Opinion
No. COA10-404
Filed 19 July 2011 This case not for publication
Appeal by Respondents from order entered 16 December 2009 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 26 October 2010.
Wyrick Robbins Yates Ponton, LLP, by K. Edward Greene, Samuel T. Wyrick, III, and Tobias S. Hampson, for Petitioner-Appellee. Attorney General Roy Cooper, by Assistant Attorney General Kimberly D. Potter, for Respondents-Appellants.
Wake County No. 09 CVS 7829.
Where the trial court remanded Petitioner's action to the Chancellor for re-evaluation of her application for promotion and tenure and where Respondents fail to demonstrate that its interlocutory appeal affects a substantial right, we dismiss the appeal.
North Carolina State University, Chancellor James Oblinger, Provost Larry A. Nielsen, and the Board of Governors of the University of North Carolina ("Respondents") appeal from an order reversing and remanding their decision to deny Dr. Linda D. Martin ("Petitioner") tenure and promotion. For the reasons stated below, we affirm.
Petitioner is a former assistant professor in the Department of Molecular Biomedical Sciences ("the Department") in the College of Veterinary Medicine at North Carolina State University. North Carolina State University ("NCSU") is a constituent institution of the University of North Carolina, and as such is governed by the UNC Board of Governors ("UNC BOG").
In October 2006, Petitioner submitted her tenure dossier for consideration by the Department. On or about 30 October 2006, Dr. Christine McGahan, head of the Department ("Department Head") directed that certain information be removed from Petitioner's tenure dossier before its distribution to the Department's voting faculty. After reviewing her application for tenure and promotion, Petitioner's colleagues, both in her Department and in the College of Veterinary Medicine, recommended that she be denied tenure and promotion. Later, in March 2007, Petitioner's tenure dossier was referred to the "University Reappointment, Promotion and Tenure Committee." Based on its recommendation, NCSU Provost Larry A. Nielsen denied Petitioner tenure and promotion.
On 28 June 2007, Petitioner appealed this decision to the NCSU Faculty Grievance Committee ("Grievance Committee"). The Grievance Committee heard the matter over six separate days between 31 March and 29 April 2008. At the hearing, the Grievance Committee received conflicting evidence which indicated that the Department head exhibited personal malice toward Petitioner. The Grievance Committee found by a preponderance of the evidence that (I) the material removed from Petitioner's tenure dossier constituted a material procedural irregularity that cast substantial doubt on the validity of the decision to deny Petitioner tenure and promotion, and (II) personal malice on the part of the Department Head "informed" the decision of the Provost to deny Petitioner tenure and promotion.
On 13 August 2 0 08, after reviewing recommendations by the Grievance Committee, NCSU Chancellor James Oblinger ("Chancellor") submitted his final decision in which he concluded that Petitioner "had not proven any of her claims for reversing the decision not to promote and tenure or for other remedial measures." In reaching his conclusion, the Chancellor found that the removal of items from Petitioner's tenure dossier was not a "material error" because inclusion of these items would not have changed the final decision. Additionally, the Chancellor found that the evidence failed to establish that "but for" the existence of personal malice, that the review of Petitioner's request for tenure and promotion would have produced a different result. On 29 August 2008, Petitioner appealed the Chancellor's decision to the UNC BOG. On 20 March 2009, the UNC BOG affirmed the Chancellor's determination that removal of items from Petitioner's tenure dossier was harmless error, and that the application of a "but for" test to the malice inquiry was appropriate.
Petitioner then sought review of the UNC BOG's decision in Wake County Superior Court which was heard on 2 December 2009. On 16 December 2009, the trial court entered an Order on Judicial Review of UNC BOG reversing the final agency decision and remanding for re-evaluation of Petitioner's tenure application. From this order, Respondents now appeal. Additional facts will be included, as relevant, throughout the remainder of the opinion.
Motion to Dismiss
By motion, Petitioner first seeks to dismiss Respondents' appeal as interlocutory. Because a review of the relevant North Carolina authority reveals that Respondents' appeal is indeed interlocutory, we allow Petitioner's motion to dismiss.
"A judgment is either interlocutory or the final determination of the rights of the parties." N.C. Gen. Stat. `1A-1, Rule 54(a) (2009). "Interlocutory orders are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy." Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999). "Generally, there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). The trial court's order in the case sub judice, is interlocutory.
In its order the trial court reversed the decision of the UNC BOG and remanded to the UNC BOG for further remand to the Chancellor. On remand, the Chancellor was to re-evaluate Petitioner's tenure application in a manner consistent with the trial court's order. Because the trial court remanded this action for further consideration by the Chancellor, the trial court's order is interlocutory. See Sack v. N.C. State Univ., 155 N.C. App. 484, 489, 574 S.E.2d 120, 126 (2002) (citing Heritage Pointe Bldrs. v. N.C. Licensing Bd. of General Contractors, 120 N.C. App. 502, 504, 462 S.E.2d 696, 697-98 (1995) (holding that an appeal was interlocutory where a trial court vacated a decision by the Board of Governors and remanded for further consideration by a Grievance Committee)). Respondents contend that despite being interlocutory, the trial court's order affects a substantial right and is ripe for immediate appellate review. We disagree.
An appeal from an interlocutory order is appropriate "if . . . the order affects a substantial right that would be lost without immediate review." Boyd v. Robeson Cty., 169 N.C. App. 460, 464, 621 S.E.2d 1, 4 (2005). "A substantial right is `a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which [one] is entitled to have preserved and protected by law: a material right.'" Gilbert v. N.C. State Bar, 363 N.C. 70, 75, 678 S.E.2d 602, 605 (2009) (quoting Oestreicher v. Am. Nat'l Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976)). Our Court has held that "an order `remanding an action to an agency for hearing . . . is not immediately appealable because avoidance of a hearing'" is not a substantial right. Sack, 155 N.C. App. at 490, 574 S.E.2d at 126 (quoting Byers v. N.C. Savings Institutions Division, 123 N.C. App. 689, 693, 474 S.E.2d 404, 407 (1996)).
Because the trial court remanded Petitioner's action to the Chancellor for re-evaluation of Petitioner's tenure application, this appeal is interlocutory and we dismiss.
Dismissed.
Judges MCGEE and HUNTER, JR. concur.
Report per Rule 30(e).