South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Edwin S. Alewine, Tina Alewine and Great Games, Inc.

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Edwin S. Alewine, Tina Alewine and Great Games, Inc.
 
DOCKET NUMBER:
97- ALJ-17-0550-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER

This matter comes before me on Motion of Respondents for Reconsideration of the Order and Decision filed on December 29, 1997. This matter was heard on November 18, 1997, in the absence of Respondents and their counsel. Respondents' counsel requested a continuance by facsimile on the eve of the hearing and the request was denied. In their Motion for Reconsideration, Respondents assert that this tribunal abused its discretion in denying the continuance. Under the circumstances of this case, I disagree. Nonetheless, I will grant the motion based on the new information provided in counsel's affidavit. "[A]n agency's power to reconsider or rehear a case is not an arbitrary one, and such power should be exercised only when there is justification and good cause; i.e. newly discovered evidence, fraud, surprise, mistake, inadvertence or change in conditions." Bennett v. City of Clemson, 293 S.C. 64, 67, 358 S.E.2d 707, 709 (1987) (citing Am. Jur. 2d Administrative Law §§ 523 and 524 (1962 & Supp. 1986).

Counsel's request for continuance was made at the eleventh hour with no substantiation of the reason for the delay in making the request. In the Motion for Reconsideration, counsel states that his "letter" indicated that he did not receive notice of the General Sessions trial until November 17, 1997. See Motion for Reconsideration, page 2. This is incorrect. Counsel's letter of November 17, 1997 stated:

Dear Judge Geathers,

As you know, the above-referenced matter is scheduled for Hearing on November 18, 1997 at 9:30 o'clock a.m. Please allow this letter to serve as my written request for continuance in this matter for I am scheduled to appear in the Lexington County General Sessions Court for a Trial beginning at 9:00 o'clock a.m.

Based upon my conflict, I would appreciate this matter being rescheduled to a later date and time. I appreciate your assistance and look forward to hearing from your office in response to my request.

The request for continuance was denied by facsimile on November 17, 1997. Counsel submitted a letter by facsimile on November 18, 1997, the morning of the hearing which still failed to explain that he had just been noticed of the trial by the court. The November 18 letter stated: "I apologize for the very short notice but I was not noticed of this conflict until late yesterday afternoon." Counsel merely states that he was not noticed of the conflict without indication that he had just been noticed of the actual trial.

"[E]ach motion or request for continuance must necessarily depend upon all the surrounding circumstances, and when these circumstances are ascertained, it is then for the trial judge to determine if justice demands or warrants a continuance." State v. Spencer, 177 S.C. 346, 181 S.E. 217 (1935). Counsel did not make this tribunal aware of "all of the circumstances" surrounding the request for continuance. Had counsel indicated, as he did in the affidavit filed with the Motion for Reconsideration, that the court had just notified him of the trial, this tribunal would not have assumed that counsel knew of his commitment prior to the eve of the hearing, and this situation would have been avoided.

As stated in the Order and Decision in this case, this tribunal is well aware of its place in the hierarchy. Moreover, the reason for the request for continuance was not at issue. What was at issue was the manner in which counsel executed the request, at the eleventh hour and with no explanation as to why the request was not made earlier. This was the basis for denying the request.

In light of the information in the affidavit of Respondents' counsel, which was attached to the Motion for Reconsideration and not previously provided, this tribunal will vacate its Order and Decision in the above-captioned case, filed December 29, 1997.

This tribunal does not desire to place any undue burden on either of the parties. However, the scheduling of this matter within the next few days is imperative because the Department's key witness, Agent Gary Reinhart, will soon be unavailable for at least thirty days. Agent Reinhart and his wife are expecting twins which are currently overdue. Immediately after the birth of his children, Agent Reinhart will be taking leave and will not return for at least thirty days. Given the uncertainty surrounding the availability of Agent Reinhart and the delay already endured in the adjudication of this case, this matter must be heard expeditiously.(1)

IT IS HEREBY ORDERED that the Order and Decision in the above-captioned case, filed December 29, 1997 is vacated.

IT IS FURTHER ORDERED that this action will be heard on the merits before the Administrative Law Judge at 9:00 a.m. on Friday, January 16, 1998, at the Administrative Law Judge Division hearing room, second floor, Edgar A. Brown Building, 1205 Pendleton Street, Columbia, South Carolina. If Counsel is unavailable to due to a commitment in another court, then the hearing will be held at 9:00 a.m. on Saturday, January 17, 1998.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

February 3, 1998

Columbia, South Carolina

1. In a letter dated January 14, 1998, in reference to the date set for hearing, counsel for Respondents noted that he "is entitled to 30 days notice" pursuant to ALJD Rule 15. However, this rule applies only to the initial Notice of Hearing. Since Respondents were given sufficient notice of the initial hearing date, due process considerations have been satisfied in this instance.


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