{
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  "name": "NORTH CAROLINA DEPARTMENT OF TRANSPORTATION v. RONALD E. DAVENPORT",
  "name_abbreviation": "North Carolina Department of Transportation v. Davenport",
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    "judges": [
      "Chief Judge HEDRICK concurs.",
      "Judge WELLS dissents."
    ],
    "parties": [
      "NORTH CAROLINA DEPARTMENT OF TRANSPORTATION v. RONALD E. DAVENPORT"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nInitially it may be noted that this is a proper appeal even though it was taken from an interlocutory order. D.O.T. moved to dismiss on the ground of governmental immunity, and we have previously held that \u201can immediate appeal lies under N.C. Gen. Stat. \u00a7 l-277(b) for the court\u2019s refusal to dismiss a suit against the state on the grounds of governmental immunity.\u201d Stahl-Rider, Inc. v. State, 48 N.C. App. 380, 383, 269 S.E.2d 217, 219 (1980), (citing Sides v. Cabarrus Memorial Hosp., 22 N.C. App. 117, 205 S.E.2d 784 (1974), modified on other grounds, 287 N.C. 14, 213 S.E.2d 297 (1975)).\nD.O.T.\u2019s appeal and first two assignments of error are founded upon sovereign immunity. However we need not address those issues since our decision is based solely upon D.O.T.\u2019s third assignment of error, that the superior court did not have subject matter jurisdiction to hear the contempt proceeding. We agree and reverse the superior court\u2019s denial of D.O.T.\u2019s motion to dismiss.\nIn appeals from administrative decisions, the superior court sits as an appellate court, and its decision is based solely upon the record from the prior proceedings. Batch v. Town of Chapel Hill, 326 N.C. 1, 11, 387 S.E.2d 655, 662, cert. denied, 496 U.S. 931 (1990). The superior court judge may not make findings of fact. Id.\nThis appeal comes from a contempt proceeding. It is uniformly held that in contempt proceedings the court must make findings of fact to support the judgment. Smith v. Smith, 247 N.C. 223, 225, 100 S.E.2d 370, 372 (1957). Since the superior court was sitting as an appellate court in this matter, and therefore could not hear matters requiring factual findings, it was without jurisdiction to find D.O.T. in contempt. See Quick v. Quick, 305 N.C. 446, 461, 290 S.E.2d 653, 663 (1982). Therefore, the superior court erred when it denied D.O.T.\u2019s Motion to Dismiss.\nWe are aware that the superior court did designate part of its order modifying the Personnel Commission\u2019s order as findings of fact. In that instance however, the superior court judge was only setting out his reasons for modifying the Commission\u2019s decision, denominating them as findings of fact, and he therefore did not exceed the bounds of appropriate judicial review. Star Automobile Co. v. Saab-Scania of America Inc., 84 N.C. App. 531, 535, 353 S.E.2d 260, 263 (1987).\nFor the reasons stated above, the decision of the superior court should be reversed.\nReversed.\nChief Judge HEDRICK concurs.\nJudge WELLS dissents.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      },
      {
        "text": "Judge WELLS\ndissenting.\nThe majority opinion misperceives the nature of the case before us. When Judge Farmer denied the DOT\u2019s motion to dismiss, he was not acting in an appellate review context. He was acting in response to Mr. Davenport\u2019s motion to require the DOT to do what it had been ordered to do in Judge Weeks\u2019 judgment, which was affirmed in all respects by this Court. Our opinion made it abundantly clear that the DOT should award Mr. Davenport his back pay, and since DOT did not appeal the Commission\u2019s order of reinstatement, that mandate is binding on the DOT.\nThis litigation has been going on for five years, having begun in the fall of 1987. The ALJ\u2019s decision to award back pay and reinstatement was entered in March of 1989 and affirmed by Judge Weeks in May of 1990. \u201cSubject matter\u201d is a straw man, simply being used as another delaying tactic by the DOT. Mr. Davenport has been denied justice for far too long, and I vote to affirm Juclge Farmer\u2019s order.",
        "type": "dissent",
        "author": "Judge WELLS"
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Associate Attorney General Patsy Smith Morgan, for appellant.",
      "Crisp, Davis, Schwentker, Page, Currin & Nichols, by M. Jackson Nichols and Lynn Fontana, for appellee."
