ORDERS:
ORDER ON MOTION TO RECONSIDER AND TO ALTER OR AMEND
I. Introduction
This matter is before me based upon Intervenors' Motion For Reconsideration and To Alter or
Amend Judgment of the Court's Order dated October 28, 1997. A brief history is needed to properly
understand the current posture of this case.
Carl L. Holloway, Jr., as attorney for Town of Turbeville and Donald G. Coker, filed a Motion to
Intervene, a Motion to Limit Scope of Hearing, and a Motion to Dismiss on October 2, 1997. The
Motion to Intervene and the Motion to Limit Scope of Hearing were both granted. The Motion to
Dismiss was not granted since the motion was not properly developed by law or facts. Instead, the
Motion to Dismiss was to be heard on November 18, 1997, at which time both the law and facts
would be argued by the parties. An Order reflecting the above decisions was issued October 6, 1997.
On October 15, 1997, the South Carolina Department of Revenue (DOR) filed a Motion For
Reconsideration arguing that the order granting the Motion to Limit Scope of Hearing was in error
since the Order was based upon an erroneous transmittal letter from DOR. A telephone conference
on the Motion For Reconsideration was attended by all parties. During the conference DOR and
Petitioner, Joseph H. Moore (Moore) expressed no opposition to a dismissal without prejudice. The
intervenors objected to such a disposition.
As a result of the telephone conference, on October 28, 1997, an Order granting Reconsideration
dismissed the action without prejudice under SCRCP 41(a)(2). The Order dismissed the action by
setting "such terms and conditions as the court deems proper." See SCRCP 41(a)(2). Those terms
of dismissal set November 6, 1997 as the date by which DOR was to decide whether to process or
not process the Moore application. Further, the order set November 17, 1997 as the date for DOR
to give notice to Moore and the Intervenors of the basis supporting whatever decision DOR reached
on the issue of whether or not to process the application. Finally, also by November 17, 1997, if the
DOR decision was that the application was to be processed, DOR was directed to provide in writing
to Moore and the Intervenors the basis for either granting or denying the application.
II. Analysis
The Motion For Reconsideration and To Alter or Amend Judgment now before me seeks a
reconsideration of the Reconsideration Order. The Intervenors essentially assert four grounds for
their motion. None of the grounds have merit and the motion is denied.
A. Lack of Jurisdiction and Lack of Authority
The Intervenors argue that once the dismissal without prejudice was granted the ALJ "no longer
possessed jurisdiction in this matter and therefore, lacked authority and/or jurisdiction to order
processing of an application as set forth in the Order." Motion, p. 2. The Intervenors are in error
for two fundamental reasons.
First, no loss of authority or lack of jurisdiction denies a judge the right to impose terms for a
dismissal under SCRCP 41(a)(2). The rule plainly authorizes the judge to grant the dismissal under
"such terms and conditions as the court deems proper." See Mauro v. Clabaugh 302 S.C. 195, 383
S.E.2d 244 (Ct. App. 1989) (where a court dismissed an action without prejudice, the court properly
imposed condition of paying attorneys fees before refiling of action allowed). Accordingly, the lack
of authority and lack of jurisdiction argument is without merit.
Second, the Intervenors state the Order of October 28, 1997 "order[s] processing of [the Moore]
application." Motion, p. 2. Such a position is a clear misreading of the October 28, 1997 Order. The
Order states that by November 6, 1997, DOR must decide whether it will process Moore's
application. In addition by November 17, 1997, DOR must notify Moore and the Intervenors of
DOR's decision on the processing issue with such decision explaining the basis upon which DOR
relied in deciding to process or not to process the application. Finally, also by November 17, 1997,
if the DOR decision was to process the application, DOR was required to provide in writing to
Moore and the Intervenors, DOR's basis for its decision to either grant or deny Moore's application.
A thorough reading of the Order confirms that DOR is not directed to process the application.
Again, the Intervenors' argument is without merit.
B. Failure To Act On Intervenor's Motion To Dismiss
The Intervenors argue the ALJ was required to act upon the Motion To Dismiss before the judge
could act upon DOR's Motion to Reconsider. Apparently, the argument is that the granting of the
Motion to Reconsider is improper so long as a Motion To Dismiss is outstanding. The Motion To
Dismiss did not assert a lack of subject matter jurisdiction. Once establishing authority to hear a
matter, no statute, rule, or order directs a judge to hear a Motion to Dismiss before ruling upon other
motions. Here, the interest of justice is best served by issuing an Order allowing a dismissal without
prejudice as was done by the Order of October 28, 1997.
C. DOR Lacked A Basis Warranting the Granting of An Order Of Reconsideration
The Intervenors argue DOR presented no basis warranting the granting of an Order of
Reconsideration. This argument is wholly without merit.
First, DOR unequivocally stated it issued the transmittal letter in error. The transmittal letter is a
fundamental document in which the agency first identifies the potential basis for a contested case.
An error in such a document is a valid ground for entertaining a Motion to Reconsider. Second, and
more importantly, the telephone conference pursuant to the Motion to Reconsider resulted in both
DOR and Moore seeking a dismissal without prejudice. The authority to grant a dismissal without
prejudice is a discretionary matter resting with the judge. See Crout v. S.C. Nat'l Bank, 278 S.C.
120, 293 S.E.2d 422 (1982) (the granting or denial of a motion for a voluntary dismissal without
prejudice is within the sound discretion of the trial court and will not be disturbed absent a showing
of an abuse of discretion). In this matter, the dismissal was entirely proper given the erroneous
transmittal letter.
D. The Intervenors Are Prejudiced
Generally, a party is entitled to a voluntary nonsuit without prejudice as a matter of right unless legal
prejudice is shown by an opposing party or unless important issues of public policy are present in
the case. Prime Medical Corp. v. First Medical Corp., 291 S.C. 296, 353 S.E.2d 294 (Ct.
App.1987). The Intervenors argue they are prejudiced in this matter.
This issue was addressed and decided in the October 28, 1997 Order and I again conclude no
prejudice befalls the Intervenors by a dismissal without prejudice. If and when a contested case
arises from any action by DOR, the Intervenors may raise before the ALJ any and all arguments
relating to the appropriateness of DOR's action to process Moore's application. Further, the
Intervenors may present arguments asserting the location is improper. The Intervenors are not denied
their day in court and may raise all issues relevant to the case. Accordingly, I find no reason to alter
my earlier conclusion that no material prejudice is suffered by the Intervenors.
III. Conclusion and Order
The ALJ has both the jurisdiction and the authority to impose conditions upon a voluntary dismissal.
In addition, no requirement exists that a Motion to Dismiss must be heard before issuing a voluntary
dismissal without prejudice. Further, a sufficient basis existed for granting the Order of October 28,
1997. Finally, no significant degree of prejudice is suffered by the Intervenors from the issuance of
the dismissal without prejudice. Based upon all of the above, the Intervenors' Motion For
Reconsideration and To Alter or Amend Judgment is denied.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
This 14th day of November, 1997.
Columbia, South Carolina |