Mims v. Babcock Ctr., Inc.

• Citation: 399 S.C. 341,732 S.E.2d 395
• Decision Date: 15 August 2012
• Docket Number: No. 27160.,27160.
• Parties: Edward MIMS, by and through his legal guardian, Margaret MIMS, Appellant, v. BABCOCK CENTER, INC., Judy Johnson, the South Carolina Department of Disabilities and Special Needs, Kathi Lacy and Stanley Butkus, Respondents.
• Court: South Carolina Supreme Court

399 S.C. 341

732 S.E.2d 395

Edward MIMS, by and through his legal guardian, Margaret MIMS, Appellant,

v.BABCOCK CENTER, INC., Judy Johnson, the South Carolina Department of Disabilities and Special Needs, Kathi Lacy and Stanley Butkus, Respondents.

No. 27160.

Supreme Court of South Carolina.

Heard March 21, 2012.

Decided Aug. 15, 2012.

Patricia Logan Harrison, of Columbia, and Peter D. Protopapas and Brian D. Newman, of Rikard & Protopapas, of Columbia, for Appellant.

Christian Stegmaier, Joel W. Collins, Jr., and Amy L. Neuschafer, of Collins & Lacy, of Columbia, and William H. Davidson, II and Kenneth P. Woodington, of Davidson & Lindemann, of Columbia, for Respondents.

Justice BEATTY.

Margaret Mims (Mims), as guardian ad litem for her son, Edward Mims (Edward), filed a complaint against the Babcock Center and others alleging Edward sustained physical injuries and was mistreated while under their care. The circuit court dismissed the complaint based on issues related to timeliness of service and the application of S.C.Code Ann. § 15–3–20(B) (2005). Mims appeals. We reverse and remand.

I. FACTS

Edward, an adult, has severe mental and physical disabilities. On May 29, 2007, Mims, as guardian ad litem for Edward, filed a summons and complaint with the Richland County Court of Common Pleas against eight defendants.¹ Mims asserted various claims arising from the mistreatment, including a sexual assault, which Edward allegedly endured while under the care and supervision of the Babcock Center and the South Carolina Department of Disabilities and Special Needs (DDSN).

It is undisputed that this complaint was never served. However, an attorney from Collins & Lacy wrote to Mims's counsel on July 5, 2007 and stated the firm was the general counsel for the Babcock Center, that they had received a copy of the summons and complaint filed with the Court of Common Pleas, and that they “will be defending [the] Babcock Center, Dr. Johnson, Ms. Bradford, Mr. Stoxen, and Ms. Slater in this action.” Counsel stated the letter was to memorialize a phone conversation with Mims's attorney on June 29, 2007, in which it was confirmed there had been no service of the pleading to date.

On May 7, 2008, almost one year later, Mims filed a summons and an “Amended Complaint” against five defendants: the Babcock Center, Inc., Judy Johnson, DDSN, Kathi Lacy, and Stanley Butkus (Defendants). The new complaint retained three of the eight original defendants (Babcock Center, Johnson, and Butkus) while adding two new ones (DDSN and Lacy).

Mims re-alleged in the amended complaint that Edward had been physically injured and mistreated while under the care of Defendants, and she asserted claims for the violation of 42 U.S.C. §§ 1983, 1985, and 1988; negligent supervision; violation of the Americans with Disabilities Act and the Rehabilitation Act; and unjust enrichment. Defendants were all served a few days later, on May 12, 2008.

Defendants filed two separate motions to dismiss the amended complaint on or about June 9, 2008. One motion was filed by the Babcock Center and Johnson; the other was filed by DDSN, Lacy, and Butkus. A hearing was held on the motions on March 30, 2009, at which time the trial court indicated from the bench that the motions were denied. Defendants DDSN, Lacy, and Butkus filed an answer dated April 10, 2009 in response to the amended complaint. Defendants Babcock Center and Johnson thereafter filed their answer dated April 17, 2009.

By order filed June 4, 2009, the trial court formally denied Defendants' motions to dismiss Mims's amended complaint. Upon Defendants' motions to alter or amend, the trial court held another hearing on September 4, 2009 and thereafter granted Defendants' motions to dismiss, without prejudice, by order filed November 23, 2009. The trial court's primary finding was that Mims had failed to serve her summons and complaint within 120 days of filing as required by section 15–3–20(B) of the South Carolina Code.

