ORDERS:
ORDER OF DISMISSAL
BACKGROUND
This matter is currently pending before the South Carolina Administrative Law Court (“ALC”) pursuant to O. Grady Query’s (“Appellant”) Notice of Appeal and request for stay which was filed on December 7, 2005. By Order dated May 30, 2006, this court stayed the matter until the South Carolina Court of Appeals determined who owned the marsh across which Carmen Burgess (“Respondent”) applied to build a dock.
After the South Carolina Supreme Court denied the Petition for Writ of Certiorari to the Court of Appeals on September 19, 2007, the Respondent requested a dismissal of this action by letter dated October 12, 2007. The South Carolina Department of Health and Environmental Control, Office of Coastal Resource Management (“OCRM”) joined in this request. Appellant responded to this request by letter dated October 17, 2007 opposing a dismissal of this action in order to be heard on the merits of the dock permit.
A phone conference was held on January 22, 2008 to discuss the request for dismissal. After reviewing the file and taking into consideration the arguments made during the conference, the Respondent’s Motion to Dismiss is granted.
DISCUSSION
Although Appellant makes several arguments against a dismissal of this matter, those arguments were not made until almost three years after his request for a stay. The Appellant has had ample opportunities to raise these issues prior to a final adjudication on the issue of ownership of the marsh, but has failed to do so.
On November 21, 2005, Appellant filed and served a Pre-hearing Statement requesting a stay of this contested case until final appeal of the marsh title case. Neither the Pre-hearing Statement nor the Notice of Request for Contested Case Hearing stated any grounds for bringing the contested case hearing other than a request for a stay pending determination of the marsh title appeal
On March 23, 2006, this court issued its notice and order of hearing setting a hearing on the merits for June 15, 2006. On May 30, 2006, counsel for the parties had a conference call with the Court during which time, counsel for Appellant represented that the only issue in this contested case was awaiting the outcome of the marsh title appeal and the only relief sought in the contested case was a stay until final resolution of that appeal. On May 30, 2006, an Order of Stay which was issued by this Court documented and confirmed this understanding.
At each opportunity, Appellant has declined to present any issue and has confirmed that the only relief requested of this court was a stay pending final decision of the marsh title case. It would be inequitable for the court to afford Appellant the opportunity to raise issues for the first time at this stage of the litigation. Moreover, the law clearly states that “a party that voluntarily and intentionally abandons a known right, either through express or implied conduct has waived that right and should be estopped from asserting a claim due to failure to timely assert a known right.” See Strickland v. Strickland No. 26375 (S.C. Aug. 27, 2007) (citing) Parker v. Parker, 313 S.C. 482, 443 S.E.2d 388 (1994).
ORDER
Because Appellant did not timely raise additional issues in this matter, and the issue of ownership of the marsh has been determined, it is hereby
ORDERED that the Respondent’s Motion to Dismiss is GRANTED.
AND IT IS SO ORDERED.
______________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
January 28, 2008
Columbia, South Carolina
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