ORDER OF DISMISSAL
matter is before the Administrative Law Court (“ALC”) pursuant to the Notice of
Appeal filed December 19, 2007, by Petitioner Rodney L. McDuffie (“McDuffie”).
On March 10, 2008, the Respondent South Carolina Department of Motor Vehicles
(“Department”) filed a Motion to Dismiss this appeal. The Department argues that
this appeal should be dismissed because McDuffie failed to serve the Department
with his Notice of Appeal within thirty (30) days of his receipt of the final
decision of the Division of Motor Vehicle Hearings (“DMVH”) in this matter. ALC
Rule 33 sets forth, in relevant part, that:
The notice of appeal from
the final decision of an agency to be heard by the Administrative Law Court
shall be filed with the Court and a copy served on each party and the agency
whose final decision is the subject of the appeal within thirty (30) days
of receipt of the decision from which the appeal is taken.
ALC Rule 33
DMVH Hearing Officer rendered a final decision on November 30, 2007. On December
19, 2007, McDuffie filed his Notice of Appeal with the Administrative Law Court
(“ALC”). No certificate of service was filed with McDuffie’s Notice of
Appeal. Although it appears McDuffie’s attorney contacted DMVH about the
appeal, there is no evidence in the Record to show that McDuffie served the
Department. On March 10,
2008, the Department filed a Motion to Dismiss
because it was never served with the Notice of Appeal. McDuffie has filed no
response to this motion.
South Carolina Supreme Court has stated:
The requirement of
service of the notice of appeal is jurisdictional, i.e., if a party misses the
deadline, the appellate court lacks jurisdiction to consider the appeal and has
no authority or discretion to ‘rescue’ the delinquent party by extending or
ignoring the deadline for service of the notice.
Elam v. S.C Dep’t
of Transp., 361 S.C. 9, 14-15, 602 S.E. 2d 772, 775 (2004); see also Southbridge Properties, Inc. v. Jones, 292 S.C. 198, 355 S.E. 2d 535
(1987) (applying appellate court rules and dismissing case for failure to serve
a notice of intent to appeal in a timely manner); Mears v. Mears, 287
S.C. 168, 337 S.E. 2d 206 (1985) (applying appellate court rules and finding
lack of jurisdiction for failure to serve a notice of intent to appeal in a
timely manner). As a result, this court lacks appellate jurisdiction over this
appeal. Therefore, it is
ORDERED that Respondent’s Motion to Dismiss is hereby GRANTED and that the
above-captioned appeal is hereby DISMISSED.
IS SO ORDERED.
PAIGE J. GOSSETT
Administrative Law Judge
April 17, 2008
Columbia, South Carolina