North Carolina Department of Transportation v. Davenport , 108 N.C. App. 178 ( 1992 )

ARNOLD, Judge.

Initially 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 “an immediate appeal lies under N.C. Gen. Stat. § l-277(b) for the court’s refusal to dismiss a suit against the state on the grounds of governmental immunity.” 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)).

D.O.T.’s 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.’s 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’s denial of D.O.T.’s motion to dismiss.

In 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.

This 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.’s Motion to Dismiss.

We are aware that the superior court did designate part of its order modifying the Personnel Commission’s order as findings of fact. In that instance however, the superior court judge was only setting out his reasons for modifying the Commission’s 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).

For the reasons stated above, the decision of the superior court should be reversed.

Reversed.

Chief Judge HEDRICK concurs. Judge WELLS dissents.