South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

Joseph H. Moore, d/b/a Moore Oil Company vs. SCDOR

South Carolina Department of Revenue

Joseph H. Moore, d/b/a Moore Oil Company

South Carolina Department of Revenue

Town of Turbeville and Donald G. Coker




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.



Administrative Law Judge

This 14th day of November, 1997.

Columbia, South Carolina

Brown Bldg.






Copyright © 2022 South Carolina Administrative Law Court