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2007-UP-530 - Garrett v. Lister, Flynn, & Kelly, P.A.

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

John J. Garrett, Appellant

v.

Lister, Flynn, & Kelly, P.A., Toney Lister, and Brendan Delaney, Respondents.


Appeal From Spartanburg County
 Roger L. Couch, Circuit Court Judge


Unpublished Opinion No. 2007-UP-530
Submitted November 1, 2007 – Filed November 14, 2007


AFFIRMED


John J. Garrett, of Reidville, for Appellant.

Mason A. Goldsmith, of Greenville, for Respondents.

PER CURIAM: In this civil case, we affirm the trial court’s determination that John Garrett (Garrett) failed to follow the proper service of process requirements as set out in the South Carolina Rules of Civil Procedure.  We also conclude the trial court properly dismissed the case with prejudice.

FACTS

On February 28, 2005, Garrett filed a complaint against the law firm of Lister, Flynn, & Kelly, P.A. (Law Firm), attorney Toney Lister (Lister), and attorney Brenda Delaney (Delaney) In his complaint, Garrett alleged numerous causes of action.  The acts which Garrett complained of occurred on March 15, 2002, nearly three years prior to filing the complaint. 

On June 10, 2005, Garrett personally attempted to serve Delaney at Delaney’s place of business.  However, Delaney was not present at that time.  On June 20, 2005, Garrett attempted to serve Law Firm by registered mail, return receipt requested.  The registered mail was not restricted to Law Firm’s registered agent, and the registered agent did not sign for the delivery.  On June 21, 2005, by way of regular mail rather than certified Garrett, attempted to serve Lister. 

On July 8, 2005, the Respondents filed a Motion to Quash the Service of Process.  On July 25, 2005, Garrett filed his response to this motion.  Prior to filing his response, Garrett filed an amended complaint on July 11, 2005.  The trial court found Garrett had failed to properly serve the Respondents.  Garrett argued he was unable to effectuate service because he was disabled.  Garrett asked the trial court to grant him an extension so that he could properly serve the Respondents.  The trial court denied this request and dismissed the case with prejudice because the statute of limitations ran before Garrett filed his amended complaint, and Garrett did not perfect service of process on the Respondents before the statute of limitation ended. 

On appeal, Garrett makes the following nine arguments: (1) the trial court erred in finding service to Law Firm was not properly made; (2) the trial court erred in failing to conclude Delaney was properly served; (3) the trial court should have allowed Garrett an extension of time in which to serve the Respondents; (4) the trial court erred by ruling on the statute of limitations issue; (5) the trial court erred by dismissing the case with prejudice; (6) the trial court erred by failing to put into evidence a document Garrett provided; (7) the trial court, by requiring Garrett to stand during oral arguments, denied Garrett the opportunity to compete with opposing counsel on an equal basis; (8) Garrett was denied the opportunity to check out law books from the Spartanburg Library; and (9) the trial judge erred by failing to recuse himself.  We address each argument in turn.

LAW/ANALYSIS

A. The trial court properly found Garrett did not serve Law Firm.

Garrett’s first argument is the trial court improperly concluded that he failed to properly serve Law Firm.  We disagree. 

Garrett attempted service upon Law Firm by certified mail.  Rule 4(d)(8) of the South Carolina Rules of Civil Procedure provides that a partnership may be served “by registered or certified mail, return receipt requested and delivery restricted to the addressee.” (emphasis added). 

The Certificate of Service clearly shows Garrett failed to restrict delivery as required by Rule 4.  Thus, the trial court properly concluded Garrett did not serve Law Firm.

B. The trial court correctly concluded Garrett improperly served Delaney.

Garrett’s second argument is the trial court erred by not concluding he properly served Delaney.  We disagree.

Rule 4(c) of the South Carolina Rules of Civil Procedure states:

Service of summons may be made by the sheriff, his deputy, or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action.  Service of all other process shall be made by the sheriff or his deputy or any other duly constituted law enforcement officer or by any person designated by the court who is not less than eighteen (18) years of age and not an attorney in or a party to the action . . . .

he Certificate of Service states that Garrett personally attempted to serve Delaney at Delaney’s place of business.  Garrett is a party in the law suit against Delaney, thus he cannot effectuate service.  Therefore, the trial court properly concluded that Delaney was not served. 

C. The trial court properly ruled that Garrett was not entitled to an extension of time in which to serve the Respondents.

Garrett’s third argument is the trial court should have granted an extension so that Garrett could properly serve the Respondents.  We disagree.

