Riggins v. Elkay Southern Corp.

Court of Appeals of North Carolina

Riggins v. Elkay Southern Corp.

510 S.E.2d 674, 132 N.C. App. 232, 1999 N.C. App. LEXIS 98

CourtCourt of Appeals of North Carolina

DecidedFebruary 2, 1999

DocketCOA98-855

StatusPublished

Cited by4 cases

This text of 510 S.E.2d 674 (Riggins v. Elkay Southern Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Riggins v. Elkay Southern Corp., 510 S.E.2d 674, 132 N.C. App. 232, 1999 N.C. App. LEXIS 98 (N.C. Ct. App. 1999).

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Opinion

EAGLES, Chief Judge.

Neither party addresses the issue of whether the opinion and award is appealable at this time. An appeal from an opinion and award of the Industrial Commission is taken “under the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions.” G.S. 97-86. Consequently, an appeal of right lies only from a final order or decision of the Industrial Commission, one that determines the entire controversy between the parties. Ledford v. Asheville Housing Authority, 125 N.C. App. 597, 598-99, 482 S.E.2d 544, 545, disc. review denied, 346 N.C. 280, 487 S.E.2d 550 (1997). An opinion and award that settles preliminary questions of compensability but leaves unresolved the amount of compensation to which the plaintiff is entitled and expressly reserves final disposition of the matter pending receipt of further evidence is interlocutory. Fisher v. E. I. Du Pont De Nemours, 54 N.C. App. 176, 177-78, 282 S.E.2d 543, 544 (1981); Nash v. Conrad Industries, 62 N.C. App. 612, 618, 303 S.E.2d 373, 377, aff’d, 309 N.C. 629, 308 S.E.2d 334 (1983); Beard v. Blumenthal Jewish Home, 87 N.C. App. 58, 61-62, 359 S.E.2d 261, 263 (1987), disc. review denied, 321 N.C. 471, 364 S.E.2d 918 (1988).

The present opinion and award on its face reserves issues for further determination. There is nothing in the record to indicate that all of the matters in this case have been resolved. It is our duty to dismiss an appeal sua sponte when no right of appeal exists. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980). We therefore dismiss this appeal as interlocutory.

Appeal dismissed.

Judges McGEE and HORTON concur.

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EAGLES, Chief Judge.

Neither party addresses the issue of whether the opinion and award is appealable at this time. An appeal from an opinion and award of the Industrial Commission is taken “under the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions.” G.S. 97-86. Consequently, an appeal of right lies only from a final order or decision of the Industrial Commission, one that determines the entire controversy between the parties. Ledford v. Asheville Housing Authority, 125 N.C. App. 597, 598-99, 482 S.E.2d 544, 545, disc. review denied, 346 N.C. 280, 487 S.E.2d 550 (1997). An opinion and award that settles preliminary questions of compensability but leaves unresolved the amount of compensation to which the plaintiff is entitled and expressly reserves final disposition of the matter pending receipt of further evidence is interlocutory. Fisher v. E. I. Du Pont De Nemours, 54 N.C. App. 176, 177-78, 282 S.E.2d 543, 544 (1981); Nash v. Conrad Industries, 62 N.C. App. 612, 618, 303 S.E.2d 373, 377, aff’d, 309 N.C. 629, 308 S.E.2d 334 (1983); Beard v. Blumenthal Jewish Home, 87 N.C. App. 58, 61-62, 359 S.E.2d 261, 263 (1987), disc. review denied, 321 N.C. 471, 364 S.E.2d 918 (1988).

The present opinion and award on its face reserves issues for further determination. There is nothing in the record to indicate that all of the matters in this case have been resolved. It is our duty to dismiss an appeal sua sponte when no right of appeal exists. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980). We therefore dismiss this appeal as interlocutory.

Appeal dismissed.

Judges McGEE and HORTON concur.

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510 S.E.2d 674, 132 N.C. App. 232, 1999 N.C. App. LEXIS 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riggins-v-elkay-southern-corp-ncctapp-1999.

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