Grand Bees v. SCDHEC

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.

Appeal from Charleston County

 Roger M. Young, Circuit Court Judge

Unpublished Opinion No.  2012-UP-314

Heard February 29, 2012 – Filed May 23,
2012

Affirmed

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.

[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.