In South Carolina, parties cannot waive a lack of subject matter jurisdiction and may attack jurisdiction for the first time on appeal. See, e.g., Badeaux v. Davis, 337 S.C. 195, 522 S.E.2d 835 (Ct.App. 1999). An earlier post, however, noted that such attacks are growing rarer.
Last month, the South Carolina Supreme Court further narrowed these attacks when it rebuffed a challenge to a circuit court’s ability to hear medical malpractice cases. Ross v. Waccamaw Community Hospital, Op. No. 27276 (S.C. Sup.Ct. filed June 26, 2013).
In Ross, a hospital and two doctors moved to dismiss proposed medical malpractice claims because the plaintiff did not timely complete pre-suit mediation. The statute requiring pre-suit mediation, S.C. Code Ann. § 15-79-125, was part of the Tort Reform Act of 2005 and requires parties to mediate no later than 120 days from service of the Notice of Intent to File suit, unless the court grants up to a 60-day extension for good cause.
Plaintiff scheduled a mediation within the 120 day period but had to reschedule because counsel had to appear for trial in another case. Everyone consented to reschedule mediation outside the 120 day period but within the 60-day additional period.
Six days before the rescheduled mediation was to occur, the defendants who earlier agreed to the rescheduled date refused to participate because Plaintiff did not move for an extension. They claimed that the deadlines were jurisdictional, and that the lapsed time deprived the circuit court of subject matter jurisdiction. The trial court agreed.
The Supreme Court reversed because:
- the statute does not state the consequences for failing to complete the required mediation
- defendants’ view meant that they could control jurisdiction by unilaterally delaying mediation
- the statute explicitly gives circuit courts’ jurisdiction to enforce the time limits, and thus grants courts the power to excuse noncompliance.
In reaching this holding, the Court relied in part on its earlier holding that the failure to timely comply with procedural time limits does not deprive the court of jurisdiction. Skinner v. Westinghouse Elec. Corp., 380 S.C. 91, 93-94, 668 S.E.2d 795, 796 (2008).
Lesson – don’t agree to something, let your opposing party rely on your agreement, and then turn around and say that the court lacks jurisdiction to enforce your agreement.
Anyone face similar attacks on jurisdiction? Please leave a reply or reach me at www.attorneyroberthill.com.