D'Espies v. S&A Construction and More, LLC

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

Robert J. D'Espies, Claimant, Appellant,

v.

S&A Construction and More, LLC, Employer, and South
Carolina Workers' Compensation Uninsured Employers'
Fund, Respondents.

Appellate Case No. 2018-001477

Appeal From The Worker's Compensation Commission

Unpublished Opinion No. 2021-UP-087
Submitted February 1, 2021 – Filed March 17, 2021

APPEAL DISMISSED

Craig Anderson Snook, of Axelrod & Associates, PA, of
Myrtle Beach, for Appellant.

S&A Construction and More, LLC, pro se.

Timothy Blair Killen, of Holder, Padgett, Littlejohn &
Prickett, LLC, of Mt. Pleasant, for Respondent South
Carolina Workers' Compensation Uninsured Employers'
Fund.
PER CURIAM: Robert J. D'Espies appeals the Worker's Compensation
Commission's (the Commission's) order vacating the order of the single
commissioner, and remanding the matter for a de novo hearing. The Commission
found S&A Construction and More, LLC (S&A) did not receive notice of the
hearing, and because S&A did not receive notice, it was denied substantive and
procedural due process. On appeal, D'Espies argues (1) substantial evidence does
not support the Commission's finding that S&A did not receive notice of the
hearing before the single commissioner, and (2) even if S&A did not receive
notice, it was not denied due process. Because the Commission's order is not a
final judgment and a review of the Commission's final decision after a de novo
hearing will provide D'Espies an adequate remedy, the order is not immediately
appealable under section 1-23-380 of the South Carolina Code (Supp. 2020).
Accordingly, we dismiss the appeal pursuant to Rule 220(b), SCACR, and the
following authorities: § 1-23-380 ("A party who has exhausted all administrative
remedies available within the agency and who is aggrieved by a final decision in a
contested case is entitled to judicial review . . . . A preliminary, procedural, or
intermediate agency action or ruling is immediately reviewable if review of the
final agency decision would not provide an adequate remedy."); Ashford v.
Prysmian Power Cables & Sys., USA, 427 S.C. 361, 364, 366, 830 S.E.2d 912,
914-15 (Ct. App. 2019) (finding an order from the Commission affirming in part
and reversing in part the single commissioner's order was not immediately
appealable when "[t]he Commission [did] not address[] the[] issues, which [were]
the crux of th[e] appeal, but it [was] not precluded from addressing them"); id. at
366-67, 830 S.E.2d at 915-16 (determining the appealing party had an adequate
remedy available; and thus, section 1-23-380 did not allow judicial review of the
appealing party's issues); cf. Russell v. Wal-Mart Stores, Inc., 426 S.C. 281, 288,
290, 826 S.E.2d 863, 863 (2019) (holding a remand order from the Commission
was immediately appealable when "the [C]ommission's unreasonable delay in
making a final decision [left the appealing party] without an adequate remedy on
appeal from a final decision under section 1-23-380" and "the [C]ommission's
unnecessary delays and repeated remands over the almost eight years since [the
appealing party] filed her change of condition claim frustrated the goals of the
Workers' Compensation Act"); see Ashford, 427 at 367 n.2, 830 S.E.2d at 916 n.2
(distinguishing its holding from our supreme court's holding in Russell, because the
appeal involved issues the parties had not yet litigated, and the parties had "an
adequate remedy through the review of a final agency decision"); cf Hilton v.
Flakeboard Am. Ltd., 418 S.C. 245, 251-52, 791 S.E.2d 719, 722-23 (2016)
(holding an interlocutory order, "where the Commission ha[d] in effect ordered a
new trial without regard to the matters raised by the appealing party and without
any explanation why such an extreme remedy [was] appropriate," was immediately
appealable because "requiring [the appealing party] to wait to appeal until the final
agency decision would not provide an adequate remedy").

APPEAL DISMISSED.1

LOCKEMY, C.J., and HUFF and HEWITT, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.