THE STATE OF SOUTH CAROLINA
In The Supreme Court
Eileen C. Blyth, Appellant,
Frank Lamar Marcus, Respondent.
Appeal From Richland County
James R. Barber, III, Circuit Court Judge
Opinion No. 24954
Heard April 8, 1999 - Filed June 14, 1999
REVERSED AND REMANDED
James T. McLaren, C. Dixon Lee, III, both of
McLaren & Lee, of Columbia, for appellant.
Robert A. McKenzie and Robert M. Cook, II, both of
McDonald, McKenzie, Rubin, Miller & Lybrand,
L.L.P., of Columbia, for respondent.
MOORE, A.J.: The trial court granted respondent summary
judgment on the grounds that the action was barred by the statute of
limitations and the tolling statute was unconstitutional. We reverse and
BLYTH v. MARCUS
In Columbia, on August 20, 1984, a car driven by respondent, Frank
Marcus (Marcus), crossed the center lane and struck appellant, Eileen Blyth
(Blyth), who was riding a bicycle. At the time of the accident both parties
lived in South Carolina. Marcus moved to Georgia sometime in April 1985
and since then has remained a resident of Georgia.
Blyth commenced this action by filing a summons and complaint on
August 15, 1991, over seven years after the accident.1 Marcus filed a motion
to dismiss alleging that the statute of limitations had run and the tolling
statute was repealed by the enactment of the Rules of Civil Procedure which
became effective July 1, 1985. The trial judge treated the motion as one for
summary judgment and granted Marcus's motion. Blyth appealed. The
Court of Appeals reversed the grant of summary judgment. Blyth v. Marcus,
322 S.C. 150) 470 S.E.2d 389 (Ct. App. 1998).
On remand, Marcus filed a second summary judgment motion on the
ground that the statute of limitations had run and the tolling statute was
unconstitutional. The trial judge granted the motion and held the tolling
statute was unconstitutional and Blyth's action was time barred.
1) Did the circuit court err in allowing Marcus to make a second
summary judgment motion on the basis of the statute of limitations?
2) Is S.C. Code Ann. � 15-3-30 (1976) unconstitutional?
1) Second Summary Judgment Motion
Blyth contends the circuit court erred in allowing Marcus to bring a
second summary judgment motion on the issue whether the statute of
limitations barred Blyth's cause of action. We disagree.
1 It is undisputed that the statute of limitations for this cause of action
is six years.
BLYTH v. MARCUS
A defendant can bring a subsequent summary judgment motion after
his first motion had been denied. Brown v. Pearson, 326 S.C. 409, 483
S.E.2d 477 (Ct. App. 1997); PPG Indus. v. Orangeburg Paint & Decorators
Center, 297 S.C. 176, 375 S.E.2d 33 (Ct. App. 1988). The rationale behind
these cases is that the denial of a motion for summary judgment is an
interlocutory decision which the trial judge can reconsider until the end of
the trial. Here, the first motion for summary judgment was granted and
Blyth appealed. On appeal, the Court of Appeals reversed the grant of
summary judgment. In effect, the reversal of the first grant of summary
judgment was equivalent to the denial of summary judgment. Issues raised
in the first motion then may be raised again later in the proceedings by a
motion to reconsider the denial of summary judgment or by a motion for a
directed verdict. Brown, supra. Accordingly, we hold appellant was not
barred from challenging the validity of the tolling statute by way of a
subsequent summary judgment motion.
2) Constitutionality of � 15-3-30
Blyth contends the circuit court erred when it declared � 15-3-30
violated the Commerce Clause. We agree.
