ORDERS:
ORDER OF DISMISSAL
This
matter is currently pending before the South Carolina Administrative Law Court
(ALC) pursuant to Clarence Lashawn Tatum’s (“Appellant”) Notice of Appeal which
was filed on September 28, 2007. The Respondent South Carolina Department of
Motor Vehicles (“Department”) filed a Motion to Dismiss on November 1, 2007. The
Appellant responded to this Motion on November 13, 2007.
This
Court has jurisdiction to hear this matter under ALC Rule 33. Rule 33 states
that:
The
notice of appeal from the final decision of an agency to be heard by the
Administrative Law Court shall be filed with the Court and a copy served
on each party and the agency whose final decision is the subject of the appeal
within thirty (30) days of receipt of the decision from which the appeal is
taken.
As
set forth in ALC Rule 33, the Department must be served with a copy of the
notice of appeal within thirty (30) days of the Appellant’s receipt of the
final decision of the Department.
In
this case, there is no evidence in the record that the Department was served with
the Notice of Appeal within thirty (30) days of the Appellant’s receipt of the
Department’s final decision. Appellant filed a Notice of Appeal with the ALC on
September 28, 2007. The copy of the Record on Appeal sent by the Department of
Motor Vehicle Hearing (“DMVH”) contains a copy of the actual notice and the certificate
of service does not indicate that the Department was ever served with it. The
Appellant argues that the Department had actual notice of the appeal because
the appeal was sent to the Department of Public Safety and that because there
was no prejudice to the Department, the case should not be dismissed. However, “Subject
matter jurisdiction of the court depends on the authority granted to the court
by the constitution and laws of the state.” Paschal v. Causey, 309 S.C.
206, 420 S.E.2d 863, 865 (Ct. App. 1992). The Department was not served with
the notice of appeal within thirty (30) days, as required by ALC Rule 33.
Therefore, the Appellant has not properly invoked the jurisdiction of this
tribunal.
The
Supreme Court has set forth that a court must dismiss an appeal where the Appellant
fails to serve a party with the notice of appeal in a timely manner. See
Southbridge Properties, Inc., v. Jones, 292 S.C. 198, 355 S.E.2d 535
(1987) (applying appellate court rules and dismissing the case for failure to
serve a notice of intent to appeal in a timely manner); Mears v. Mears,
287 S.C. 168, 337 S.E.2d 206 (1985) (applying appellate court rules and finding
lack of jurisdiction for failure to serve a notice of appeal in a timely
manner). Additionally it is well established that a court does not have the
authority to extend the time for taking an appeal from a decision of a state
agency. E.g. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206
(1985); Burnette v. S.C. Highway Dep’t, 252 S.C. 568, 167 S.E.2d 571
(1969). This tribunal recognizes the harsh result of this decision but is
constrained by the rules and legal precedent in this State. See McClain
v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994).
Because
Appellant failed to serve his Notice of Appeal on the Department, this court
does not have jurisdiction to hear this matter. Therefore, this case must be
dismissed.
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 29, 2008
Columbia, South Carolina
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