Grand Bees v. SCDHEC ( 2012 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Grand Bees Development, LLC, Appellant,

v.

South Carolina Department of Health and Environmental Control and the County of Charleston, Respondents.

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Appeal from Charleston County
Roger M. Young, Circuit Court Judge

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Unpublished Opinion No.  2012-UP-314
Heard February 29, 2012 – Filed May 23, 2012

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Affirmed

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G. Trenholm Walker and Jamie A. Khan, both of Charleston, for Appellant.

Etta R. Williams, of Columbia, Joseph Dawson, III, Austin A. Bruner, Bradley A. Mitchell, and Bernard Ferrara, all of North Charleston, for Respondents.

PER CURIAM: In this civil action, Grand Bees Development, LLC (Developer) contends the trial court erred in dismissing the complaint of Developer for lack of subject matter jurisdiction and failure to exhaust administrative remedies in a timely manner.   Specifically, Developer argues that they could not have exhausted their administrative remedies in a timely manner because South Carolina Department of Health and Environment Control (DHEC) and the County of Charleston (County) did not follow statutory law or the regulations, disallowing Developer the opportunity to bring its claim in administrative law court (ALC).  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities:

1.  As to whether the trial court converted the County's and DHEC's motions to dismiss Developer's complaint to a motion for summary judgment because it considered matters outside the pleadings, we affirm the trial court's decision to grant the motions to dismiss.  See Great Games, Inc. v. S.C. Dep't of Revenue, 339 S.C. 79, 82 n.5, 529 S.E.2d 6, 7 n.5 (2000) (holding that the failure of a party to comply with the procedural requirements for perfecting an appeal may deprive the court of appellate jurisdiction); Posey v. Proper Mold & Eng'g, Inc., 378 S.C. 210, 217, 661 S.E.2d 395, 399 (Ct. App. 2008) (finding the consideration of affidavits on a question of law in a jurisdictional motion does not convert the motion into one for summary judgment) (citing Baird v. Charleston Cnty., 333 S.C. 519, 528, 511 S.E.2d 69, 74 (1999)).

2.  As to whether Developer was simply time barred from bringing its claims pursuant to section 44-1-60(E) of the South Carolina Code, thus, removing the trial court's appellate jurisdiction, we affirm the trial court.  See S.C. Code Ann. § 44-1-60(E) (Supp. 2008) ("The department decision becomes the final agency decision fifteen days after notice of the department decision has been mailed to the applicant, unless a written request for final review is filed with the department by the applicant, permittee, licensee, or affected person.")[1]; see also Great Games, Inc., 339 S.C. at 82 n.5, 529 S.E.2d at 7 n.5; Allison v. W.L. Gore & Assocs., 394 S.C. 185, 188-89, 714 S.E.2d 547, 549-50 (2011) (noting it is a general rule "that an appellate body may not extend the time to appeal"); S.C. Coastal Conservation League v. S.C. Dep't of Health and Envtl. Control, 390 S.C. 418, 429, 702 S.E.2d 246, 252 (2010) (holding that in situations when DHEC fails to simultaneously notify the applicant, permittee, licensee, and affected persons, the latest date of mailing controls when the fifteen-day period begins to run).

3.  As to whether the trial court erred in finding a failure to exhaust administrative remedies, we do not find it necessary to reach a decision.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

4.  As to whether the trial court erred in dismissing Developer's complaint because an action for declaratory judgments is not barred, we affirm the trial court.  See Pressley v. Lancaster Cnty., 343 S.C. 696, 705, 542 S.E.2d 366, 370-71 (Ct. App. 2001) ("In order to obtain a writ of mandamus requiring the performance of an act, the applicant must show (1) a duty of the opposing party to perform the act, (2) the ministerial nature of the act, (3) the applicant's specific legal right for which discharge of the duty is necessary, and (4) a lack of any other legal remedy.  If the duty to perform the act is doubtful, the responsibility is not imperative and the applicant will be left to other remedies. Where the duty is not clearly and directly prescribed, the writ will not lie." (internal citations omitted)); but see Ott v. Tindal, 297 S.C. 395, 397-98, 377 S.E.2d 303, 304-05 (1989) (stating that for an individual aggrieved by an agency decision, declaratory judgment actions are appropriate where the meaning of a statute is in question or where enabling legislation contains no special review provisions).

5.  As to whether the trial court erred in dismissing Developer's complaint because an action for mandamus is not barred, we affirm the trial court.  See Bradley v. State Human Affairs Comm'n, 293 S.C. 376, 380, 360 S.E.2d 537, 539 (1987) (stating "mandamus will not lie when an available administrative remedy has not been pursued to its end"); but see Andrews v. Dorchester Cnty. Sch. Dist. No. 2, 292 S.C. 392, 395, 356 S.E.2d 439, 442 (Ct. App. 1987) (involving an appeal from a school board's failure to act when this court decided that the court of common pleas "lacked jurisdiction in the matter because there was no 'order of the county board of education' on which [the party] could base an appeal to that court pursuant to [s]ection 59-19-560 [of the South Carolina Code (1976)]," and that the party's remedy was to mandamus the county board to act by exercising its judgment or discretion). 

6.  As to whether the trial court erred in dismissing Developer's complaint because an action for injunction is not barred, we affirm the trial court.  See Garris v. Governing Bd. of S.C. Reinsurance Facility, 319 S.C. 388, 391-92, 461 S.E.2d 819, 821 (1995) (holding that administrative remedies must be exhausted before a party can seek injunctive relief); but see Toussaint v. State Bd. of Med. Exam'rs, 285 S.C. 266, 268-69, 329 S.E.2d 433, 434-35 (1985) (involving a grant of injunctive relief from a constitutional claim).

AFFIRMED.

williams, thomas, and Lockemy, JJ., concur.

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[1] S.C. Code Ann. § 44-1-160(E) (Supp. 2008) was amended and the applicable portion can now be found at S.C. Code Ann. § 44-1-160(E)(2) (Supp. 2011).  Despite its amendment, the relevant portion remains the same for this specific issue.