Hooper v. Ebenezer Senior Services

• Citation: 377 S.C. 217,659 S.E.2d 213
• Decision Date: 10 March 2008
• Docket Number: No. 4350.,4350.
• Court: Court of Appeals of South Carolina
• Parties: Floree HOOPER, as Personal Representative of the Estate of Albert L. Clinton, Deceased, Appellant, v. EBENEZER SENIOR SERVICES AND REHABILITATION CENTER, Respondent.

659 S.E.2d 213

377 S.C. 217

Floree HOOPER, as Personal Representative of the Estate of Albert L. Clinton, Deceased, Appellant, v. EBENEZER SENIOR SERVICES AND REHABILITATION CENTER, Respondent.

No. 4350.

Court of Appeals of South Carolina.

Heard March 4, 2008.

Decided March 10, 2008.

Rehearing Denied April 18, 2008.

John S. Nichols, of Columbia and Robert V. Phillips, of Rock Hill, for Appellant.

R. Gerald Chambers and R. Hawthorne Barrett, both of Columbia, for Respondent.

ANDERSON, J.:

In this action for wrongful death and negligence under the survival statute, Floree Hooper appeals the trial court's grant of summary judgment to Ebenezer Senior Services and Rehabilitation Center (Ebenezer) based on the statute of limitations. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In February 2003, Albert Clinton became a resident of Ebenezer, a nursing home facility. Two months later, Clinton was taken to a hospital and remained there until his death on May 15, 2003. Hooper, as Personal Representative of Clinton's Estate, filed an action against Ebenezer on February 6, 2006, for negligence under the survival statute and wrongful death.

When Hooper's attorney (Counsel) received the filed pleadings from the clerk of court, he called Ebenezer's telephone number. A receptionist answered, "Agape Rehabilitation." Counsel inquired about Ebenezer Senior Services and was told the business had been sold and was now Agape Rehabilitation (Agape). A telephone search revealed Agape had the same street address as Ebenezer. Counsel drove to the location, and signage identified the facility as "Agape Rehabilitation of Rock Hill."

Counsel searched the South Carolina Secretary of State's website and found a current listing for Ebenezer as a domestic entity in good standing listing a registered agent: "Jack G. Hendrix, Jr., 1415 Richland Street, Columbia, SC." Counsel forwarded the pleadings to the Richland County Sheriff's office for service upon Hendrix, but service was not accomplished because he "moved to an unknown address on Assembly St."

Counsel hired an investigator to locate Hendrix. The investigator discovered an address in Pelion, and Counsel again sent the pleadings to the Richland County Sheriff's Department for service. The Richland County Sheriff's Department returned the pleadings because the address was in Lexington County. Counsel transmitted the pleadings to the Lexington County Sheriff's Department for service, and the Sheriff's office responded with an affidavit stating the department was unable to serve the pleadings because "per neighbor [Hendrix] left his wife a year ago and unknown where he lived now."

Having exhausted his options of service by sheriff, Counsel hired an investigator to take the papers to Agape. The investigator served the pleadings upon Janet Inkelaar, the administrator of Agape Rehabilitation, on June 15, 2006, at the facility. Inkelaar indicated she was authorized to accept service on Ebenezer's behalf. By Hooper's calculation, service was completed 129 days after the filing of the summons and complaint.

Ebenezer moved the circuit court to dismiss the action, asserting it was not commenced in a timely fashion pursuant to Rule 3, SCRCP, and section 15-3-530 of the South Carolina Code, the three year statute of limitations. Hooper argued: (1) the statute of limitations should be equitably tolled; (2) the 120-day period under Rule 3(a), SCRCP, should not begin to run until the end of the limitations period; (3) Ebenezer should be estopped from asserting the statute of limitations due to its own unlawful actions; and (4) under Rule 86, SCRCP, the former version of Rule 3, SCRCP, should apply to permit service within a reasonable time after filing following delivery to the sheriff.

The Master in Equity, sitting as a Special Circuit Judge, ruled the action was not timely commenced because it was not served within 120 days of filing. Hooper sought reconsideration of the court's order, and a hearing was scheduled. Hooper then served notice of appeal from the dismissal, and the hearing on reconsideration was not held.

ISSUES

1. Did the 120 day period for service under Rule 3(a), SCRCP, commence when the action was filed or when the limitations period expired?

