Civil Practice – Service of Process – Pleadings Amendment – Statute of Limitations

Mims v. Babcock Center, Inc. (Lawyers Weekly No. 010-081-12, 11 pp.) (Donald W. Beatty, J.) (John W. Kittredge, J., concurring) (Costa M. Pleicones, J., dissenting) Appealed from Richland County Circuit Court. (Joseph M. Strickland, J.) S.C. S. Ct.

Holding: Plaintiff filed her original complaint on May 29, 2007 but never served it. She filed an amended complaint on May 7, 2008 and served it on May 12, 2008. Reading S.C. Code Ann. § 15-3-20(B) and Rule 3(a), SCRCP, together, we find the trial court erred when it granted defendants’ motion to dismiss based on insufficiency of process and insufficiency of service of process, as well as lack of jurisdiction, and failure to prosecute.

Reversed and remanded.

Section 15-3-20(B) provides, “(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.”

Rule 3(a) provides, “(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.”

Thus, (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.

Applying these provisions to the case before us, we conclude the trial court erred in finding plaintiff’s amended complaint should be dismissed for failure to serve it within 120 days of filing the original complaint.

To the extent the trial court further found the alleged absence of proper service resulted in a lack of personal and subject matter jurisdiction and a failure to prosecute, we reverse these findings as they are premised on the perceived error regarding service. Moreover, we note the failure of proper service does not affect the court’s subject matter jurisdiction, in any event.

Concurrence

(Kittredge, J.) I join the majority opinion save the Rule 15, SCRCP, analysis. I agree with Justice Pleicones’ view of Rule 15’s inapplicability to this case, which does not affect the disposition of this appeal.

Dissent

(Pleicones, J.) I would affirm. Because appellant failed to actually serve the complaint within 120 days of filing, the 2007 action ended; thus, no action was commenced to which the 2008 amended complaint could attach.

Where, as here, the action is sought to be commenced more than 120 days before the expiration of the statute of limitations, there is an irreconcilable conflict between Rule 3(a) and § 15-3-20. Rule 3(a) permits a complaint filed more than 120 days before expiration of the statute of limitations to be served at any time before the statute expires. Where the question is one of practice and procedure in the courts, a court rule is subordinate to the statutory law.  Where the mandate of § 15-3-20(B), requiring actual service within 120 days of filing, is not met, the action cannot be saved by application of Rule 3(a)(1).