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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Eileen C. Blyth, Appellant,

v.

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

remand.

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FACTS

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statute was repealed by the enactment of the Rules of Civil Procedure which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.

ISSUES

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?

DISCUSSION

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.

is six years.

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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

action.

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 statute, in

person, if he is out of state, has absconded, or conceals himself, the period of

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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

Commerce Clause.

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

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

(1989).

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-

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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.

(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).

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