SC Administrative Law Court Decisions

On September 18, 2001, Ellison D. Smith, IV, attorney for Petitioner, filed a Motion for Reconsideration requesting that this tribunal reconsider its Order of Dismissal in the above-captioned case filed on September 13, 2001. Petitioner, with the consent of the Respondent and the Intervenor in this matter, asks this tribunal to vacate its dismissal of the case, to restore the case to the Administrative Law Judge Division (ALJD) docket, and to permit the parties to then move to strike the case from the docket pursuant to Rule 40(j), SCRCP while a related case ⁽¹⁾ is appealed to the South Carolina Supreme Court. After considering Petitioner's motion and the interests of justice in this matter, this tribunal grants Petitioner's motion for the reasons set forth below.

ALJD Rule 29D provides that "[a]ny party may move for reconsideration of a final decision of an administrative law judge in a contested case, subject to the grounds for relief set forth in Rule 60(b)(1)-(5), SCRCP." Although Petitioner does not specify the particular ground for relief under Rule 60(b) that it relies upon in making its motion, this tribunal presumes that Petitioner moves for relief from the Order of Dismissal on the grounds of "mistake, inadvertence, surprise, or excusable neglect" under Rule 60(b)(1), SCRCP. ⁽²⁾ To establish grounds for avoidance of a final decision under Rule 60(b)(1), a party must establish not only that its neglect is excusable, but also that it has a meritorious claim. Tri-County Ice and Fuel Co. v. Palmetto Ice Co., 303 S.C. 237, 399 S.E.2d 779 (1990). The motion for relief on the grounds of excusable neglect under Rule 60(b)(1) is addressed to the sound discretion of the court, and its ruling will not be disturbed absent an abuse of discretion. Id; see also Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 4:17, at 218 (2d ed. 2001).

First, this tribunal cannot say that Petitioner does not have a meritorious claim. As Petitioner noted in its Pre-Hearing Statement, the issue before the Supreme Court, namely whether the subdivision in which Petitioner's dock is to be built was properly approved, is "fundamental to [the] determination" of whether the Respondent properly denied Petitioner's dock permit, and "may well be dispositive" of the instant case. (Petitioner's Pre-Hearing Statement ¶ 4.) As a determinative issue in this case is yet to be resolved by the courts, this tribunal will assume for purposes of this order that the resolution of the subdivision issue might well go in Petitioner's favor, and that Petitioner, therefore, has a meritorious claim in its case before this tribunal.

Second, this tribunal will, in the interests of justice, consider Petitioner's neglect in failing to appear at the scheduled hearing excusable. However, Petitioner's arguments to justify its failure to appear do not carry much weight in the eyes of this tribunal. Not only did this tribunal not grant a continuance or stay in this case, but further no motion for a continuance or stay was even filed with this tribunal before the scheduled hearing. As noted by the Supreme Court of Arizona,

The purpose of the motion is to obtain a ruling or an order directing that some act be done in favor of the applicant, and it should call to the attention of the court the particular purpose sought to be achieved, so that the court be given an opportunity to rule on the matter. Unfortunately, judges are not omniscient in determining what counsel might have meant. The trial judge here was not asked for a continuance, and if counsel desired a continuance, he should have petitioned the court, and the failure to so request constituted a waiver.

State v. Wise, 419 P.2d 342, 344-45 (Ariz. 1966) (citation omitted). ⁽³⁾ The same holds true in this case. Accordingly, Petitioner simply has no legal footing in the attenuated rationale offered to support its failure to do what ought to have been done.

Nonetheless, this tribunal is mindful that, in ruling on a motion to reconsider based on Rule 60(b), the desire to achieve finality in litigation must be balanced against the policy of the law to favor a hearing of a litigant's claim on the merits. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2857 (2d ed.1995). Further, South Carolina courts have held that because the courts prefer a trial on the merits over a judgement by default, the procedures allowing relief from a default judgement should be liberally construed to see that justice is promoted and to strive for the disposition of cases on the merits. Sanders & Nichols, supra § 4:16, at 217; cf. 11 Wright & Miller, supra § 2857 (noting that a number of cases suggest that discretion ordinarily should incline toward granting rather than denying relief under Rule 60(b), particularly if no prejudice to the other parties would result). Thus, looking to the particular facts of this case, and keeping in mind the general policy favoring trials on the merits over default judgements, see Sanders & Nichols, supra § 4:17, at 218-19, this tribunal has determined that the interests of justice in resolving this matter on its merits outweigh Petitioner's neglect in failing to appear at the scheduled hearing.

IT IS THEREFORE ORDERED that this tribunal's Order dismissing the above-captioned case dated September 13, 2001, is vacated and this case is reinstated on the ALJD docket on the condition that a new motion to strike this case from the ALJD docket is executed between the parties and filed with this tribunal within fourteen (14) days of this Order, as the original motion was executed after this case had already been dismissed.

IT IS FURTHER ORDERED that the motion to strike the case from the docket provide that the case, if stricken, be restored to the ALJD docket within 120 days of the South Carolina Supreme Court's resolution of Beaufort Realty Company, Inc. v. Beaufort County and South Carolina Coastal Conservation League.

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. Beaufort Realty Co., Inc. v. Beaufort County and S.C. Coastal Conservation League, Op. No. 3360 (S.C. Ct. App. filed June 25, 2001) (Shearouse Adv. Sh. No. 23 at 80).

2. Rule 60(b) reads, in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgement, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidece . . .;

(3) fraud, misrepresentation, or other misconduct of an adverse party;

(4) the judgement is void;

(5) the judgement has been satisfied, released, or discharged, or a prior judgement upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgement should have prospective application.

Rule 60(b), SCRCP. The present case was dismissed because the parties failed to appear at a scheduled hearing. Thus, the only one of the five grounds listed in Rule 60(b) that has application in this case appears to be that referring to the mistake, inadvertence, and excusable neglect of the parties.

3. Or, as put more succinctly by the California District Court of Appeals, "[i]t seems elementary that a court cannot grant a motion not made." Deschamps v. Indep. Cab Co., 210 P.2d 299, 303 (Cal. Dist. Ct. App. 1949).