Cary E. Fetcher v. Leon Martnin Ortner 2

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Cary E. Fechter, M.D., Appellant,

v.

Leon Martin Ortner, The Ortner Law Firm, LLC, Gerald
Rosenthal, and Rosenthal, Levy, Simon, and Ryles, P.A.,
Respondents.

Appellate Case No. 2021-000446

Appeal From Charleston County
J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2024-UP-306
Heard September 4, 2024 – Filed September 4, 2024

AFFIRMED

Stephen Peterson Groves, Sr., of Butler Snow, LLP, of
Charleston, for Appellant.

M. Dawes Cooke, Jr., and Justin Paul Novak, both of
Barnwell Whaley Patterson & Helms, LLC, of
Charleston, for Respondents Leon Martin Ortner and The
Ortner Law Firm, LLC.

Michael Enrico Kozlarek and John Marshall Mosser,
both of King Kozlarek Law, LLC, of Greenville, for
Respondents Gerald Rosenthal and Rosenthal, Levy,
Simon, and Ryles, P.A.

PER CURIAM: Dr. Cary E. Fechter appeals the circuit court's orders dismissing
his claims against Leon Martin Ortner and The Ortner Law Firm, LLC
(collectively, the Ortner Respondents) as well as Gerald Rosenthal and Rosenthal,
Levy, Simon and Ryles, PA (RLSR) (collectively, the Rosenthal Respondents).
Dr. Fechter argues the circuit court erred in finding it lacked personal and subject
matter jurisdiction to adjudicate his claims, in granting Respondents' motions to
dismiss, and in denying his motions for reconsideration. We affirm pursuant to
Rule 220(b), SCACR.

1. Before considering Dr. Fechter's arguments, we must address Respondents'
argument that this court lacks appellate jurisdiction. First, we hold Dr. Fechter's
serving and filing of a notice of appeal of the order denying his motions for
reconsideration, attaching only this order to his notice of appeal, and failing to
reference and attach the Form 4 order of dismissal or substantive order granting the
Ortner Respondents' motion to dismiss does not deprive this court of appellate
jurisdiction.1 See Weatherford v. Price, 340 S.C. 572, 577-78, 532 S.E.2d 310,
313 (Ct. App. 2000) (rejecting respondent's argument that appellant failed to
appeal the final order by referring only to the order denying a motion for
reconsideration in the notice of appeal). Second, we acknowledge Dr. Fechter did
not serve his notice of appeal within thirty days of an August 4, 2020 order;
however, this does not deprive the court of appellate jurisdiction. Although Dr.
Fechter filed a second motion for reconsideration on August 13, 2020, Dr.
Fechter's first motion for reconsideration dated June 17, 2020, was still pending
until the circuit court denied it on March 30, 2021; thus, Dr. Fechter timely served
his notice of appeal on April 21, 2021. See Rule 203(b)(1), SCACR (stating that
for an appeal from the court of common pleas, an appellant shall serve a notice of
appeal "on all respondents within thirty (30) days after receipt of written notice of
entry of the order or judgment"); Elam v. S.C. Dep't of Transp., 361 S.C. 9, 15, 602

1
Our supreme court has previously reversed such a dismissal. See In re Estate of
Hinson, 2011-MO-039 (S.C. Sup. Ct. filed Dec. 19, 2011) (reversing dismissal of
appeal where dismissal was based on petitioner's failure "to serve and file a notice
of appeal from the final order granting respondent's motion for summary
judgment" and petitioner had "served and filed a notice of appeal from a
subsequent order denying his Rule 59(e), SCRCP, motion, without any mention of
the earlier order").
S.E.2d 772, 775 (2004) (providing a timely post-trial motion "stays the time for an
appeal for all parties until receipt of written notice of entry of the order granting or
denying such motion").

2. We find the circuit court properly dismissed Dr. Fechter's case against the
Ortner Respondents because he failed to effect service of process on them. See
Christian v. Healy, 435 S.C. 507, 510, 868 S.E.2d 403, 405 (Ct. App. 2021) ("The
trial court's findings of fact regarding validity of service of process are reviewed
under an abuse of discretion standard." (quoting Graham Law Firm, P.A., v.
Makawi, 396 S.C. 290, 294-95, 721 S.E.2d 430, 432 (2012))); Roche v. Young
Bros., Inc. of Florence, 318 S.C. 207, 209-10, 456 S.E.2d 897, 899 (1995) ("Rule
4, SCRCP, serves at least two purposes. It confers personal jurisdiction on the
court and assures the defendant of reasonable notice of the action. We have never
required exacting compliance with the rules to effect service of process. Rather,
we inquire whether the plaintiff has sufficiently complied with the rules such that
the court has personal jurisdiction of the defendant and the defendant has notice of
the proceedings." (internal citations omitted)). To effect service of process on the
Ortner Respondents, Dr. Fechter sent an envelope purportedly containing the
summons and complaint addressed to Ortner by certified mail, signature
confirmation restricted delivery, to The Ortner Law Firm's address.

