South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOI vs. Joseph E. McCants

AGENCY:
South Carolina Department of Insurance

PARTIES:
Petitioners:
South Carolina Department of Insurance

Respondents:
Joseph E. McCants
 
DOCKET NUMBER:
02-ALJ-09-0153-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER OF REMAND

On October 1, 2001, the Director of the South Carolina Department of Insurance issued a default order revoking Appellant's resident insurance agent and broker licenses for several violations of the Department's regulations. The Department mailed a copy of this default order to Appellant on January 14, 2002, and Appellant appealed the order to this tribunal on February 12, 2002. Contending that he never received notice of the Department's intention to revoke his license, and thus could not have requested a contested case hearing on the charged violations, Appellant filed a Motion to be Relieved from Default Judgment with this tribunal on May 22, 2002. However, as it appears that this motion is more properly made to the Department, this matter is hereby remanded to the Department for its consideration of Appellant's motion.

Generally, the proper procedure for challenging a default judgment is to move the tribunal issuing the default to set aside the judgment, rather than to directly appeal the default judgment to a higher tribunal. See Winesett v. Winesett, 287 S.C. 332, 334, 338 S.E.2d 340, 341 (1985). If the motion for relief from the default judgment is denied, then an appeal may be taken. See id. By referring the question of whether to re-open a default judgment to the tribunal originally issuing the default, this rule comports with sound principles of judicial economy, see id. at 333-34, 338 S.E.2d at 341, and accords with "South Carolina's policy favoring the disposition of issues on their merits rather than on technicalities." Mictronics, Inc. v. S.C. Dep't of Revenue, 345 S.C. 506, 511, 548 S.E.2d 223, 226 (Ct. App. 2001). Moreover, because courts favor a trial on the merits over a judgment by default, "the procedures for allowing relief from a default judgment are liberally construed to see that justice is promoted and to strive for the disposition of cases on the merits." Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 4.16, at 217 (2d ed. 2001).

Here, it appears that Appellant is likely entitled to a hearing on the merits of the Department's allegations against him. Therefore,

IT IS HEREBY ORDERED that Appellant's Motion to be Relieved from Default Judgment is REMANDED to the Department of Insurance for it to determine whether to grant Appellant relief from the default order and thereby allow him an opportunity to request a hearing on the revocation of his licenses.

IT IS FURTHER ORDERED that, in light of this remand, this matter is therefore DISMISSED from the docket of the Administrative Law Judge Division.

AND IT IS SO ORDERED.



______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667



June 12, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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