Blyth v. Marcus

• Decision Date: 06 February 1996
• Docket Number: No. 2486,2486
• Court: South Carolina Court of Appeals
• Parties: Eileen C. BLYTH, Appellant, v. Frank Lamar MARCUS, Respondent. . Heard

Page 389

470 S.E.2d 389

322 S.C. 150

Eileen C. BLYTH, Appellant, v. Frank Lamar MARCUS, Respondent.

No. 2486.

Court of Appeals of South Carolina.

Heard Feb. 6, 1996.

Decided March 18, 1996.

Rehearing Denied May 23, 1996.

Certiorari Denied Jan. 22, 1997.

James T. McLaren and C. Dixon Lee, III, both of McLaren & Lee, Columbia, for appellant.

Robert A. McKenzie, Robert J. Elam, and Robert M. Cook, II, all of McDonald, McKenzie, Rubin, Miller & Lybrand, Columbia, for respondent.

HOWELL, Chief Justice:

The question presented is whether S.C.Code Ann. § 15-3-30 (1976) survived the adoption of the South Carolina Rules of Civil Procedure (the Rules). The trial judge dismissed the negligence action filed by Eileen C. Blyth, finding Rule 3(b), SCRCP impliedly repealed section 15-3-30, thus Blyth's action was barred by the statute of limitations. Blyth appeals.

Facts

On August 20, 1984, Blyth was injured after Frank Marcus allegedly struck her with his auto while she was riding her bicycle in Columbia. At the time, both parties were residents of South Carolina. Blyth filed an action on August 28, 1984, which was later dismissed without prejudice in February, 1985. Approximately one year after the accident Marcus moved out of state and has since resided in Georgia.

Blyth filed this action on August 15, 1991. Marcus's counsel received a copy at that time. However, Blyth's attempted mail service to Marcus failed, and Marcus was personally served on September 19, 1991 by a Georgia county sheriff, and again on January 11, 1993 by the Executive Director of the S.C. Department of Highways and Public Transportation.

Discussion

A statute of limitations reduces the interval between the accrual and commencement of a right of action to a fixed period, thereby putting to rest claims after the passage of time. See 51 Am.Jur.2d Limitations on Actions § 15 (1970); Nowlin v. General Tel. Co., 310 S.C. 183, 186, 426 S.E.2d 114, 116 (Ct.App.1992), aff'd, 314 S.C. 352, 444 S.E.2d 508 (1994). This procedural device operates as a defense to limit the remedy available from an existing cause of action. Langley v. Pierce, 313 S.C. 401, 438 S.E.2d 242 (1993) (citing Goad v. Celotex Corp., 831 F.2d 508, 511 (4th Cir.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2871, 101 L.Ed.2d 906 (1988)). Unless an action is commenced before expiration of the limitations period, the plaintiff's claim is normally barred. See, e.g., McLain v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994). Blyth's action was limited by S.C.Code Ann. § 15-3-530(5) (Supp.1995) (six year period on tort causes of action arising prior to April 5, 1988), the applicable statute of limitations. The normal expiration of the statute of limitations on her cause of action was August 20, 1990. If section 15-3-30 applies, the six year limitation period tolled the running of the statute of limitations after Marcus moved out of state, only one year after the cause of action arose.

The trial judge accepted Marcus's three-fold argument that Rule 3(b) impliedly repealed section 15-3-30. Marcus argues: (1) the Legislature specifically provided in 1985 S.C. Act No. 100 (South Carolina Rules of Civil Procedure legislation, hereinafter 1985 Act) for the repeal of remaining procedural statutes which conflicted with the Rules; (2) legislative intent prevails over statutory rules, as the case here, where the Legislature's purpose behind the 1985 Act in embracing an entire subject matter (tolling procedure in civil suits) repealed existing law of the same subject matter; and (3) the general language of Rule 1, SCRCP (the Rules "shall be construed to secure the just, speedy, and inexpensive determination of every action)," public policy concerns, and simplified and additional service of process options now available to plaintiffs, all foreclose the need for 'protectionist' and 'obsolete' legislation such as section 15-3-30.

Blyth argues because particular code sections were repealed by the 1985 Act, see, e.g., S.C.Code Ann. § 15-3-10 (1976 & Supp.1995), the legislature would have repealed section 15-3-30 had it intended the Rules to replace it. Blyth also argues South Carolina Supreme Court decisions after the enactment of the Rules demonstrate the continued vitality of section 15-3-30.

Under Section 3 of the 1985 Act, the Legislature provided that in the event of conflict, the Rules replace existing procedural statutes. However, repeal by implication is disfavored and requires a showing of conflict between the two competing statutes, incapable of reasonable reconciliation. Mims v. Alston, 312 S.C. 311, 313-14, 440 S.E.2d 357, 359 (1994). Moreover, the repugnancy must be plain, and if the two provisions can be construed so that both can stand, a court shall so construe them. City of Rock Hill v. South Carolina DHEC, 302 S.C. 161, 167, 394 S.E.2d 327, 331 (1990) (citing Pearson v. Mills Manufacturing Co., 82 S.C. 506, 509, 64 S.E. 407, 409 (1909)).

