ORDERS:
ORDER OF DISMISSAL
STATEMENT OF THE CASE
This matter came before me on a Motion for Temporary Injunction filed by the Petitioner, Ronnie Thompson,
dated July 27, 2001. The Respondent, South Carolina Department of Social Services (DSS or Department),
filed a response to the Motion on July 30, 2001. A hearing was held before me on August 6, 2001, at the
offices of the Administrative Law Judge Division (ALJD or Division) in Columbia, South Carolina.
DISCUSSION
The Petitioner operates under a two year provisional child day care center license. DSS is charged with
issuing and regulating the licensing of those facilities. 27 S.C. Code Ann. Regs. 114-500 (Supp. 2000).
Pursuant to that authority, DSS sent a notice to the Petitioner of its intention to revoke the Petitioner's license
for alleged violations. Thereafter, the Petitioner filed an appeal and a "fair hearing" was held by the
Department on April 11, 2001. See 27 S.C. Code Ann. Regs. 114-110 (Supp. 2000). The Petitioner was
represented at the hearing by Lyndon B. Jones, Esquire. On May 3, 2001, the Department issued a Final
Decision emphasizing that the Petitioner had been given numerous extensions to correct the deficiencies and
upholding the revocation of the Petitioner's license. That decision was sent by certified mail to Mr. Jones.
Though the return receipt does not reflect the date of delivery, it was signed and returned to the Department
on May 11, 2001.
The Petitioner has not appealed the Department's Final Decision. Nevertheless, the Petitioner filed this
request for an injunction on July 27, 2001. The Respondent contends that the failure of the Petitioner to
timely appeal divests the Administrative Law Judge Division of subject matter jurisdiction. The Petitioner
testified that although Lyndon Jones informed him in writing that he could no longer represent him, that he
did not receive the Department's Final Decision from Mr. Jones. In support of his argument, the Petitioner
introduced a copy of the May 29, 2001 letter from Mr. Jones, which set forth, in part:
Please find enclosed the decision of DSS regarding your case. I am unable to handle an appeal due to my
relocating to New York. If you decide to appeal, I would be most willing to help anyone you plan to hire. I
could be reached at the above number.
The Petitioner contends that he did not receive either the above letter or the notice of the Department's Final
Decision from his attorney until July 23, 2001.
Jurisdiction
As set forth above, the Department argues that the Petitioner's failure to timely appeal the Department's Final
Decision divests the Administrative Law Judge Division of subject matter jurisdiction. In Hamm v. South
Carolina Public Service Com'n, the Supreme Court held that "[w]hile a literal reading of Section 1-23-380(b)
suggests the thirty days to appeal runs from the time the decision is made, we believe the statute must be read
to allow a party thirty days after notice of a decision to bring an appeal." Hamm v. South Carolina Public
Service Com'n, 287 S.C. 180, 181, 336 S.E.2d 470, 471 (S.C. 1985). The Petitioner's time for filing an
appeal was at the latest on June 11, 2001. Therefore, the filing of the Petitioner's motion in this case was
well past the thirty-day appeal period.
"Subject matter jurisdiction of a court depends upon the authority granted to the court by the constitution and
laws of the state." Paschal v. Causey, 309 S.C. 206, 209, 420 S.E.2d 863, 865 (Ct. App.1992). It "refers to
[the] court's power to hear and determine cases of the general class or category to which [the] proceedings in
question belong . . . ." Black's Law Dictionary 1425 (6th ed. 1990). The ALJD has subject matter
jurisdiction over appeals arising from the Department's "fair hearing" decisions concerning child day care
center license. S.C. Code Ann. § 20-7-2760 (Supp. 2000). Therefore, since the ALJD has subject matter
jurisdiction to hear this appeal, the issue is whether the jurisdiction of the ALJD to hear this case is divested
by the Petitioner's belated filing.
"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). I therefore find that S.C. Code Ann. § 1-23-380 (b)(Supp.
2000) operates as a "statute of limitations." Furthermore, though the ALJD is not divested of subject matter
jurisdiction in this case, the Petitioner's remedy to seek a contested case before this Division is foreclosed.
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).
In this case, the Petitioner's attorney clearly received notice of the Department's Final Decision. However,
the Petitioner never received his attorney's notice of withdrawal or the Department's Final Decision from his
attorney until July 23, 2001. 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). 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 (1982).
I find that the Petitioner established that his attorney unilaterally withdrew from representing him and that he
failed to receive notice of the Department's Final Decision until July 23, 2001. Nevertheless, since the
Petitioner has not appealed this case, he must establish the grounds for an injunction before the Department's
Final Decision can be stayed. (1)
Injunction
The Petitioner seeks an injunction prohibiting the Department from revoking his provisional child day care
center license and thereby shutting down his child care center pursuant to the Department's Final Decision
issued on May 3, 2001. In Powell v. Immanuel Baptist Church, 199 S.E.2d 60, 261 S.C. 219 (1973), the
Supreme Court held that the sole purpose of a temporary injunction is to preserve the status quo.
Furthermore, when a court is requested to issue a temporary injunction, it may consider the merits of a case to
determine whether the issuance of a temporary injunction is appropriate. Roberts v. Union County Board of
School Trustees, 284 S.C. 299, 326 S.E.2d 163 (Ct. App. 1985). The party seeking the injunction does not
have to show with certainty that he will prevail on the merits. Rather, the party must show that he has a "fair
question to raise." Williams v. Jones, 92 S.C. 342, 75 S.E.2d 705 (1912).
In this case, the Department revoked the Petitioner's license because he failed to comply with the codes of the
State Fire Marshall (e.g., failed to maintain a fire wall between his location and an adjoining business). The
Petitioner has not supported this motion with an affidavit or other evidence stating a ground for appeal. He
simply states that he needs more time to comply with the codes of the State Fire Marshall. I find that the
Petitioner failed to raise a sufficient question to warrant the potential perpetuation of a dangerous condition
for the children located in his day care.
IT IS THEREFORE ORDERED that this case be dismissed.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
August 28, 2001
Columbia, South Carolina
1. Even if the Petitioner's injunction request is an acceptable method of filing a Notice of Appeal, the Petitioner's only ground for
appeal is that he wishes to have more time to comply with the licensing requirements. That request does not state a ground for
appeal as provided in S.C. Code Ann. § 1-23-380(A)(6)(Supp. 2000). See Rule 33, ALJDRP.
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