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In The Court of Appeals


Sheila Graham,



Dorchester County School District and South Carolina
Department of Education,



Appeal From Dorchester County

Costa M. Pleicones, Circuit Court Judge


Opinion No. 3110

Submitted December 7, 1999 – Filed February 7,




Robin L. Hitchcock, of Hitchcock & Potts, of Charleston,
for Appellant.

James A. Stuckey and Alexia Pittas-Giroux, both of Stuckey Law
Offices, of Charleston, for Respondents.


CONNOR, J.: The issue in this action is
whether Rule 40(j), SCRCP, should be applied retroactively to
cases pending at the time of its enactment. The trial court found
the rule was applicable. We affirm.


Sheila Graham was allegedly struck by a Dorchester County
school bus. In October of 1991, she filed suit against the
Dorchester County School District. The complaint was later
amended to add the South Carolina Department of Education as a

On April 30, 1993, the trial court struck the case from the
trial roster with leave to restore, pursuant to former Rule
40(c)(3), SCRCP. However, effective January 1, 1995, Rule
40(c)(3) was amended and replaced by Rule 40(j), SCRCP, which
provided a new procedure for dismissing and restoring cases.

An "Order to Restore," dated April 30, 1998, placed
Graham’s case back on the active roster. The School District
moved to dismiss the case with prejudice, alleging the case had
not been restored "within 1 year of the date stricken"
as required by Rule 40(j).

The trial judge dismissed Graham’s case with prejudice. He
concluded, as a rule of civil procedure, Rule 40(j) should be
given retroactive application to cases pending at the time of its
enactment. The court observed that Rule 40(j), which became
effective on January 1, 1995, required that a party make a motion
to restore a case within a year after it had been stricken. The
court then held: "Giving the plaintiff the benefit of all
doubt the motion to restore should have been noticed at least 10
days prior to January 1, 1996." It concluded Graham’s motion
to restore, made more than two years after the time allowed by
Rule 40(j), was not a timely restoration.


Prior to its amendment, former Rule 40(c)(3), SCRCP, provided
as follows:

(3) Actions Called for Trial.
When an action is reached on the trial roster and is called for
trial, it shall not be continued by consent, and if counsel are
not ready to go forward the court shall strike the action from
the calendar (file book) with leave to restore, unless
continuance is granted for good cause shown. If the case is
restored after being stricken, it shall be placed at the foot of
the calendar (file book) and a new case number assigned.

Rule 40(c)(3), SCRCP (amended Jan. 1, 1995).

Rule 40(j), SCRCP, effective January 1, 1995, substantially
revised the former rule, and now provides:

(j) Case Stricken From Docket by Agreement. A
party may strike its complaint
, counterclaim, cross-claim or
third party claim from any docket one time as a matter of right, provided
that all parties adverse to that claim
, counterclaim,
cross-claim or third party claim agree in writing that it may
be stricken, and all further agree that if the claim is restored
upon motion made within 1 year of the date stricken, the statute
of limitations shall be tolled as to all consenting parties
during the time the case is stricken
, and any unexpired
portion of the statute of limitations on the date the case was
stricken shall remain and begin to run on the date that the claim
is restored. A party moving to restore a case stricken
from the docket shall provide all parties notice of the
motion to restore at least 10 days before it is heard
. Upon
being restored, the case shall be placed on the General Docket
and proceed from that date as provided in this rule.

Rule 40(j), SCRCP (emphasis added).

In cases dealing with statutory law changes, courts have
discussed the general rules of prospective and retroactive
application. By analogy, those same principles can be applied to
determine whether an amended procedural rule should have
prospective or retroactive effect. See generally Valentine v.
, 319 S.C. 169, 173, 460 S.E.2d 218, 220 (Ct. App. 1995)
("[T]he rules of procedure, like statutes, should be given
their plain meaning.").

Our Supreme Court has held that statutes are presumed to be
entitled to prospective construction unless there is an express
provision or a clear legislative intent to the contrary. Hercules
Inc. v. South Carolina Tax Comm’n
, 274 S.C. 137, 262 S.E.2d 45
(1980) (holding a statute which has the effect of tolling a
statute of limitations affects the remedy and not the right and
is therefore subject to retroactive application). A principal
exception is remedial or procedural statutes are generally held
to operate retrospectively. Id.; see Jenkins v. Meares, 302 S.C.
142, 146, 394 S.E.2d 317, 319 (1990) ("Our decisions
recognize a presumption that statutory enactments are to be given
prospective rather than retroactive effect. An exception to this
presumption arises when the enactment is remedial or procedural
in nature, such as a statute of limitations.").

The South Carolina Rules of Civil Procedure provide that the
rules, which initially took effect on July 1, 1985, would
"govern all proceedings in civil actions brought after they
take effect." Rule 86(a), SCRCP. Moreover, the rules also
govern "all further proceedings in actions then
pending" unless to do so "would not be feasible or
would work injustice." Id.; see McGann v. Mungo, 287 S.C.
561, 340 S.E.2d 154 (Ct. App. 1986) (holding the new rules of
civil procedure apply to all further proceedings in pending
actions); James F. Flanagan, South Carolina Civil Procedure 583
(2d ed. 1996) ("Rule 86(a) made these rules applicable to
cases then pending at the time of [sic] rules were adopted. A
similar result follows when new civil rules are

Graham originally filed her case in 1991. It was stricken from
the trial roster in 1993. She did not move to restore it until
five years later. By then, Rule 40(j) had been in effect for over
three years. Rule 40(j) required motions to restore be made
within one year of the case being stricken to take advantage of
the tolling of the statute of limitations. [1] In
Graham’s case, the one year period should have begun to run upon
the adoption of Rule 40(j). Therefore, the motion to restore
should have been filed at least 10 days prior to January 1, 1996.

The one year period provided for in Rule 40(j) constituted a
reasonable time for Graham to move to restore her case to the
active roster. The retroactive application of this procedural
rule, did not deprive Graham of an opportunity to proceed with
her case. Retroactive application of Rule 40(j) is
"feasible" and will not "work injustice"
given the circumstances of this case. See Rule 86(a), SCRCP.


For the foregoing reasons, the decision of the trial court
dismissing Graham’s action with prejudice for failure to timely
move to restore her case is




[1]Because the
statute of limitations clearly expired on Graham’s cause of
action, the tolling aspect of Rule 40(j) is not an issue in this