McGann v. Mungo, 0626
| Decision Date | 09 December 1985 |
| Docket Number | No. 0626,0626 |
| Citation | 340 S.E.2d 154,287 S.C. 561 |
| Court | South Carolina Court of Appeals |
| Parties | James R. McGANN, Denise C. McGann, Timothy P. Finn, Mary Earle Finn, Patrick J. Carberry, Judith Ann Carberry, Janice B. Shaw and Georgia D. Goodwin, Individually and on behalf of all others similarly situated, Respondents, v. Michael J. MUNGO, Individually, Michael J. Mungo Co., Inc., South Carolina Federal Savings and Loan Association, First Service Corporation of South Carolina, The County of Lexington, Roy J. Frick, Jerrod F. Howard, Russell B. Shealy, J. Wade Kleckley, Alvin J. Neal, Art Guerry, Lowell C. Spires, Jr., Bruce L. Merchant, and J. Carl Spires, in their official capacities as members of Lexington County Council, the governing body of Lexington County, South Carolina, and The City of Columbia, Defendants, of whom Michael J. Mungo, Individually, Michael J. Mungo Co., Inc., First Service Corporation of South Carolina, The County of Lexington, Roy J. Frick, Jerrod R. Howard, Russell B. Shealy, J. Wade Kleckley, Alvin J. Neal, Art Guerry, Lowell C. Spires, Jr., Bruce L. Merchant, and J. Carl Spires, in their official capacities as members of Lexington County Council, the governing body of Lexington County, South Carolina, are Appellants. . Heard |
George I. Alley, of Kirkland, Aaron & Alley, Frederick A. Gertz, of Gertz & Moore, Robert W. Dibble and Martha P. McMillin, both of McNair, Glenn, Konduros, Corley, Singletary, Porter & Dibble, Edward M. Woodward, Jr., of Woodward & Unger, Wilburn Brewer, Jr. and Susan Batten Lipscomb, both of Nexsen, Pruet, Jacobs & Pollard, Columbia, and Archie L. Harman, II, of Rawl, Purcell & Harman, Lexington, for appellants.
George W. Cox, Jr., C. Joseph Roof, and Alva M. Lumpkin, of Lumpkin & Sherrill, Columbia, for respondents.
James S. Meggs, Columbia, for defendant, The City of Columbia.
This appeal by the defendants Michael J. Mungo, Michael J. Mungo Co., Inc., and First Service Corporation of South Carolina the County of Lexington, South Carolina, and Roy J. Frick, Jerrod R. Howard, Russell B. Shealy, J. Wade Kleckley, Alvin J. Neal, Art Guerry, Lowell C. Spires, Jr., Bruce L. Merchant, and J. Carl Spires in their official capacities as members of the Lexington County Council is from an order overruling their demurrers to certain causes of action alleged in the amended complaint of the plaintiffs James R. McGann, Denise C. McGann, Timothy P. Finn, Mary Earle Finn, Patrick J. Carberry, Judith Ann Carberry, Janice B. Shaw, and Georgia D. Goodwin. We affirm in part and reverse in part.
The issues addressed herein relate to misjoinder, class actions, and sufficiency of the pleadings.
According to the amended complaint, Coldstream is a residential subdivision in Lexington County, South Carolina, developed by Mungo, Mungo Co., Inc., and First Service Corporation. Development of the subdivision included planning and constructing Coldstream's streets, drainage systems, water supply systems, sewer systems, and other utilities. Lexington County and the County Council allegedly aided the developers in their development of Coldstream.
The plaintiffs brought this action on behalf of themselves and as representatives of a class alleged to consist of all other residents and owners of improved residential properties in Coldstream. Their amended complaint, comprised of seven causes of action, seeks the recovery of $5,000,000 in actual and punitive damages for the alleged unconstitutional taking of their properties, for the alleged negligent design and construction of the subdivision's streets and drainage systems, and for the alleged breach of an implied warranty that the plaintiffs' properties and Coldstream's streets and drainage systems were fit for their particular purposes. The amended complaint also seeks injunctive relief.
The defendants each demurred to the amended complaint's several causes of action. The circuit court sustained the county defendants' demurrers to all but the fifth cause of action and sustained the developers' demurrers to all but the first, third, fifth, and sixth causes of action.
The defendants first contend the circuit court erred in overruling their demurrers to all causes of action. Their demurrers assert the amended complaint improperly unites several causes of action because the causes of action do not affect all the parties to the action, including members of the alleged class. See S.C.Code of Laws § 15-15-10 (repealed 1985); Ryder v. Jefferson Hotel Company, 121 S.C. 72, 113 S.E. 474 (1922); Dockside Association, Inc. v. Detyens, Simmons and Carlisle, 285 S.C. 565, 330 S.E.2d 537 (Ct.App.1985), affirmed as modified, --- S.C. ---, 337 S.E.2d 887 (1985).
The amended complaint unites several causes of action jointly brought by the eight plaintiffs on behalf of themselves and the alleged class. It is apparent from the amended complaint that the plaintiffs base their claims and the claims of the alleged class on the damages allegedly sustained by their separate residential properties and motor vehicles.
