THIS OPINION HAS NO
PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
William S.
Catchings, Jr., Respondent,
v.
South Carolina
Department of Motor Vehicles, Appellant.
Appeal From Richland County
J. Ernest Kinard, Jr., Circuit Court
Judge
Unpublished Opinion No. 2008-UP-299
Submitted May 1, 2008 Filed June 9, 2008
AFFIRMED
General Counsel Frank L. Valenta, Jr. and Deputy Chief Counsel
Philip S. Porter, of Blythewood, for Appellant.
Daniell S. Landers, of Lexington, for Respondent.
PER CURIAM:
This is a judicial review of an administrative action. The circuit judge,
after hearing the matter without a jury, issued an order rescinding the
suspension of the drivers license of Respondent William S. Catchings, Jr.,
directing the South Carolina Department of Motor Vehicles to refund to
Catchings a $200.00 license reinstatement fee, and assessing attorneys fees of
$5,065.00 against the Department. Following the denial of its post-trial
motions, the Department filed this appeal. We affirm.[1]
FACTS AND PROCEDURAL HISTORY
On February 24,
2005, Catchingss wife requested the familys insurance company to drop
coverage on a 1987 Ford Bronco. The insurance policy itself, however, remained
in effect, and the Catchings continued to pay the premiums on their other
vehicles.
On March 24, 2005,
the Department, having been notified of the lapse in insurance coverage on the
Bronco, sent Catchings an FR4 Notice. In the body of the notice, the
Department advised Catchings that it had received notice of cancellation of
insurance on the vehicle and that he should provide proof of liability
insurance coverage or surrender the tag and registration on the vehicle. The
notice further stated, Failure to comply with this notice before the
suspension date will result in the suspension of your vehicle registration and/or drivers license. (Emphases added.) In the top right hand corner of the
letter appeared the notation Date of Suspension:04/21/2005 and references to two
sections of the South Carolina Code.
Catchings
surrendered his registration and tag at a Department branch office on April 21,
2005. The Department customer service representative who waited on him
accepted these items without incident, and Catchings was not told that he owed
the Department any money or that his license had been or would be suspended.
On July 29, 2005,
while driving on I-20 in Augusta, Georgia, Catchings was stopped for speeding.
When the apprehending officer ran a license and registration check, Catchings
was handcuffed in front of his wife, arrested, and taken to jail for driving on
a suspended license. Catchings had to sit in jail until his wife located a
bail bondsman in the middle of the night to bond him out. The arrest was the
first notice Catchings received of any unresolved issues regarding his drivers
license.
The week after he
was arrested and jailed, Catchings received a letter from the Department dated
August 1, 2005, advising that his registration and/or driving privilege in
this state will not be suspended but also that he had to pay a penalty of
$200.00. Also, on August 8, 2005, Catchingss wife checked the Department
website to determine the status of Catchingss license and found it was listed
as suspended as of that date. Although Catchings retained counsel to attempt
to resolve the matter, he eventually paid the penalty because his job involved
driving a company van.
A few days later, Catchings received another letter from the Department. Although this letter
was dated August 9, 2005, it was essentially a duplicate of the letter dated
August 1, 2005. In addition, although Catchings never requested reinstatement
of the registration on the Bronco, the Department sent Catchings a second
letter, also dated August 9, 2005, indicating this relief had been granted.
According to yet a third letter from the Department dated August 9, 2005, the
suspension was cleared as of that date.
Catchingss
attorney wrote to the Department on August 23, 2005, in an effort to have the
suspension voided. In the letter, counsel pointed out that Catchings was never
an uninsured driver, had never driven an uninsured vehicle, and did not receive
notice from the Department that his drivers license had been suspended or
definitely would be suspended. The letter also contained a request for
reconsideration of the Departments actions and an evidentiary hearing under
the Administrative Procedures Act. In the letter, counsel for Catchings
expressed a desire to resolve the matter amicably and suggested his client
would be willing to waive or release any claims for damages and attorneys fees
if the suspension could be voided or rescinded and the charges for driving
under suspension were resolved.[2]
The record does not indicate that the Department granted any of the requests or
otherwise responded to the letter.
On August 26, 2005, Catchings filed a petition for judicial review in the Court of Common Pleas for
Richland County, the county of his residence. In the petition, Catchings
sought judicial review of an administrative action pursuant to South Carolina
Code sections 1-23-380(A) and 56-1-410. The Department filed an answer on
October 24, 2005, essentially denying the allegations in the petition.
