THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Amisub of South Carolina, Inc. d/b/a Piedmont Medical 

Center d/b/a Fort Mill Medical Center, 

v. 

South Carolina Department of Health and Environmental 

Control and the Charlotte-Mecklenburg Hospital

Authority d/b/a Carolinas Medical Center-Fort Mill,

Of whom The Charlotte-Mecklenburg Hospital Authority, 

d/b/a Carolinas Medical Center-Fort Mill is the Petitioner, 

and 

Amisub of South Carolina, Inc. d/b/a Piedmont Medical 

Center d/b/a Fort Mill Medical Center and South Carolina

Department of Health and Environmental Control are the 

Respondents. 

Appellate Case No. 2017-000984 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from The Administrative Law Court 

S. Phillip Lenski, Administrative Law Judge 

Opinion No. 27792 

Submitted February 14, 2018 – Filed April 25, 2018 

REVERSED IN PART AND REMANDED 
 

 

 

Douglas M. Muller, Trudy Hartzog Robertson, and E. 

Brandon Gaskins, of Moore & Van Allen, PLLC, all of 

Charleston, for Petitioner. 

Stuart M. Andrews, Jr., Susanna Knox and Daniel J. 

Westbrook, of Nelson, Mullins, Riley & Scarborough,

LLP, all of Columbia; and Ashley Caroline Biggers and

Vito Michael Wicevic, both of Columbia, all for 

Respondents. 

PER CURIAM: Petitioner seeks a writ of certiorari to review the court of appeals' 

decision in Amisub of South Carolina, Inc. v. South Carolina Department of Health 

& Environmental Control, Op. No. 2017-UP-013 (S.C. Ct. App. filed Jan. 11, 2017). 

We deny the petition for a writ of certiorari as to question III, but grant the petition 

as to questions I and II, dispense with further briefing, and reverse the court of 

appeals' finding that the dormant Commerce Clause issue was not preserved for 

appellate review. We remand the case to the court of appeals to issue a ruling on 

whether the decision of the Administrative Law Court (ALC) "interfered with the 

natural functioning of the interstate market either through prohibition or through 

burdensome regulation" in violation of the dormant Commerce Clause. See 

McBurney v. Young, 569 U.S. 221, 234-37, 133 S. Ct. 1709, 1719-20, 185 L. Ed. 2d

758, 771-72 (2013) (explaining the concept of the "dormant Commerce Clause"

(quoting Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 806, 96 S. Ct. 2488, 2496,

49 L. Ed. 2d 220, 229 (1976))). 

To explain our ruling that the issue is preserved, we recite portions of the procedural 

history of this case. In 2005, four hospitals—Petitioner, Respondent Amisub, 

Presbyterian Healthcare System, and Hospital Partners of America—applied for a 

certificate of need (CON) to construct and operate an acute-care hospital in Fort Mill.

In May 2006, the Department of Health and Environmental Control (DHEC)

determined the acute-care hospital was necessary, and granted a CON to Amisub, 

but denied a CON to Petitioner and the others. DHEC's decision to award the CON 

to Amisub was based in part on its interpretation of the language of the South 

Carolina Health Plan1 that only existing health care providers in York County were 

eligible for additional hospital beds. Petitioner filed a contested case at the ALC, 

1 See generally S.C. Code Ann. § 44-7-180 (2018) (providing for the development 

of the South Carolina Health Plan).
 

 

 

 

contending DHEC had erroneously interpreted the language of the Health Plan. 

Alternatively, Petitioner argued that if DHEC's interpretation was correct, the Health

Plan violated the dormant Commerce Clause because it improperly restricted 

interstate commerce. The ALC found DHEC's interpretation of the Health Plan was 

not correct, reversed, and remanded to DHEC.2 The ALC's determination that the

Health Plan did not require the CON to be awarded to an existing York County 

provider made it unnecessary for the ALC to reach the alternative dormant

Commerce Clause claim. 

On remand, DHEC granted a CON to Petitioner, but denied a CON to the others. 

Amisub filed a second contested case at the ALC, which again reversed, this time 

ordering a CON be granted to Amisub and denied to Petitioner. Petitioner appealed 

to the court of appeals. The court of appeals affirmed, finding Petitioner's dormant 

Commerce Clause argument as to the ALC's ruling in the second contested case was

unpreserved for appellate review. 

