Luther Harris v. Perry Barbour

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

Luther Harris, Donna Harris, and Bobby E. Leopard,
Appellants,

v.

Perry Wendell Barbour and Southland Transportation
Co., Respondents.

Appellate Case No. 2020-001110

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

Unpublished Opinion No. 2022-UP-397
Submitted October 1, 2022 – Filed November 2, 2022

AFFIRMED

Donald Loren Smith, of Attorney Office of Donald
Smith, of Anderson, for Appellants.

David L. Moore, Jr., of Turner Padget Graham & Laney,
PA, of Greenville, for Respondents.

PER CURIAM: Luther and Donna Harris and Bobby Leopard (collectively, the
Appellants) appeal a circuit court order granting Perry Barbour's and Southland
Transportation Company's motions to dismiss. On appeal, the Appellants argue the
circuit court erred by (1) failing to equitably toll the statute of limitations,
(2) failing to find that Barbour waived his affirmative defenses, (3) failing to find
they substantially complied with the rules for service of process, and (4) failing to
extend the time to perfect service of process. We affirm.

1. We hold the circuit court did not err by failing to equitably toll the statute of
limitations. See Hooper v. Ebenezer Sr. Servs. & Rehab. Ctr., 386 S.C. 108, 115,
687 S.E.2d 29, 32 (2009) ("'Tolling' refers to suspending or stopping the running of
a statute of limitations; it is analogous to a clock stopping, then restarting."
(quoting 51 Am. Jur. 2d Limitation of Actions § 169 (2000))); id. ("Tolling may
either temporarily suspend the running of the limitations period or delay the start of
the limitations period." (quoting Limitation of Actions § 169)). The Appellants
failed to to show they were prevented from timely serving the summons and
complaint on the director of the South Carolina Department of Motor Vehicles and
the secretary of state by an event beyond their control. See Hooper, 386 S.C. at
115, 687 S.E.2d at 32 ("The party claiming the statute of limitations should be
tolled bears the burden of establishing sufficient facts to justify its use."); id. at
116, 687 S.E.2d at 32 ("It has been observed that '[e]quitable tolling typically
applies in cases where a litigant was prevented from filing suit because of an
extraordinary event beyond his or her control.'" (alteration in original) (quoting
Ocana v. Am. Furniture Co., 91 P.3d 58, 66 (N.M. 2004))); S.C. Code Ann.
§ 15-9-350 (2005) (naming the DMV director as a nonresident driver's "true and
lawful attorney upon whom may be served all summons or other lawful process in
any action" that results from a collision that occurred in South Carolina); Hooper,
386 S.C. at 117-18, 687 S.E.2d at 33-34 (holding the appropriate remedy for the
defendant's failure to properly list its registered agent for service with the secretary
of state was to equitably toll the statute of limitations).

2. We decline to decide whether the circuit court erred by failing to find that
Barbour waived his affirmative defenses because our finding that the circuit court
did not err by failing to equitably toll to statute of limitations is dispositive. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d
591, 598 (1999) (stating appellate courts need not address remaining issues when
disposition of prior issue is dispositive).

3. We find that the Appellants' remaining issues are not preserved for appellate
review. See Miller v. Dillon, 432 S.C. 197, 207, 851 S.E.2d 462, 467 (Ct. App.
2020) ("It is axiomatic that an issue cannot be raised for the first time on appeal,
but must have been raised to and ruled upon by the [circuit court] to be preserved
for appellate review." (quoting Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d
731, 733 (1998))).

AFFIRMED. 1

KONDUROS, HEWITT, and VINSON, JJ., concur.

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