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Remanded order not final or appealable


The words “Final Order,” written in the caption of a court order, does not a final order make, the South Carolina Supreme Court held June 27.

In Spalt v. South Carolina Department of Motor Vehicles, a unanimous high court found that the Administrative Law Court order at issue—which remanded a matter to the Office of Motor Vehicle Hearings for further proceedings—was not a final decision, and thus not immediately appealable by the DMV.

After Melissa Spalt, charged with driving under the influence, challenged her license suspension to the OMVH, the office dismissed the challenge when her attorney failed to show up for the hearing because of a scheduling conflict.

Spalt appealed to the ALC, which instructed the OMVH to conduct a hearing on the merits of the suspension.

Notably, in addition to its ruling, the Supreme Court also offered a piece of advice: In the future, everyone should work together to settle scheduling conflicts.

Two places, one time

During her April 2015 arrest for DUI, Spalt refused to submit a breath sample. The arresting officer issued a “notice of suspension” of her driver’s license, a move Spalt challenged by requesting a hearing before the state OMVH. The hearing was scheduled for June 23, 2015, but on June 18, Spalt’s attorney notified the OMVH that he was scheduled to be in general sessions court that day. The OMVH rescheduled the hearing for Aug. 11.

On Aug. 7, Spalt’s attorney notified the OMVH via email that he was scheduled to appear in magistrates court in another county on Aug. 11. On Aug. 10, the OMVH notified Spalt’s attorney that the hearing officer refused to reschedule the hearing. On the same day, the arresting officer told the OMVH that he consented to the attorney’s request, but two emails from Spalt’s attorney to the hearing officer—attempts to reschedule the hearing—were apparently unreturned.

Spalt’s attorney was indeed in magistrates court on Aug. 11, and neither he nor Spalt appeared at the OMVH hearing. The hearing officer entered an order of dismissal but the ALC on appeal reversed and remanded for a hearing on the merits.

More than words

The DMV appealed the order to the state Court of Appeals, which found that the ALC’s order is not immediately appealable because it is not final. In affirming, the Supreme Court held that the Administrative Procedures Act permits an appeal only from “a final decision of the ALC.” Despite having “Final Order” in the caption of the ALC order, the court ruled, Charlotte-Mecklenburg Hospital Authority v. South Carolina Department of Health & Environmental Control holds that a final order disposes of the “whole subject matter of the action or terminates the proceeding … leaving nothing to be done but to enforce by execution what has been determined.”

“In this case, the ALC remanded the case to the OMVH for a hearing on the merits,” Justice John Few wrote for the court. “Therefore, the ALC’s order was not a final decision.”

The DMV had argued several points, among them that the ALC’s interlocutory order was immediately appealable because the order is wrong.

“In making this argument, the Department has taken several novel positions of law that we find we should address,” Few wrote.

Novel, but wrong

The OMVH argued that it has priority over magistrates court under Rule 601(a) of the South Carolina Appellate Court Rules, which provides a priority list for attorneys called to appear in two or more tribunals at the same time. Magistrates court is listed 12th on the list, while the ALC—to which the OMVH argued it belongs—ranks No. 9. The high court disagreed, ruling that the OMVH is a separate tribunal and has last priority as Other Administrative Bodies or Officials.

The OMVH also argued that Spalt’s attorney was not entitled to Rule 601(a) priority because he waited too late to let the OMVH know about his scheduling conflict. The rule states, in part, that an attorney “shall notify affected tribunals as soon as the conflict becomes apparent.” The Supreme Court said that while immediate notification is required in some circumstances, it is not required in all circumstances.

Lastly, the OMVH took the novel position that Spalt’s attorney did not comply with OMVH rules regarding requests for continuance. The high court held that an attorney does not need to rely on OMVH rules when he is entitled to relief under the state’s appellate court rules, which supersede any conflicting procedural rule of an agency. It further held that Spalt’s attorney did not need a “continuance” because when a lower-priority tribunal is advised that an attorney is summoned to appear before a higher-priority tribunal, Rule 601(a) “requires the tribunal with lower priority to yield.”

Rule 601(c) “and the general obligation of respect and candor an attorney owes any tribunal” require him to notify the tribunal of the conflict, but 601(a) establishes that he may appear in the higher-priority tribunal and does not need the permission of the lower-priority tribunal.

Spalt’s appellate attorney, Michael Laubshire of Columbia, did not return a message seeking comment.

Now, how ’bout some teamwork

With those issues established, the court noted that the case serves as an illustration of the “frustrations” that can arise when attorneys delay notifying tribunals of scheduling conflicts and when hearing officers and judges do not cooperate with attorneys. Any delays should be based on valid reasons, Few wrote, adding that the court understands the issues faced by busy lawyers in maintaining their calendars.

“On the other hand, the OMVH hearing officer does not have the authority to ignore Rule 601,” Few wrote.

Trial judges have options to deal with attorneys who fail to comply with 601(c), the court added, but dismissing the action in a lower-priority tribunal is not one of them.

The court recommends several steps that could minimize issues going forward. First, attorneys and courts should work together to avoid scheduling conflicts in the first place. Second, attorneys should notify all tribunals of anticipated conflicts “reasonably promptly.” Third, everyone—including higher tribunals—should be flexible.

“These suggestions are not intended to be mandatory nor to be exclusive,” Few wrote. “We are confident attorneys and tribunals will devise additional ways to minimize scheduling problems and accomplish the purposes of Rule 601.”

Instances in which attorneys abuse the rule are rare, the court opines, but when abuse is suspected, it should be confronted by judges and hearing officers.

In many cases, a simple misunderstanding will be the culprit, the court wrote.

“The mere knowledge that judges are alert to potential abuse will deter attorneys from engaging in it,” Few wrote. “In the rare case in which actual abuse is discovered, such a conversation is likely to keep it from happening again.”

The eight-page decision is Spalt v. South Carolina Department of Motor Vehicles (Lawyers Weekly No. 010-068-18). The full text of the opinion is available online at sclawyersweekly.com

Follow Heath Hamacher on Twitter @SCLWHamacher

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