    ],
    "corrections": "",
    "head_matter": "NORTH CAROLINA DEPARTMENT OF TRANSPORTATION v. RONALD E. DAVENPORT\nNo. 9110SC942\n(Filed 1 December 1992)\n1. Appeal and Error \u00a7 112 (NCI4th)\u2014 alleged governmental immunity \u2014refusal to dismiss \u2014immediate appeal\nThe trial court\u2019s refusal to dismiss a contempt proceeding against a state agency on the ground of governmental immunity was immediately appealable.\nAm Jur 2d, Appeal and Error \u00a7 168; Courts \u00a7 152.\n2. Courts \u00a7 60 (NCI4th)\u2014 State employee \u2014failure to reinstate \u2014 contempt \u2014 no jurisdiction in superior court\nThe superior court did not have subject matter jurisdiction of a motion to hold the Department of Transportation in contempt on the ground that it failed to comply with an order to reinstate respondent employee when it gave him another job title and moved him to a different location since the court must make findings of fact to support its judgment in a contempt proceeding and the superior court was sitting as an appellate court in this action and could not hear matters requiring factual findings.\nAm Jur 2d, Courts \u00a7\u00a7 87 et seq.\nJudge WELLS dissenting.\nAppeal by Department of Transportation from an order denying a motion to dismiss contempt proceedings entered 7 June 1991 by Judge Robert Farmer in Wake County Superior Court. Heard in the Court of Appeals 12 October 1992.\nOriginally this case arose from the dismissal of appellee, Ronald Davenport, from employment with appellant, the Department of Transportation (D.O.T.). Ronald Davenport was employed with D.O.T. from 5 August 1967 to 27 March 1987 at which time he was suspended. Davenport was finally dismissed on 3 September 1987. Davenport petitioned the Office of Administrative Hearings for a hearing pursuant to N.C. Gen. Stat. \u00a7 150B-23 (Supp. 1990). The administrative law judge concluded that Davenport had been dismissed without just cause and recommended reinstatement with back pay.\nThe State Personnel Commission adopted the administrative law judge\u2019s recommendation that Davenport be reinstated but rejected the conclusion that he was entitled to back pay. D.O.T. then petitioned the superior court for review of the Personnel Commission\u2019s decision. The superior court affirmed the reinstatement but modified the Commission\u2019s decision to include the award of back pay. This decision was appealed to the Court of Appeals where it was affirmed. North Carolina Dep\u2019t of Transp. v. Davenport, 102 N.C. App. 476, 402 S.E.2d 477 (1991).\nPrior to his dismissal, Davenport held the title \u201cDistrict Engineer\u201d in the Lenoir County District Office and his pay grade was 77. When he returned to D.O.T., his new title was \u201cDivision Operations Engineer\u201d in Wilson, North Carolina at pay grade 77. Davenport states that his new position requires him to commute approximately two hours each day, whereas his previous position required only a ten to fifteen minute commute.\nDavenport filed a Motion For Show Cause Contempt in the superior court under the original action claiming that D.O.T. had not complied with the superior court\u2019s order to reinstate him since he was given another job title and was moved to a different location. In response, D.O.T. claimed sovereign immunity and filed a Motion to Dismiss Contempt Proceeding and for Summary Judgment on that ground. Judge Farmer denied the motion. D.O.T. appeals the denial of the Motion to Dismiss.\nSimultaneously with this appeal, D.O.T. filed a Petition for Writ of Certiorari which is allowed in order for this Court to consider whether the superior court has subject matter jurisdiction to hear the contempt proceedings.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Patsy Smith Morgan, for appellant.\nCrisp, Davis, Schwentker, Page, Currin & Nichols, by M. Jackson Nichols and Lynn Fontana, for appellee."
  },
  "file_name": "0178-01",
  "first_page_order": 206,
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