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2009-MO-055 - L.A. Barrier & Son, Inc. v. SC Department of Transportation

The Supreme Court of South Carolina

L.A. Barrier & Son, Inc., Petitioner,

v.

South Carolina Department of Transportation, Respondent.


ORDER


We grant the petition for rehearing, withdraw Opinion No. 2009-MO-055, and substitute the attached unpublished opinion.

IT IS SO ORDERED.

s/ Jean H. Toal                                           C. J.

s/ John H. Waller, Jr.                                  J.

s/ Costa M. Pleicones                                J.

s/ John W. Kittredge                                   J.

s/ James E. Moore                                     A.J.

Columbia, South Carolina
January 11, 2010

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court


L.A. Barrier & Son, Inc., Petitioner,

v.

South Carolina Department of Transportation, Respondent.


ON WRIT OF CERTIORARI


Appeal from Administrative Law Court
 Paige J. Gossett, Administrative Law Court Judge


Memorandum Opinion No. 2009-MO-055
Heard October 8, 2009 – Re-filed January 11, 2010  


AFFIRMED AS MODIFIED


John J. Pringle, Jr. and Shaun C. Blake, both of Ellis Lawhorne & Sims, of Columbia, for Petitioner.

Linda McDonald, of Columbia, for Respondent.


PER CURIAM:  We granted certiorari to review the Court of Appeals decision in L.A. Barrier & Son, Inc. v. SCDOT, Op. No. 2008-UP-418 (Ct. App. filed July 21, 2008) and now affirm as modified.  The Court of Appeals held that, pursuant to 49 C.F.R § 26.69(i)(2), Joel must renounce any interest in the joint checking account used to purchase Electa’s shares.  We agree with petitioner that no renunciation is required here, but affirm the Court of Appeals' decision which reversed the decision of the Administrative Law Court.  At the time DOT reviewed petitioner's certification request, Joel had not renounced his ownership interest in the 500 shares purchased using funds from the joint account.  Since the burden of demonstrating that the certification criteria has been met rests on the entity seeking certification, 49 C.F.R. § 26.61(b), and since Lisa did not own the requisite 51% of the shares at the time the certification determination was sought and made, DOT properly denied the request.

The decision on certiorari upholding DOT's denial of certification is

AFFIRMED AS MODIFIED.

TOAL, C.J., WALLER, PLEICONES, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.