SC Appeals Begin Before the Beginning

The South Carolina Supreme Court recently reaffirmed that an appeal begins long before a party files the notice of appeal.

Berry v. South Carolina Dep’t of Health and Environmental Control, 402 S.C. 358, 742 S.E.2d 2 (2013), involves a dispute over a bulkhead. DHEC granted a permit for some property owners to build a replacement bulkhead but required that it be built where the existing one was located. DHEC later ruled that the property owners built the bulkhead in a different place, and issued two administrative orders: (1) a revocation order undoing the permit; and (2) an enforcement order imposing civil penalties for violating the permit.

The property owners appealed the enforcement order to the circuit court rather than the Administrative Law Court. They argued that S.C. Code Ann. § 48-39-180 authorized the circuit court to review the DHEC order. Yet the circuit court, and ultimately the Supreme Court, disagreed.

Justice Kittredge of the SC Supreme Court
Justice Kittredge of the SC Supreme Court

The problem is that S.C. Code Ann. § 48-39-180 provides for circuit court review when DHEC revokes permits but not when it enforces a permit violation. Speaking for the Court, Justice Kittredge distinguished between the two and noted that the property owners never sought review of DHEC’s revocation order. They appealed only the enforcement order.The Administrative Law Court reviews enforcement orders.

The Supreme Court bound the property owners to their limited appeal, and held that the circuit court lacked jurisdiction to hear it.

It is anyone guess what would have happened had the property owners appealed the revocation order to the circuit court. The circuit court could have heard that appeal, and may have effectively erased the penalties by reversing the revocation. The theory is that no basis for revocation = no violation = no penalties. But the property owners appealed the wrong order.

Back in August 2011, one of this blog’s first posts discussed why an appeal begins before a party files the notice of appeal. Berry reaffirms the point.

Has anyone else caught opposing counsel in a similar misstep? Please leave a reply or reach me here. 

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