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Unpublished Opinion No. 2021-UP-087 Submitted February 1, 2021 – Filed March 17, 2021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