Ex parte Whetstone

Decision Date22 May 1986
PartiesEx parte Michael K. WHETSTONE, Appellant. In re Robert Wayne HAGINS, GAL for Robert Michael Hagins and Courtney Elaine Hagins, Plaintiffs, v. Benjamin WHETSTONE and Celeste Mae White, as Trustees for Seven Stones Trust, a/k/a Seven Stones Holding Company, Defendants, of whom Robert Wayne Hagins is Respondent.
CourtSouth Carolina Supreme Court
ORDER

This is an appeal by a non-party witness from an order directing him to attend a deposition and produce certain documents. Respondent moves to dismiss the appeal on the ground the order is interlocutory and not directly appealable. We grant the motion to dismiss.

An order directing a party to participate in discovery is interlocutory and not directly appealable under S.C. Code Ann. § 14-3-330 (1976). Patterson v. Specter Broadcasting, 287 S.C. 249, 335 S.E.2d 803 (1985); Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205 S.E.2d 184 (1974). We now hold that an order directing a non-party to submit to discovery is not immediately appealable.

Instead of appealing immediately, a non-party has two alternatives. He may either comply with the discovery order and waive any right to challenge it on appeal, or refuse to comply with the order and appeal after he is held in contempt for his failure to comply. This is the same rule applied by the federal courts. See United States v. Ryan, 402 U.S. 532, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Federal Trade Commission v. Alaska Land Leasing, Inc., 778 F.2d 577 (10th Cir.1985); Newton v. National Broadcasting Co., 726 F.2d 591 (9th Cir.1984).

Moreover, this rule is consistent with S.C. Code Ann. § 18-1-30 (1976), which limits appellate review to parties aggrieved by a judgment or order below. Brode v. Brode, 278 S.C. 457, 298 S.E.2d 443 (1982); Asbury v. South Carolina, 268 S.C. 40, 231 S.E.2d 306 (1977). This Court has defined an aggrieved party as one who is injured in a legal sense or one who has suffered an injury to person or property. Dunson v. Dunson, 278 S.C. 210, 294 S.E.2d 39 (1982); Cisson v. McWhorter, 255 S.C. 174, 177 S.E.2d 603 (1970); Bivens v. Knight, 254 S.C. 10, 173 S.E.2d 150 (1970).

A non-party suffers no legal injury when he is ordered to participate in discovery. The necessary legal injury does not arise until he is held in contempt.

Because appellant has not yet been held in contempt, he has no right to appeal....

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19 cases
  • Hagood v. Sommerville
    • United States
    • South Carolina Supreme Court
    • January 4, 2005
    ...466, 385 S.E.2d 835, 836 (1989) (order allowing amendment of a pleading generally is not immediately appealable); Ex parte Whetstone, 289 S.C. 580, 347 S.E.2d 881 (1986) (order directing a party or a non-party to submit to discovery is not immediately appealable; instead, the party or non-p......
  • Wieters v. Bon-Secours-St. Francis
    • United States
    • South Carolina Court of Appeals
    • April 23, 2008
    ...a non-party must be held in contempt before an appeal may be taken challenging the validity of the discovery order. Ex parte Whetstone, 289 S.C. 580, 347 S.E.2d 881 (1986). An order compelling a party to submit to discovery is interlocutory and not directly appealable. Hamm v. South Carolin......
  • Hooper v. Rockwell
    • United States
    • South Carolina Supreme Court
    • February 22, 1999
    ...She did not consent to the issuance of the contempt order in February 1992, but failed to timely appeal it. See Ex Parte Whetstone, 289 S.C. 580, 347 S.E.2d 881 (1986) (party may refuse to comply with discovery order and then appeal after he is held in contempt for failure to comply); Jarre......
  • Davis v. Parkview Apartments, Carolina Ltd.
    • United States
    • South Carolina Supreme Court
    • September 11, 2014
    ...orders, the normal course is to refuse to comply, suffer contempt, and appeal from the contempt finding. See, e.g., Ex parte Whetstone, 289 S.C. 580, 347 S.E.2d 881–82 (1986) (“An order directing a party to participate in discovery is interlocutory and not directly appealable.... Instead of......
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