Civil Practice – Interlocutory Order – Motion to Present Additional Evidence

Petitioner failed to show the trial court’s order deprives Petitioner of a substantial right that would be lost absent an immediate appeal. This interlocutory appeal is therefore improperly before this Court, and we are without jurisdiction to review the appeal on its merits.

We dismissed Petitioner’s appeal from an interlocutory order for lack of subject matter jurisdiction.

An appeal arose from an accident that occurred on Petitioner Berry Global, Inc.’s property in which one of Petitioner’s employees was severely injured. Petitioner, which is in the business of manufacturing plastic packaging, was issued a citation by Respondent, Commissioner of Labor of the State of North Carolina, and after a hearing, the North Carolina Safety and Health Review Commission affirmed the citation. After an appeal to the full Safety and Health Review Commission, Petitioner appealed to the Wake County Superior Court. While that appeal was pending, Petitioner filed a motion to present additional evidence, which the trial court denied. Petitioner appealed the trial court’s denial of its motion to present additional evidence to this Court, arguing that the trial court’s order implicates a substantial right because Petitioner’s due process right to a fair trial would be violated without this “vital evidence.”

Petitioner appealed from the interlocutory order, alleging that approximately four and a half years after the 2020 hearing before the Review Commission, it discovered Respondent’s “long-standing practice” of having compliance officers destroy their handwritten field notes after transferring the content of those notes into the computerized “OSHA Express” system. Petitioner argued that the superior court’s refusal to remand the case to the Review Commission to allow Petitioner to introduce this evidence deprives Petitioner of its substantial due process right to a fair trial. We disagreed. Respondent filed an action with the Review Commission to enforce the citation issued to Petitioner as a result of the 2020 accident and the ensuing investigation. A hearing was held, during which an officer testified at length about the procedures he took when taking part in his investigation at Petitioner’s worksite. Presented as evidence at the hearing was the investigative case file, which included the 84-page report, numerous documents, and approximately 100 photographs and videos taken by the officer of the worksite.

Petitioner objected to the admission of the entire investigative file, arguing it “includes documents that are not necessary for this proceeding.” The officer acknowledged on the stand that he took handwritten notes during his inspection of Petitioner’s worksite; however, Petitioner neither objected to the absence of those notes from the file nor asked Officer Hendrix about his handwritten notes on cross examination. Although the constitutional right to due process is a substantial right, Petitioner failed to demonstrate how the trial court’s order in this case implicates its due process rights. This interlocutory appeal is therefore improperly before this Court, and we are without jurisdiction to review the appeal on its merits

Dismissed.

Berry Global Inc. v. Commissioner of Labor of the State of North Carolina (Lawyers’ Weekly No. 011-283-25, 9 pp.) (Allegra Collins, J.) Appealed from Wake County Superior Court (Clayton D. Somers, J.) Fisher & Phillips LLP, by Travis W. Vance and Caroline E. Cheek, for Petitioner-Appellant. Attorney General Jeff Jackson, by Special Deputy Attorney General Stacey A. Phipps, for Respondent-Appellee. North Carolina Court of Appeals