Hagood v. Sommerville

• Decision Date: 04 January 2005
• Docket Number: No. 25918.,25918.
• Citation: 607 S.E.2d 707,362 S.C. 191
• Court: South Carolina Supreme Court
• Parties: Ernest HAGOOD, Petitioner, v. Brenda S. SOMMERVILLE, Respondent.

362 S.C. 191

607 S.E.2d 707

Ernest HAGOOD, Petitioner, v.Brenda S. SOMMERVILLE, Respondent.

No. 25918.

Supreme Court of South Carolina.

Heard October 20, 2004.

Decided January 4, 2005.

James H. Moss and H. Fred Kuhn, Jr., of Moss, Kuhn & Fleming, P.A., of Beaufort, for Petitioner.

A. Parker Barnes, Jr., of Beaufort, for Respondent.

JUSTICE BURNETT:

We granted a writ of certiorari to review the Court of Appeals' opinion in Hagood v. Sommerville, S.C. Ct. App. Order dated May 22, 2003(unpublished order).We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Ernest Hagood(Petitioner) sued Brenda S. Sommerville(Respondent) after Petitioner allegedly was injured in 1997 when he was struck by Respondent's vehicle while riding a bicycle.Petitioner was represented by James H. Moss(Petitioner's Attorney).Respondent moved to disqualify Barton J. Adams(Adams) from testifying as an expert witness for Petitioner because Adams is employed full-time by Petitioner's Attorney as a professional investigator and accident reconstruction expert.¹

The trial court gave Petitioner two options: (1) do not use Adams as a witness, but find another expert witness and proceed to trial with Petitioner's Attorney; or (2)Petitioner's Attorney may withdraw due to the disqualification, Petitioner may retain new counsel, and use Adams as an expert witness at trial.Petitioner's Attorney withdrew.

Following the Court of Appeals' dismissal of Petitioner's case, we granted the petition for a writ of certiorari to consider an issue of first impression in South Carolina: Is an order which grants a motion to disqualify a party's attorney immediately appealable?

STANDARD OF REVIEW

In a case raising a novel question of law, the appellate court is free to decide the question with no particular deference to the lower court.I'On, L.L.C. v. Town of Mt. Pleasant,338 S.C. 406, 411, 526 S.E.2d 716, 719(2000)(citingS.C. Const. art. V, §§ 5and9,S.C.Code Ann. § 14-3-320 and -330 (1976& Supp. 2003), and S.C.Code Ann § 14-8-200(Supp. 2003));Osprey, Inc. v. Cabana Ltd. Partnership,340 S.C. 367, 372, 532 S.E.2d 269, 272(2000)(same);Clark v. Cantrell,339 S.C. 369, 378, 529 S.E.2d 528, 533(2000)(same).

LAW AND ANALYSIS

The right of appeal arises from and is controlled by statutory law.North Carolina Federal Sav. and Loan Ass'n v. Twin States Dev. Corp.,289 S.C. 480, 347 S.E.2d 97(1986).An appeal ordinarily may be pursued only after a party has obtained a final judgment.Mid-State Distributors, Inc. v. Century Importers, Inc.,310 S.C. 330, 335, 426 S.E.2d 777, 781(1993);S.C.Code Ann. § 14-3-330(1)(1976);Rule 72, SCRCP;Rule 201(a), SCACR.

The determination of whether a party may immediately appeal an order issued before or during trial is governed primarily by S.C.Code Ann. § 14-3-330(1976& Supp.2003).An order generally must fall into one of several categories set forth in that statute in order to be immediately appealable.Baldwin Constr. Co. v. Graham,357 S.C. 227, 593 S.E.2d 146(2004);Woodard v. Westvaco Corp.,319 S.C. 240, 242, 460 S.E.2d 392, 393(1995), overruled on other grounds, Sabb v. S.C. State Univ.,350 S.C. 416, 567 S.E.2d 231(2002);Mid-State Distributors,310 S.C. at 333 n. 3, 426 S.E.2d at 780 n. 3.

Petitioner argues the order in his case is immediately appealable under S.C.Code Ann. § 14-3-330(2)(1976) because it affects a substantial right, namely, the right to proceed with a lawyer of his choosing.Petitioner relies on foreign authority to argue the right would likely be lost if not immediately appealed.If a new trial were ordered after an appeal in the distant future, the preferred attorney may not be available or a litigant may not be able to afford the attorney for a second trial.Further, a litigant would find it difficult or impossible to show prejudice resulting from the disqualification order in a later appeal.

Respondent argues the order does not affect a substantial right as the term is defined in Section 14-3-330(2).If the trial court erred in disqualifying Petitioner's attorney, Petitioner may protect his rights by challenging the errors in an appeal following a final judgment.

