{ "id": 11915043, "name": "JAMES E. BYERS, WILLIAM J. BYERS, BILL GARDNER, JOHN A. KENNEDY, J. GORDON SCOTT, J. GORDON SCOTT, III AND HAROLD K. STALLCUP, Petitioners v. NORTH CAROLINA SAVINGS INSTITUTIONS DIVISION, Respondent, and CENTURA BANK AND CENTURA BANKS, INC., Intervenors", "name_abbreviation": "Byers v. North Carolina Savings Institutions Division", "decision_date": "1996-09-03", "docket_number": "No. COA96-297", "first_page": "689", "last_page": "693", "citations": [ { "type": "official", "cite": "123 N.C. App. 689" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "299 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520808 ], "year": 1983, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0331-01" ] }, { "cite": "389 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305257 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0338-01" ] }, { "cite": "332 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694848, 4685635, 4691143, 4696177, 4697201 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0117-03", "/nc/314/0117-02", "/nc/314/0117-04", "/nc/314/0117-05", "/nc/314/0117-01" ] }, { "cite": "328 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "882" }, { "page": "882" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525275 ], "year": 1985, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0536-01" ] }, { "cite": "303 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524588 ], "year": 1983, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0176-01" ] }, { "cite": "369 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "121" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525482 ], "year": 1988, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0577-01" ] }, { "cite": "362 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "815" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357716 ], "year": 1987, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0001-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 429, "char_count": 9086, "ocr_confidence": 0.727, "pagerank": { "raw": 4.666970501906556e-08, "percentile": 0.2932292577675378 }, "sha256": "b038c39197d4bc9ed2ede49397a7adcf4f681b6b5c11aec4f3323eada4e610c6", "simhash": "1:6feac7e7562c98ee", "word_count": 1442 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "JAMES E. BYERS, WILLIAM J. BYERS, BILL GARDNER, JOHN A. KENNEDY, J. GORDON SCOTT, J. GORDON SCOTT, III AND HAROLD K. STALLCUP, Petitioners v. NORTH CAROLINA SAVINGS INSTITUTIONS DIVISION, Respondent, and CENTURA BANK AND CENTURA BANKS, INC., Intervenors" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nRespondent and intervenors have filed petitions for writs of cer-tiorari in this Court as alternatives to their appeals in recognition that they may have had no right to immediately appeal the orders of the trial court. Petitioners have filed a motion to dismiss the appeals. The petitions and the motion were referred to this panel for ruling.\nWe first consider petitioners\u2019 motion to dismiss the appeals. Petitioners contend the orders appealed from are interlocutory, do not affect a substantial right, and are therefore not immediately appealable. Generally, there is no right to appeal from an interlocutory order. Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). However, an interlocutory order may be appealed prior to final judgment if it affects a substantial right that would be \u201clost, prejudiced or be less than adequately protected by exception to entry of the interlocutory order.\u201d J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 6, 362 S.E.2d 812, 815 (1987).\nRespondent and intervenors have appealed from two orders. The order entered 2 March 1995 denied respondent\u2019s motion to dismiss the petitioners\u2019 request for judicial review based upon lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and lack of personal jurisdiction. The order entered 31 October 1995 remanded the case for hearing before respondent.\nAn order denying a motion to dismiss for lack of subject matter jurisdiction does not affect a substantial right and is therefore not appealable prior to final judgment. Burlington Industries, Inc. v. Richmond County, 90 N.C. App. 577, 579, 369 S.E.2d 119, 121 (1988). Likewise, an order denying a motion to dismiss for failure to state a claim upon which relief can be granted does not affect a substantial right and is not appealable prior to final judgment. Id.\nAn order denying a motion to dismiss for lack of personal jurisdiction is ordinarily appealable prior to final judgment. Coastal Chemical Corp. v. Guardian Industries, 63 N.C. App. 176, 178, 303 S.E.2d 642, 644 (1983). However, such an order is not immediately appealable when the question is not one of the authority of the trial court to exercise jurisdiction over the person but instead is a question of whether the jurisdictional prerequisites of the Administrative Procedure Act have been met. Poret v. State Personnel Comm., 74 N.C. App. 536, 540, 328 S.E.2d 880, 882, disc. review denied, 314 N.C. 117, 332 S.E.2d 491 (1985), overruled on other grounds by Batten v. N.C. Dept. of Correction, 326 N.C. 338, 389 S.E.2d 35 (1990). In this case, the trial court clearly had the authority to exercise jurisdiction because the State of North Carolina has consented to the supervisory jurisdiction by the General Court of Justice over appeals from administrative agencies. See id. The question presented by the appeals is not one of the authority of the trial court to exercise jurisdiction but is actually a question of whether there is ripeness of the subject matter of the administrative decision for judicial review. Therefore, the order is not immediately appeal-able on the issue of personal jurisdiction.\nBecause respondent and intervenors could not appeal from the trial court\u2019s 2 March 1995 order prior to final judgment, the question is whether the order entered 31 October 1995 was final or otherwise appealable. An order of the trial court remanding an action to an agency for hearing is interlocutory because it directs further action prior to a final decree. Id. at 538, 328 S.E.2d at 882; Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 333, 299 S.E.2d 777, 779 (1983). Furthermore, such an order is not immediately appealable because avoidance of a hearing does not affect a substantial right. Id.