May 29, 2013 South Carolina Supreme Court published opinions

Shirley’s Iron Works, Inc. v City of Union

Shirley’s was a subcontractor on a building contract with Union. After the contractor failed to pay Shirley’s’ it sued Union for breach of contract relying on the Subcontractors’ and Suppliers’ Payment Protection Act, SC Code 29-6-210 to 290 and the failure of union to require the contractor to purchase of payment bond. The circuit court granted summery judgment to Union finding the suit was bared by the tort claim act. The court of appeals reversed holding suit can be brought in tort and contract on these facts. The Court affirmed in part, reversed in part and remanded. It held that the Protection Act authorized third party beneficiary suits by subcontractors who are not paid. It relied on the plain language of the statute and a 2008 precedent, Sloan I, which held contract claims were allowed. However, relying on Sloan I and the tort claim act, it held there is no tort claim for nonpayment as the legislature does nto allow suit for failure to enforce a statute and has provided a contract remedy. It also held that the issue of whether a contract claim was fairly pled in the amended complaint was properly before the court and that quantum meruit was not available given the written contract in the case. As there is a genuine dispute about the material facts of whether payment is owed to Shirley’s, the court remanded to the circuit court for further proceedings.  

Amisub of South Carolina, Inc. v South Carolina Department of Health and Environmental Control

Amisub challenged the use of a competitor’s building as an urgent care center. Department staff told Amisub over the phone that because the center was a private physician’s office, there was no legal requirement the competitor obtain permission to operate. Amisub field a contested case in the administrative law court using its attorney’s affidavit as evidence of a staff decision affirmed by the department. The administrative law court granted judgment to Department ruling the center did not need written permission to commence operations. The Court of Appeals reversed holding Amisub was entitled to discovery. The Court, with one justice concurring only in result, reversed. After an extensive review of the governing statues, South Carolina Code 44-7-10 to 385 and the Administrative Procedure Act and relevant regulation 61-15, the Court concluded that there is no requirement in law for urgent care centers to obtain written permission before operating, that there is thus no staff decision to be reviewed and the administrative law court lacks jurisdiction over this case. In a footnote, the court noted that the legislature has exempted urgent care centers form the permission requirement and the Court is powerless to add the requirement.

State v Herchek

Hercheck refused to take a breath test. The arresting officer turned off the video camera once Hercheck refused. The magistrate dismissed ruling South Carolina code 56-5-2953(A) requires 20 minutes of videotaping and there was only 12 minute of recording here. The circuit court and Court of Appeals affirmed. The Court reversed holding that 56-2-2953(A) requires 20 minutes of recording only when a test is administered as the text limits the requirement to 20 minutes of  “pre-test” time. Additionally the recording requirement is to obtain evidence in DUI cases and once the test is refused there is no evidence to collect. Finally, precedent supported the conclusion as the Court previously held that waiting periods do not need to be followed when a test is refused and similar reasoning applies here.

State v Elwell

Elwell moved to dismiss his DUI charge on the grounds that after he refused to take a breath test, the officer stopped recording before the 20 minute period in South Carolina Code 56-2-2953(A) elapsed. The circuit court agreed and dismissed. The same panel that affirm in Hercheck reversed Elwell’s dismissal on the grounds that 2953(A) only applies if a test is administered. The Court resolved the conflict between Elwell and Hercheck holding that the 20 minute period is only applicable when there is a test administered based on the “pre-test” language, purpose of evidence gathering and precedent holding waiting periods only apply when a test is administered.

Alexander v Houston

Houston and the other members of the Barnwell County Council removed the Alexander and other members of the county hospital board and appointed themselves the new board. Alexander sued for declaratory judgment that Houston and the other Council members violated the prohibition on dual office holding. The circuit court dismissed the case on political questions grounds. The Court, with one justice concurring only in result, reversed. It held the case was not a political question as it did not challenge the  broad authority of county councils to appoint boards nor the wisdom of the action. Instead, all that was challenged was the legality of the dual office holding. On the merits, as both the county council and hospital board are “offices” in the constitutional sense and the board membership is not ex officio, Houston and the other council members unlawfully held two offices at the same time and the case was remanded for further proceedings.

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