Since the date of the determination by the circuit court of the issues raised by the defendants' demurrers, the statute on which the defendants relied before the circuit court, Section 15-15-10 of the South Carolina Code of Laws (1976), has been repealed [see 1985 S.C.Acts 100] and a new rule governing joinder of claims has been adopted. See S.C.R.CIV.P. 18(a); H. LIGHTSEY & J. FLANAGAN, SOUTH CAROLINA CIVIL PROCEDURE at 171, 190 (2d ed. 1985). Under Rule 18(a), there no longer is a requirement, as there was under Section 15-15-10, that "the causes of action so united ... affect all the parties to the action." LIGHTSEY & FLANAGAN, supra, at 171, 187.
As a general rule, the repeal of a statute authorizing a particular defense operates to deprive a defendant in a pending action of the defense even if the defense has already been raised. 82 C.J.S. Statutes § 439 at 1013 (1953). Thus, the express repeal of Section 15-15-10 serves to deprive the defendants of the defense of improper joinder of claims in this instance.
Also, a newly adopted procedural statute is generally held applicable to pending cases unless its application either would impair some vested right or would violate some constitutional guaranty. 73 Am.Jur.2d Statutes § 354 at 489-90 (1974); 82 C.J.S. Statutes § 416 at 992-93 (1953); see Merchants Mutual Insurance Co. v. South Carolina Second Injury Fund, 277 S.C. 604, 291 S.E.2d 667 (1982). The retrospective application here of Rule 18(a) would have neither of these effects.
Indeed, Rule 86 expressly provides that the new rules of civil procedure, which took effect on July 1, 1985, and include Rule 18(a), shall govern all further proceedings in pending actions except where their application either "would not be feasible or would work an injustice." We perceive no injustice in applying Rule 18(a) to this case. Moreover, its application is perfectly feasible.
Because we see no reason for not applying Rule 18(a) retrospectively to the instant action, we need not determine whether the circuit court erred in overruling the defendants' demurrers. Rule 18(a) clearly permits joinder of the claims alleged by the plaintiffs in their amended complaint.
The defendants next argue the circuit court erred in overruling their demurrers to all causes of action on the ground the amended complaint fails to state facts sufficient to permit a class action because the facts alleged in the amended complaint do not show any unity of interest binding the parties whom the plaintiffs purport to represent and on the ground there is a misjoinder of parties plaintiff because the damages sought by the plaintiffs differ.
We recognized in Dockside, supra, that in South Carolina a representative action brought pursuant to Section 15-5-50 of the Code could be maintained only when the parties represented either were united in interest or had some bond of connection that united them all with the question at issue in the action. 285 S.C. at 572, 330 S.E.2d at 541. But Dockside was decided before the repeal of Section 15-5-50 by Act No. 100 of 1985 and before the effective date of the new rules. See S.C.R.CIV.P. 86.
Although Section 15-5-50 and Rule 23(a)(2) employ similar language in providing for class actions, the requirements for a class action contained in the rule are not identical to those prescribed by the prior statute. As Dean Lightsey and Professor Flanagan observe:
Class actions ... do not remain as they were under prior practice. The main limitation on the representative suit in this jurisdiction was the restrictive view of the Field Code that required a strong pre-existing legal relationship among the parties to be joined and which, by inference, applied to all prospective class members. Adoption of the flexible joinder rules for claims and parties in Rules 18 and 20, respectively, rejects that narrow view in favor of a pragmatic consideration of the extent of common issues. Consequently, there is no restriction on joining claims simply because each party seeks an independent recovery.
LIGHTSEY & FLANAGAN, supra, at 194.
Rule 23(a)(2) of the new rules permits members of a class to sue as representative parties on behalf of all if, among other things, "there are questions of law or fact common to the class." Cf. S.C.Code of Laws § 15-5-50 (1976) (repealed 1985) ("When the question is one of a common or general interest to many persons ..."). In discussing Rule 23(a)(2), Dean Lightsey and Professor Flanagan write:
The essence of a class action is common questions of law and fact and Rule 23(a)(2) reflects this. It is important to note that the subsection does not demand that all questions of law and fact be common, only that there be common issues among the class. In fact, a single common issue will suffice if it is important enough. It also follows that the mere existence of individual...
To continue reading
Request your trial
- Pope v. Heritage Communities, Inc.
-
Pope v. Heritage Cmtys, Inc.
...Class members utilized their units in different manners does not defeat the commonality prerequisite. See McGann v. Mungo, 287 S.C. 561, 568, 340 S.E.2d 154, 157-58 (Ct. App. 1986) (discussing the commonality requirement of Rule 23 and stating it is not necessary that all questions of law a......
-
Salmonsen v. Cgd, Inc.
... ... a more expansive view of class action availability than its federal counterpart."); McGann v. Mungo, 287 S.C. 561, 570, 340 S.E.2d 154, 159 (Ct.App. 1986) (relying on federal precedent to ... ...
-
Harper v. Ethridge
...Co. v. Miller, 248 S.C. 107, 149 S.E.2d 331 (1966); Tzouvelekas v. Tzouvelekas, supra. For the reasons stated in McGann v. Mungo, 287 S.C. 561, 340 S.E.2d 154 (Ct.App.1986), we hold that the repeal of Code Section 15-13-320(5) operates to deprive Ethridge and Fann of the defense that incons......