This mailing did not effect service of process on Ortner, individually. See Rule
4(d)(1), SCRCP (stating service upon an individual shall be made "by delivering a
copy of the summons and complaint to him personally . . . or by delivering a copy
to an agent authorized by appointment or by law to receive service of process");
Rule 4(d)(8), SCRCP ("Service of a summons and complaint upon a defendant of
any class referred to in paragraph (1) or (3) of this subdivision of this rule may be
made by the plaintiff or by any person authorized to serve process pursuant to Rule
4(c), including a sheriff or his deputy, by registered or certified mail, return receipt
requested and delivery restricted to the addressee. Service is effective upon the
date of delivery as shown on the return receipt."). Ortner attested (1) the summons
and complaint had "not been delivered to [him] personally," and (2) he never
accepted or acknowledged receipt of service of process in this case, signed a return
receipt for the envelope, or "designated, appointed, or otherwise authorized any
person to receive service of process on [his] behalf." The return receipt and
envelope were addressed to Ortner at The Ortner Law Firm's address; however, the
return receipt was not signed, and although the envelope listed Dr. Fechter's
attorney's name and the title "Trial Lawyer," it did not contain any markings,
except for "Closed 12/6." An employee who primarily performed bookkeeping
services attested that on December 7, 2017, she "happened to pick up mail"
delivered to The Ortner Law Firm's address, including the envelope at issue;
however, she further attested she was not a "member, officer, or managing or
general agent, of" The Ortner Law Firm; thus, she was unauthorized to accept
service on Ortner's behalf. See Moore v. Simpson, 322 S.C. 518, 524, 473 S.E.2d
64, 67 (Ct. App. 1996) (finding "appellants failed to produce any evidence that the
receptionist had express authority to accept service of process"; evidence supported
the trial court's apparent finding resolving the factual issue of "whether the
receptionist indicated she was authorized to accept service"; and there "simply
[was] no evidence Simpson or the firm intended to confer authority, either express
or implied, upon the receptionist to accept service of process"). Accordingly, we
hold Dr. Fechter failed to effect service of process on Ortner, resulting in the
failure to commence an action against him. See Rule 3(a), SCRCP ("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 [120] days after filing.").

We further find Dr. Fechter failed to effect service of process on The Ortner Law
Firm. See Rule 4(d)(3), SCRCP (stating service upon a corporation, partnership, or
unincorporated association shall be made "by delivering a copy of the summons
and complaint to an officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of process and if the agent
is one authorized by statute to receive service and the statute so requires, by also
mailing a copy to the defendant"); Rule 4(d)(8), SCRCP (providing how to serve
by certified mail). Affidavits submitted by the Ortner Respondents show the
employee who retrieved the envelope was not authorized to accept service of
process on The Ortner Law Firm's behalf. See Graham Law Firm, P.A., 396 S.C.
at 297, 721 S.E.2d at 434 ("A rule permitting certain persons to receive service of
process on behalf of others does not imply that 'anyone who happens to pick up the
mail' can stand in for the defendant."); id. at 298, 721 S.E.2d at 434 (finding
evidence, or the lack of evidence to rebut an affidavit, supported the trial court's
ruling that unauthorized persons accepted service of process on behalf of the
defendants). The Ortner Law Firm's affidavit stated Ortner was its "registered
agent for service of process" and had been registered as the sole agent for service
of process since 1996; it did "not have any other members, officers, or managing or
general agents other than" Ortner; and it had "not designated, appointed, or
otherwise authorized any person other than" "Ortner to receive service of process
on its behalf." This affidavit also stated the law firm had not accepted "or
acknowledged receipt of service of process of the summons and complaint" in this
case, and the employee who picked up the envelope was "not a member, officer, or
managing or general agent of [The] Ortner Law Firm" or "authorized by
appointment to receive service of process" on its behalf. The employee attested
she never held herself out as authorized to accept service of process on The Ortner
Law Firm's behalf. Accordingly, we affirm the circuit court's finding that Dr.
Fechter failed to effect service of process on The Ortner Law Firm and thus failed
to properly commence an action against it. See Rule 3(a), SCRCP.

