear. Heritage Pointe and Hannon appealed to the superior court.

On review to Wake County Superior Court, Judge Cashwell found that the Board's refusal to allow Heritage Pointe to question the Board members was "arbitrary and capricious" and a violation of due process. Judge Cashwell also found that the Board did not comply with the North Carolina Rules of Evidence, and awarded attorney fees to Heritage Pointe and Hannon. The case was remanded for rehearing by the Licensing Board in accordance with these findings.

__________

The issue is whether this Court has jurisdiction to hear this appeal.

The trial court vacated the Board's decision and remanded the case for a rehearing consistent with its order. Because the order requires further action to settle the controversy, it is interlocutory, Veazey v. City of Durham, 231 N.C. 357,...