ORDERS:
ORDER OF REMAND
This matter is an appeal by the South Carolina Department of Motor Vehicles (“Department”) of the dismissal by the South Carolina Division of Motor Vehicle Hearings (“DMVH”) of Gail Glenn’s contested case pursuant to ALC Rule 23. ALC Rule 23 permits a contested case to be dismissed adversely to a defaulting party. The Department alleges the DMVH erred in dismissing this case.
Reversal is appropriate when there are no facts to support dismissal due to default. See Williams v. Stalnaker, 312 S.C. 373, 440 S.E.2d 408, 409 (Ct. App. 1994) (“A court may set aside an entry of default for good cause shown. Whether good cause is established is within the sound discretion of the court. This Court will not disturb a discretionary ruling on appeal unless it appears the ruling is without any evidentiary support or controlled by some error of law.”). In the case at bar, there is no evidence in the transcript or anywhere else in the record supporting dismissal adverse to the Department under ALC Rule 23. The DMVH Hearing Officer received no testimony from any witnesses and made no findings on the record other than confirming with Glenn that she wished to voluntarily withdraw her contested case. Dismissal under ALC Rule 23 adverse to the Department for default was therefore unsupported based on the record before this court. Accordingly, it is hereby
ORDERED that the Final Order and Decision of the DMVH Hearing Officer dated August 10, 2006 is VACATED. It is further
ORDERED that this matter is REMANDED to the DMVH for a new administrative hearing.
IT IS SO ORDERED.
PAIGE J. GOSSETT
Administrative Law Judge
December 20, 2006
Columbia, South Carolina |
