Latisha Wallace v. Jawhar Hamin

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

Latisha Wallace, individually, and as Parent and Natural
Guardian of A.W. (minor under the age of fourteen years
old) and Donald Wallace, Jr., Appellants,

v.

Jawhar Hamin, Respondent.

Appellate Case No. 2024-000165

Appeal From Lexington County
H. Steven DeBerry, IV, Circuit Court Judge

Unpublished Opinion No. 2025-UP-054
Submitted January 30, 2025 – Filed February 12, 2025

AFFIRMED

Patrick O'Shaughnessy Fraser, of O'Shaughnessy Law,
LLC, of North Charleston, for Appellants.

Peter E. Farr, of Murphy & Grantland, PA, of Columbia;
and Andrew James MacLeod and Helen Ann Siegling
Thrower, both of Willson Jones Carter & Baxley, P.A.,
of Columbia, all for Respondent.
PER CURIAM: Latisha Wallace, individually, and Donald Wallace, Jr.
(Appellants) appeal the circuit court's order granting Jawhar Hamin's motion to
dismiss. On appeal, Appellants argue the circuit court erred in granting Hamin's
motion to dismiss because although they were unable to complete service within
120 days following the filing of the summons and complaint, they acted with due
diligence in attempting to effectuate service of the complaint and they moved for
service by publication in a reasonable amount of time. We affirm pursuant to Rule
220(b), SCACR.

We hold the circuit court did not err in granting Hamin's motion to dismiss because
although the record shows Appellants attempted to timely serve Hamin several
times within the 120-day timeframe, they failed to ever effectuate service or even
move to serve by publication until after the expiration of the 120-day timeframe,
and in the case of the motion to serve by publication, after Hamin moved to
dismiss the case. See S.C. Code Ann. § 15-3-20(B) (2005) ("A civil action is
commenced when the summons and complaint are filed with the clerk of court if
actual service is accomplished within one hundred twenty days after filing."); Rule
3(a), SCRCP ("A civil action is commenced when the summons and complaint are
filed with the clerk of court if: (1) the summons and complaint are served within
the statute of limitations in any manner prescribed by law; or (2) if not served
within the statute of limitations, actual service must be accomplished not later than
one hundred twenty days after filing."); Mims ex rel. Mims v. Babcock Center, Inc.,
399 S.C. 341, 347, 732 S.E.2d 395, 398 (2012) ("When service occurs outside of
the statute of limitations it must occur within 120 days of filing the complaint.").
To the extent Appellants argue Hamin waived the service issue when his counsel
filed an answer, we hold this argument is not preserved for appellate review
because it was not raised with sufficient specificity or ruled upon by the circuit
court. See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546
(2000) ("It is well-settled 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."). Further, even if any potential waiver of service issue is
preserved for appellate review, Appellants failed to provide the answer in the
record on appeal in order for the court to determine whether Hamin waived service
of the summons and complaint by filing an answer. See Hamilton v. Greyhound
Lines East, 281 S.C. 442, 444, 316 S.E.2d 368, 369 (1984) ("The appealing party
has the burden of furnishing a sufficient record from which this court can make an
intelligent review."); Rule 210(h), SCACR ("[T]he appellate court will not
consider any fact which does not appear in the [r]ecord on [a]ppeal.").
AFFIRMED. 1

WILLIAMS, C.J., and MCDONALD and TURNER, JJ., concur.

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