matter is an appeal by Appellant Herman Marion Durham from a Final Order and
Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH). The
DMVH’s Final Order and Decision was issued following an administrative hearing held
pursuant to S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2007). Durham contends that the DMVH hearing officer erroneously denied his motion for
reconsideration. The Administrative Law Court (ALC or Court) has jurisdiction
to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon
consideration of the briefs, the DMVH’s Final Order and Decision is reversed,
and this matter is remanded to the DMVH for a new hearing.
On December 26, 2007,
Officer B.K. Carver of the South Carolina Highway Patrol arrested Durham for driving under the influence and transported him to a detention center for a DataMaster
test. Durham was subsequently issued a Notice of Suspension pursuant to S.C.
Code Ann. § 56-5-2951(A) (2006) for refusing to submit to the DataMaster test.
Pursuant to S.C. Code
Ann. § 56-5-2951(B)(2) (2006), Durham filed a request with the DMVH for an
administrative hearing to challenge his suspension. The DMVH scheduled Durham’s hearing for February 4, 2008. By a letter dated January 17, 2008, Durham requested a continuance. On January 29, 2008, the DMVH issued an Order of
Continuance and Notice of Hearing granting Durham’s continuance request and
informing the parties that the case had been rescheduled for March 17, 2008. Two
days later, the DMVH issued a second Order of Continuance and Notice of Hearing
informing the parties that the case had been rescheduled for March 24, 2008
because the DMVH hearing officer was unavailable on March 17, 2008.
On March 17, 2008, both
Durham and Officer Carver appeared at the time and place set forth in the
first Order of Continuance and Notice of Hearing. However, the DMVH hearing officer
did not appear and no hearing was held. On March 24, 2008, the DMVH hearing
officer appeared at the time and place set forth in the second Order of
Continuance and Notice of Hearing, but neither Durham nor Officer Carver appeared.
March 31, 2008, the hearing officer issued an Order of Dismissal pursuant to
DMVH Rule 13 in which she dismissed the case in favor of the Respondents. On
April 3, 2008, Durham filed a Motion for Reconsideration with the DMVH hearing
officer pursuant to DMVH Rule 15(D). In his motion, Durham claimed that he was
unaware that the hearing had been rescheduled for March 24, 2008, and he asked
for relief from the Order of Dismissal under the grounds set forth in Rule
60(B)(1), SCRCP. The hearing officer subsequently denied his motion. Durham now appeals.
Did the DMVH hearing officer abuse her
discretion by denying Durham’s Motion for Reconsideration?
STANDARD OF REVIEW
The DMVH is authorized
by law to determine contested cases arising from the South Carolina Department
of Motor Vehicles (Department). See S.C. Code Ann. § 1-23-660 (Supp. 2007).
Therefore, the DMVH is an “agency” under the Administrative Procedures Act (APA).
See S.C. Code Ann. § 1-23-505(2) (as amended by 2008 S.C. Act No. 334).
As such, the APA’s standard of review governs appeals from decisions of the
DMVH. See S.C. Code Ann. § 1-23-380 (as amended by 2008 S.C. Act No.
334); see also Byerly Hosp. v. S.C. State Health & Human
Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). The standard
used by appellate bodies – including the ALC – to review agency decisions is
provided by S.C. Code Ann. §1-23-380(5) (as amended by 2008 S.C. Act No. 334). See S.C. Code Ann. § 1-23-600(E) (as amended by 2008 S.C. Act No. 334) (directing
administrative law judges to conduct appellate review in the same manner
prescribed in § 1-23-380). This section provides:
The court may not substitute its judgment for the judgment of
the agency as to the weight of the evidence on questions of fact. The court
may affirm the decision of the agency or remand the case for further proceedings.
The court may reverse or modify the decision [of the agency] if substantial
rights of the appellant have been prejudiced because the administrative
findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional or statutory
(b) in excess of the statutory authority of the
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of
the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of
S.C. Code Ann. §
1-23-380(5) (as amended by 2008 S.C. Act No. 334).
An abuse of discretion occurs when a court’s decision is
without evidentiary support or is controlled by an error of law. Allen v.
S.C. Alcoholic Beverage Control Comm’n, 321 S.C. 188, 192, 467 S.E.2d 450,
452 (Ct. App. 1996). The burden is on the appellant to show that there is an
abuse of discretion. Johnson v. Hoechst Celanese Corp., 317 S.C. 415, 421,
453 S.E.2d 908, 912 (Ct. App. 1995).
Durham argues that the
DMVH hearing officer abused her discretion by denying his Motion for Reconsideration.