The matter was
placed on the Richland County Common Pleas Non-Jury Docket for the term of
court beginning July 31, 2006. At the roster meeting on July 31, 2006, Catchingss attorney was present, but no one appeared on behalf of the
Department. The case was placed on standby status for that week pending a
scheduling opportunity, and counsel for Catchings faxed the attorney of record
for the Department a letter advising of this development. In the same letter,
counsel further advised that he requested a hearing on August 28, 2006, in case
the matter could not be heard the week of the roster meeting. On August 1,
2006, a paralegal for the Department faxed a letter to the Chief Administrative
Judge for the Fifth Judicial Circuit requesting on behalf of the attorney
assigned to the case protection on August 1 and August 2, 2006, because of
hearings scheduled in other locations on those days.
The
court set the matter for a non-jury hearing to be held at 9:30 a.m. on August
3, 2006, and on August 1, 2006, attempted to advise counsel for the Department by
telephone of the upcoming trial. Through miscommunication and oversight,
however, counsel for the Department did not appear when the case was called.
After an unsuccessful attempt to reach counsel by telephone and a delay of
about thirty minutes, the trial proceeded without the Departments participation.
After the trial, Catchingss attorney prepared a
proposed order, which he mailed to the presiding judge on August 7, 2006, and a
copy of which was also mailed to counsel for the Department. The trial judge
signed the order on August 14, 2006, and the clerk of court filed it on August
21, 2006. The Department received the final
order on August 23, 2006.
Nothing
more was heard from the Department until September 5, 2006, when it filed a
motion for rehearing or, in the alternative, relief from the judgment under Rules 59 and 60(b) of the South
Carolina Rules of Civil Procedure.
Catchings sent a response to the motion with a memorandum of law and an
affidavit of counsel dated September 12, 2006. By order dated December 11,
2006, and filed December 13, 2006, the trial judge denied the motion, and the
Department filed this appeal.
STANDARD OF REVIEW
Regarding the
Departments appeal of the trial judges decision to proceed with the hearing
in its absence and denial of its motion for rehearing or relief from judgment,
the South Carolina Supreme Court has stated, Whether to grant or deny a motion
under Rule 60(b) lies within the sound discretion of the judge. BB&T
v. Taylor, 369 S.C. 548, 551, 633 S.E.2d 501, 502 (2006).
As
to the merits of the appealed order, we agree with the trial judge that the
appropriate standard of review of a drivers license suspension is set forth in
South Carolina Code section 1-23-380(A)(5), which allows the circuit court to
reverse the suspension if it (1) violated constitutional and statutory
provisions; (2) exceeded the Departments statutory authority; (3) was made
upon unlawful procedure; (4) was clearly erroneous in view of the record as a
whole; or (5) was arbitrary and capricious, characterized by abuse of
discretion or clearly unwarranted exercise of discretion. S.C. Code Ann. §
1-23-380(A)(5) (Supp. 2007). In addition, in a judicial review of a drivers
license suspension, the burden of proof in any such hearing shall be on the
department. Id. § 56-1-410 (2006).[3]
Catchings was
awarded attorneys fees under South Carolina Code section 15-77-300, which,
under certain conditions, allows a court to award attorneys fees in a civil
lawsuit to any party who is contesting state action. Id. § 15-77-300
(2005). Review of an award of attorneys fees pursuant to this section is
subject to an abuse of discretion standard. Heath v. County of Aiken, 302 S.C. 178, 182, 394 S.E.2d 709, 711 (1990).
LAW/ANALYSIS
1. We first address the
Departments argument that the trial judge acted improperly in hearing and
deciding the case in the absence of the Departments counsel. We find no abuse
of discretion upon which to base a finding of reversible error.
In its memorandum
of law in support of its motion for a rehearing of the case, the only argument
the Department made regarding the trial judges decision to hear the case in
its absence was that it was not provided appropriate notice of the hearing.
The facts related in support of that argument, however, evidence only internal
communication problems within the Department itself, rather than the failure of
the court to provide adequate notice. A court employee telephoned the contact
number listed on the pleadings filed by the Department to inform the
Departments attorney that the hearing was scheduled and was directed by a
Department employee to that attorneys cell phone number, which, apparently
unbeknownst to the Department employee, was the number for the attorneys
family cell phone, which he had not carried for several months after being
issued a cell phone by the Department. Moreover, the Department employee did
not inquire about the specifics of the court employees telephone call and
never informed the attorney that the court had attempted to reach him. When
the attorney did not appear at the hearing, the clerk of court attempted to
reach him at the same family cell phone number provided earlier by the
Department. Even if the court could have communicated with the Departments
attorney by another means, this does not excuse the Departments failure to
monitor the progress of [its] case. Goodson v. Am. Bankers Ins. Co. of Fla., 295 S.C. 400, 403, 368 S.E.2d 687, 689) (Ct. App. 1988).