In South Carolina, "[a] civil action is commenced by filing and service of a summons and complaint." Rule 3(a), SCRCP. If a plaintiff files but fails to make actual service upon the defendant the action has not yet commenced. Id. Therefore, because the statute of limitations period continues to run, unless the plaintiff can correct this 'failed' commencement before expiration of the limitations period, the claim will normally be time barred. McLain, 314 S.C. at 360, 444 S.E.2d at 512-13.

Rule 3(b) may operate to save an action which is not timely commenced. Under Rule 3(b):

an attempt to commence an action is equivalent to the commencement thereof when the summons and complaint are filed with the clerk of court and delivered for service to the sheriff of the county in which defendant usually or last resided, ... provided that actual service must be accomplished within a reasonable time thereafter.

Delivery for service to the sheriff provides a substitute for actual service. Once a plaintiff delivers the summons and complaint to the sheriff, the statute of limitations is temporarily arrested until actual service is made within a reasonable time. The effect of this tolling rule is that 'equivalent' commencement offers a plaintiff a limited reprieve, but does not otherwise permit a plaintiff to delay in commencing the action.

Instead of providing for the mechanics of commencing an action, section 15-3-30 describes one set of fortuitous circumstances which suspend a statute of limitations, thereby delaying commencement requirements. Under section 15-3-30, the defendant's departure and continuous residence outside South Carolina for one year or more can suffice to toll the applicable limitations period. See Harris v. Dunlap, 285 S.C. 226, 328 S.E.2d 908 (1985).

On one level, Rule 3(b) is broader than section 15-3-30; Rule 3(b) is not limited to absent defendants. See Garner v. Houck, 312 S.C. 481, 435 S.E.2d 847 (1993) (Rule 3(b) applied to corporate defendants, which cannot be 'absent'). On another level however, Rule 3(b) is narrower than § 15-3-30; it does not actually permit plaintiffs to delay the commencement of a lawsuit. Instead, it halts the statute of limitations until proper commencement is made, through actual service, upon the defendant within a reasonable time. Two examples illustrate the distinction. In Hughes v. Water World Slide, Inc., 314 S.C. 211, 442 S.E.2d 584 (1994), Hughes filed a summons and complaint three years after the accident, which was the deadline under the limitations period. Hughes failed to make actual service prior to the deadline. Normally under Rule 3(a) the Hughes's claim would be time barred for failure to make proper commencement before expiration. However, because Hughes delivered copies of the summons and complaint to the requisite sheriff by the deadline, and actual service was made within a reasonable time (three days), the applicable three year statute was tolled. Conversely, in Harris v. Dunlap, 285 S.C. 226, 328 S.E.2d 908 (1985), the plaintiffs' cause of action arose out of a promissory note signed in July 1973, but it was not until nine years later in July 1982 that the plaintiffs filed suit. In rejecting the defendant's six-year statute of limitations defense, the court held the defendant's absence from the state since 1966 satisfied the requirements of section 15-3-30.

We conclude section 15-3-30 and Rule 3(b) are reasonably reconcilable and there is no conflict. Section 15-3-30, when applicable, becomes operable prior to the commencement requirements of Rule 3(b). Moreover, while there are no decisions squarely on point concerning the repeal issue, there have been three cases since the 1985 Act which have cited section 15-3-30, and by implication, affirmed its continued vitality. See Langley v. Pierce, 313 S.C. 401, 438 S.E.2d 242 (1993); Garner v. Houck, 312 S.C. 481, 435 S.E.2d 847 (1993); Dandy v. American Laundry Mach., 301 S.C. 24, 389 S.E.2d 866 (1990), overruled in part on other grounds, Garner v. Houck, 312 S.C. 481, ----, 435 S.E.2d 847, 850 (1993). ¹

Marcus's second argument, that by embracing an entire subject of revisions and codes the Legislature intended to repeal former acts of the same subject matter, is incorrect in this instance. While the Rules apply to procedural matters in civil cases generally, the Legislature has nevertheless retained interest in various procedural matters via its legislative enactments. This is especially true of statutes like the one at issue. The Legislature made it clear that regarding statutes of limitations, statutes of repose, and tolling statutes, it shall continue to assert its concerns with specificity. ² Thus, in view of the substantial Legislative activity in this area after the enactment of the Rules, it is difficult to accept the proposition that the Legislature would simply overlook section 15-3-30. Accord Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Parker, 282 S.C. 546, 320 S.E.2d 458 (Ct.App.1984) (legislature's enumeration of particular...