The Court agrees.
DMVH Rule 15(D)
provides in part: “Any party may move for reconsideration of a final decision
of a hearing officer in a contested case, subject to the grounds for relief set
forth in Rule 60(B) (1 through 5), SCRCP . . .” Under Rule 60(b)(1), SCRCP, a court
may relieve a party from a final judgment for “mistake, inadvertence, surprise,
or excusable neglect.” “In determining whether to grant a motion under Rule
60(b), the trial judge should consider: (1) the promptness with which relief is
sought, (2) the reasons for the failure to act promptly, (3) the existence of a
meritorious defense, and (4) the prejudice to the other party.” Mictronics,
Inc. v. S.C. Dep’t of Revenue, 345 S.C. 506, 510-11, 548 S.E.2d 223, 226
(Ct. App. 2001).
In Mictronics, the
Court of Appeals addressed the question of whether an administrative law judge
(ALJ) abused his discretion by refusing to reopen a case that was dismissed due
to the petitioner’s failure to appear at the hearing scheduled in the matter. In
that case, the petitioner’s hearing was originally scheduled for May 14, 1996.
However, because of a conflict in his schedule, the ALJ rescheduled the hearing
for May 22nd by issuing an amended notice of hearing on April 26th.
A member of the ALJ’s staff also called the petitioner’s president and told him
that the hearing was rescheduled. However, from that phone conversation, the
president understood the hearing to be rescheduled for June 22. The
respondent’s counsel received a similar phone call, but understood the hearing
to be rescheduled for May 22. Because of its president’s misunderstanding
about the date of the hearing, the petitioner did not appear at the May 22nd hearing and the case was dismissed. The petitioner’s president immediately
sent a letter to the ALJ stating that he had misunderstood the date of the
hearing and requesting that the matter be reopened with a new hearing date.
The ALJ denied his request. On appeal of the matter, the Court of Appeals held
that the ALJ abused his discretion by refusing to reopen the case. The court
explained in part:
Here, Mictronics made an error with respect to the hearing
date and immediately sought relief from the dismissal. In Columbia Pools,
Inc. v. Galvin, 288 S.C. 59, 339 S.E.2d 524 (Ct. App. 1986), this court
found that a trial judge abused his discretion in refusing to grant a motion to
set aside a default judgment granted after an answer was received one day late.
The court there held that “where there is a good faith mistake of fact, and,
no attempt to thwart the judicial system, there is basis for relief.” This is
consistent with South Carolina’s policy favoring the disposition of issues on
their merits rather than on technicalities. We find no evidence in the record
that the mistake was anything but a good faith error, as shown by Blocker’s
explanation coupled with his speed in asking the ALJ for relief.
Mictronics, 345 S.C. at 511,
548 S.E.2d at 226 (internal citations omitted). The Court also noted that the
respondent would “suffer no prejudice should this case proceed for a
determination on the merits.” Id. at 512; 548 S.E.2d at 226.
like in Mictronics, Durham made a mistake with respect to the date of
the administrative hearing, and there is no evidence that Durham’s mistake was anything
but a good faith error. In fact, Officer Carver apparently made the same
mistake that Durham made. Moreover, according to Durham’s Motion for
Reconsideration, Durham attempted (unsuccessfully) to contact the hearing
officer on March 17, 2008 after the hearing officer did not appear at the time
and place set forth in the first Order of Continuance and Notice of Hearing. Furthermore,
once Durham received the Order of Dismissal, he quickly sought relief. Durham’s Motion for Reconsideration was filed on April 3, 2008, just three days after the
hearing officer issued her Order of Dismissal. Finally, neither of the
Respondents have argued that they would suffer prejudice if the case were
reopened. Therefore, in light of Durham’s good faith mistake, his prompt
action to remedy his error, South Carolina’s policy favoring the disposition of
issues on their merits rather than on technicalities, and the lack of prejudice
to the Respondents, the Court concludes that the hearing officer erred in refusing
to grant Durham’s Motion for Reconsideration.
IS THEREFORE ORDERED that the DMVH’s Order Denying Motion for Reconsideration
is REVERSED and that this matter shall be remanded to the DMVH for a new
IT IS SO ORDERED.
King Anderson, III
September 4, 2008
Columbia, South Carolina