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Doe v. City of Duncan

Court of Appeals of South Carolina

June 8, 2016

John Doe, Appellant,
v.
City of Duncan, Respondent. Appellate Case No. 2012-213499

          Heard January 14, 2016

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

          Gregg E. Meyers, of Jeff Anderson & Assoc. P.A., of Saint Paul, Minnesota, for Appellant.

          William Harrell Foster, III, of Nelson Mullins Riley & Scarborough, LLP, of Greenville; Allen Mattison Bogan and Miles Edward Coleman, both of Nelson Mullins Riley & Scarborough, LLP, of Columbia; and Charles Franklin Turner, Jr., of Willson Jones Carter & Baxley, P.A., of Greenville; for Respondent.

          LOCKEMY, J.

         John Doe appeals the circuit court's decision to dismiss his action pursuant to Rules 3, 12(b)(1), and 12(b)(2), SCRCP. Doe argues the circuit court failed to apply the Servicemembers Civil Relief Act (the Act).[1] We affirm.

         FACTS

         On January 28, 2008, Doe filed a complaint against the City of Duncan (the City), asserting a cause of action for negligent supervision. In his complaint, Doe alleged he was sexually abused while participating in activities sponsored by the City's fire department. Doe acknowledged he failed to serve the City with the summons or complaint.

         Over four years later on February 21, 2012, Doe filed an amended complaint in which he alleged the same cause of action as in the original complaint and added that the action was brought pursuant to the Act.[2] An affidavit of service, dated February 27, 2012, indicated the amended complaint was delivered to "Bridget Musteata[, ] Town Clerk for Duncan Town." The City subsequently filed a motion to dismiss, arguing Doe failed to file and serve a summons with his original and amended complaints.

         At the circuit court hearing on the motion to dismiss, the City acknowledged Doe served it with the amended complaint but stated Doe did not serve it with a summons. Conversely, Doe stated the amended summons was served on the City. The City also argued the merits of the case and stated Doe was taking inconsistent positions. Namely, the City asserted Doe argued the chief of the City's fire department was acting both in his individual capacity and in the course and scope of his employment. The circuit court dismissed the action, ruling (1) Doe filed a complaint in 2008 but failed to serve the City with the complaint within 120 days of its filing; (2) Doe failed to serve the City with the 2012 summons; (3) Doe failed to seek leave from the trial court to amend his complaint; (4) Doe failed to timely commence the action pursuant to Rule 3, SCRCP; and (5) the court lacked personal and subject matter jurisdiction over the City pursuant to Rules 3, 12(b)(1), and 12(b)(2), SCRCP. The circuit court's order did not mention the Act by name.

         On May 22, 2012, Doe filed an amended summons. An affidavit of service dated June 6, 2012, showed Doe served the summons to "Melody Millwood, Clerk of Court."

         Doe subsequently filed a notice of appeal with this court. This court affirmed the circuit court in an unpublished opinion finding Doe's argument the circuit court erred in dismissing his action without applying the Act was not preserved for appellate review. Doe v. City of Duncan, Op. No. 2014-UP-400 (S.C. Ct. App. filed Nov. 12, 2014).

         Thereafter, the supreme court granted Doe's petition for a writ of certiorari and held Doe's argument was preserved for appellate review. Doe v. City of Duncan, Op. No. 2015-MO-019 (S.C. Sup. Ct. filed Apr. 15, 2015). The court found "[a]lthough the circuit court judge did not specifically state he did not believe the Act applied in this case, he implicitly rejected [Doe]'s argument by finding the service was not timely." Id. The supreme court remanded to this court to rule on the merits of Doe's appeal. Id.

         LAW/ANALYSIS

         Doe argues the circuit court erred in dismissing his action without applying the Act. Specifically, Doe contends the Act preempts any state ...


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