Monday, November 24, 2014

SC Administrative Law Court Decisions

CAPTION:
Rodney L. McDuffie vs. SCDMV

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Rodney L. McDuffie

Respondents:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
08-ALJ-21-0027-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL

This 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 (emphasis added).

The 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.[1] On March 10, 2008, the Department filed a Motion to Dismiss


this matter because it was never served with the Notice of Appeal. McDuffie has filed no response to this motion.

The 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.

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

April 17, 2008

Columbia, South Carolina



[1] The Division of Motor Vehicle Hearings (“DMVH”) is a separate entity from the Department of Motor Vehicles (“Department”). See S.C. Code Ann. § 1-23-660 (Supp. 2007) (“There is created within the Administrative Law Court the Division of Motor Vehicle Hearings”). The Department, as well as the law enforcement agency involved in the case, if any, are, by statute, parties to all proceedings before the DMVH. See id.


~/pdf/080027.pdf
PDF