Stubbs v. SCDEW

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

Charles E. Stubbs, Appellant,

v.

South Carolina Department of Employment Workforce
and JSE, LLC, Respondents.

Appellate Case No. 2015-001490

Appeal From The Administrative Law Court
John D. McLeod, Administrative Law Judge

Unpublished Opinion No. 2017-UP-161
Heard February 14, 2017 – Filed April 19, 2017

AFFIRMED IN PART AND VACATED IN PART

Kirby Rakes Mitchell, of Greenville, and Jack E.
Cohoon, of Columbia, both of South Carolina Legal
Services, for Appellant.

Maura Dawson Baker, E.B. "Trey" McLeod, III, and
Debra Sherman Tedeschi, all of Columbia, for
Respondent South Carolina Department of Employment
Workforce.
PER CURIAM: Charles E. Stubbs appeals the administrative law court's (ALC)
decision affirming the Appellate Panel of the South Carolina Department of
Employment Workforce's (the Department) finding his appeal of the denial of his
unemployment benefits untimely. Stubbs asserts his appeal was timely because he
placed his appeal in the mail within ten days of notification of the Department's
decision as required by regulation. We affirm in part and vacate in part.

"Error preservation principles are intended to enable the trial court to rule after it
has considered all relevant facts, law, and arguments. The rationale for the rule is
that until the trial court considers the matter and makes a ruling, an appellate court
is unable to find error." Queen's Grant II Horizontal Prop. Regime v. Greenwood
Dev. Corp., 368 S.C. 342, 372-73, 628 S.E.2d 902, 919 (Ct. App. 2006) (citation
omitted). "Issue preservation rules are designed to give the trial court a fair
opportunity to rule on the issues, and thus provide us with a platform for
meaningful appellate review." Atl. Coast Builders & Contractors, LLC v. Lewis,
398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) (quoting Queen's Grant II
Horizontal Prop. Regime, 368 S.C. at 373, 628 S.E.2d at 919). "[A]n appellate
court cannot address an issue unless it was raised to, and ruled upon by, the trial
court." Smith v. Phillips, 318 S.C. 453, 455, 458 S.E.2d 427, 429 (1995) (per
curiam). The record must show an issue was raised in the trial court for it to be
preserved for our review. Zaman v. S.C. State Bd. of Med. Exam'rs, 305 S.C. 281,
285, 408 S.E.2d 213, 215 (1991).

"As in other appellate matters, we require issue preservation in administrative
appeals." Home Med. Sys., Inc. v. S.C. Dep't of Revenue, 382 S.C. 556, 562, 677
S.E.2d 582, 586 (2009). "[I]issues not raised to and ruled on by the agency are not
preserved for judicial consideration." Brown v. S.C. Dep't of Health & Envtl.
Control, 348 S.C. 507, 519, 560 S.E.2d 410, 417 (2002); see also Carson v. S.C.
Dep't of Nat. Res., 371 S.C. 114, 120, 638 S.E.2d 45, 48 (2002) (per curiam)
(providing a court sitting in an appellate capacity may not consider issues not
raised or ruled on by an administrative agency); Kiawah Resort Assocs. v. S.C. Tax
Comm'n, 318 S.C. 502, 505, 458 S.E.2d 542, 544 (1995) (finding a court sitting in
an appellate capacity may not consider issues not raised or ruled on by an
administrative agency). The Department is an agency. See AnMed Health v. S.C.
Dep't of Emp't & Workforce, 404 S.C. 224, 227, 743 S.E.2d 854, 856 (Ct. App.
2013) (noting the South Carolina Employment Security Commission's (the
Commision) functions were transferred to the Department by Act No. 146, 2010
S.C. Acts 1168); McEachern v. S.C. Emp't Sec. Comm'n, 370 S.C. 553, 557, 635
S.E.2d 644, 646 (Ct. App. 2006) ("The Commission is an agency governed by the
Administrative Procedures Act (APA)."); Todd's Ice Cream, Inc. v. S.C. Emp't Sec.
Comm'n, 281 S.C. 254, 257, 315 S.E.2d 373, 375 (Ct. App. 1984) ("[T]he South
Carolina Employment Security Commission is clearly an 'agency' within the
meaning of [s]ection 1-23-310(1).").

Stubbs argued in his brief to the ALC that regulation 47-52(A)(1) of the South
Carolina Code1 set the deadline for appealing the Department's decision as ten days
from when he received notification of the decision, unlike the statute, section 41-
35-660 of the South Carolina Code,2 which only provided he had ten days from the
date of mailing. The ALC ruled the regulation added to the statute and thus, only
the date of mailing, as provided by statute, could be considered. However, Stubbs
had not raised this issue to the Appellate Panel. In his brief to the Appellate Panel,
he simply quoted the regulation as stating an appeal should be filed at the
Commission's Office within ten days after the date of notification or mailing of the
decision of the Department. He further stated "both the regulation and the notice
are ambiguous as to whether the appeal must be received within ten calendar days
of the mailing date of the decision, or whether it is sufficient to simply place the
appeal in the mail within this timeframe." (emphasis added).

