Thornton v. South Carolina Electric & Gas Corp.. (sce & G)

• Decision Date: 19 January 2011
• Docket Number: No. 4780.,4780.
• Citation: 391 S.C. 297,705 S.E.2d 475
• Court: South Carolina Court of Appeals
• Parties: Brian E. THORNTON and Catherine S. Thornton, on behalf of themselves and all others similarly situated, Appellants/Respondents,v.SOUTH CAROLINA ELECTRIC & GAS CORPORATION (SCE & G), a subsidiary of SCANA Corporation, Respondent/Appellant.

391 S.C. 297

705 S.E.2d 475

Brian E. THORNTON and Catherine S. Thornton, on behalf of themselves and all others similarly situated, Appellants/Respondents,

v.SOUTH CAROLINA ELECTRIC & GAS CORPORATION (SCE & G), a subsidiary of SCANA Corporation, Respondent/Appellant.

No. 4780.

Court of Appeals of South Carolina.

Heard Sept. 15, 2010.Decided Jan. 19, 2011.

A. Camden Lewis and Peter D. Protopapas, both of Columbia; and William P. Walker, of Lexington; for Appellants/Respondents.Sarah P. Spruill, of Columbia, for Respondent/Appellant.FEW, C.J.

Brian and Catherine Thornton brought this lawsuit as a class action for negligence, strict liability, and nuisance arising out of blasting activities conducted by South Carolina Electric and Gas Corporation (SCE & G) at the Lake Murray dam. SCE & G made a motion titled “Motion for Summary Judgment and to Strike Class Action Allegations.” In substance, the motion sought three rulings relevant to this appeal. First, in what it labeled “ motion to strike,” SCE & G claimed “Plaintiffs cannot establish the requisite elements required for this case to be certified as a class action under Rule 23, SCRCP.” Second, SCE & G moved for summary judgment based on the statute of limitations. Third, SCE & G argued the South Carolina Mining Act ¹ does not create a private cause of action. The Thorntons appeal the circuit court's ruling in favor of SCE & G on the first and third points, and SCE & G cross-appeals the denial of summary judgment as to the statute of limitations. We dismiss the appeal because the order is not immediately appealable.

I. Appealability

An interlocutory order not governed by a specialized appealability statute is not immediately appealable unless it fits into one of the categories listed in section 14–3–330 of the South Carolina Code (1976 & Supp.2009). Ex Parte Capital U–Drive–It, Inc., 369 S.C. 1, 6, 630 S.E.2d 464, 467 (2006). The Thorntons contend the portion of the order dealing with class action allegations is appealable under section 14–3–330(2)(c) because it affects a substantial right by striking a pleading. They contend the portion of the order granting summary judgment that no private right of action exists under the Mining Act is also appealable under section 14–3–330(2)(c), and under section 14–3–330(1) because it involves the merits. We disagree. Under the circumstances of this case, neither portion of the order is immediately appealable. The portion of the order denying SCE & G's motion for summary judgment on the statute of limitations is not appealable under any circumstance.

A. Order Granting a Motion to Strike Class Action Allegations

The Thorntons' complaint defined the class to include: “All residents of Lexington County, South Carolina who suffered property damage as a result of the construction and blasting of the Lake Murray dam expansion project.” After discovery, SCE & G filed its motion addressing the class action allegations. Though the motion was filed under Rule 12, SCRCP,² and was captioned as a motion “to strike class action allegations,” the motion actually raised the merits of class certification. The motion states: “Plaintiffs cannot establish the requisite elements required for this case to be certified as a class action under Rule 23, SCRCP.” The applicable heading of SCE & G's memorandum in support of its motion states: “Plaintiffs cannot satisfy the elements to proceed as a class action under Rule 23(a), SCRCP,” and the text of the memorandum addresses the merits of class certification under the rule. The Thorntons noted in their responsive memorandum that “Defendants' Motion reads more as a Memorandum in opposition to class certification,” and proceeded to address the merits of the criteria for class certification. The order also addressed the merits of class certification:

Defendants raise the argument that Plaintiffs fail to satisfy the elements set out in Rule 23(a), [SCRCP]. The court has determined that the defenses of the representative party are not typical of the defenses of the class. As indicated in the records, each member has unique damages which will require unique defenses. Accordingly, Defendants' Motion to Strike Class Action Allegations is granted.We believe the Thorntons' contention that this portion of the order is immediately appealable because it affects a substantial right by striking a pleading mistakenly equates an order granting a Rule 12(f) motion to strike with an order that is appealable under section 14–3–330(2)(c). We do not believe the two are necessarily the same. In particular, we find the use of the word “strike” in both Rule 12(f) and section 14–3–330(2)(c) does not mean that an order granting a Rule 12(f) motion is automatically immediately appealable.³

