ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is before me pursuant to the Intervenor’s Motion to Dismiss. The Intervenor
asserts that this contested case must be dismissed because Petitioner Wedgefield Plantation
Homeowners Association’s (“Wedgefield”) request for a contested case hearing was untimely,
and that untimeliness divests the Administrative Law Court of jurisdiction over this matter.
Petitioner opposed the motion, and a hearing was conducted on April 12, 2005. For the
following reasons, I conclude that the request for a contested case hearing was untimely filed,
and that this case must be dismissed for lack of jurisdiction.
This case involves a proposal to dredge 93,500 cubic yards of materials from man-made
canals and to deposit the dredge spoil into 14.92 acres of riverine wetlands adjacent to, and part
of, the Black River at Wedgefield Plantation in Georgetown County. Wedgefield hired General
Engineering & Environmental, LLC (“General Engineering”) to act as its agent in applying for
the navigable waters permit, the 401 water quality certification, and the coastal zone consistency
certification. The permit application filed by Wedgefield designated General Engineering as its
agent for the purposes of the permit, as evidenced by the application it submitted to DHEC on
which Jack Walker and Legare Smith of General Engineering are listed at the “agent.”
The S.C. Department of Health and Environmental Control (“DHEC”) issued a “Notice
of Proposed Decision” dated July 28, 2004, denying the navigable waters permit, the 401 water
quality certification, and the coastal zone consistency certification, due to the adverse
environmental impacts of the project. A copy of the Notice of Proposed Decision was received
by Wedgefield’s agent, General Engineering, on August 2, 2004, as indicated by a stamp on the
face of the document declaring “Received August 2, 2004.” Wedgefield filed an appeal of this
decision, and the South Carolina Coastal Conservation League was granted leave to intervene to
support the denial decision.
The facts underlying the issues relating to timeliness of this appeal are uncontested.
These facts have been established by the letters and e-mail messages filed by the parties, and at
the hearing on April 12, 2005.
On August 13, 2004 DHEC sent a letter to Wedgefield at its agent’s address stating that
the time to appeal the decision had expired. On August 18, 2004, General Engineering sent an
email message to Paul Hogan and Ed Wozniak of Wedgefield that the time to file an appeal had
lapsed, and that any appeal must be filed immediately.
It was not until October 7, 2004, that General Engineering, as agent for Wedgefield, sent
a written notice of intent to appeal the Notice of Proposed Decision to DHEC. This notice was
sent to Rheta Geddings, director of the Division of Water Quality at DHEC, but not to the
Administrative Law Court nor to the Clerk of the DHEC Board. Enclosed with the letter from
General Engineering was a copy of the Notice of Proposed Decision which was stamped
“Received August 2, 2004.” On October 12, 2004, Wedgefield’s attorney filed another notice of
appeal, by filing it with the ALC and the Clerk of the DHEC Board, and paying the filing fee.
This final filing was made a full seventy-one (71) days after Wedgefield’s agent received the
Notice of Proposed Decision.
Administrative Law Court Rule 11 requires that a request for a contested case hearing
must be filed within thirty (30) days after actual or constructive notice of the proposed decision.
Rule 11 governs the timeliness of a request for a contested case, and controls the issue presented
by the Motion to Dismiss. Since Wedgefield’s request for a contested case hearing was not
filed with the ALC and the DHEC Clerk until seventy-one (71) days after it received notice of
the proposed decision, it is plain that Wedgefield has failed to meet this requirement.
Even if the Court views August 18, 2004, as the date on which Wedgefield received
notice of the permit denial (the date of the e-mail from General Engineering to Wedgefield), the
appeal cannot be viewed as timely filed. More than thirty (30) days elapsed between August 18,
2004, and the appeal notice on October 7, 2004.
The failure to file a request for a contested case hearing within the allowable time frame
divests the Administrative Law Court of jurisdiction to hear a contested case. See Mears v.
Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Botany Bay Marina v. Townsend, 296 S.C. 330,
372 S.E.2d 584 (1988). Appeal deadlines are absolute and the Court has no authority to expand
the time in which the request for a contested case hearing must be filed. See Mears v. Mears,
supra. See also, Clark v. SCDHEC, Docket No. 98-ALJ-0498-CC; Robinson v. SCDHEC,
Docket No. 02-ALJ-07-0034-CC; Young v. Charleston County Assessor, Docket No. 04-ALJ-17-0305-CC; Charleston County Assessor v. Gladsky, Docket No. 01-ALJ-17-0386-CC; and The
Beach Company, Inc. v. SCDHEC, Docket No. 04-ALJ-07-0199-CC.
Although jurisdiction is essentially a question of law, the court may rely on facts placed
before it, if factual determinations are necessary to resolve jurisdiction. Graham v. Lloyd’s of
London, 296 S.C. 249,251, 371 S.E.2d 801, 802 n. 1 (Ct. App. 1988) (“When the issue is the
existence of jurisdiction in fact, the court is not confined to the allegations of the complaint, but
may resort to affidavits or other evidence to determine its jurisdiction.”). In this case, the parties
have presented factual material necessary to determine jurisdiction.
To timely appeal DHEC’s decision, Wedgefield must have filed its request for a
contested case hearing on or before thirty days after it got notice. Wedgefield’s agent stamped
the Notice of Proposed Decision document “Received August 2, 2004.” A principal is charged
with constructive knowledge of all material facts of which his agent receives notice while acting
within the scope of his authority. Crystal Ice Co. v. First Colonial Corp., 273 S.C. 306, 257
S.E.2d 496 (1979). This is based on the duty of the agent to communicate all material
information to the principal, and the presumption that he has done so. McSweeny v. Prudential
Ins. Co., 128 F.2d 660 (4th Cir. 1942). Therefore I find that Wedgefield received constructive
notice on August 2, 2004.
Wedgefield’s request for a contested case hearing would have had to have been filed on
or before September 1, 2004 to comply with ALC Rule 11. The initial request was not filed
until October 7, 2004. The request for a contested case hearing was not perfected until October
12, 2004, when it was filed with the ALC and the DHEC Clerk, along with the filing fee, a full
seventy-one (71) days after it received notice of the proposed decision. As noted above, even if
the thirty (30) day appeal period did not begin to run until Wedgefield’s agent clearly gave
actual notice to Wedgefield on August 18, 2004, the appeal was still filed too late. Wedgefield’s
initial request was not filed until October 7, 2004, and its second request was not filed until
October 12, 2004. This lapse of time clearly exceeded the thirty day appeal period of ALC Rule
11, and Petitioner’s remedy to seek a contested case before this court is foreclosed.
The Court has invited counsel for Wedgefield to point to any facts or law that establish
any exception to the general rule that the late appeal deprives this Court of jurisdiction. Despite
a valiant effort by Wedgefield’s counsel, the Court cannot conclude that there is any basis to this
Motion to Dismiss.
ORDER
For all the foregoing reasons, this case is hereby dismissed for lack of jurisdiction.
AND IT IS SO ORDERED.
_________________________________________
Marvin F. Kittrell
Chief Judge
Columbia, SC
June 1, 2005 |