ORDERS:
ORDER ON REMAND
This tribunal issued its Final Order and Decision in the above-captioned matter on July 2, 1999. That decision is currently on
appeal before the South Carolina Court of Appeals. Pursuant to an Order of Judge William L. Howard of the Court of Appeals
filed on March 26, 2002, this case was remanded to this tribunal solely for the consideration of two motions regarding newly
discovered evidence in this matter. Specifically, Respondent South Carolina Department of Health and Environmental Control
(DHEC) learned that, despite testimony to the contrary in the hearing held before this tribunal, its witnesses did not take five of
the thirty-five photographs admitted into evidence in this matter. Consequently, DHEC moved the Court of Appeals to correct
the record in this case to reflect this error. In response to DHEC's motion, Petitioner moved for a remand of the case to
address these evidentiary issues. The Court construed Petitioner's motion as a request for leave to move this tribunal for relief
from the order on appeal based upon newly discovered evidence and granted such leave, specifically limited to the disputed
photographs. The Court also remanded DHEC's motion to correct an error in the record to this tribunal for review. Each
motion will be addressed in turn.
Petitioner's Motion for Relief from the Final Order and Decision
As noted above, the Court of Appeals construed Petitioner's motion for remand as a motion for leave to move the
Administrative Law Judge Division (ALJD or "Division") for relief from this tribunal's Final Order and Decision in this matter
based upon newly discovered evidence. The ALJD Rules of Procedure do not directly address the standard for ruling on a
motion for relief from an order based upon newly discovered evidence. (1) However, ALJD Rule 68 allows the South Carolina
Rules of Civil Procedure to be applied, where practicable, in proceedings before the Division to resolve questions not
addressed by the ALJD Rules. Here, Rule 60(b) of the South Carolina Rules of Civil Procedure provides guidance on how to
address Petitioner's motion; it states:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment,
order, or proceeding for the following reasons:
. . .
(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);
. . . .
The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment,
order or proceeding was entered or taken.
Rule 60(b)(2), SCRCP. The decision of whether to grant relief under Rule 60(b), SCRCP, is within the sound discretion of the
trial court and will only be reversed for an abuse of discretion. See Coleman v. Dunlap, 306 S.C. 491, 494-95, 413 S.E.2d 15,
17 (1992); James F. Flanagan, South Carolina Civil Procedure 485 (2d ed. 1996).
In the case at hand, there is little room for this tribunal to exercise discretion in ruling upon Petitioner's motion, as the motion
is plainly untimely. As noted above, motions for relief from a judgment made under Rule 60(b)(2) must be made within a
reasonable time not more than one year after the judgment was entered. Rule 60(b), SCRCP; Evans v. Gunter, 294 S.C. 525,
528-29, 366 S.E.2d 44, 46 (Ct. App. 1988). Further, this one-year provision is an "absolute time limit" that cannot be
extended by the court or by stipulation of the parties. Coleman, 306 S.C. at 495, 413 S.E.2d at 17; Rule 6(b), SCRCP;
Flanagan, supra, at 480. The Final Order and Decision in this case was filed on July 2, 1999; Petitioner did not file his motion
requesting leave to move this tribunal for relief from that Final Order and Decision with the Court of Appeals until December
28, 2001. Thus, even if one considers Petitioner's motion for remand-his earliest filing on this issue-as his motion for relief,
the motion must be deemed untimely, as it was filed nearly a year and a half after this tribunal's final order was entered.
Moreover, even if Petitioner's motion was not barred by the one-year absolute time limit of Rule 60(b), Petitioner's motion
does not present sufficient grounds upon which to disturb this tribunal's Final Order and Decision. Even if the five
misidentified photographs are disregarded in their entirety, the remaining evidence in the record, including testimony of
personal observations of Petitioner's property and the remaining thirty, properly identified photographs, amply supports the
conclusions reached in the Final Order and Decision. The five disputed photographs are merely cumulative to other evidence
in the record. Thus, the newly discovered evidence regarding the source of five of the thirty-five photographs entered into
evidence in this matter is inconsequential and its consideration would not affect the outcome of this case. See Flanagan, supra,
at 484 (noting that, to merit relief under Rule 60(b)(2), the "newly discovered evidence must be material, and have a significant
impact on the outcome of the case").
Petitioner's motion for relief from this tribunal's Final Order and Decision of July 2, 1999 must be denied as untimely and
without merit.
Respondent's Motion to Correct an Error in the Record
In addition to granting Petitioner leave to file his motion for relief from the Final Order and Decision in this case, the Court of
Appeals remanded DHEC's motion to correct an error in the record below to this tribunal. This motion must also be denied.
