ORDER OF DISMISSAL
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.
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.
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. 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
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.
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.
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.
IS THEREFORE ORDERED that the Respondent’s Motion to Dismiss is GRANTED.
AND IT IS SO
King Anderson, III
June 20, 2006
Columbia, South Carolina