ORDERS:
ORDER AND NOTICE OF HEARING
STATEMENT OF THE CASE
This matter came before the Court March 5, 1998 pursuant to the Respondents' appeal of a
Final Agency Determination of the South Carolina Department of Revenue's ("Department") finding
that the Respondents violated the single place or premise provisions of the South Carolina Video
Game Machines Act. After neither the Respondents nor their counsel appeared at the hearing, this
Court dismissed the case. Respondents subsequently obtained new counsel, who filed a Motion for
Reconsideration of the Order of Dismissal. A hearing on the Motion for Reconsideration was held
May 12, 1998.
FINDINGS OF FACT
Having reviewed the limited evidence presented at the motions hearing and the other matters
reflected in the file, I make the following findings of fact:
1. Counsel for both parties were notified of the date, time, and place of the hearing in
this matter by a Notice of Hearing mailed by my office on January 6, 1998.
2. The Respondents were represented in this matter by Kenneth E. Allen, Esquie.
However, Mr. Allen informed the Court by fax March 2, 1998 that "[d]ue to a potential conflict of
interest [he] no longer represented the interest of Brown Amusement or Winners World Lounge,
Inc." That fax was sent to the Respondent J.M. Brown on March 3, 1998.
3. A hearing was held into this matter as scheduled March 6, 1998. However, neither
any counsel for the Respondents nor the Respondents themselves appeared at the designated time
and place. Furthermore, the Respondents did not contact the Court to request a continuance.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law, as follows:
1. Administrative Law Judge Division Rule 29 (C)(1) sets forth 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 through 5), SCRCP . . . ." Rule 60 (B)
provides that:
On motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud, misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application.
In Grayson v. Stith, 181 Okla. 131, 72 P.2d 280 (1937), the Court held that when an attorney
abandons a client's case without notice and permits a default judgment against that client, the
attorney inflicts an "unavoidable casualty or misfortune on the client." Another term for
"unavoidable casualty or misfortune" is "surprise." 47 Am. Jur. 2d Judgments §815 (1982).
2. While the general rule is that the neglect of the attorney is attributable to the client,
this rule does not apply in the event of the attorney's abandonment or withdrawal from the case.
Graham v. Town of Loris, 272 S.C. 442, 248 S.E.2d 594 (1978). In fact, an attorney-client
relationship may arise even without a formal recognition of the relationship by the lawyer. In the
Matter of Warder, 316 S.C. 249, 449 S.E.2d 489 (1994).
3. To establish unilateral abandonment the moving party must prove the following
criteria. First, the client must believe that an attorney is representing them in a particular matter.
The client's belief must be one that a reasonable person would have under the same or similar
circumstances. Next, the attorney must withdraw or abandon the case without notifying the client
beforehand. If the client receives notice, then a mere failure to procure other counsel or request a
continuance will not provide grounds for relief. Finally, the attorney's conduct must constitute a
total withdrawal from the case, as opposed to mere negligence in failing to appear but still serving
as counsel for the client. 47 Am. Jur. 2d Judgments §81.
4. In this case, the evidence establishes that Mr. Allen was indeed representing the
Respondents and that he totally withdrew from the case. The Respondents were notified of his
withdrawal March 3, 1998, which was two days before the scheduled hearing. I find that though the
Respondents received notice of the withdrawal from their attorney, the short time period with which
they were left to retain another attorney or request a continuance warrants a rescheduling of another
hearing into this matter.
ORDER
Based upon the findings of fact and conclusions of law, it is hereby
ORDERED that the Order of Dismissal dated March 6, 1998 in this matter is vacated.
IT IS FURTHER ORDERED that this case be re-scheduled for a hearing on the merits.
Finding good cause,
IT IS HEREBY ORDERED that this action will now be heard on the merits before the
Honorable Ralph K. Anderson, III, Administrative Law Judge, at 3:00 p.m. Wednesday, July 15,
1998, at the Administrative Law Judge Division, Edgar Brown Building, Second Floor, 1205
Pendleton Street, Columbia, South Carolina.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
May 26, 1998
Columbia, South Carolina |
