Tuesday, October 21, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Melvin S. Simpson

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Melvin S. Simpson
 
DOCKET NUMBER:
06-ALJ-21-0191-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL

On April 13, 2006, Respondent filed a Motion to Dismiss this matter with the Administrative Law Court (ALC or Court). Respondent argues the case should be dismissed because the South Carolina Department of Motor Vehicles (Department) failed to serve Respondent with its Notice of Appeal within thirty (30) days of the Department’s receipt of the final decision of the South Carolina 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.

(emphasis added).

The Department received the DMVH’s final decision on February 21, 2006. On March 8, 2006, it filed its Notice of Appeal with this Court. On the same day, it also mailed a copy of its Notice of Appeal to Respondent’s attorney at the following address: “Post Office Box 711, City, South Carolina 29.” The correct address for Respondent’s attorney is: “Post Office Box 717, Camden, South Carolina 29021.” Not surprisingly, Respondent’s attorney did not receive this copy of the Department’s Notice of Appeal. Thereafter, on April 5, 2006, after discovering its error, the Department again mailed a copy of its Notice of Appeal to Respondent’s attorney. This second mailing of the Department’s Notice of Appeal was correctly addressed to Respondent’s attorney, and it was received by him. However, it was clearly untimely under ALC Rule 33.

The Department fully acknowledges that it did not serve Respondent with its Notice of Appeal within the thirty (30) day time frame required by ALC Rule 33. Nevertheless, it argues that its error should be excused because the Department attempted to perfect service on March 8th, but “a typographical error” prevented Respondent’s attorney from actually receiving the Notice of Appeal. [1] However, it is well established that a court must dismiss an appeal where the appellant fails to serve the opposing party with the notice of appeal in a timely manner. See, e.g., Elam v. S.C. Dep’t of Transp., 361 S.C. 9, 602 S.E.2d 772 (2004); Southbridge Properties, Inc. v. Jones, supra. Importantly, this rule has been applied to appeals from decisions of administrative agencies. See, e.g., Sadisco of Greenville, Inc. v. Greenville County Bd. of Zoning Appeals, 340 S.C. 57, 530 S.E.2d 383 (2000); Burnette v. S.C. State Highway Dep’t, 252 S.C. 568, 167 S.E.2d 571 (1969).

The Department, nonetheless, argues that the South Carolina Supreme Court’s recent ruling in Johnston v. S.C. Dep’t of Labor, Licensing, and Regulation, S.C. Real Estate Appraisers Bd., 365 S.C. 293, 617 S.E.2d 363 (2005) has, in essence, overruled Elam and its predecessors. In Johnston, the respondent was a licensed real estate appraiser who was charged by the Real Estate Appraisers Board with violating certain regulations applicable to those in his profession. After an administrative hearing on the matter, the Board found that the respondent had committed the alleged violations and, therefore, issued a written order imposing a fine and suspending his license. Pursuant to S.C. Code Ann. § 40-60-150(C)(3) (Supp. 2005), the Board was required to serve written notice of its decision on the respondent within thirty (30) days of issuing its final order. However, notice of the Board’s decision was not properly served on the respondent until after the requisite thirty (30) day time period had expired. Because the Board did not serve notice of its decision on the respondent in a timely matter, the respondent claimed that the Board was divested of jurisdiction and that its decision was therefore void. The Supreme Court held that: “The failure to comply with a mandatory time requirement for serving a written decision does not affect the jurisdiction of the Board to determine the real estate appraiser disciplinary matter.” 617 S.E.2d at 365 (emphasis added). In making that determination the Court, nevertheless, specifically noted that the decisions of South Carolina Dep't of Highways and Pub. Transp. v. Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986), and Starnes v. South Carolina Dep't of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct.App.2000) were not applicable to its decision in Johnston. Thus the principle that an agency was deprived of jurisdiction for failure to hold the hearing within the required time was still valid.

Furthermore, at no point in its opinion did the Johnston court ever state that it was overruling Elam and its predecessors. Notably in this regard, the jurisdictional issue raised by untimely service of a notice of appeal is an important one, and it is one that arises fairly frequently. Moreover, the Supreme Court’s position on this issue has remained unchanged for over one hundred years. Furthermore, the “vast majority” of federal and state courts that have considered this issue have held that the untimely filing of a notice of appeal bars jurisdiction. See State v. Reid, 894 A.2d 963, 981 (Conn. 2006) (Norcott, J., concurring) and the cases cited therein. Thus, had the Supreme Court intended to change its position with respect to this issue, it almost certainly would have made this clear.

Therefore, I find that timely service of a notice of appeal is a jurisdictional requirement. Accordingly, the Department’s error is not one that can be excused by the ALC.

IT IS THEREFORE ORDERED that the Respondent’s Motion to Dismiss is GRANTED.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

June 20, 2006

Columbia, South Carolina



[1] Where service by mail is permitted, it is complete when the document is deposited with the United States Postal Service, properly addressed with sufficient postage. Southbridge Properties, Inc. v. Jones, 292 S.C. 198, 199, 355 S.E.2d 535, 536 (1987) (emphasis added). Here, the address used by the Department in its March 8th mailing to Respondent’s attorney did not have just one typographical error, as the Department suggests, but several. The post office box number, the city and the zip code were all wrong. In fact, the only part of the address that was correct was the state.