Generally, the trial court retains jurisdiction of its record, and has the power to correct it. 4 C.J.S. Appeal & Error § 542
(1993). However, this power of correction is confined to showing correctly the history of the proceedings before the appeal. Id.; see also S.C. State Highway Dep't v. Meredith, 241 S.C. 306, 312, 128 S.E.2d 179, 182 (1962) (holding that "it is within
[the trial court's] power and its plain duty to have [errors] corrected so that a full, true and perfect transcript of the whole
proceedings as they actually occurred in the progress of the cause may be set up"). Accordingly, both the ALJD Rules of
Procedure and the South Carolina Rules of Civil Procedure allow for the correction of clerical mistakes and other errors in the
record arising from oversight or omission. See ALJD Rule 67; Rule 60(a), SCRCP. Here, there is no allegation that the record
of the proceedings before this tribunal is not a full, true and perfect transcript of the whole proceedings as they actually
occurred. The testimony of the DHEC witnesses, albeit mistaken in part, is accurately transcribed in the record. And, DHEC
does not seek to correct such a technical error in the record; rather, DHEC seeks to introduce wholly new evidence regarding
the source of certain photographs into the record. Such a request goes beyond the permissible bounds of a motion to correct an
error in the record below, and must, therefore, be denied. See 4 C.J.S. Appeal & Error § 538 (1993) ("The appeal record will
not be amended to cure defects in proof caused by the failure of counsel to have omitted matter admitted in evidence, or to
include evidence not offered or presented at trial."). (2)
The record in this matter was exhaustively reviewed and this case was fully adjudicated in the original proceedings before this
tribunal. The mistaken testimony of two DHEC witnesses regarding the source of five of thirty-five photographs entered into
evidence in this case is neither a ground upon which to reconsider the decision rendered in this matter nor an "error" in the
accuracy of the record that needs correcting. Further, even if the five disputed photographs are disregarded, the eye-witness
testimony and other pictorial evidence in the record fully support the conclusions reached in the Final Order and Decision. In
short, fundamental fairness does not require, and judicial economy counsels against, any further consideration of the
authentication of these five disputed photographs.
ORDER
For the reasons set forth above,
IT IS HEREBY ORDERED that Petitioner Doug Proctor's motion for relief from the July 2, 1999 Final Order and Decision
in this case based upon newly discovered evidence is DENIED.
IT IS FURTHER ORDERED that Respondent DHEC's motion to correct an error in the record of this matter is DENIED.
IT IS FURTHER ORDERED that all other motions filed by the parties in the proceedings on remand are DENIED as moot.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
April 26, 2002
Columbia, South Carolina
1. ALJD Rule 29D does provide for motions for reconsideration of final decisions in contested cases and does expressly
incorporate portions of Rule 60(b), SCRCP, the South Carolina Rule of Civil Procedure addressing relief from a final
judgment or order due to mistake, neglect, newly discovered evidence, fraud, and the like. However, motions for
reconsideration under Rule 29D, which must be made within ten days after notice of the administrative law judge's
decision, are more akin to motions to alter or amend a judgment under Rule 59, SCRCP, or motions for rehearing under
Rule 221, SCACR, than to motions for relief from a judgment based upon newly discovered evidence under Rule 60(b),
SCRCP. Compare ALJD Rule 29D (requiring motion for reconsideration to be filed within ten days of notice of the order) and Rule 59(e), SCRCP (requiring motion to alter or amend a judgment to be filed within ten days after receipt of written
notice of the entry of the order) and Rule 221(a), SCACR (requiring petitions for rehearing to be received by the appellate
court within fifteen days after the filing of the opinion, order, or judgment) with Rule 60(b), SCRCP (allowing motions for
relief under Rule 60(b)(1)-(3) to be made in a reasonable time not more than one year from the date of the order and
permitting motions for relief under Rule 60(b)(4)-(5) to be made within any length of time after a judgment so long as it is
reasonable). Accordingly, Petitioner's motion for relief from a judgment based upon newly discovered evidence, unlike a
motion for reconsideration based on mistake or excusable neglect, is more appropriately evaluated under the longer time
allowances of Rule 60(b) than the relatively limited time frame of ALJD Rule 29D. Ten days is simply not much time to
discover new evidence. See James F. Flanagan,
South Carolina Civil Procedure 484 (2d ed. 1996) ("Because the time
period for a motion under [Rule 59(b)] is ten days at most, relief on this ground [i.e., newly discovered evidence] will
normally be under Rule 60(b)(2).").
2. Further, even if this tribunal were to construe DHEC's motion to correct an error in the record below as a motion under
Rule 60(b)(2), SCRCP, to reopen the Final Order and Decision based upon newly discovered evidence, DHEC's motion
would be unsuccessful. As held above with regard to Petitioner's motion, such a motion would be both untimely, as filed
more than one year after the issuance of this tribunal's final order, and without merit, as pertaining to the authentication of
evidence that is merely cumulative in this matter.
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