Petitioner's theory that the dormant Commerce Clause issue is preserved begins with 

the fact that any potential violation arising from the language of the Health Plan was 

resolved in Petitioner's favor by the ALC in the first contested case. We find this

was a reasonable interpretation of the ALC's order in the first contested case. In the 

second contested case, therefore, Petitioner reasonably believed the dormant 

Commerce Clause was not an issue. However, Petitioner contends the ALC's ruling

in the second case improperly restricted interstate commerce—and thus violated the 

dormant Commerce Clause—not because of the language of the Health Plan, but

because the ALC ruled partially on the basis that the hospital Amisub was already 

operating in South Carolina should be protected from out-of-state competition like 

Petitioner, a North Carolina entity. In other words, Petitioner contends the ALC 

reversed DHEC's award of a CON to Petitioner, and awarded a CON to Amisub, 

based on the ALC's improper desire to protect Amisub from out-of-state 

competition, even though the Health Plan does not provide for such protection.

Petitioner argues it had no reason to anticipate this basis for the ruling, and thus it 

had no reason to renew its dormant Commerce Clause challenge before or during 

the second contested case trial. Rather, Petitioner argues it was only after it received

the ALC's ruling that it realized the dormant Commerce Clause had again become 

2 We dismissed Petitioner's appeal from this decision on the ground the order was 

not immediately appealable. Charlotte-Mecklenburg Hosp. Auth. v. S.C. Dep't of 

Health & Envtl. Control, 387 S.C. 265, 692 S.E.2d 894 (2010). 
 

 

 

 

an issue. At that time—Petitioner argues—it made the argument of a dormant 

Commerce Clause violation with clarity in a timely Rule 59(e) motion. 

The court of appeals found "the record does not show [Petitioner] presented to the 

ALC any argument that [Amisub]'s positions on adverse impact and outmigration, if 

adopted by the ALC, would violate the Dormant Commerce Clause. [Petitioner] 

waited until filing its Rule 59(e) motion to present this argument, which is too late." 

If Petitioner had reason to believe this issue was actually being litigated before the 

ALC in the second contested case, and yet remained silent, we would agree with the 

court of appeals.3 However, the dormant Commerce Clause issues arising out of the 

language of the Health Plan were resolved in Petitioner's favor in the first contested

case. Thus, Petitioner could not reasonably have foreseen the ALC would craft its 

order in a fashion to revive those issues. Therefore, Petitioner had no reason to raise 

the dormant Commerce Clause challenge in the second contested case until the ALC 

issued its order. No party should be penalized for not addressing an issue as to which 

it had previously prevailed, and which it did not reasonably contemplate would yet 

be the basis of the court's ruling. See Herron v. Century BMW, 395 S.C. 461, 470,

719 S.E.2d 640, 644 (2011) (finding appellate courts should remain "mindful of the 

need to approach issue preservation rules with a practical eye and not in a rigid,

hyper-technical manner"); In re Timmerman, 331 S.C. 455, 460, 502 S.E.2d 920, 

922 (Ct. App. 1998) ("When a party receives an order that grants certain relief not 

3 While not dispositive, we find it important that Respondents did not raise issue

preservation in their briefs to the court of appeals. We also note the court of appeals 

specifically recognized the dormant Commerce Clause issue before it presented a 

different question from the one presented in the first contested case. The court of 

appeals stated, 

[Petitioner] does not challenge the constitutionality of the 

CON Act itself. Further, [Petitioner] does not challenge 

the constitutionality of the State Health Plan or the Project 

Review Criteria. Rather, [Petitioner] argues the purpose

and effect of the ALC's application of the CON Act, the 

State Health Plan, and the Project Review Criteria are to

protect [Amisub] from out-of-state competition, and, 

therefore, such an application violates the dormant 

Commerce Clause. 

Amisub, slip op. at 5. 
 

previously contemplated or presented to the trial court, the aggrieved party must 

move, pursuant to Rule 59(e), SCRCP, to alter or amend the judgment in order to 

preserve the issue for appeal.").

Accordingly, we reverse the court of appeals' finding that the dormant Commerce 

Clause issue was not preserved for appellate review, and remand the case to the court 

of appeals for a ruling on the merits of the issue. 

The parties have stressed to us the obvious point that it has been almost twelve years 

since DHEC made the determination an acute-care hospital was necessary in York 

County. For this reason, we order the court of appeals to expedite consideration of 

this case. 

REVERSED IN PART AND REMANDED. 

BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.