South Carolina Supreme Court Opinions Issued Today (12/10/2014)


South Carolina Dept. of Transportation v. Revels

Petitioners Revels and Poston prevailed in a condemnation action against the South Carolina Department of Transportation. Relying upon S.C. Code Ann. §§28-2-10 to 28-2-520, petitioners filed a request to be awarded attorneys’ fees in the amount of $28,233.33 based upon a contingency fee agreement with their attorneys.

The Circuit Court instead awarded $16,290.00, using an hourly rate via a lodestar calculation rather than the existing contingency fee agreement. An appeal to the Court of Appeal resulted in an affirmation for the Department of Transportation.

At issue was a dispute as to how the statute, §28-2-510(B)(1), should be construed. The language of the statute states that a litigant “…may recover reasonable litigation expenses…” with an application to the court. The “…application shall show that the landowner has prevailed, state the amount sought, and include an itemized statement from an attorney or expert witness representing or appearing at trial in behalf of the landowner stating the fee charged, the basis therefor, the actual time expended, and all actual expenses for which recovery is sought.” The court is given “discretion” to “reduce the amount to be awarded” or even to “deny an award.”

The South Carolina Supreme Court affirmed and reversed in part, remanding the decision to the circuit court, concluding that the court improperly construed and applied the statute. The Court held that “…a court is authorized to either award reasonable attorneys’ fees to a prevailing landowner or deny the award in its entirety depending on the circumstances surround the litigation. If the court determines that an award is warranted, it must then consider a constellation of factors in calculating the amount of the award. Initially, the court must consider the itemized statement submitted by the landowner’s attorney in support of the requested amount of litigation expenses. Once the court reviews this statement in conduction with the circumstances surrounding the litigation, it may then determine a reasonable award of attorneys’ fees.”

Kiawah Development v. South Carolina Department of Health & Environmental Control

Justice Hearn drafted the majority opinion in the above case while Chief Justice Toal filed a dissent.

Kiawah Development Partners requested a permit from DHEC to construct a bulkhead and revetment “…stretching 2,783 feet in length and 40 feet in width over the State’s tidelands, thereby permanently altering 111,320 square feet or 2.5 acres of pristine tidelands.” DHEC denied the request, concluding that it would violate S.C. Code Ann. §48-39-150(A)(6) and S.C. Regulation 30-11. Kiawah then requested a “final review conference before the DHEC Board” which was denied.

Kiawah next requested a hearing before an Administrative Law Court (ALC). The ALC ruled in favor of Kiawah, concluding that the intended structure would not violate any of the South Carolina statutory provisions or regulations. An appeal to the South Carolina Supreme Court then issued.

The majority opinion framed the issues presented as:

  1. Did the ALC err in finding the bulkhead and revetment would not contravene the Coastal Zone Management Act?
  2. Did the ALC err in finding the bulkhead and revetment would not contravene regulation 30-11?
  3.  Did the ALC err in finding the bulkhead and revetment would not contravene regulation 30-12(c)?

Concluding that the Administrative Law Court had erred in its findings and “committed several errors of law,” the majority reversed. As part of their analysis, the majority relied on the deference doctrine which “…provides that where an agency charged with administering a statute or regulation has interpreted the statute or regulation, courts, including the ALC, will defer to the agency’s interpretation absent compelling reasons.”

About Lisa Smith-Butler

Associate Professor of Law Charleston School of Law 385 Meeting St., Suite 322B Charleston, S.C. 29403 843.377.2144
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