SC Administrative Law Court Decisions

By order dated February 28, 2008, this case was dismissed because Respondent failed to appear at the contested case hearing held on that day and failed to apprise the court of the reason for its absence or to request a continuance. Leslie Schweitzer, on behalf of Upstate Social Club, filed the Notice of Appeal that commenced this matter with the Administrative Law Court (ALC) on December 4, 2007. Since that time, Ms. Schweitzer has failed to respond to all orders of this court and filings by the Department. Both parties were required to file prehearing statements within twenty days by order filed December 20, 2007. Upstate failed to do so.

On January 3, 2008, the Department moved to dismiss this matter on the basis that Upstate’s Notice of Appeal was untimely filed. The Department argued that its determination was mailed to Respondent on October 24, 2007, and that the Notice of Appeal was filed more than thirty days later. Upstate did not respond to the motion. However, Upstate’s Notice of Appeal indicates that it received the Department’s Determination on November 27, 2007. Out of an abundance of caution, this court did not rule on the Department’s motion but instead set this matter for hearing. The hearing date was set for 10:00 a.m. on Thursday, February 28, 2008, by order filed January 23, 2008. Upstate was given more than a month’s notice of the hearing date. Upstate again did not respond and did not appear at the hearing. Further, all correspondence and filings were sent to the address provided by Ms. Schweitzer on behalf of Upstate in the Notice of Appeal.

Over a month after the filing of the order of dismissal, Ms. Schweitzer faxed to the Administrative Law Court clerk’s office a request for “reconsideration of the hearing date.” That request was not properly filed but only faxed. See ALC Rule 4(B) (documents are filed by delivery to the court or depositing them in the U.S. mail properly addressed with postage affixed). Nonetheless, she asserts she did not receive notice of the hearing on February 28, 2008, and was in California with a sick relative at the time of the hearing. Ms. Schweitzer states that she only learned of the revocation of Upstate’s permit and license by Agent James Crosby at 9:00 p.m. on March 30, 2008. The Department has failed to respond to her request, but it is unclear from her filing that she sent a copy to the Department as required by ALC Rule 5.

However, out of an abundance of caution and to ensure fairness, this court will give Ms. Schweitzer and Upstate the benefit of the doubt and construe her filing as a motion to set aside judgment under Rule 60(b), SCRCP. That rule provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. . . . The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken.

See also ALC Rule 29(D); Mictronics v. S.C. Dep’t of Rev., 345 S.C. 510-11, 548 S.E.2d 223 (Ct. App. 2001). Ms. Schweitzer has failed to show the type of “mistake, inadvertence, surprise, or excusable neglect” envisioned under Rule 60(b), SCRCP. She asserts she was in California. But a party is still charged with monitoring the mail sent to the address of record. She could have had someone check the mail or had the post office forward it. She could have retained an attorney to handle this matter. She was given ample time to respond to all filings and yet has not filed anything from the date she filed the Notice of Appeal on December 4, 2007, until the date she filed this request on March 31, 2008, one month after the dismissal was filed. There was no mistake, inadvertence, or surprise, and her neglect is not excusable.

The Department was present with its witnesses at the hearing and prepared to go forward. Here, Ms. Schweitzer has not met even the more lenient “good cause” standard set forth under Rule 55(c), SCRCP.

A “good cause” analysis under Rule 55(c) ordinarily is made by the trial judge. In deciding whether to set aside an entry of default, the factors the judge should consider are: (1) the timing of the motion for relief; (2) whether the defendant has a meritorious defense; and (3) the degree of prejudice to the plaintiff if relief is granted.

Bage, LLC v. Southeastern Roofing Co. of Spartanburg, Inc., 373 S.C. 457, 472, 46 S.E.2d 153, 162 (Ct. App. 2007) (citations omitted). The motion for reconsideration comes a month after the dismissal, Upstate has not shown nor asserted a meritorious defense, and the prejudice to the Department in setting aside the dismissal order which affirmed the Department’s revocation of the license and permit is clear. By virtue of Respondent's request for a contested case, she had an obligation to advance her position. A party has a duty to monitor the progress of her case, and lack of familiarity with legal proceedings is unacceptable, as the court will not hold a layman to any lesser standard than is applied to an attorney.  Goodson v. American Bankers Insurance Company of Florida, 295 S.C. 400, 403, 368 S.E.2d 687, 689 (Ct. App. 1988). Respondent never requested an extension or enlargement of time pursuant to ALC Rule 3(B), but rather was unresponsive to all communications. Respondent was given abundant opportunity to comply. “There is a limit beyond which the court should allow a litigant to consume the time of the court . . . .” Georganne Apparel, Inc. v. Todd, 303 S.C. 87, 92, 399 S.E.2d 16, 19 (Ct. App. 1990).

In view of Ms. Schweitzer’s failure to respond to filings or to monitor the progress of this case and her failure to show legally excusable neglect or a meritorious defense, there is absolutely no reason to afford Upstate relief from the prior order of dismissal. IT IS THEREFORE ORDERED that Upstate’s motion to reconsider or to set aside judgment is DENIED.

AND IT IS SO ORDERED.

______________________________

April 15, 2008 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731