Rule 3(a) of the South Carolina Rules of Civil Procedure provides:

A civil action is commenced when the summons and complaint are filed with clerk of court if: (1) the summons and complaint are served within the statute of limitations . . . . or (2) if not served within the statute of limitations, actual service must be accomplished no later than one hundred twenty days after filing.

In the present case, Garrett filed the complaint on February 28, 2005. The acts which Garrett complained of occurred on March 15, 2002, nearly three years prior to filing the complaint.  The statute of limitations for the underlying causes of action ran in March 15, 2005.  Garrett failed to properly serve the Respondents by March 15, 2005, within the statue of limitations. 

However, Garrett could commence the action if he had served the Respondents within 120 days of filing the complaint.  Thus, Garrett’s suit would have been timely and not barred by the statute of limitations if he had actually served the Respondents by June 28, 2005, 120 days after filing the compliant.  Rule 3(a), SCRCP.

As discussed above, Garrett failed to properly serve the Respondents.  Consequently, the statute of limitations ran on June 28, 2005. 

Garrett argues the trial court should have given him an extension to serve the Respondents because he was disabled during the time period between filing the complaint and the expiration of the one hundred twenty day period.  In other words, Garrett asks this Court to carve out an exception to the 120 day time period set out in Rule 3 if an individual is disabled. 

When interpreting language of a court rule, the same rules of construction employed in interpreting statutes apply.  State v. Brown, 344 S.C. 302, 307, 543 S.E.2d 568, 571 (Ct. App. 2001).  “Therefore, the words of [the rule] must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the rule.”  Id. (internal quotations and citations omitted).  The cardinal rule of statutory construction is to determine and give effect to the intent of the legislature.  Charleston County Sch. Dist. v. State Budget & Control Bd., 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993).  The best evidence of legislative intent is the text of the statute.  Wade v. State, 348 S.C. 255, 259, 559 S.E.2d 843, 844 (2002) (internal quotations and citations omitted).  If the terms of the statute are clear, the court must apply those terms according to their literal meaning.  City of Columbia v. Am. Civil Liberties Union of S.C., Inc., 323 S.C. 384, 387, 475 S.E.2d 2d 747, 749 (1996). 

Rule 3 does not state an exception to the time period provided therein if an individual is disabled.  It is not within the purview of this Court to carve such an exception.  See Wiggins v. Edwards, 314 S.C. 126, 129, 442 S.E.2d 169, 171 (1994) (“This Court is without authority to alter the plain and unambiguous language of the statute.”).

D. The trial court did not err by ruling on the statute of limitations issue.

Garrett seems to argue the trial court should not have addressed the statute of limitations issue because it was never before the trial court.  We disagree. 

Garrett, in response to Respondents Motion to Quash Service stated, “As the 120 days are out, any decision to dismiss may conclude any opportunity to recover even if the decision is made without prejudice since the Statute of Limitations may have run and refiling may not be an option.”  Garrett brought the issue of statute of limitations to the trial court’s attention, and the trial court was proper to address it.

E. The trial court did not err by dismissing the case with prejudice.

Garrett’s fifth argument is the trial judge erred by dismissing the case with prejudice.  We disagree.

As explained above, the statute of limitations in this case ran on June 28, 2005.  The trial court issued an order on September 29, 2005, three months after the statute of limitations expired.  The trial court properly dismissed the case with prejudice because Garrett was barred from refiling this case. 

F. The trial court did not err by failing to put into evidence a document Garrett provided.

On October 13, 2005, Garrett filed a Motion to Amend.  A hearing was held on this motion on December 12, 2005.  During this hearing, Garrett attempted to introduce a letter from Dr. Christopher Caston The trial court declined to consider this letter when issuing its order. 

Garrett does not provide authority as to why the trial court’s decision is improper.  Thus, we consider the issue abandoned.  Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct. App. 2001) (holding statements made without supporting authority are deemed abandoned on appeal and are not presented for review).

G. Garrett’s final three arguments are not preserved for review.

In his final three arguments, Garrett contends the trial court, by requiring Garrett to stand during oral arguments, denied Garrett the opportunity to compete with opposing counsel on an equal basis; Garrett was denied the opportunity to check out law books from the Spartanburg Library; and the trial judge erred by failing to recuse himself.

We do not address these issues because they were neither raised to nor ruled upon by the trial court.  Wilder, Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”).

CONCLUSION

Accordingly, the trial court’s decision is

AFFIRMED. [1]

ANDERSON, SHORT, and WILLIAMS, JJ., concur.


[1] We decide this case without oral arguments pursuant to Rule 215, SCACR.