ORDERS:
ORDER OF DISMISSAL
This matter comes before this tribunal pursuant to S.C. Code Ann. Regs. 30-6 (Supp. 2000) and S.C. Code
Ann. §§ 1-23-310 et seq. (Supp. 2000) for a contested case hearing. Petitioner challenges Respondent's
denial of a permit to expand an existing private dock on Bay Point Island in Beaufort County, South Carolina,
for use by residents of a proposed subdivision on the island.
Notice for the contested case hearing was filed on March 2, 2000, and this case was assigned to the
undersigned on March 8, 2000. At that time, Beaufort Realty, Inc. v. Beaufort County and South Carolina
Coastal Conservation League, a case concerning the approval of the Bay Point Island subdivision, was before
the South Carolina Court of Appeals. As that case had direct relevance to the outcome of this matter, this
tribunal stayed the instant case on September 27, 2000, pending the Court of Appeals' final decision in Beaufort Realty.
The Court of Appeals issued its opinion in Beaufort Realty on June 25, 2001, (1) and by an order dated June
28, 2001, this tribunal rescheduled this case for hearing on Thursday, September 13, 2001, at 9:30 a.m. By
telephone call of September 5, 2001, Ellison D. Smith, IV, attorney for the Petitioner, informed this tribunal
that, as the decision of the Court of Appeals in Beaufort Realty was being further appealed to the South
Carolina Supreme Court, he intended to file a motion to strike the instant case from the active docket of the
Administrative Law Judge Division, pending the Supreme Court's resolution of Beaufort Realty. He
followed this telephone call with a letter confirming his intent to file a motion to strike the case from the
docket, and stating that, as Rule 40(j), SCRCP (2) requires that all parties consent to a motion to strike a case
from the docket, the motion to strike would not be filed until the end of that week or the beginning of the next
week. But, as of September 13, the date of the scheduled hearing, this tribunal had not received any such
motion, or any other motions or correspondence from the parties to this matter.
A half-hour before the scheduled start of the hearing, this office received a telephone call from Leslie W.
Stidham, attorney for the Respondent, in which she stated that she assumed the hearing would not be held and
that, if held, she would not be able to attend the hearing. A telephone conversation between this office and
the office of Ellison D. Smith, IV, confirmed the fact that, although no motions to strike the case from the
docket or to otherwise continue the case had been made, the parties to this case did not intend to appear, and,
in fact, could not appear at the scheduled hearing. However, because no motion to stay or continue these
proceedings had been made, this tribunal opened the hearing as scheduled, and, noting the failure of the
parties to appear, it proceeded on record to dismiss the case.
This tribunal had no choice but to treat this failure to attend the hearing as a default, whatever the
understanding between the parties regarding the hearing. The parties simply "fail[ed] to appear at a hearing
without the proper consent of the judge," an act which ALJD Rule 23 lists as a ground for dismissal for
default. The notification given to this office that a motion to strike might be filed clearly did not excuse the
parties from attending the hearing. The parties would only have been excused from attending the hearing
upon an order from this tribunal granting a motion to strike the case from the docket and cancelling the
hearing. Here, not only has this tribunal not granted such a motion, but also no motion to strike or otherwise
stay this case was made to this tribunal before the scheduled hearing had closed.
It must be emphasized that this tribunal can only act upon properly-filed, written motions, see ALJD Rule 19;
it cannot act upon bare statements of intent by a party to file a motion at some point in the future. Further,
this tribunal cannot be expected to divine whether a party will or will not file a motion it intends to file, nor
can this tribunal be expected to check-up on the attorneys involved in a case to make sure that they are filing
their motions and other documents in a timely manner. It is incumbent upon the parties to manage their
cases; it is not the responsibility of this tribunal to do so. If the parties had a different understanding as to
whether the hearing should take place, it was their duty, not this tribunal's, to move to have the hearing
cancelled. The parties in this case did not do so.
IT IS THEREFORE ORDERED that, because the Petitioner in the above-captioned matter failed to appear
at the scheduled hearing, this case is hereby dismissed pursuant to ALJD Rule 23.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 1, 2001
Columbia, South Carolina
1. See Beaufort Realty Company, Inc. v. Beaufort County and South Carolina Coastal Conservation League,
Op. No. 3360 (S.C. Ct. App. filed June 25, 2001) (Shearouse Adv. Sh. No. 23 at 80).
2. ALJD Rule 68 permits an administrative law judge to refer to the South Carolina Rules of Civil Procedure
as guidance to resolve questions not addressed by the ALJD Rules. |