In P.J. Construction Co., Inc. v. Roller, 287 S.C. 632, 340 S.E.2d 564 (Ct.App.1986), this court heard an appeal from an order striking two defenses from the answer. Before proceeding to the merits of the appeal, the court stated: “An order striking a portion of a pleading is immediately appealable.” 287 S.C. at 633, 340 S.E.2d at 565 (citing Harbert, 74 S.C. at 16, 53 S.E. at 1002). ⁴ Other than that general statement, however, no South Carolina appellate court facing an appeal from an order granting a motion to strike has defined what constitutes an order affecting a substantial right by striking a pleading under section 14–3–330(2)(c).⁵ Generally, section 14–3–330(2) has “been narrowly construed and immediate appeal of various orders issued before or during trial generally has not been allowed.” Hagood v. Sommerville, 362 S.C. 191, 196, 607 S.E.2d 707, 709 (2005). We believe a narrow construction of section 14–3–330(2)(c) requires us to focus on the effect of the order, not the label given to the motion or to the order granting it.⁶

We find support for this view in several opinions of our supreme court. In Miles v. Charleston Light & Water Co., 87 S.C. 254, 69 S.E. 292 (1910), the supreme court considered the defendant's appeal from an interlocutory order denying its motion to make the plaintiff's complaint more definite and certain. 87 S.C. at 255–56, 69 S.E. at 293. After noting that such an order was not immediately appealable, the court heard the appeal anyway because “appeal has also been taken from the order upon the [defendant's] demurrer, which in effect strikes out a portion of the complaint,” making it appealable under the predecessor to section 14–3–330(2)(c). 87 S.C. at 257, 69 S.E. at 293 (emphasis added). In Bowden v. Powell, 194 S.C. 482, 10 S.E.2d 8 (1940), the supreme court considered a post-judgment appeal from a pretrial order denying a motion to strike allegations in a complaint. 194 S.C. at 484, 10 S.E.2d at 9. In holding the order was not appealable, the court quoted Harbert to draw a distinction between the order before the court and an order granting a motion to strike a pleading, which the court noted is appealable:

If the circuit court errs in striking out any material allegations of a good cause of action or good defense, it is impossible to remedy it in the course of the trial, because the evidence and the issues submitted to the jury cannot be extended beyond the issues made by the pleading, and on appeal from the final judgment this court could not say there was error of law in confining the evidence and charge to the pleadings.

Id. (quoting Harbert, 74 S.C. at 16, 53 S.E. at 1002); see also Caldwell v. McCaw, 141 S.C. 86, 91, 139 S.E. 174, 175 (1927).

Under the reasoning of Miles and Bowden, an appellate court should look to the effect of an interlocutory order to determine its appealability under section 14–3–330(2)(c). An order affects a substantial right by striking a pleading if the order removes a material issue from the case, thereby preventing the issue from being litigated on the merits, and preventing the party from seeking to correct any errors in the order during or after trial.⁷ Whether an order granting a Rule 12(f) motion to strike is appealable under section 14–3–330(2)(c) depends on the effect of the individual order under the facts and circumstances of the case. Here, rather than asking the court to remove an issue from the case, SCE & G's motion to strike actually raised the merits of class certification. ⁸ Rather than preventing the Thorntons from litigating the issue, the order had the effect of denying class certification on the merits. “The general rule established by [the supreme c]ourt is that class certification orders are not immediately appealable.” Salmonsen v. CGD, Inc., 377 S.C. 442, 448, 661 S.E.2d 81, 85 (2008) (citing Eldridge v. City of Greenwood, 308 S.C. 125, 127, 417 S.E.2d 532, 534 (1992)). We find this order is not immediately appealable because its effect was not to strike a pleading, as its label suggests, but rather to deny class certification on the merits of Rule 23(a), SCRCP.⁹ On remand, the order shall be treated as an order denying class certification which, under Rule 23(d)(1), “may be altered or amended before the decision on the merits.” See Salmonsen, 377 S.C. at 454, 661 S.E.2d at 88 (“[C]lass certification may be altered at any time prior to a decision on the merits.”).

The decision we reach in this case is consistent with a recent opinion of the supreme court on an interlocutory appeal from an order granting a motion to strike class allegations: Grazia v. South Carolina State Plastering, LLC, 390 S.C. 562, 703 S.E.2d 197 (2010) (Shearouse Adv. Sh. No. 40 at 13). In Grazia, the plaintiffs' claim for defective stucco work fell under The Notice and Opportunity to Cure Construction Dwelling Defect Act, ¹⁰ which “ requires the claimant to serve written notice no later than ninety days before filing the action.” Id. at 19 (emphasis in original). Neither the Grazias nor any member of the class complied with the notice provision before filing. Id. at 15. Even after the Grazias personally complied with the notice requirement, the...