matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to
the filing of the Notice of Appeal on June 25, 2008. Appellant Montray C. Robinson
appeals the denial of his request for a reduction of his habitual offender
suspension period. DMVH Hearing Officer Debra M. Tippit issued an Order stating
same on May 20, 2008. The Record on Appeal was filed by the South Carolina
Department of Motor Vehicles (“Department”) on July 24, 2008.
July 31, 2008, the Department filed a Motion to Dismiss in this matter. The
Department contends that Appellant failed to serve a copy of the Notice of
Appeal on the Department as required by ALC Rule 33. See ALC Rule 33
(Rev. 2007) (“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 the receipt of the decision from which
the appeal is taken.”) (emphasis added). To date (September 17, 2008), the
Appellant has not filed a response to the Department’s Motion. As a result, I
find that this Court lacks jurisdiction over this appeal. See Elam v. S.C. Dep’t of Transp., 361 S.C. 9, 15, 602 S.E. 2d 772, 775 (2004)
(“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
this Court takes judicial notice that the Notice of Appeal from the decision
rendered on May 20, 2008, was filed on June 25, 2008. As a result, for this
reason as well, it is likely that this Court lacks jurisdiction over the
instant appeal. See ALC Rule 33, Elam, supra.
pursuant to ALC Rule 37, Appellant was required to file an appellate brief in
the above-referenced appeal with this Court “within thirty (30) days after the
filing of the Record on Appeal.” ALC Rule 37(A). The Division of Motor Vehicle
Hearings filed the Record on Appeal on July 24, 2008. However, to date
(September 17, 2008), Appellant has not filed an appellate brief in this
matter. ALC Rule 38 provides that:
Upon motion of any party, or on its own
motion, an administrative law judge may dismiss an appeal for failure to comply
with any of the rules of procedure for appeals, including the failure to comply
with any of the time limits provided by this section.
ALC Rule 38
virtue of his request for an appeal, Appellant had an obligation to advance his
position, and was given ample time to do so. Nevertheless, Appellant failed to
file an appellate brief in support of his appeal. “There is a limit beyond
which the court should not allow a litigant to consume the time of the court…” Georganne Apparel, Inc. v. Todd, 303, S.C. 87, 92, 399 S.E.2d 16, 19
(Ct. App. 1990).
based upon the forgoing reasons, I find that the Department’s Motion should be
granted, and this matter be dismissed.
IS HEREBY ORDERED that the Department’s Motion to Dismiss is GRANTED and this matter be DISMISSED, WITH PREJUDICE.
AND IT IS SO
John D. McLeod
September 17, 2008
Columbia, South Carolina