Section 15-3-30 provides:
If when a cause of action shall accrue against any person
he shall be out of the State, such action may be commenced
within the terms in this chapter respectively limited after
the return of such person into this State. And if, after such
cause of action shall have accrued, such person shall depart
from and reside out of this State or remain continuously
absent therefrom for the space of one year or more, the
time of his absence shall not be deemed or taken as any
part of the time limited for the commencement of such
In Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888,108
S.Ct. 2218, 100 L.Ed.2d 896 (1988), the United States Supreme Court held a
similar Ohio tolling statute violated the Commerce Clause.2 The Ohio
2 The Ohio statute read: "When a cause of action accrues against a
person, if he is out of state, has absconded, or conceals himself, the period
BLYTH v. MARCUS
effect, gave Ohio tort plaintiffs unlimited time to sue out-of-state defendants. The
defendant in Bendix was a corporation and, in weighing the burden which the
statute placed upon interstate commerce, the Court focused on the defendant's
status as a corporation. The Court reasoned that a foreign corporation would
have to choose between exposure to the general jurisdiction of the Ohio courts or
forfeiture of any limitations defense under the tolling statute. The Court held this
was an impermissible burden on interstate commerce thereby violating the
The circuit court found Guyton v. J.M. Mfg., Inc., 894 F.Supp. 252
(D.S.C. 1995), persuasive. In Guylon, the court held the holding in Bendix
mandated a finding that � 15-3-30 violates the Commerce Clause.3 However,
three years after Guyton was decided, in Meyer v. Paschal, 330 S.C. i75, 498
S.E.2d 635 (1998), we held that � 15-3-30 does not toll the statute of
limitations when the nonresident defendant is amenable to personal service
and the defendant can be brought within the personal jurisdiction of our
courts. We held the period of limitations may be tolled only when the name
and location of the defendant are not known to the plaintiff.4 Since we have
limited the application of � 15-3-30 in Meyer, the statute is now substantially
different than the Ohio statute struck down in Bendix. See Alday v. Tecphy Div.
Firminy , 10 F.Supp.2d 562 (D. S.C. 1998) (with Meyer "interpretation of section
15-3-30, the constitutional concerns raised in Bendix and Guyton are not
present.").5 Lastly, we
note " [c]onstitutional. constructions of statutes are not
limitation for the commencement of the action as provided ... does not begin
to run until he comes into the state or while he is so absconded or concealed.
After the cause of action accrues if he departs from the state, absconds, or
conceals himself, the time of his absence or concealment shall not be
computed as any part of a period within which the action must be brought."
3 Of course, this decision is not binding on this Court. See Phillips v.
Periodical Publishers' Serv. Bureau, Inc., 300 S.C. 444, 388 S.E.2d 787
4 More recently, we have held that the tolling statute applies only when
the plaintiff could not discover the whereabouts of the defendant. Tiralango
v. Balfry, Op. No. 24953 (S.C. Sup. Ct. filed June 14,1999).
5 Furthermore, several other jurisdictions which have interpreted
Bendix have held that the Bendix decision is limited to the facts in that case
and whether interstate commerce is effected must be analyzed on a case-by-
BLYTH v. MARCUS
only judicially preferred, they are mandated; a possible constitutional
construction must prevail over an unconstitutional interpretation."
Henderson v. Evans, 268 S.C. 127, 132, 232 S.E.2d 331 (1977). Accordingly,
we hold � 15-3-30 does not violate the Commerce Clause in light of our
decision in Meyer. Thus, the trial judge's ruling that the statute is
unconstitutional is reversed.6
Marcus also now argues Meyer precludes Blyth from utilizing the
tolling statute because Marcus was amenable to service and his whereabouts
were not concealed from her. Pursuant to Meyer and our more recent
decision in Tiralango, supra, the issue is whether Blyth knew, or could have
known, of Marcus's whereabouts. Accordingly, we remand for the trial judge
to apply the Meyer and Tiralango decisions to the facts of this case in
determining whether the statute of limitations should be tolled.
REVERSED AND REMANDED.
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.
case basis. See, e.g. Pratali v. Gates, 5 Cal. Rptr.2d 733, 4 Cal. 4th 632
(1992)(tolling statute does not violate commerce clause when applied to
noncommercial defendant not engaged in interstate commere).
6 Blyth also contends the circuit court erred in not requiring Marcus to
notify the Attorney General about his constitutional challenge to � 15-3-30
pursuant to S.C. Code Ann. � 15-53-80 or Rule 4, SCRCP. Section 15-53-80
applies only when the action is a declaratory judgment and Rule 4 applies
only when the action is one seeking a determination about the
constitutionality of a statute. We note, however, Rule 24(c), SCRCP,
provides in part, that " [w]hen the constitutionality of a statute is drawn in
question in any action in which the State or an officer, agency or employee
thereof is not a party, the party shall also serve the motion on the Attorney
General." (emphasis added). Although there are no South Carolina cases on
this issue, we agree with some federal courts which have stated that when no
portion of a statute has been struck down, there seems to be no practical
purpose in remanding to allow intervention. Johnson v. Hamrick, 1998 WL
476186 (N.D. Ga. June 10, 1998); Thatcher v. Tennessee Gas Transmission,
Co., 180 F.2d 644 5th Cir. 1950).