We agree with the
Department that South Carolina policy favors the disposition of issues on
their merits rather than on technicalities. Mictronics, Inc. v. S.C. Dept
of Revenue, 345 S.C. 506, 511, 548 S.E.2d 223, 226 (Ct. App. 2001). We
also agree that dismissal of a case is a harsh sanction that is generally
resorted to only in the face of a clear record of delay or contumacious
conduct by the plaintiff. McComas v. Ross, 368 S.C. 59, 63, 626 S.E.2d
902, 904 (Ct. App. 2006). The outcome of the present case, however, was not a
dismissal or a default judgment, but rather a decision based on the evidence
and pleadings, including those filed by the Department. Contrary, then, to the
Departments suggestion that the trial judge decided against it on a
technical ground, the case was decided on the merits after a hearing at
which, because of mishaps for which only the Department can be held responsible,
its attorney failed to appear.
2. We further disagree with
the Departments argument that the trial judge abused his discretion in
refusing to grant its motion for rehearing or relief from judgment. This
argument, as presented in the Departments brief on appeal, concerns only the
application of Rule 60(b), SCRCP, to the present case.
As noted by the
Department, this Court, in Mictronics, Inc. v. S.C. Dept of Revenue, reviewed
a dismissal of an appeal with prejudice by an administrative law judge after
the appellant, because of a misunderstanding about the date of the hearing,
failed to appear at the appointed time. Holding among other things that the
appellant acted promptly once becoming aware of the mistake, this Court
reversed the administrative law judges denial of the appellants motion to
reopen the case. Mictronics, 345 S.C. at 511, 548 S.E.2d at 226.
Unlike
the appellant in Mictronics, the Department did not act diligently under
the circumstances. At no time did the Department inquire about the hearing,
even after Catchingss attorney sent a proposed order. Furthermore,
Catchingss attorney had advised counsel for the Department that he requested
to have the matter set for August 28, 2006, if it was not reached the week of
the roster meeting; however, there is nothing in the record suggesting the
Department made a prompt attempt to verify if the hearing could take place on
that later date. Finally, even though the Departments post-trial motion was
sufficiently timely to be considered by the trial judge, we simply do not
accept the Departments assertion that the filing of its motion within ten
days of receiving notice of the Order is further evidence of its prompt
response to its mistakes.
3. Regarding the merits of
the case, the Department cites numerous statutes to support its position that
suspension of Catchingss drivers license was lawful and suggests that
Catchings was at least partly responsible for the problems resulting from his
suspension because he failed to present the suspension notice to the customer
service representative who waited on him or alert that employee to the issues
of fines or reinstatement fees. Neither argument was raised to the trial judge
at the hearing; moreover, the various statutes the Department cited in its
brief on this issue were not referenced in its answer. We therefore hold these
arguments were not preserved for appeal and do not address them. See Wilder
Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (It is axiomatic that an issue cannot be raised for the
first time on appeal, but must have been raised to and ruled upon by the trial
judge to be preserved for appellate review.); Hickman v. Hickman,
301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990) (A party cannot use
Rule 59(e) to present to the court an issue the party could have raised prior
to judgment but did not.).
4. Finally, the Department challenges
the award of attorneys fees, arguing (1) Catchings is not entitled to attorneys
fees even if he remains the prevailing party after this appeal; and (2) the
fees were not reasonable. We decline to disturb the attorneys fee award.
Catchingss
attorney presented his fee affidavit at trial, and it was incumbent on the
Department to present its objections to the affidavit at that time. See Taylor v. Medenica, 324 S.C. 200, 212, 479 S.E.2d 35, 41 (1996)
(holding a party could not raise an issue on appeal because it failed to make
an appropriate objection at trial). Furthermore, although the Department moved
for rehearing and relief from the judgment, it raised only the issue of whether
the court had provided appropriate notice of the hearing. Because the trial
judge was never presented with any objections from the Department concerning
the award of attorneys fees, we hold any arguments concerning this issue were
not preserved for appellate review.
AFFIRMED.
WILLIAMS,
THOMAS, and PIEPER, JJ., concur.
[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.
[2] Although Catchings paid a fine for speeding, the
charges for driving under suspension were nol prossed after counsel sent the
letter.
[3] We are aware that the South Carolina General
Assembly repealed this section in 2006. 2006 S.C. Acts 381 § 11, at 2935. The
repeal, however, was accompanied by a savings clause, which provided as
follows:
After
the effective date of this act, all laws repealed or amended by this act must
be taken and treated as remaining in full force and effect for the purpose of sustaining
any pending or vested right, civil action, special proceeding, criminal
prosecution, or appeal existing as of the effective date of this act, and for
the enforcement of rights, duties, penalties, forfeitures, and liabilities as
they stood under the repealed or amended laws.
Id. § 13, at 2938.