An order affects a substantial right and is immediately appealable when it "(a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action, (b) grants or refuses a new trial or (c) strikes out an answer or any part thereof or any pleading in any action[.]"Section 14-3-330(2).An order which does not finally end a case or prevent a final judgment from which a party may seek appellate review usually is considered an interlocutory order from which no immediate appeal is allowed.Tatnall v. Gardner,350 S.C. 135, 138, 564 S.E.2d 377, 379(Ct.App.2002).The provisions of Section 14-3-330, including subsection (2), have been narrowly construed and immediate appeal of various orders issued before or during trial generally has not been allowed.Piecemeal appeals should be avoided and most errors can be corrected by the remedy of a new trial.See e.g.Breland v. Love Chevrolet Olds, Inc.,339 S.C. 89, 93, 529 S.E.2d 11, 13(2000)(order denying motion for change of venue is not immediately appealable because any error in the order can be corrected by new trial);Senter v. Piggly Wiggly Carolina Co.,341 S.C. 74, 77-78, 533 S.E.2d 575, 577(2000)(order denying bifurcation of trial on issues of liability and damages in personal injury case is not immediately appealable as affecting a substantial right);Townsend v. Townsend,323 S.C. 309, 312, 474 S.E.2d 424, 427(1996)(denial of motions for disqualification of a judge and for a continuance are interlocutory orders not affecting the merits, and thus are reviewable only on appeal from a final order);Collins v. Sigmon,299 S.C. 464, 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-party must be held in contempt before an appeal may be taken challenging the validity of the discovery order);Tatnall,350 S.C. at 138,564 S.E.2d at 379(order denying motion to amend pleadings to assert third party claims was not immediately appealable because the order did not affect a substantial right).

In a well-established exception to the general rule, we repeatedly have held that the denial of a party's right to a particular mode of trial is immediately appealable as a substantial right under Section 14-3-330(2).SeeFlagstar Corp. v. Royal Surplus Lines,341 S.C. 68, 72, 533 S.E.2d 331, 333(2000)("Pursuant to § 14-3-330(2), this Court has held on numerous occasions that when a trial court's order deprives a party of a mode of trial to which it is entitled as a matter of right, such order is immediately appealable.")(listing cases);Creed v. Stokes,285 S.C. 542, 331 S.E.2d 351(1985)(order referring case to master in equity affects the mode of trial, a substantial right, and party waived his objection to the reference and his right to jury trial by failing to immediately appeal the order);Bateman v. Rouse,358 S.C. 667, 675, 596 S.E.2d 386, 390(Ct.App.2004)(purpose of immediate appeal on right to particular mode of trial is to preserve party's constitutional right to trial by jury which would otherwise be lost.)

There does not appear to be a clear majority view on the appealability of an order granting a motion to disqualify a party's attorney in a civil case.SeeDavid B. Harrison, Appealability of State Court's Order Granting or Denying Motion to Disqualify Attorney,5 A.L.R.4th 1251(1981)(discussing cases on both sides of issue).

The reasons most often cited by state courts which have concluded such an order may be immediately appealed include (1) the importance of the party's right to counsel of his choice in an adversarial system; (2) the importance of the attorney-client relationship, which demands a confidential, trusting relationship that often develops over time; (3) the unfairness in requiring a party to pay another attorney to become familiar with a case and repeat preparatory actions already completed by the preferred attorney; and (4) an appeal after final judgment would not adequately protect a party's interests because it would be difficult or impossible for a litigant or an appellate court to ascertain whether prejudice resulted from the lack of a preferred attorney.SeeGoldston v. American Motors Corp.,326 N.C. 723, 392 S.E.2d 735, 737-38(1990);Russell v. Mercy Hosp.,15 Ohio St.3d 37, 472 N.E.2d 695, 697-98(1984);Richardson v. Griffiths,251 Neb. 825, 560 N.W.2d 430, 434-35(1997);Casco Northern Bank v. JBI Associates, Ltd.,667 A.2d 856, 859 n. 3(Me.1995);Parker v. Volkswagenwerk,245 Kan. 580, 781 P.2d 1099, 1104-05(1989);In re Estate of French,166 Ill.2d 95, 209 Ill.Dec. 677, 651 N.E.2d 1125, 1130-31(Heiple and Freeman, JJ., dissenting).

We find persuasive the arguments of Petitioner and the reasoning expressed by other jurisdictions which allow immediate appeal of such orders.We conclude an order granting a motion to disqualify a party's attorney in a civil case affects a substantial right and may be immediately appealed under Section 14-3-330(2).Such an order implicitly falls within the statutory definition of a substantial right under Section 14-3-330(2)(a).The right to be represented by an attorney of ones choosing is one of those rare orders which, in effect, could determine the action and prevent a judgment from which an appeal might be taken, or could discontinue an action due to the potential impact on both the attorney-client relationship and the overall litigation and trial of the case.Moreover, the right to be represented by ones preferred attorney is closely related to the right to a particular mode of trial, a...