Don Shevey & Spires, Inc. v. American Motors Realty Corp.

Citations: 301 S.E.2d 757; 279 S.C. 58; 1983 S.C. LEXIS 266Docket: 21893

Court: Supreme Court of South Carolina; April 5, 1983; South Carolina; State Supreme Court

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The Supreme Court of South Carolina affirmed the trial court's dismissal of Don Shevey Spires, Inc.'s action against American Motors Realty Corporation and American Motors Sales Corporation due to the appellant's failure to proceed with the case. The appellant served a Summons on July 15, 1976, but did not file a Complaint for over twenty months, despite a demand from respondents. The court noted that the appellant was granted an extension but delayed filing for an additional fifteen months, and current counsel admitted there was no valid excuse for this delay. The court emphasized the plaintiff's burden to prosecute their case and the necessity for courts to manage their dockets efficiently, citing past cases that support dismissal for unreasonable neglect. The appellant's argument that respondents waived the irregularities by not demanding a timely filing was rejected; the court stated that the responsibility to proceed lies with the plaintiff. Ultimately, the court found that allowing the case to continue would undermine the requirement for diligence in prosecution. The dismissal was affirmed, with some justices dissenting.

Justice Harwell dissents, advocating for the reversal of the trial court's decision. The case originated when appellants served a Summons without a Complaint under the South Carolina Dealer's Day in Court Act. Respondent requested the Complaint, and appellants' law clerk, Mr. Linwood Perry, sought an indefinite extension from the respondent to serve the Complaint, which was subsequently granted. However, the former attorney, James W. Morris, did not file the Complaint, and he was later suspended and disbarred. Perry was then substituted as counsel but attempted to file the Summons fifteen months post-service, which was initially rejected for non-compliance with Circuit Court Rule 26. After submitting an affidavit citing “inadvertence, mistake or excusable neglect,” the Summons was accepted.

During the period from August 1976 to March 1978, the respondent's attorney did not request the Complaint again. On March 20, 1978, Perry served the Complaint and discovery requests, leading to the respondents removing the action to federal court, where they filed an answer. The Complaint was related to events from April 1972 to September 1974 concerning an American Motors dealership. Respondents asserted a statute of limitations defense. The federal court allowed the appellants to amend their Complaint, with extensive discovery occurring from October 1978 to February 1979. The case was remanded to state court in February 1980.

In March 1980, appellants sought to amend their Complaint, while respondents moved to dismiss based on the failure to timely file the Summons. The trial court dismissed the action without prejudice, citing the requirement to file the Summons within ten days of service. However, it did not consider that respondents could have requested a judge's order to compel the filing, which they did not do despite engaging in trial preparations and discovery for nearly four years post-service. Harwell notes that procedural defects must be raised promptly, or they are generally waived, and emphasizes that respondents had the right to seek an order but failed to do so.

Service of a summons initiates civil actions in South Carolina, notifying defendants of litigation, as stated in S.C. Code Ann. 15-9-10 (1976). In this case, respondents were properly served and aware of the litigation, having engaged with corporate counsel regarding its general nature. Despite respondents’ claims of prejudice due to a delay in filing the summons—particularly related to changes in their management—appellants were within their rights to file until 1978, and the respondents received notice two years before the statute of limitations expired. The lack of filing did not prejudice respondents, as affirmed by the trial judge's dismissal without prejudice. However, this dismissal effectively barred the claim due to the expiration of the four-year statutory period under S.C. Code Ann. 56-15-10 (1976). The respondents' argument is deemed overly technical, and their four-year delay in raising objections indicates a waiver of any claim regarding the filing issue. Therefore, the recommendation is to reverse the trial court’s decision and remand for proceedings under the original summons. Judge Gregory concurs with this opinion.