ORDERS:
ORDER ON MOTION TO RECONSIDER
Louise E. Miller (Miller) and James Mast (Mast) failed to follow an Order requiring a filing of their
prehearing statements by the already extended deadline of June 20, 1997. Since Miller and Mast
assured the ALJD that a settlement was underway, both Miller and Mast were ordered to file either a settlement agreement or a prehearing statement by July 3, 1997. No documents of any kind were
filed by the July 3, 1997 deadline. On July 8, 1997, an Order of Default was issued ending the
matter. On July 17, 1997 Miller and Mast filed a Motion for Reconsideration. For the reasons stated
below, the motion is denied.
First, no dispute exists that Miller and Mast missed the June 20, 1997 deadline and the second
deadline of July 3, 1997. The second deadline was given after assurances by Miller and Mast that
either a prehearing statement or a settlement agreement would be filed on the July 3, 1997 date.
Miller and Mast assert that they did not file a prehearing statement "[i]n reliance on the statement
by the [White's] attorney that settlement was imminent . . ." I do not find Miller and Mast have
provided a sufficient basis justifying a reconsideration.
First, even if the allegations of an imminent settlement were true, the possibility of a fruitful
settlement negotiation does not justify a failure to file a document as basic as the prehearing
statement. The prehearing statement seeks fundamental information explaining the nature of this
dispute, stating the statutory provisions conferring subject matter jurisdiction, explaining the issues
to be decided, notifying the ALJ of the action requested, and setting out a brief summary of the facts
to be presented at the hearing.
Rarely is the possibility of a settlement a persuasive basis for exceeding a deadline. For instance,
in Arnet Lewis Const. Co., Inc. v. Smith-Williams & Assocs., Inc., 269 S.C. 143, 236 S.E.2d 742
(1977), the petitioner sent a letter to the respondent offering to negotiate and work toward a
settlement regarding the payment of money alleged to be owed. "The respondent stated in the letter
that it had to commence suit to protect its legal rights and that no hearings or court appearances
would be sought so long as negotiations remained viable." Id. at 744 (emphasis added). Despite
that representation, the court found "[n]o portion of the letter, considered either in context or in
isolation, can be deemed an intention on the part of the respondent to grant an extension of time to
answer or to file other responsive pleadings." Id. Settlement negotiations do not excuse the failure
to file timely.
Second, the failure to file a document that has been ordered to be filed is an ill advised practice if
the basis for the failure to file is the reliance upon a purported settlement. The accepted standard is
that "[n]o agreement between counsel affecting the proceedings in an action shall be binding unless
reduced to the form of a consent order or written stipulation signed by counsel and entered in the
record, or unless made in open court and noted upon the record." Rule 43(k), SCRCP made
applicable by Rule 52, ALJD. See Galloway v. Regis Corp., ___ S.C. ___, 481 S.E.2d 714, 715 (Ct.
App. 1997); Widewater Square Assocs. v. Opening Break of America, Inc., 319 S.C. 243, 460
S.E.2d 396 (1995), and Ashfort Corp. v. Palmetto Constr. Group, Inc., 318 S.C. 492, 458 S.E.2d
533 (1995). Thus, even if the settlement were imminent, the filing of some document with the ALJ
was warranted as opposed to ignoring an order directing the filing of a prehearing statement or a
settlement agreement.
Finally, counsel for White disputes that any settlement was imminent. In support of this view, the
Motion for Reconsideration acknowledges that Whites' counsel "indicated that he felt that some
settlement could be reached by the end of the day [July 1, 1997]." Such an assertion does not mean
that a settlement must be reached. Instead the statement best suggests that if a settlement were to
be reached it would be done quickly. No settlement having been reached by the end of the day on
July 1, 1997, Miller and Mast should have been even more keenly aware that a prehearing statement
was required.
Miller and Mast have not demonstrated justification or good cause to reconsider the provisions of
the Order of Dismissal for Default. Therefore, the Motion For Reconsideration is denied.
AND IT IS SO ORDERED.
___________________________________
RAY N. STEVENS
ADMINISTRATIVE LAW JUDGE
This the 7th day of August, 1997.
Columbia, South Carolina. |