Tillman v. Tillman
| Decision Date | 14 June 2017 |
| Docket Number | Opinion No. 5493,Appellate Case No. 2015-001291 |
| Citation | 801 S.E.2d 757,420 S.C. 246 |
| Parties | Toni Lynn TILLMAN, Respondent, v. Timothy Troy TILLMAN and Crystal Tillman, Defendants, Of whom Timothy Troy Tillman is the Appellant. |
| Court | South Carolina Court of Appeals |
William B. Jung, of William B. Jung, Esq., LLC, of Mount Pleasant, for Appellant.
Kenneth Eldon Peck, of The Peck Law Firm, LLC, of Mount Pleasant, for Respondent.
Toni Lynn Tillman brought this ejectment action against her brother, Timothy Troy Tillman (Appellant), and his wife, for failing to pay rent since 2011. Appellant counterclaimed, alleging numerous causes of action.
The trial court granted Respondent's motion to dismiss several of Appellant's counterclaims. Appellant, who had orally moved to amend his pleadings at the motion to dismiss hearing, asked the court to reconsider. The trial court denied the motion to reconsider, but in its order wrote:
The Court takes this opportunity to clarify its order dismissing the defendants' counterclaims. The oral motion to amend counterclaims was denied but the defendants may make a formal motion to amend their counterclaims.
This appeal followed, with Appellant contending the trial court erred in dismissing his counterclaims and in "denying" his motion for leave to amend.
Around ten days after filing this appeal, Appellant filed a motion to amend in the trial court, averring the trial court order had given him "leave to file" an amended pleading.
The threshold question is whether the order is immediately appealable. The granting of a Rule 12(b)(6) motion to dismiss is immediately appealable. Williams v. Condon , 347 S.C. 227, 233, 553 S.E.2d 496, 500 (Ct. App. 2001). But the issue of whether an order that grants a 12(b)(6) motion yet simultaneously grants leave to amend the pleadings is immediately appealable does not seem to have arisen since adoption of the South Carolina Appellate Court Rules (SCACR) and South Carolina Rules of Civil Procedure (SCRCP).
Generally only final judgments are appealable. Doe v. Howe , 362 S.C. 212, 216, 607 S.E.2d 354, 356 (Ct. App. 2004)" ‘Final judgment’ is a term of art referring to the disposition of all the issues in the case."). A final judgment is one that ends the action and leaves the court with nothing to do but enforce the judgment by execution. Good v. Hartford Acc. & Indem. Co. , 201 S.C. 32, 41–42, 21 S.E.2d 209, 212 (1942). An order reserving an issue, or leaving open the possibility of further action by the trial court before the rights of the parties are resolved, is interlocutory. Ex parte Wilson , 367 S.C. 7, 12, 625 S.E.2d 205, 208 (2005).
Some exceptions to the final judgment rule are set forth in section 14-3-330 of the South Carolina Code (2017), which provides for the appealability of certain interlocutory orders. Subsection (1) allows for the immediate appeal of orders "involving the merits." An order involves the merits when it "finally determine[s] some substantial matter forming the whole or a part of some cause of action or defense...." Mid-State Distribs., Inc. v. Century Importers, Inc. , 310 S.C. 330, 334, 426 S.E.2d 777, 780 (1993) (citation omitted). The fate of Appellant's counterclaims has not been finally determined as long as his motion to amend hangs in the balance.
We next consider section 14-3-330(2), specifically whether the trial court's order affects Appellant's "substantial right" and "strikes out" a pleading. Our courts have held that orders denying a motion to amend an answer, Baldwin Const. Co. v. Graham , 357 S.C. 227, 229–30, 593 S.E.2d 146, 147 (2004), denying a motion to file a late answer, Jefferson by Johnson v. Gene's Used Cars, Inc. , 295 S.C. 317, 317–18, 368 S.E.2d 456, 456 (1988), and denying a motion to amend to file a third party complaint, Tatnall v. Gardner , 350 S.C. 135, 138, 564 S.E.2d 377, 379 (Ct. App. 2002), are not immediately appealable, primarily because they may be appealed after the case has ended and final judgment entered. However, our supreme court has used the same section to find the granting of a motion to dismiss may be immediately appealed because it "strikes" a pleading. Lebovitz v. Mudd , 289 S.C. 476, 479, 347 S.E.2d 94, 96 (1986). We are presented with a hybrid: an order that "strikes" a counterclaim, but welcomes a formal motion to amend.
Cureton v. Hutchinson , 3 S.C. 606 (1872) found a similar order was not immediately appealable. The advent of modern rules of civil and appellate procedure and intervening changes to section 14-3-330 have not dulled the reasoning of Cureton , which dismissed as interlocutory an order sustaining a demurrer but granting plaintiff leave to amend:
The effect of the order appealed from was to give the plaintiff an opportunity to amend his complaint. If it was not in his power to make an amendment that would obviate the objection ruled against him, or if he elected to rest his whole case on the sufficiency of his complaint, then the proper course of practice was, after sufficient time allowed for amendment had elapsed, for final judgment to have been entered, and from that judgment the plaintiff could have appealed. ... From all that appears before us, the right to amend is still in force, and may be exercised in the Circuit Court, after judgment rendered in this Court. In such an event, it might prove, in the end, that the question submitted to us, at this time, was of no material value to the controversy. The right of an amendment must be cut off by a judgment before the case is ripe for this Court.
Id. at 607–08. If anything has changed since Cureton , it is the ease with which pleadings may now be amended; after all, the rules require that leave be "freely given." Rule 15(a), SCRCP. In the unlikely event the motion to amend is denied, then Appellant retains the right, after the lawsuit ends, to appeal the denial along with the dismissal of his counterclaims. S.C. Code Ann. § 14-3-330(1) (); Link v. Sch. Dist. of Pickens Cty. , 302 S.C. 1, 6, 393 S.E.2d 176, 179 (1990).
Many federal circuits have held that orders dismissing a party's pleadings pursuant to Rule 12, but with leave to amend,...
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