Reliford v. Pearson

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Ephrain Reliford, Jr.,       
Appellant,

v.

Larry Pearson and Charles Truesdale,       
Respondents.

Appeal From Aiken County

 Robert A. Smoak, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-558

Submitted July 15, 2003 – Filed September
26, 2003  

AFFIRMED

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

AFFIRMED

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

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