Rice v. Doe

442 S.C. 160

898 S.E.2d 127

Peter RICE, Respondent,

v.John DOE, Petitioner.

Appellate Case No. 2021-000894

Opinion No. 28190

Supreme Court of South Carolina.

Heard March 8, 2023

Filed January 24, 2024

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Fairfield County, Daniel Dewitt Hall, Circuit Court Judge

Sarah Rand-McDaniel and Seth Thomas McDaniel, both of Walker Allen Grice Ammons & Foy, LLP, of Mount Pleasant, for Petitioner.

Sherod Hampton Eadon III, of Eadon Law, LLC, of Columbia, for Respondent.

JUSTICE FEW:

This case presents the question whether compliance with the witness affidavit requirement in subsection 38-77-170(2) of the South Carolina Code (2015) is a condition precedent to the filing of a "John Doe" civil action. We hold it is not. Rather, the witness affidavit may be produced after the commencement of the lawsuit. As we will explain, however, the affidavit should be produced promptly upon request, and if it is not, the action is subject to dismissal pursuant to Rule 56(c) of the South Carolina Rules of Civil Procedure. We affirm the court of appeals as modified and remand the case to circuit court for trial.

I. Background and Procedural History

Peter Rice was the passenger in a friend’s car when the car veered off the road and hit a tree. Rice filed a civil action against the unidentified driver—"John Doe"—of a vehicle Rice contends crossed the center line into his friend’s lane of travel, causing the friend to swerve to avoid colliding with the vehicle. Rice alleges he "suffered severe and painful injuries and damages."

Sections 38-77-170 and 38-77-180 of the South Carolina Code (2015) collectively allow recovery under a driver’s uninsured motorist policy when an accident is caused by an unidentified driver. However, section 38-77-170 provides "there is no right of action or recovery under the uninsured motorist provision, unless … (2) the injury or damage was caused by physical contact with the unknown vehicle, or the accident must have been witnessed by someone other than the owner or operator of the insured vehicle … . " In cases in which there was no "physical contact with the unknown vehicle"—as here—sub- section 38-77-170(2) requires a "witness must sign an affidavit attesting to the truth of the facts of the accident …. "

John Doe filed an answer to Rice’s complaint in which Doe included a motion to dismiss the case on the basis Rice "has failed to comply with [section] 38-77-170." The day after Doe filed his answer, Rice produced an affidavit setting forth the facts of the accident. Some months later, Doe filed a motion for summary judgment pursuant to Rule 56(c) in which he again claimed "the Plaintiff has failed to satisfy the terms of [section] 38-77-170." Rice then produced and later filed an amended affidavit in which he clarified there was no contact between the vehicles and included the "statement" required to be "prominently displayed on the face of the affidavit" by the last sentence of section 38-77-170. Circuit Judge Roger E. Henderson heard Doe’s motion for summary judgment and denied it by written order, finding Rice’s amended affidavit "satisfies the affidavit requirements of S.C. Code § 38-77-170(2)."

The case was called for trial before Circuit Judge Daniel Dewitt Hall. Prior to the court striking a jury, Doe asked the court to hear the motion to dismiss he included in his answer. Doe specifically argued subsection 38-77-170(2) requires a John Doe plaintiff to file the witness affidavit at the same time he files the complaint, and therefore Rice’s claim must be dismissed because he failed to do so. Rice objected to Judge Hall hearing the motion on the basis that Doe’s argument was the same one heard and rejected by Judge Henderson. Judge Hall first determined Judge Henderson’s order denying summary judgment was based on the contents of Rice’s witness affidavit rather than its timing. Judge Hall then found subsection 38-77-170(2) requires a John Doe plaintiff to file the witness affidavit at the same time the complaint is filed as a condition precedent to the right to bring an action under sections 38-77-170 and 38-77-180. Because Rice filed the affidavit many months after he filed the action, Judge Hall dismissed the case.

The court of appeals reversed, finding "Judge Hall did not have the authority to overrule Judge Henderson’s previous rejection of Doe’s timeliness argument." Rice v. Doe, Op. No. 2021-UP-229, 2021 WL 2577035, at 2 (S.C. Ct. App. filed June 23, 2021). The court of appeals did not address the timeliness of the witness affidavit.

We granted Doe’s petition for a writ of certiorari to address whether Judge Hall had the authority to grant the motion to dismiss after Judge Henderson denied summary judgment and whether filing the witness affidavit required by subsection 38-77-170(2) is a condition precedent to the right to bring a John Doe action under sections 38-77-170 and 38-77-180. We find it unnecessary to rule definitively on whether Judge Hall had the authority to hear the motion to dismiss because—on the merits of that motion—we find the filing of the witness affidavit is not a condition precedent to bringing the John Doe action.

