ORDERS:
ORDER OF DISMISSAL
This case is before me
pursuant to a request for a contested case hearing filed by Petitioner Kenny
Witthuhn challenging the issuance of a permit by S.C. DHEC’s Office of Ocean
and Coastal Resource Management to Respondent Charles Bell. Mr. Bell has since
sold the property to Kenneth Korpanty, who has moved this Court to substitute
himself for Mr. Bell as Respondent. The hearing is scheduled for March 21,
2006.
Mr. Korpanty, by and
through counsel, sent discovery requests to Mr. Witthuhn on December 12, 2005. On
December 15, 2005, Mr. Witthuhn’s counsel Mary Shahid of McNair Law Firm sent Mr.
Witthuhn a letter confirming their conversation in which he expressed that he
no longer wished Ms. Shahid to represent him in the appeal. In this letter, Ms.
Shahid informed her former client that it was “imperative” that he contact the
Court and opposing counsel. She also forwarded the Discovery Requests to him at
that time.
Despite several
attempts, counsel for Mr. Korpanty was not able to communicate with Mr.
Witthuhn, and has not received responses to discovery requests. On January 24,
2006, Mr. Korpanty’s counsel wrote a letter to Mr. Witthuhn informing him of
their intention to move to dismiss the appeal if no contact was made or
discovery response given within 10 days of his receipt of the letter. This
letter was sent by Certified Mail with a Return Receipt requested, and was
accepted on January 27, 2006. No response was made. Subsequently, Respondent
Korpanty filed a written Motion to Dismiss for Lack of Standing and Failure to
Prosecute the appeal.
On March 9, 2006, the
parties had a conference call with this Court to determine how to move forward.
Despite several attempts by the Court to reach Mr. Witthuhn at the number he
had given, neither Mr. Witthuhn nor a representative for him participated in
this call. During the telephone conference, counsel for Mr. Korpanty renewed
the Motion to Dismiss the appeal.
Administrative
Law Court Rule 23 provides:
The administrative law judge may dismiss a
contested case or dispose of a contested case adverse to the defaulting party.
A default occurs when a party fails to plead or otherwise prosecute or defend,
fails to appear at a hearing without the proper consent of the judge or fails
to comply with any interlocutory order of the administrative law judge. Any
non-defaulting party may move for an order dismissing the case or terminating
it adversely to the defaulting party.
Here, Petitioner failed to respond
to opposing counsel’s attempts to communicate with him and failed to respond to
proper Discovery Requests. Moreover, Petitioner failed to participate in a
conference call concerning his failure to cooperate in this case. Therefore, I
find that Petitioner failed to “prosecute or defend” this case.
ORDER
IT IS HEREBY ORDERED that this case be dismissed with prejudice.
AND IT IS SO
ORDERED.
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
March 13, 2006
Columbia, South Carolina |