Wednesday, November 26, 2014

SC Administrative Law Court Decisions

CAPTION:
Robert S. Smith vs. SCDMV

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Robert S. Smith

Respondents:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
08-ALJ-21-0555-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

This is an appeal before the Administrative Law Court (ALC) from an Order dated October 21, 2008, issued by Robert F. Harley, Jr., an Administrative hearing Officer of the Office of Motor Vehicle Hearings (OMVH).

As appears from the Certificate of Service endorsed on the Order, the same was served upon all parties by mail on October 21, 2008.

By letter to the ALC and OMVH dated December 10, 2008, Appellant notified this Court of receipt of two letters from the South Carolina Department of Motor Vehicles (DMV) dated December 1, 2008, and asserting that the two letters were the first notice he received which gave him notice of the order of October 21, 2008, abovementioned. Appellant’s letter to the Court also asserted that “we wish to have another hearing to appeal the decision ….” The letter was not sent to DMV.

DMV was a party to the proceeding before OMVH.

This letter of December 10, 2008, was accepted by the Clerk of the ALC as a Notice of Appeal and it was assigned docket #08-ALJ-21-0555-AP.

On December 31, 2008, DMV served Appellant with a Notice of Motion and motion to Dismiss upon the ground that Appellant had not served DMV with a copy of the Notice of Appeal within thirty (30) days of receipt of the decision from which the appeal is taken.

By December 10, 2008, Appellant clearly had notice of that an adverse decision had been taken against him because he acknowledged the same in his letter to the Court of that date. The record, however, reveals no service of the Notice of Appeal upon DMV until January 26, 2009, or well more than thirty (30) days after Appellant clearly had notice of the adverse decision appealed from.

LAW/ANALYSIS

Rule 17 of OMVH provides that decisions of OMVH may be appealed to the ALC “as provided by law.”

S.C. Code Ann. § 1-23-660(D) (Supp. 2007) provides that such appeals are governed by the ALC appellate rules of procedure, i.e., ALC Rule 33:

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.

Elam v. S.C. Department of Transportation, 361 S.C. 9, 15, 602 S.E. 2d 772, 775 (2004) stands for the proposition that:

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.

As a result, this Court lacks jurisdiction over the appeal.

IT IS HEREBY ORDERED that this matter is DISMISSED for lack of jurisdiction.

AND IT IS SO ORDERED.

February 9, 2009

Columbia, SC

___________________________________

John D. McLeod, Judge

S.C. Administrative Law Court


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