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SC Administrative Law Court Decisions

L& M Enterprise Solutions, LLC, d/b/a 360 Sports Grill vs. SCDOR, et al

South Carolina Department of Revenue

L& M Enterprise Solutions, LLC, d/b/a 360 Sports Grill

South Carolina Department of Revenue and The Scottish Inn (Mullett Columbia Corporation)

Heath P. Taylor, Esquire for Petitioner

Lynn M. Baker, Esquire, for Respondent SC Department Of Revenue

Kenneth E. Allen, Esquire for Respondent/Movant The Scottish Inn (Mullett Columbia Corporation)




This matter comes before the Administrative Law Court (Court) pursuant to the Respondent (Movant) The Scottish Inn’s Motion to Reconsider or to Amend/Alter Judgment and Motion to Stay Judgment filed November 3, 2005. A hearing was held on November 8, 2005 with the parties present and represented as shown above. Based on the arguments of counsel and briefs filed by the Petitioner and Respondent, I find and conclude that my amended order filed October 24, 2005, shall remain in effect.


Movant moves for reconsideration on two grounds: first, under subsections (1) and (2) of Rule 60(b), SCRCP, as applied pursuant ALC Rule 29(D), which allow a court to grant a party relief from a judgment based upon “newly discovered evidence which by due diligence could not have been discovered” earlier, Rule 60(b) (2), SCRCP; and second, under Rule 59(e), SCRCP, as applied through ALC Rule 68, which provides generally for the alteration or amendment of a judgment. Rule 59(e), SCRCP. In support of both grounds for its motion, Movant supplied new information regarding another private party held at the Petitioner’s location which party purportedly violated the statutes and regulation of the Department. Yet, despite this new information, I find that the Movant has not demonstrated sufficient grounds for a reconsideration of this Court’s Final Order in this matter.

First, Movant’s argument under Rule 60(b)(2), SCRCP, must fail. “The purpose of a Rule 60(b) motion is not to retry the original case, but is to present good cause why the [moving party] should be relieved from the judgment.” McGhee v. Conveyor Mach. Corp., 361 So. 2d 372, 373 (Ala. Civ. App. 1978) (upholding denial of plaintiff’s Rule 60(b) motion where plaintiff sought to introduce additional evidence to support his worker’s compensation claim after the claim had been fully litigated and decided). In the case at hand, Movant is not seeking to present newly discovered evidence that could not have been discovered prior to the hearing of this matter; rather, it is seeking to retry its case by presenting evidence regarding a private party similar to the evidence presented at the hearing. Movant’s presentation of similar evidence is not the type of “newly discovered evidence” addressed by Rule 60(b)(2). Movant is essentially seeking to reopen this case to supplement the evidence from the hearing; however, the desire for this sort of re-litigation of issues and evidence is not a basis for relieving a party from the effects of decision pursuant to Rule 60(b), SCRCP, and ALC Rule 29(D).

Movant’s argument under Rule 59(e) fails for similar reasons. “Rule 59(e) provides a procedure for correcting manifest errors of law or fact or considering the import of newly discovered evidence. . . . A motion under Rule 59(e) is not intended to be utilized to relitigate issues previously considered[; and] [n]either should it be used as a vehicle for submitting evidence which in the exercise of reasonable diligence could have been submitted before.” Keweenaw Bay Indian Cmty v. Michigan, 152 F.R.D. 562, 563 (W.D. Mich. 1992) (citations omitted). While the grounds for reconsideration under Rule 59(e) are far broader than the few, enumerated grounds for relief from a judgment under Rule 60(b), these 59(e) grounds cannot be stretched to include the re-litigation of this matter sought by Movant. As noted above, Movant does not seek to present newly discovered evidence, but rather to present evidence that is new only in that it was not presented at the original hearing of this case.[1] Movant has not alleged that this Court committed a manifest error of law or fact in its Amended Final Order and Decision, and Movant’s attempts to present this Court with new evidence are merely part of an effort to retry issues which were presented at trial. Accordingly, Movant has not provided this Court with a sound basis upon which to reconsider its Final Order in this matter under Rule 59(e), SCRCP.

In its motion for reconsideration, Movant alleges that previously undiscoverable, new evidence regarding the issues involved in this case has come to light. As noted, this “newly discovered evidence” was a flyer which related to a private party to be held at the location. The issue of private parties was presented in depth at the trial on the merits. The fact that a different party was held does not amount to “newly discovered evidence.” To sustain such an after-the-fact attempt to reopen the record in this case and to re-litigate this matter would run contrary to the relevant rules of procedure and basic principles of judicial economy and finality. Therefore, for the reasons set forth above,

IT IS HEREBY ORDERED that Movant’s Motion to Reconsider or to Amend/Alter Judgment and Motion to Stay is respectfully DENIED.







Administrative Law Judge


November 16, 2005

Columbia, South Carolina

[1] The Court recognizes that the private party which forms the basis for this motion was held after the initial hearing on the merits, but there was extensive evidence presented at the initial hearing of private parties at the location.

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