Sabella v. South Carolina Alcoholic Beverage Control Com'n, 0758

• Decision Date: 16 April 1986
• Docket Number: No. 0758,0758
• Citation: 346 S.E.2d 530,289 S.C. 400
• Court: South Carolina Court of Appeals
• Parties: George E. SABELLA, Respondent, v. SOUTH CAROLINA ALCOHOLIC BEVERAGE CONTROL COMMISSION, Defendant, Protestants Walter Morgan, Pat Morgan, and Mrs. A.J. Baker, Appellants. . Heard

Page 530

346 S.E.2d 530

289 S.C. 400

George E. SABELLA, Respondent, v. SOUTH CAROLINA ALCOHOLIC BEVERAGE CONTROL COMMISSION, Defendant Protestants Walter Morgan, Pat Morgan, and Mrs. A.J. Baker Appellants.

No. 0758.

Court of Appeals of South Carolina.

Heard April 16, 1986.

Decided May 20, 1986.

Allen L. Ray, Conway, for appellants.

James B. Van Osdell and Cynthia Graham Howe, of Van Osdell, Lester, Stewart, McCutchen & Brittain, Myrtle Beach, for respondent.

PER CURIAM:

This is an appeal from an order of the Circuit Court reversing an order of the South Carolina Alcoholic Beverage Control Commission. We reverse and remand.

George E. Sabella applied to the South Carolina Alcoholic Beverage Control Commission for a retail permit to sell beer and wine for on and off premises consumption at his place of business in Myrtle Beach known as "Southern Entertainment Co., Inc., d/b/a Sharkey's."

Walter Morgan and Pat Morgan (who are husband and wife) and Mrs. A.J. Baker appeared before the Commission and protested the granting of the permit. The Commission issued its order recognizing them as parties and denying the application of Mr. Sabella. The order of the Commission was captioned "IN RE: George Edward Sabella, President, Southern Entertainment Company, Inc., Applicant."

Mr. Sabella filed a petition in the Circuit Court appealing the part of the order which denied the permit and served a copy of the petition on the Commission, Mr. and Mrs Morgan and Mrs. Baker. ¹ The petition of Mr. Sabella was captioned "George E. Sabella, Petitioner, vs. South Carolina Alcoholic Beverage Control Commission, Agency of the State of South Carolina, Respondent."

Mr. and Mrs. Morgan and Mrs. Baker filed and served an answer to the petition. In addition, their lawyer sent a letter to the lawyer for Mr. Sabella noting that they were not named as respondents in the caption and saying that he would ask the Court to allow an amendment including their names as respondents if this could not be done by agreement "in due time." No motion was made by either party to have the caption amended.

The case appeared on the nonjury roster for the Court as "Southern Entertainment, Inc. v. ABC Commission." Neither Mr. and Mrs. Morgan, Mrs. Baker nor their lawyer were listed on the roster and neither they nor their lawyer received any other notice of the hearing before the Court. Following the hearing at which only lawyers representing Mr. Sabella and the Commission appeared, the Court issued its order reversing the order of the Commission.

Mr. and Mrs. Morgan and Mrs. Baker appeal on several grounds, one of which is that they "were parties to the proceedings, received no notice of the hearing and were denied their day in court." We agree.

Mr. and Mrs. Morgan and Mrs. Baker were explicitly recognized as parties by the order of the Commission. As parties, they were entitled to notice of the hearing held before the Circuit Court. See Coogler v. California Insurance Co. of San Francisco, 192 S.C. 54, 58, 5 S.E.2d 459, 461 (1939) ("It would seem to be plain, upon well-settled and fundamental principles, that no order or judgment affecting the rights of a party to the cause should be made or rendered without notice to the party whose rights are to be thus affected, for otherwise a party would be...