Davis v. Lunceford

Supreme Court of South Carolina

Davis v. Lunceford

335 S.E.2d 798, 287 S.C. 242, 1985 S.C. LEXIS 498

CourtSupreme Court of South Carolina

DecidedOctober 1, 1985

Docket22378

StatusPublished

Cited by10 cases

This text of 335 S.E.2d 798 (Davis v. Lunceford) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. Lunceford, 335 S.E.2d 798, 287 S.C. 242, 1985 S.C. LEXIS 498 (S.C. 1985).

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Opinion

Per Curiam:

This is the third appeal in this medical malpractice action that arose from an allegedly defective surgical procedure performed in December 1972. See Davis v. Lunceford, 274 *243 S. C. 576, 266 S. E. (2d) 73 (1980); Davis v. Lunceford, 279 S. C. 503, 309 S. E. (2d) 791 (S. C. App. 1983), cert, denied, Order filed May 17, 1984. Because of the need for final resolution in this case, we have allowed this direct appeal from the lower court’s order denying appellant’s motion for summary judgment. Cf. Mitchell v. Mitchell, 276 S. C. 44, 275 S. E. (2d) 1 (1981).

In December 1983, the Court of Appeals affirmed the trial court’s order dismissing this action but modified it to dismissal without prejudice. In June 1984, respondent served a summons and complaint re-alleging the same causes of action. Appellant moved for summary judgment on the ground that the statute of limitations had already expired. The trial court denied the motion finding respondent had timely renewed his cause of action pursuant to S. C. Code Ann. § 15-3-90 (1976) which allows a plaintiff to commence a new action within one year after a judgment is reversed on appeal.

Section 15-3-90 is not applicable in this case because no judgment was reversed on appeal. When an action is dismissed without prejudice, the statute of limitations will bar another suit if the statute has run in the interim. Don Shevey & Spires, Inc., v. American Motors Realty Corp., 279 S. C. 58, 301 S. E. (2d) 757 (1983); Martin v. Archer, 21 S. C. L. (3 Hill) 211 (1837). The applicable statute of limitations in this case is six years. S. C. Code Ann. § 15-3-530 (1976). Even assuming the statute would have expired in 1982 as calculated by respondent, service of the summons and complaint in 1984 was clearly out of time.

Accordingly, the judgment of the lower court is reversed and the case is remanded for entry of judgment for appellant.

Reversed and remanded.

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Per Curiam:

This is the third appeal in this medical malpractice action that arose from an allegedly defective surgical procedure performed in December 1972. See Davis v. Lunceford, 274 *243 S. C. 576, 266 S. E. (2d) 73 (1980); Davis v. Lunceford, 279 S. C. 503, 309 S. E. (2d) 791 (S. C. App. 1983), cert, denied, Order filed May 17, 1984. Because of the need for final resolution in this case, we have allowed this direct appeal from the lower court’s order denying appellant’s motion for summary judgment. Cf. Mitchell v. Mitchell, 276 S. C. 44, 275 S. E. (2d) 1 (1981).

In December 1983, the Court of Appeals affirmed the trial court’s order dismissing this action but modified it to dismissal without prejudice. In June 1984, respondent served a summons and complaint re-alleging the same causes of action. Appellant moved for summary judgment on the ground that the statute of limitations had already expired. The trial court denied the motion finding respondent had timely renewed his cause of action pursuant to S. C. Code Ann. § 15-3-90 (1976) which allows a plaintiff to commence a new action within one year after a judgment is reversed on appeal.

Section 15-3-90 is not applicable in this case because no judgment was reversed on appeal. When an action is dismissed without prejudice, the statute of limitations will bar another suit if the statute has run in the interim. Don Shevey & Spires, Inc., v. American Motors Realty Corp., 279 S. C. 58, 301 S. E. (2d) 757 (1983); Martin v. Archer, 21 S. C. L. (3 Hill) 211 (1837). The applicable statute of limitations in this case is six years. S. C. Code Ann. § 15-3-530 (1976). Even assuming the statute would have expired in 1982 as calculated by respondent, service of the summons and complaint in 1984 was clearly out of time.

Accordingly, the judgment of the lower court is reversed and the case is remanded for entry of judgment for appellant.

Reversed and remanded.

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Bluebook (online)

335 S.E.2d 798, 287 S.C. 242, 1985 S.C. LEXIS 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-lunceford-sc-1985.

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