\nRespondent and intervenors had no right to appeal from the trial court\u2019s orders. Furthermore, they have failed to show any compelling reason why their petitions for writs of certiorari should be granted. For these reasons, the motion to dismiss the appeals is allowed and the petitions for writs of certiorari are denied.\nDismissed.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Glenn, Mills & Fisher, PA., by Stewart W. Fisher and Robert B. Glenn, Jr.; and Gulley and Calhoun, by Michael D. Calhoun and Wilbur P. Gulley, for petitioners appellees.", "Bailey & Dixon, L.L.P., by Ralph McDonald and Denise Stanford Haskell, for respondent appellant.", "Poyner & Spruill, L.L.P., by David Dreifus and Eric P. Stevens, for intervenors appellants." ], "corrections": "", "head_matter": "JAMES E. BYERS, WILLIAM J. BYERS, BILL GARDNER, JOHN A. KENNEDY, J. GORDON SCOTT, J. GORDON SCOTT, III AND HAROLD K. STALLCUP, Petitioners v. NORTH CAROLINA SAVINGS INSTITUTIONS DIVISION, Respondent, and CENTURA BANK AND CENTURA BANKS, INC., Intervenors\nNo. COA96-297\n(Filed 3 September 1996)\nAdministrative Law and Procedure \u00a7 72 (NCI4th)\u2014 action remanded to agency for hearing \u2014 order interlocutory \u2014 no right to appeal\nRespondent and intervenors had no right to appeal from the trial court\u2019s order remanding the action to an agency for a contested case hearing, since the order was interlocutory because it directed further action prior to a final decree and avoidance of a hearing did not affect a substantial right.\nAm Jur 2d, Administrative Law \u00a7 640.\nAppeal by respondent and intervenors from orders entered 2 March 1995 by Judge Jack A. Thompson in Wake County Superior Court and 31 October 1995 by Judge Knox V. Jenkins. Heard in the Court of Appeals 19 August 1996.\nOn 13 May 1994, petitioners filed a complaint against respondent North Carolina Savings Institutions Division in Superior Court, Wake County. On 8 June 1994, respondent filed a motion to dismiss for lack of subject matter jurisdiction, for failure to state a claim upon which relief can be granted, and for lack of personal jurisdiction. On 25 April 1995, a consent order was entered allowing Centura Bank and Centura Banks, Inc. to intervene.\nOn 2 March 1995, the trial court entered an order denying respondent\u2019s motion to dismiss. Following a hearing held on 11 and 13 September 1995, the trial court entered an order in which it made the following pertinent findings of fact:\n1. This is a proceeding for judicial review pursuant to Chapter 150B of the North Carolina General Statutes.\n2. The petitioners are members of the First Savings Bank of Forest City and they challenge the decision of the Savings Institution Division approving the conversion of this bank into a stock owned bank and the simultaneous merger of this stock owned bank into Centura Bank.\n3. The Savings Institution Division issued final agency approval of the conversion/merger on October 14, 1993.\n4. The petitioners filed their Petition for Contested Case Hearing and Request for Contested Case Hearing on November 19, 1993.\n5. At the December 13, 1993 meeting of the Savings Institutions Division Commission it declined the petitioners\u2019 request for hearing and delegated to the Savings Institution Administrator the authority to enter a final decision on the petitioners\u2019 petition.\n6. On April 13, 1994, the Administrator of the Savings Institution Division issued a final agency decision denying petitioner\u2019s petition on the grounds, inter alia, that petitioners lacked standing and had failed to exhaust administrative remedies.\n7. On May 13, 1994, petitioners filed this action requesting judicial review of the Administrator\u2019s decision denying the petitioners\u2019 contested case petition.\nBased upon the findings of fact, the trial court made the following conclusions of law:\n1. Petitioners have standing to petition for a contested case hearing challenging the Savings Institutions Division\u2019s approval of the conversion/merger of First Savings Bank of Forest City.\n2. The Savings Institution Division issued final agency approval of the conversion/merger on October 14, 1993.\n3. The petitioners timely filed their Petition for Contested Hearing and Request for Hearing with the Savings Institutions Division.\n4. The petitioners timely exhausted their administrative remedies or it would be futile for them to do so.\n5. The petitioners timely filed their request for judicial review of the Savings Institution Division\u2019s denial of their Petition for Contested Case Hearing and Request for Hearing.\n6. The petitioners were entitled to a contested case hearing on the merits of their Petition for Contested Case Hearing and the Savings Institution Division\u2019s denial of petitioner\u2019s Petition for Contested Case Hearing and Request for Hearing was in violation of the N.C. Administrative Procedures Act, Chapter 150B.\nBased upon the conclusions of law, the trial court reversed respondent\u2019s denial of petitioners\u2019 petition for a contested case hearing and remanded the action to respondent to \u201chold a contested case hearing on the merits of the claims set out in petitioner\u2019s contested case petition, including petitioner\u2019s claims regarding whether the conversion/merger met the procedural and substantive requirements of Chapter 54C of the General Statutes.\u201d Respondent and intervenors appeal.\nGlenn, Mills & Fisher, PA., by Stewart W. Fisher and Robert B. Glenn, Jr.; and Gulley and Calhoun, by Michael D. Calhoun and Wilbur P. Gulley, for petitioners appellees.\nBailey & Dixon, L.L.P., by Ralph McDonald and Denise Stanford Haskell, for respondent appellant.\nPoyner & Spruill, L.L.P., by David Dreifus and Eric P. Stevens, for intervenors appellants." }, "file_name": "0689-01", "first_page_order": 723, "last_page_order": 727 }