II. Analysis

We first address the court of appeals’ ruling that Judge Hall did not have the authority to grant the motion to dismiss. We then address whether subsection 38-77-170(2) is a condition precedent to filing a John Doe action.

A.

This Court has stated as a general principle, "One Circuit Court Judge does not have the authority to set aside the order of another." Enoree Baptist Church v. Fletcher, 287 S.C. 602, 604, 340 S.E.2d 546, 547 (1986); see also Steele v. Charlotte, Columbia & Augusta R.R., 14 S.C. 324, 330 (1880) ("The judge may sometimes reconsider his own orders, but all the authorities agree as to the general doctrine, that the decision of one judge is not subject to be reviewed by another." (internal quotation marks omitted) (citing 1 Simon Greenleaf, A Treatise on the Law of Evidence 543 (Boston, Charles C. Little & James Brown 1850))).

[1] However, this "general doctrine" can be a difficult one to apply. On one hand, it is "clearly an impermissible act" for one judge "to reverse the earlier substantive order" of another judge. Enoree Baptist Church, 287 S.C. at 604, 340 S.E.2d at 547. In Enoree Baptist Church, as an example of how the principle is intended to apply, the plaintiff filed a motion to amend the complaint, which one circuit judge granted. 287 S.C. at 603, 340 S.E.2d at 547. After a mistrial, a different circuit judge reversed the first judge’s ruling, stating, "So your amendment comes too late and I deny your amended complaint." Id. This Court reversed the second judge and "remanded for a new trial under the amended complaint." 287 S.C. at 604, 340 S.E.2d at 547. See also Belton v. State, 313 S.C. 549, 554, 443 S.E.2d 554, 557 (1994) (finding on "purely a legal" question of the jurisdiction of a State board, a second circuit judge "was without authority to review [the first judge’s] findings" on the exact same issue).

[2, 3] On the other hand, one circuit judge has the authority to make a different ruling than a prior judge in some circumstances. In Salmonsen v. CGD, Inc., 377 S.C. 442, 661 S.E.2d 81 (2008), for example, we held the general principle set forth in Enoree Baptist Church did not apply to class certification orders, which "may be altered at any time prior to a decision on the merits," even by a different circuit judge. 377 S.C. at 454, 661 S.E.2d at 88. We have also recognized that pre-trial rulings on evidentiary issues are subject to change by the trial judge. See State v. Jones, 435 S.C. 138, 144, 866 S.E.2d 558, 561 (2021) (observing that if "an evidentiary ruling is pretrial" there could arise a "basis for the trial court to change its initial ruling"). If the trial judge is different from the judge who ruled on the pretrial motion, the trial judge has an obligation to hear the arguments as to why the ruling during trial should be different from the pretrial ruling.

[4, 5] Under our system of rotating judges through the State, circuit and family court judges often confront situations in which another judge made a ruling that might or might not be final. If the prior ruling addresses a substantive point of law, or if nothing of significance has changed, the second judge should consider the previous judge’s ruling to be final. See Steele, 14 S.C. at 329 (observing that if one judge could overrule another, "there would be no end to litigation. No one could tell where it would stop. Nothing could be considered as finally adjudged, and all rights of person and property would be set afloat."). The simple fact a judge disagrees with a prior ruling by another judge is not grounds to change the ruling.

[6, 7] When the circumstances that led to a prior ruling have changed, however, the trial judge should not be bound by an order that no longer serves the interests of justice. Even in Steele—one of the first cases in which we acknowledged the "general doctrine" stated in Enoree Baptist Church as "One Circuit Court Judge does not have the authority to set aside the order of another"—we recognized, "A motion once heard and decided fully [may] be reviewed upon a new state of facts arising after the decision[,] … such as to make a new case, as … newly-discovered evidence, or that the ground of the order has been removed …. " 14 S.C. at 330. The Enoree Baptist Church principle is intended, therefore, to prevent what is essentially an appeal from one circuit judge to another. As we explained in Steele, "There is no appeal from one Circuit judge to another." 14 S.C. at 329. The principle was never intended to hamstring a subsequent judge when the circumstances legitimately have changed, or—as here—where there was uncertainty whether the first judge (Judge Henderson) even addressed the specific legal issue.

As Judge Hall was obligated to do, he examined the motion for summary...