Reliford v. Pearson

• Court: Court of Appeals of South Carolina
• Decided: September 26, 2003
• Docket: 2003-UP-558
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Ephrain Reliford, Jr.,        Appellant,

v.

Larry Pearson and Charles Truesdale,        Respondents.

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Appeal From Aiken County
 Robert A. Smoak, Jr., Circuit Court Judge

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Unpublished Opinion No. 2003-UP-558
Submitted July 15, 2003 – Filed September 26, 2003  

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AFFIRMED

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Ephrain Reliford, Jr., of Kershaw, for Appellant.

James D. Nance and A. Shane Massey, both from Nance & McCants, of Aiken, for Respondent.

PER CURIAM: Ephrain Reliford, Jr. filed a complaint against Larry Pearson and Charles Truesdale, accusing them of violating his civil rights and committing various state law offenses when they aided in arresting Reliford on murder charges.  The circuit court dismissed Reliford’s complaint for insufficient service of process, and Reliford appeals.  We affirm. [1]

FACTS

In January of 1995, Reliford was sentenced to thirty years for voluntary manslaughter.  While serving his time, Reliford filed a complaint against Pearson, an agent of the Aiken County Sheriff’s Department, and Truesdale, an agent of the Unites States Army, alleging they violated constitutional provisions and state law in their investigation and arrest of him. After filing the action in January, Reliford served the summons and complaint on the attorney general by certified mail on March 13, 2002.  This same date, Reliford attempted to serve Truesdale with the summons and complaint by certified mail to the Aiken County Sheriff’s Department.  The certified mail receipt indicates Reliford neither requested a return receipt nor restricted delivery. 

On April 5, 2002, Truesdale’s and Pearson’s attorney filed an answer, in which counsel moved to dismiss the case for improper service and, alternatively, moved for summary judgment.  Reliford attempted to serve Pearson by regular U.S. Mail on April 9, 2002 and by certified mail to Pearson’s attorney on April 11, 2002. [R. 31-32]

Reliford asserted that he brought the action against Truesdale and Pearson both as individuals and as “government representatives.” Reliford argued that he was entitled to serve Truesdale and Pearson as state agents under Rule 4(d)(5), which inter alia, requires service on the South Carolina Attorney General.  In support of this argument, Reliford contended that even though Pearson was a member of the U.S. Army at the time the alleged events occurred, he was acting under the direction of the Aiken County Sheriff as was Truesdale, who worked for the Aiken County Sheriff’s Department at the time.

The circuit court dismissed the case, finding that even assuming both defendants were under the supervision of the Aiken County Sheriff’s Department, service upon them individually could not be accomplished under Rule 4(d)(5).  The court noted that service under subsection (d)(5) is proper only upon a state officer and found that officers working for the Aiken County Sheriff’s Department were not state officers. [R. 3] The court further found that Truesdale and Pearson were not properly served under any subsection of Rule 4.  Truesdale’s service was insufficient because Reliford did not restrict delivery or request a return receipt.  Pearson’s service was also improper because the summons and complaint were not sent to him via certified mail and no provision under Rule 4 allows a plaintiff to serve process on a defendant merely by sending the summons and complaint to the office of the defendant’s attorney.  Finally, the circuit court ruled that service upon Pearson’s attorney was ineffective because no provision in Rule 4 allows for service upon an attorney and because the attorney never “accepted service” pursuant to Rule 4(j).

Accordingly, the circuit court made no ruling as to Truesdale’s and Pearson’s motion for summary judgment and granted their motion to dismiss pursuant to Rule 12(b)(5), SCRCP.  Reliford appeals.

ISSUES

A.   Were Pearson and Truesdale properly served with the summons and complaint pursuant to Rule 4(d)(5)?  (App. Issues 1 & 3)

B.   Did Pearson and Truesdale waive their right to assert a service of process objection by raising a statute of limitations defense?

C.   Did the circuit court err by not allowing Reliford to amend his amended complaint and substitute the Aiken County Sheriff’s Department as a defendant for Pearson and Truesdale?

DISCUSSION

A.      Service under Rule 4(d)(5)

Reliford claims that Pearson and Truesdale were state officers and were properly served with the summons and complaint pursuant to Rule 4(d)(5).  Even assuming that Pearson and Truesdale are state officers, we disagree they were properly served.

Rule 4(d)(5), SCRCP provides for service “[u]pon an officer or agency of the State by delivering a copy of the summons and complaint to such officer or agency and by sending a copy of the summons and complaint by registered or certified mail to the Attorney General at Columbia.”  (Emphasis added). Although Reliford’s attempt at service complied with the provision of the rule requiring service on the attorney general by certified mail, it did not comply with the provision requiring delivery upon Pearson and Truesdale as officers of the state. 

The language of Rule 4(d)(5) indicates that Pearson and Truesdale could not be “sent” a copy of the summons and complaint, but rather that the summons and complaint had to be “delivered” to them.  By using the term “send” when referring to the notice being mailed, it appears that the rule does not allow service upon officers via mail; instead, service of process must be “delivered” to the officers personally.  Rule 4(d)(8), which describes the means by which the summons and complaint can be sent via mail, corroborates this interpretation by restricting mailed service of process to individuals and corporations.  Because Reliford argues that he served Pearson and Truesdale as officers of the State, his mailing of the service of process did not comply with the rule.