2. Did the circuit court properly refuse to equitably toll the statute of limitations?

3. Is it unjust and inequitable to permit Ebenezer to assert the statute of limitations as a defense?

4. Should the circuit court have applied the former Rule 3(a), pursuant to Rule 86, SCRCP, and determined that service was timely when completed within a reasonable time after delivery to the sheriff?

STANDARD OF REVIEW

Summary judgment is defined by Rule 12(c), SCRCP:

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Id.

When reviewing a grant of summary judgment, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pye v. Estate of Fox, 369 S.C. 555, 633 S.E.2d 505 (2006); Houck v. State Farm Fire & Cas. Ins. Co., 366 S.C. 7, 11, 620 S.E.2d 326, 329 (2005); Bradley v. Doe, 374 S.C. 622, 649 S.E.2d 153 (Ct.App.2007); Bennett v. Investors Title Ins. Co. 370 S.C. 578, 635 S.E.2d 649 (Ct.App.2006); see Rule 56(c), SCRCP ("The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 611 S.E.2d 485 (2005); Medical Univ. of S.C. v. Arnaud, 360 S.C. 615, 602 S.E.2d 747 (2004); Hackworth v. Greenville County, 371 S.C. 99, 102, 637 S.E.2d 320, 322 (Ct.App.2006); Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 609 S.E.2d 565 (Ct. App.2005).

The purpose of summary judgment is to expedite the disposition of cases which do not require the services of a fact finder. Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003) (quoting George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001)); Moore v. Weinberg, 373 S.C. 209, 217, 644 S.E.2d 740, 744 (Ct.App.2007); Mulherin-Howell v. Cobb, 362 S.C. 588, 596-97, 608 S.E.2d 587, 592 (Ct.App.2005). Because it is a drastic remedy, summary judgment should be cautiously invoked to ensure that a litigant is not improperly deprived of a trial on disputed factual issues. Helena Chem. Co. v. Allianz Underwriters Ins. Co., 357 S.C. 631, 644, 594 S.E.2d 455, 462 (2004); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 270, 603 S.E.2d 629, 631 (Ct.App.2004).

LAW/ANALYSIS

I. Timely Service under Rule 3(a)

Hooper maintains the trial court erred in granting Ebenezer summary judgment, arguing under Rule 3(a), SCRCP, the 120 days for service did not commence until the date the limitations period expired, as opposed to the filing date. We disagree.

Rule 3(a), SCRCP, provides:

A civil action is commenced when the summons and complaint are filed with the clerk of court if:

(1) the summons and complaint are served within the statute of limitations in any manner prescribed by law; or

(2) if not served within the statute of limitations, actual service must be accomplished not later than one hundred twenty days after filing.

Id.

The rule is consistent with section 15-3-20 of the South Carolina Code:

(A) Civil actions may only be commenced within the periods prescribed in this title after the cause of action has accrued, except when, in special cases, a different limitation is prescribed by statute.

(B) A civil action is commenced when the summons and complaint are filed with the clerk of court if actual service is accomplished within one hundred twenty days after filing.

Id.

This Court explained the importance of statutes of limitation in Blyth v. Marcus, 322 S.C. 150, 470 S.E.2d 389 (Ct.App.1996):

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. This procedural device operates as a defense to limit the remedy available from an existing cause of action. Unless an action is commenced before expiration of the limitations period, the plaintiff's claim is normally barred.

Id. at 152, 470 S.E.2d at 390 (citations omitted).

The purpose of statutes of limitation is to ensure litigation is "brought within a reasonable time in order that evidence be reasonably available and there be some end to litigation." City of North Myrtle Beach v. Lewis-Davis, 360 S.C. 225, 231, 599 S.E.2d 462, 464 (Ct.App.2004) (quoting Webb v. Greenwood County, 229 S.C. 267, 276, 92 S.E.2d 688, 691 (1956)). "[S]tatutes are designed to promote justice by forcing parties to pursue a case in a timely manner. Parties should act before memories dim, evidence grows stale or becomes nonexistent, or other people act in reliance on what they believe is a settled state of public affairs." State ex rel. Condon v. City of Columbia, 339 S.C. 8, 19, 528 S.E.2d 408, 413-14 (2000).

Statutes of limitation . . . protect people from being forced to defend themselves against stale claims. The statutes recognize that with the passage of time, evidence becomes more difficult to obtain and is less reliable. Physical evidence is lost or destroyed, witnesses become impossible to locate,...