Bobby Sisk v. Steven O. Dale, Acting Comm. W. Va. Division of Motor Vehicles

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Bobby Sisk,
Petitioner Below, Petitioner FILED
April 28, 2014
RORY L. PERRY II, CLERK
vs) No. 13-1109 (Kanawha County 13-AA-51) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Steven O. Dale, Acting Commissioner of the
West Virginia Division of Motor Vehicles,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Bobby Sisk, appearing pro se, appeals the September 30, 2013, order of the
Circuit Court of Kanawha County that dismissed his appeal of two separate revocations of his
driver’s license for driving under the influence. Respondent commissioner, by counsel Janet E.
James, filed a summary response.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
On April 4, 2013, the West Department of Transportation Office of Administrative
Hearings (“OAH”) entered two final orders with regard to petitioner. In the first final order, in
OAH Case No. 226292B, the OAH affirmed respondent commissioner’s revocation of petitioner’s
driver’s license for a period of ninety days because of petitioner’s unexcused failure to appear for
the hearing he requested on that revocation. The hearing was scheduled for 1:00 p.m., April 3,
2013, at the OAH’s office in Charleston. The OAH noted in its order that an unexcused failure to
appear for the administrative hearing “is construed as an implicit withdrawal of your request for a
hearing as well as a waiver of your rights to contest the suspension and/or revocation of your
driver’s license.”1
In the second final order, in OAH Case No. 226292D, the OAH affirmed a separate
revocation of petitioner’s driver’s license by respondent commissioner for a period of ten years
because of petitioner’s unexcused failure to appear for the hearing he requested on that revocation.
The hearing was scheduled for 2:30 p.m., April 3, 2013, at the OAH’s office. The OAH noted
again in its order that it construes an unexcused failure to appear as a withdrawal of the hearing
1
The notice of hearing had similarly warned petitioner that “[a] failure to appear at the
scheduled hearing . . . will cause the revocation/suspension to be upheld against you.”
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request and a waiver of the right to contest the revocation.2
Petitioner appealed the two orders to the circuit court on April 11, 2013. On May 1, 2013,
the circuit court entered a scheduling order that directed petitioner to file a memorandum of law in
support of his appeal by August 15, 2013, with any response due from respondent commissioner
by August 29, 2013. The circuit court also set the hearing on petitioner’s appeal for September 19,
2013.
On May 10, 2013, respondent commissioner moved for the dismissal of petitioner’s appeal
because petitioner failed to serve the appeal on respondent commissioner in violation of West
Virginia Code § 29A-5-4(b) and Rule 2(e) of the West Virginia Rules of Procedure for
Administrative Appeals.3 The circuit court did not rule on respondent commissioner’s motion.
However, petitioner failed to file a memorandum of law by the due date set by the circuit
court’s scheduling order and also failed to appear for the September 19, 2013, hearing. Because
petitioner failed to abide by the scheduling order, the circuit court dismissed petitioner’s appeal on
September 20, 2013, for a failure to prosecute.
Petitioner appeals the circuit court’s September 20, 2013, dismissal of his appeal of his
driver’s license revocations. In syllabus point one of Miller v. Moredock, 229 W.Va. 66, 726
S.E.2d 34 (2011), this Court reiterated:
Upon judicial review of a contested case under the West Virginia Administrative
Procedure Act [(“APA”)], Chapter 29A, Article 5, Section 4(g), the circuit court
may affirm the order or decision of the agency or remand the case for further
proceedings. The circuit court shall reverse, vacate or modify the order or decision
of the agency if the substantial rights of the petitioner or petitioners have been
prejudiced because the administrative findings, inferences, conclusions, decisions
or order are: (1) In violation of constitutional or statutory provisions; or (2) In
excess of the statutory authority or jurisdiction of the agency; or (3) Made upon
unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in
view of the reliable, probative and substantial evidence on the whole record; or (6)
Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
2
Similarly, the notice of hearing had warned petitioner that a failure to appear for the
hearing would cause the revocation to be upheld.
3
W.Va. Code § 29A-5-4(b) provides, in pertinent part, that “[a] copy of the petition shall
be served upon the agency and all other parties of record by registered or certified mail.” Rule 2(e)
of the West Virginia Rules of Procedure for Administrative Appeals similarly provides, in
pertinent part, that “[t]he petitioner shall serve a copy of the Petition and the Docketing Statement
upon the state agency and all other parties and counsel of record who participated in the
proceeding before the state agency by registered or certified mail.”
2
(Internal quotations and citations omitted.)4
On appeal, petitioner argues that he did not have notice of the April 3, 2013, hearings
before the OAH or of the September 19, 2013, hearing in the circuit court.5 With regard to the
OAH hearings, petitioner apparently complains that respondent commissioner was granted an
emergency continuance for good cause shown and that he did not receive the notices for the
rescheduled hearings. With regard to the circuit court hearing, petitioner avers that he called the
court inquiring whether the hearing could be rescheduled due to his hospital stay. According to
petitioner, he was told that the hearing would be rescheduled and that he would receive notice of it.
However, petitioner indicates that he called the circuit court only after the September 19, 2013,
hearing had occurred.
Respondent commissioner asserts that the dismissal of petitioner’s appeal of his driver’s
license revocations should be affirmed because petitioner failed to appear for the respective
hearings. Respondent commissioner argues that this Court has held that “[w]here an administrative
hearing is not held in a driver’s license revocation case because the holder of the driver’s license
failed to pursue his administrative remedies, a circuit court does not have jurisdiction to grant
extraordinary relief with respect to issues which are capable of resolution under the [APA].” Syl.
Pt. 9, State ex rel. Miller v. Reed, 203 W.Va. 673, 510 S.E.2d 507 (1998).
This Court notes that while petitioner claims that he did not receive notice of the hearings,
nothing in his appendix substantiates those claims. The Court “may disregard errors that are not
adequately supported by specific references to the record on appeal.” Rule 10(c)(7), W.V.R.A.P.
The Court may also “consider portions of the record other than those provided by the parties.”
Rule 6(b), W.V.R.A.P. Accordingly, the Court directed the circuit clerk to transmit additional
parts of the record for its review.
After a careful review of the record, this Court finds that both the OAH and the circuit court
made appropriate rulings based on petitioner’s failures to appear. First, when it rescheduled the
administrative hearings, the OAH sent the notices of hearing to the same Nitro, West Virginia,
address that petitioner gave in his notices to the OAH that he was challenging the revocations.6
Second, while it is possible that the notice of the September 19, 2013, circuit court hearing was
sent to a Poca, West Virginia, address, that was the address petitioner listed in his docketing
statement with the circuit court. Therefore, the Court concludes that the circuit court did not err in
4
The Administrative Procedures Act, West Virginia Code §§ 29A-1-1 to 29A-7-4, applies
to petitioner’s appeal of the final orders affirming the revocations of his driver’s license. See Miller
v. Moredock, 229 W.Va. 66, 69, 726 S.E.2d 34, 37 (2011).
5
Petitioner also argues the merits of his case. Respondent commissioner correctly notes
that the merits are not currently before this Court because both the OAH and the circuit court ruled
against petitioner for a failure to appear. Accordingly, the Court does not address the merits.
6
The Nitro address is also the address this Court has for petitioner.
3
dismissing petitioner’s appeal of his driver’s license revocations.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: April 28, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
4