Furthermore, even if Reliford attempted to serve Truesdale and Pearson as individuals, his attempt was unsuccessful.  To serve an individual with process through the mail system, Rule 4(d)(8) requires that process be sent “by registered or certified mail, return receipt requested and delivery restricted to the addressee.”  This subsection further states: “Service is effective upon the date of delivery as shown on the return receipt. . . . If delivery of the process is refused or is returned undelivered, service shall be made as otherwise provided by these rules.” 

In Truesdale’s case, Reliford sent the summons and complaint by certified mail without requesting a return receipt or restricting delivery.  To Pearson, Reliford sent the summons and complaint by regular, first-class mail.  Because there is no return receipt indicating acceptance by either of the respondents and there is no evidence in the record that either Truesdale or Pearson otherwise received the summons and complaint, these means of service were ineffective under Rule 4.

Reliford also attempted to serve Pearson by sending a summons and complaint to Pearson’s attorney.  Notably, SCRCP 4(d)(1) provides for service upon an agent if the agent is authorized by appointment or by law.  Moore v. Simpson, 322 S.C. 518, 523, 473 S.E.2d 64, 66 (Ct. App. 1996) (citing Hamilton v. Davis, 300 S.C. 411, 389 S.E.2d 297 (Ct. App. 1990)).   To serve a defendant’s agent, the court must find the defendant intended to confer the alleged agent with the authority to accept service of process on his behalf.  Id. “Without specific authorization to receive process, service is not effective when made upon an employee of the defendant.”  Id. at 524, 473 S.E.2d at 67 (citing 62B Am.Jur. 2d Process § 234 (1990)).  Here, there is simply no evidence Pearson intended to confer authority upon his attorney to accept service of his summons and complaint. 

We agree with the circuit court’s determination that Reliford failed to deliver the summons and complaint upon Truesdale and Pearson in accordance with Rule 4, SCRCP.

B.      Waiver of the Service of Process Objection

Reliford next contends that Pearson and Truesdale waived their right to assert a service of process objection because they raised a statute of limitations defense.  We disagree.

Rule 4(d) of the South Carolina Rules of Civil Procedure states that a “[v]oluntary appearance by defendant is equivalent to personal service . . . .”  At the same time, Rule 12(b)(2), SCRCP states that the defense of “lack of jurisdiction over the person” may be made by motion or by responsive pleading.  Case law harmonizes these two rules by explaining: “[I]f a defendant appears before the court to contest jurisdiction over his person, and does not simultaneously address the merits, he has not waived his objection under Rule 4(d).”  Maybin v. Northside Correctional Center, 891 F.2d 72 (4th Cir. 1989)(citing Smalls v. Weed, 291 S.C. 258, 353 S.E.2d 154 (Ct. App. 1987) and Dunbar v. Vandermore, 295 S.C. 493, 369 S.E.2d 150 (1988)).

According to the order of the circuit court – which is the only source of information we have because Reliford failed to include a transcript of the proceeding – counsel for Pearson and Truesdale first argued a motion to dismiss for insufficient service of process and failure to state facts sufficient to constitute a cause of action. After the arguments for the motion to dismiss were complete, the court, in the interest of judicial economy, allowed the parties to argue the respondents’ alternative motion for summary judgment.  

We agree with Reliford that, ordinarily, a defendant who argues a motion for summary judgment is making a “voluntary appearance” before the court and consequently waives any objection to personal jurisdiction.  However, where as here, the summary judgment motion is a separate, alternative argument and was made only after the service issue received a complete debate, it does not waive a defendant’s objection to personal jurisdiction.  See Maybin v. Northside Correctional Center, 891 F.2d 72 (4th Cir. 1989) (“[I]f a defendant appears before the court to contest jurisdiction over his person, and does not simultaneously address the merits, he has not waived his objection under Rule 4(d).”(Emphasis added.)).

C.      Amendment of Reliford’s Complaint

Finally, Reliford argues the circuit court erred by not allowing him to amend his (already amended) complaint and substitute the Aiken County Sheriff’s Department as a defendant in place of Pearson and Truesdale.  Reliford claims that the Tort Claims Act provides for an automatic party substitution and the Rules of Civil Procedure prevent an action from being dismissed merely because the action identifies the wrong party.  This issue was raised to the circuit court in Reliford’s Rule 59(e) motion, and the circuit court declined to address the issue because Reliford failed to make the arguments at the original hearing.  [R. 8] We agree with the circuit court and find that by failing to present this issue to the circuit court prior to judgment, Reliford did not preserve the issue for our review.  See Patterson v. Reid, 3128 S.C. 183, 456 S.E.2d 436, 437 (Ct. App. 1995) (“A party cannot for the first time raise an issue by way of a Rule 59(e) motion which could have been raised at trial); Crary v. Djebelli, 321 S.C. 38, 467 S.E.2d 128, 131-132 (Ct. App. 1995) (“A party cannot use Rule 59(e), SCRCP, to present to the trial court an issue the party could have raised prior to judgment but did not.”)

Conclusion

Reliford failed properly serve Truesdale and Pearson in accordance with Rule 4, SCRCP.  Both Pearson and Truesdale raised the lack of personal jurisdiction issue to the circuit court, and they did not waive their objection to this issue by appearing before the circuit court.  Additionally, the circuit court did not err in refusing to allow Reliford to amend his complaint.  Accordingly, the circuit court’s dismissal of Reliford’s complaint is

HEARN, C.J., CONNOR and ANDERSON, JJ., concur.

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