ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is before me pursuant to an Order of Remand issued by the Court of Common
Pleas for Charleston County, South Carolina. This case was remanded to the Administrative Law
Judge Division for a hearing on the Petitioner's Motion to Reopen this matter, and for the issuance
of an Order containing findings of fact and conclusions of law. A hearing on the Motion was held
on October 29, 1998. For the following reasons, the Petitioner's Motion to Reopen is hereby denied.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the parties, I make the
following Findings of Fact by a preponderance of evidence:
1. Petitioner is a South Carolina corporation. In February of 1996, Petitioner filed a
request for a contested case hearing with the Administrative Law Judge Division, stating that it was
entitled to an exemption from South Carolina sales and use tax.
2. On March 7, 1996, the parties to the case were served with a Notice of Hearing,
which
scheduled a hearing on the merits of Petitioner's claim for May 14, 1996, and which provided that
"a failure to appear at the hearing may result in. . . dismissal of the case or striking of the pleading
of the party who fails to appear. . . ."
3. On or about April 25, 1996, the parties were advised by telephone call from the
Division that the hearing had been rescheduled to May 22, 1996, due to a scheduling conflict. As
a result of this conversation, the Department's counsel understood the hearing to be rescheduled to
May 22, 1996, at 9:30 a.m.
4. During his telephone conversation with the Division, the President of Petitioner
mistakenly understood the hearing to be rescheduled to June 22, 1996, and made a handwritten note
to that effect in his file. However, there is nothing on this note to indicate when it may have been
written.
5. Following its oral communications with the parties concerning the change of the
hearing date, the Court issued an Amended Notice of Hearing, dated April 26, 1996, stating that the
hearing had been rescheduled for May 22, 1996, and which further provided that "[a]ll other
provisions of the previous Notice of Hearing remain in effect."
6. Petitioner admits receiving the Amended Notice of Hearing, but failed to realize the
correct hearing date.
7. On May 9, 1996, the Department filed with the Division and served on the Petitioner
a Motion to Dismiss the case on the grounds that Petitioner had not filed its Prehearing Statement.
This Motion to Dismiss contains a reference to the continuance of the hearing until May 22, 1996.
8. Petitioner failed to appear at the hearing on May 22, 1996. The Petitioner made no
request for a continuance of the case, nor did it obtain consent not to appear at the hearing. The
Respondent moved to dismiss the case, and on May 29, 1996, the Court entered an Order of
Dismissal, stating that the case had been dismissed in accordance with ALJD Rule 23.
9. By letter dated June 1, 1996, the Petitioner informed the Court of his mistake as to
the correct hearing date, and requested that the case be reopened. The Court construed this letter as
a Motion to Reopen, and denied the motion in an Order dated June 19, 1996.
10. Petitioner appealed the Order of June 19 to the Charleston County Court of Common
Pleas. On October 3, 1996, the Court of Common Pleas issued its Order remanding this case to the
Administrative Law Judge Division for a hearing on Petitioner's Motion to Reopen, and the issuance
of an Order containing findings of fact and conclusions of law with respect to whether the Petitioner
"should be relieved of the default adjudication issued against it pursuant to Order of the
Administrative Law Judge dated May 29, 1996."
CONCLUSIONS OF LAW
Based on the foregoing, I conclude the following as a matter of law:
1. ALJD Rule 23 provides in pertinent part:
The administrative law judge may dismiss a contested case or dispose
of a contested case adverse to the defaulting party. A default occurs
when a party fails to plead or otherwise prosecute or defend, fails to
appear at a hearing without the proper consent of the judge or fails to
comply with any interlocutory order of the administrative law judge.
(Emphasis added). In this case, the Petitioner was in default because he failed to attend the May 22,
1996 hearing without having moved for a continuance or having sought permission from the Court
not to appear.
2. Pursuant to ALJD Rule 29(D), the Administrative Law Judge may grant a motion for
reconsideration pursuant to the following grounds set forth in SCRCP 60(b): (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.
3. Petitioner asserts that the Motion to Reopen should be granted because the Order of
Dismissal was entered as the consequence of mistake, inadvertence, surprise, or excusable neglect.
In support of this argument, Petitioner states that, as a result of the Division's telephone call
rescheduling the hearing to May 22, 1996, its president mistakenly assumed that the hearing had in
fact been rescheduled to June 22, 1996, and made a note to that effect.
The Court of Appeals held in Columbia Pools, Inc. v. Galvin, 288 S.C. 59, 339 S.E.2d 524
(Ct. App. 1986) that a "good faith mistake of fact" alone may constitute sufficient grounds for
vacating a default judgment. In this case, however, I cannot conclude that Petitioner's mistaken
assumption as to the hearing date constitutes sufficient grounds to reopen the case. First, there is no
evidence, other than the assertion of Petitioner's president, to indicate whether the Division actually
misinformed him as to the hearing date. There is no date or other notation on the handwritten note
to indicate when it was composed. Additionally, had Petitioner's president checked the calendar,
he would have seen that June 22, 1996, fell on a Saturday, a day on which court proceedings are not
routinely scheduled. Most importantly, even if the Petitioner had been given an incorrect date during
the telephone call, Petitioner had two subsequent opportunities to realize the correct hearing date--first, when the Division sent its Amended Notice of Hearing, which contained the correct date in
writing, and second, when the Department served its Motion to Dismiss, which also referred to the
May 22 hearing date. Petitioner admits to having received the Amended Notice of Hearing, but
apparently failed to read it. "[A] party has a duty to monitor the progress of his case. Lack of
familiarity with legal proceedings is unacceptable and the court will not hold a layman to any lesser
standard than is applied to an attorney." Goodson v. American Bankers Ins. Co. of Florida, 295 S.C.
400, 368 S.E.2d 687, 689 (Ct. App. 1988).
Under the circumstances of this case, I conclude that the Petitioner received adequate notice
of the hearing and that its failure to attend the hearing cannot be excused on the basis of mistake,
inadvertence, surprise or excusable neglect.(1) Petitioner's Motion to Reopen this case is, therefore,
denied.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED
that Petitioner's Motion to Reopen this case is DENIED. This Court's Order of May 29, 1996 shall
remain in full force and effect.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
April 2, 1999
Columbia, South Carolina
1. In its brief filed in the Court of Common Pleas, Petitioner asserted that the Amended
Notice of Hearing was defective because it did not give thirty days' notice of the rescheduled
hearing date. See ALJD Rule 15. However, it is undisputed that the original Notice of Hearing,
dated March 7, 1996, which originally scheduled the hearing for May 14, 1996, provided more
than thirty days' notice. There is no requirement, either in the ALJD Rules or in the
Administrative Procedures Act, that parties must also be given thirty days' notice each time a
hearing date is rescheduled. |