In the order granting a dismissal, the trial court explained that it had initially denied Defendants' motions to dismiss based on judicial economy, as Mims could simply re-file her complaint. The trial court stated Mims had filed her original complaint in May 2007, but did not serve it, and the amended complaint was filed under the same file number, 07–CP–40–3365 almost a year later, in May 2008. The trial court concluded neither the original complaint nor the amended complaint was served within 120 days of the filing of the action denominated 07–CP–40–3365 in May 2007; therefore, the civil action was not commenced within 120 days in accordance with S.C.Code Ann. § 15–3–20(B).

The trial court stated, “As a result of the Plaintiffs failure to accomplish service within 120 days and commence the civil action, there was no suit in existence in which an Amended Complaint could be filed. Therefore, the filing and service of the Plaintiff's Summons and Amended Complaint in May 2008 bearing case action number 07–CP–40–3365 constituted a legal nullity.”

The trial court additionally found dismissal of the case was warranted for “insufficien[c]y of process under Rule 12(b)(4) and insufficiency of service of process under Rule 12(b)(5)” of the South Carolina Rules of Civil Procedure because service of the original complaint was never attempted and service of the amended complaint was “ineffective.” The trial court further found that, “[a]s an additional result” of Mims's failure to accomplish service within 120 days and to properly commence a civil action, “subject matter and personal jurisdiction have not properly attached, and as such this case is also being dismissed under Rule 12(b)(1) and Rule 12(b)(2).” Finally, the trial court found the failure to prosecute the case additionally justified dismissal of the action under Rule 41(b), SCRCP. Mims's motion to alter or amend was denied. Mims appeals.

II. LAW/ANALYSIS

On appeal, Mims asserts (1) the South Carolina General Assembly intended S.C.Code Ann. § 15–3–20 to extend the time for service of a complaint by 120 days after the end of the statute of limitations, as provided by Rule 3(a), SCRCP, and it does not impose additional, more restrictive requirements for service within 120 days of filing, a process which would effectively shorten the statute of limitations; (2) equitable or statutory tolling for persons with disabilities prevents dismissal of the complaint; (3) the circuit court erred in relying upon Rule 41(b), SCRCP, regarding dismissal for failure to prosecute; and (4) Rule 15(a), SCRCP allows a party to amend his or her pleadings any time before a responsive pleading is filed without leave of court, and it does not require a plaintiff to serve the original complaint in cases where the amended complaint was filed and served before an answer to the original complaint was ever served.

In contrast, Defendants argue that, reading Rule 3(a), SCRCP and section 15–3–20 together, to properly commence a civil action, actual service must be accomplished in all cases within one hundred twenty days of filing the summons and complaint. They contend that, because Mims did not serve her original or her amended summons and complaint within 120 days of filing the original summons and complaint in May 2007, the amended complaint was a nullity under section 15–3–20. Therefore, the trial court properly dismissed the action pursuant to Rules 12(b)(1), (2), (4), and (5) and the failure to prosecute under Rule 41(b).

Section 15–3–20 of the South Carolina Code governs the commencement of actions. In 2002, the General Assembly amended the statute to its current form, and it now provides:

(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.

S.C.Code Ann. § 15–3–20 (2005).

In 2004, in direct response to the legislative change in section 15–3–20(B), this Court amended Rule 3(a) of the South Carolina Rules of Civil Procedure to read as follows:

(a) Commencement of civil action. 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.²

As stated in the official notes to the rule, this Court amended Rule 3, SCRCP in 2004 “to reflect the legislative intent expressed in § 15–3–20 as amended by 2002 S.C. Act No. 281, § 1.” Note to 2004 Amendment, Rule 3, SCRCP. The 2004 amendment to Rule 3 “rewrote subsection (a), deleted subsection (b) [“Tolling of Statute of Limitations”], and renumbered subsection (c) [“Filing of In Forma Pauperis”] as subsection (b).” Id.

In the current appeal, the trial court read section 15–3–20(B) to require actual service to be made within 120 days of filing in all cases. However, under this interpretation, an action filed and served within the statute of limitations could be deemed untimely and subject to dismissal. In amending Rule 3(a), SCRCP, this Court recognized that the legislative intent in amending section 15–3–20(B) in 2002 was to provide a safety net for cases where filing of the summons and complaint occurs near the end of the statute of limitations and service is made after the limitations period has run. The statute and the rule, read together, provide that (1) an action is commenced upon filing the summons and complaint, if service is made within the statute of limitations, and (2) if filing but not service is accomplished within the statute of limitations, then service must be made within 120 days of filing.

We...