Stubbs never argued to the Appellate Panel the regulation set the deadline for
appealing the decision as ten days from when he received notification of the
decision instead of from when the Department mailed it. Concomitantly, the
Appellate Panel did not rule on this argument. Accordingly, this argument was not
properly before the ALC. Therefore, the ALC should not have ruled on this issue,

1
The regulation provides:

Any party aggrieved by the decision of an Appeal
Tribunal, may apply for leave to appeal from such
decision to the Appellate Panel, by filing at the office
where the claim was filed, or at the office of the
Appellate Panel in Columbia, South Carolina, within ten
(10) calendar days after the date of notification or
mailing of the decision of the Appeal Tribunal, an
Application for Leave to Appeal . . . .

S.C. Code Ann. Regs. 47-52(A)(1) (2011) (emphasis added).
2
The statute provides: "The claimant . . . may file an appeal from an initial
determination, redetermination, or subsequent determination not later than ten
days after the determination was mailed to his last known address." S.C. Code
Ann. § 41-35-660 (Supp. 2016) (emphasis added).
and the portion of the ALC's order pertaining to this issue is vacated. See Ulmer v.
Ulmer, 369 S.C. 486, 490, 632 S.E.2d 858, 861 (2006) ("When an appellate court
rules on an issue not preserved for appellate review, the portion of the appellate
court's opinion pertaining to the unpreserved issue should be vacated."); see also
Hendrix v. E. Distribution, Inc., 320 S.C. 218, 219, 464 S.E.2d 112, 113 (1995)
(vacating a court of appeals' opinion to the extent it addressed an issue that was not
preserved for review).

The ALC also affirmed the Appellate Panel's determination Stubbs mailed his
appeal on June 29, the date the envelope was postmarked, and thus, the appeal was
not timely filed within ten days of the date of mailing of the Department's decision.
Stubbs did not challenge this in his final brief to this court.3 Stubbs's brief
contained one paragraph mentioning this finding was error, arguing the statute
must be liberally construed. Stubbs's sole argument in his statement of issues on
appeal only asserted the regulation provides an additional start date for the ten-day
deadline.

"The appellants have the responsibility to identify errors on appeal, not the
[c]ourt. . . . As Chief Judge Alex Sanders so aptly stated, '[A]ppellate courts, like
well-behaved children, do not speak unless spoken to and do not answer questions
they are not asked.'" Kennedy v. S.C. Ret. Sys., 349 S.C. 531, 533, 564 S.E.2d 322,
323 (2001) (last alteration by court) (quoting State v. Austin, 306 S.C. 9, 19, 409
S.E.2d 811, 817 (Ct. App. 1991)). "A ruling not challenged on appeal is the law of
the case, regardless of the correctness of the ruling." S.C. Coastal Conservation
League v. S.C. Dep't of Health & Envtl. Control, 363 S.C. 67, 76, 610 S.E.2d 482,
487 (2005). "An issue is deemed abandoned if the argument in the brief is only
conclusory." R & G Constr., Inc. v. Lowcountry Reg'l Transp. Auth., 343 S.C. 424,
437, 540 S.E.2d 113, 120 (Ct. App. 2000); see also State v. Colf, 332 S.C. 313,
322, 504 S.E.2d 360, 364 (Ct. App. 1998) (finding a conclusory, two-paragraph
argument that cited no authority other than an evidentiary rule was abandoned),
aff'd as modified on other grounds, 337 S.C. 622, 525 S.E.2d 246 (2000). Further,
"[o]rdinarily, no point will be considered which is not set forth in the statement of
the issues on appeal." Rule 208(b)(1)(B), SCACR. Accordingly, this court cannot
consider on appeal whether the ALC erred in affirming the Appellate Panel's
decision that Stubbs mailed the appeal on June 29, the date of the postmark, and

3
Stubbs asserted at oral argument he was challenging this issue. "An appellant
may not use . . . oral argument . . . as a vehicle to argue issues not argued in the
appellant's brief." Bochette v. Bochette, 300 S.C. 109, 112, 386 S.E.2d 475, 477
(Ct. App. 1989).
thus, his appeal was late as it was not filed within ten days of the date of mailing of
the Department's decision. Therefore, we affirm the remainder of the ALC's order.

AFFIRMED IN PART AND VACATED IN PART.

SHORT, WILLIAMS, and KONDUROS, JJ., concur.