3. We find the circuit court properly dismissed Dr. Fechter's case against the
Rosenthal Respondents because he failed to effect service of process on them. To
serve the Rosenthal Respondents, Dr. Fechter sent an envelope purportedly
containing the summons and complaint addressed to Rosenthal, a Florida resident,
by certified mail, restricted delivery, to RLSR's principal office in Florida.

Such did not constitute proper service on Rosenthal, individually. See Rule
4(d)(1), SCRCP (providing how to serve an individual); Rule 4(d)(8), SCRCP
(providing how to serve by certified mail). According to Rosenthal's affidavit, he
retired from RLSR in December 2015—over one year prior to the certified
mailing—and did not receive mail or maintain an office at RLSR after his
retirement. Although the certified mailing was addressed to Rosenthal, he attested
he did not accept "or acknowledge receipt of service of process," and the return
receipt did not contain Rosenthal's signature; rather, the return receipt was signed
by an employee of RLSR—a rotating receptionist and file clerk present at the
reception desk on or about October 12, 2017, when the mail was delivered.
Rosenthal attested he had not appointed nor designated anyone to act as an agent or
accept service of process on his behalf, and RLSR's registered agent attested
neither he nor any other RLSR employee had "been designated or otherwise
authorized to accept service on" Rosenthal's behalf. Likewise, the employee who
was at the reception desk when the mail was delivered attested he had never been,
nor held himself "out to be a general agent or an agent authorized by appointment
or by law to serve as a statutory agent for service of process for Rosenthal," and
although he "signed the return receipt 'green cards' for several pieces of certified
mail," on or about October 12, 2017, none of the mailings "contained any notations
or markings on the exterior of the envelopes to indicate that they contained
anything other than certified letters." The employee averred he did not accept "or
acknowledge receipt of service of process" on Rosenthal's behalf. Accordingly,
the circuit court properly found Dr. Fechter failed to effect service of process on
Rosenthal and thus failed to commence an action against him.

We further find Dr. Fechter did not achieve proper service on RLSR. See Rule
4(d)(3), SCRCP (providing how to serve corporations, partnerships, or other
unincorporated associations); Rule 4(d)(8) (providing how to serve by certified
mail). RLSR's registered agent attested he was RLSR's registered agent for service
of process in Florida, his address had been "registered with, and published by, the
Florida Secretary of State since January 4, 2016," and was a different address than
that of RLSR, and he never accepted or acknowledged receipt of service of process
on RLSR's behalf in this case. Rosenthal and RLSR's registered agent both
attested that since Rosenthal's retirement, he had not served as a "registered agent
for RLSR and was not otherwise an officer, a managing or general agent, or
otherwise an agent authorized by appointment or by law to receive service of
process for RLSR." Thus, Dr. Fechter incorrectly restricted delivery to Rosenthal,
who no longer worked at RLSR and was not authorized to accept service of
process on RLSR's behalf. Moreover, an unauthorized person—RLSR's rotating
receptionist and file clerk—signed the return receipt. Both the employee and the
registered agent attested that the employee had never been "an officer, general
agent, or an agent authorized by appointment or by law to serve as a statutory
agent or registered agent for service of process for RLSR," and the employee
attested he had never held himself out to be authorized to accept service of process
for RLSR. The employee further averred he did not accept "or acknowledge
receipt of service of process" on RLSR's behalf. Accordingly, Dr. Fechter failed to
effect service of process on RLSR and thus failed to commence an action against
it. See Richardson v. P.V., Inc., 383 S.C. 610, 615, 682 S.E.2d 263, 265 (2009)
("Not every employee of a corporation is an agent of the corporation for the
purposes of service of process."); id. ("Whether an employee may accept service
on behalf of a corporation depends on the authority the corporation conferred upon
the employee."); Roberson v. S. Fin. of S.C., Inc., 365 S.C. 6, 8, 11-12, 615 S.E.2d
112, 114-15 (2005) (finding clerical employee who signed return receipt did not
have authority to accept service of process on behalf of defendant; thus, service of
process was not effectuated, resulting in a void default judgment). 2

AFFIRMED.

THOMAS and MCDONALD, JJ., and VERDIN, A.J., concur.

2
Because our findings as to service and the circuit court's lack of personal
jurisdiction are dispositive, we need not address Dr. Fechter's remaining
assignments of error. See Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (finding appellate court need not
address remaining appellate issues when resolution of a prior issue is dispositive).