ORDERS:
ORDER DENYING MOTION FOR RECONSIDERATION
This matter comes before me on Petitioner's Motion for Reconsideration of the Order of
Dismissal issued in the above-captioned case on August 18, 1998. This matter was dismissed after
Petitioner failed to appear at the hearing on August 13, 1998. Petitioner argues that its failure to
appear should be excused because its agent, William M. Bryson, Jr., did not receive notice of the
hearing and was incarcerated at the time of the hearing and unable to attend.
Pursuant to ALJD Rule 29(C), the Administrative Law Judge will grant a Motion for
Reconsideration subject to the following reasons set forth in Rule 60(B), SCRCP:
(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 cases permitting an agency to reconsider its decision, courts have emphasized that an 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, 66-67,
358 S.E.2d 707, 708-709 (1987). (citing 2 Am. Jur.2d Administrative Law § 522 et seq. (1962 &
Supp. 1986)).
On July 9, 1998, pursuant to ALJD Rule 15, notice of the contested case was sent via
certified mail, return receipt requested, to Bryson, the agent of the Petitioner, at his last known
address: 714 Evelyn Drive, Seneca. The letter was signed for by Lynn Bryson. Rule 5(b)(1),
SCRCP provides that "[s]ervice upon . . . a party shall be made by delivering a copy to him or by
mailing it to him at his last known address. . . ." (Emphasis added). See Schleicher v. Schleicher,
310 S.C. 275, 423 S.E.2d 147 (Ct. App. 1992). Although this tribunal properly served the Petitioner
by mail, no agent of the Petitioner informed the court that the incarceration of one of its agents
would prevent the Petitioner from appearing. Further, no agent of the Petitioner requested a
continuance of the matter.
As the Petitioner was served in accordance with Rule 5(b)(1), SCRCP and failed to appear
at or to request a continuance of the hearing, the Petitioner has failed to present grounds to justify
reconsideration of the matter pursuant to ALJD Rule 29(C). Accordingly, the Petitioner's motion
for reconsideration must be denied. AND IT IS SO ORDERED.
__________________________________
ALISON RENEE LEE
Administrative Law Judge
September 17, 1998
Columbia, South Carolina. |
