ORDERS:
ORDER GRANTING MOTION TO DISMISS
This matter is before the Administrative Law Judge Division ("Division") pursuant to Respondent's Motion to Dismiss filed August
17, 2000. Respondent asserts in its motion that Petitioner failed to timely appeal from Respondent's determination to the Horry
County Board of Assessment Appeals ("Board"). Respondent further asserts Petitioner failed to timely appeal the Board's decision to
the Division. Petitioner did not file a response to Respondent's Motion to Dismiss.
According to S.C. Code Ann. § 12-60-2540(A) (2000), "[w]ithin thirty days after the date of the board's written decision, a property
taxpayer or county assessor may appeal a property tax assessment made by the board by requesting a contested case hearing before the
Administrative Law Judge Division." This section sets forth a fixed period of time by which an individual can seek a contested case
hearing before the Division. "A statute of limitations has been defined as the action of the state in determining that after the lapse of a
specified time a claim shall not be enforceable in a judicial proceeding. Thus, any law which creates a condition of the enforcement
of a right to be performed within a fixed time may be defined as a statute of limitations." 51 Am. Jur. 2d Limitation of Actions § 2
(1970). Furthermore,
There has been some difference of opinion among the authorities whether, at least in the absence of an expression of the legislature in
this particular respect, the running of a statute of limitations operates to extinguish merely the remedy or to extinguish the substantive
right as well as the remedy. The general rule in this respect, supported by the great preponderance of the authorities on the subject, is
that a statute of limitations operates on the remedy directly only and does not extinguish the substantive right. Under this rule the
courts have regarded true statutes of limitation as doing no more than cut off resort to the courts for enforcement of the substantive
claim or right.
51 Am. Jur. 2d Limitation of Actions § 22 (1970). Section 12-60-2540(A), therefore, operates as a "statute of limitations."
In this case, the Board issued its final decision on May 3, 2000. Petitioner did not appeal the Board's decision until July 25, 2000,
when Petitioner filed the Notice of Request for Contested Case Hearing with the Division. To timely appeal the Board's decision,
Petitioner must have filed a request for a contested case hearing on or before June 2, 2000. As a result, Petitioner's appeal to the
Division was not timely. Moreover, this court has no authority to expand the time in which the request for a hearing must be filed.
See Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985). IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is
granted and this case is dismissed with prejudice.
AND IT IS SO ORDERED.
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MARVIN F. KITTRELL
Chief Administrative Law Judge
September 13, 2000
Columbia, South Carolina |
