The Interplay of Rules 5 and 36

In a recent unpublished decision from the Court of Appeals, a defendant successfully argued that once counsel appears in the case, all papers must be served upon counsel. In Mayers v. Henthorn, Op. No. 2023-UP-177 (S.C. Ct. App. May 11, 2023), plaintiff/appellant argued that the trial court erred in denying his argument that the defendant did not timely answer discovery and therefore admitted liability.  Upon the filing of the complaint, defense counsel appeared in the case on behalf of the named defendant.  At the time of counsel’s appearance, the defendant had not been personally served with the complaint and attached papers. According to the briefing filed with the Court, plaintiff was advised that counsel was not authorized to accept service, and personal service needed to be effected upon defendant. Plaintiff subsequently effected service, which included the Summons, Complaint, and Requests to Admit.  Under Rule 36 of the South Carolina Rules of Civil Procedure, a party is allowed to serve requests for admission at the same time the party serves the summons and complaint.  Rule 36 also specifies that the requests are deemed admitted unless there is a timely response. The parties did not dispute that the Requests to Admit were never served on counsel, despite counsel appearing prior to perfecting service on the defendant.


The requests to admit were not timely answered. At a pre-trial hearing and again as part of a summary judgment motion heard at the beginning of trial, plaintiff argued that liability was admitted since the Requests were not timely answered. The trial court rejected the argument during both a pre-trial hearing and again during the hearing on plaintiff’s motion for summary judgment.


The Court of Appeals stated: “…Rule 36(a) does not trump Rule 5(b)(1), SCRCP. That rule says, ‘Whenever under these rules service is required or permitted to be made upon a party represented by an attorney[,] the service shall be made upon the attorney unless service upon the part himself is ordered by the court.’” (emphasis added).  The Court concluded: “We hold the rule is straightforward and that when the rules are read together, they mandate service of discovery—even discovery served with initial process—be served on a party’s counsel if counsel has appeared in the action.”

About Kelsey J. Brudvig
Senior Shareholder

Kelsey Brudvig is a Shareholder practicing in the areas of retail & hospitality law and professional liability. She defends national and regional leaders in the retail, hospitality, and entertainment sectors doing business in South Carolina in claims involving premises liability, loss prevention, food adulteration, third party torts, and alcohol liability. Kelsey can be reached directly at