Woodard v. Westvaco Corp.

• Decision Date: 22 March 1993
• Docket Number: No. 2026,2026
• Citation: 433 S.E.2d 890,315 S.C. 329
• Court: South Carolina Court of Appeals
• Parties: Glenn WOODARD, Respondent, v. WESTVACO CORPORATION, Appellant. . Heard

Page 890

433 S.E.2d 890

315 S.C. 329

Glenn WOODARD, Respondent, v. WESTVACO CORPORATION, Appellant.

No. 2026.

Court of Appeals of South Carolina.

Heard March 22, 1993.

Decided June 7, 1993.

Rehearing Denied Aug. 11, 1993.

Certiorari Granted April 8, 1994.

G. Dana Sinkler and Elizabeth T. Thomas of Warren & Sinkler, Charleston, for appellant.

Kerry W. Koon, Charleston, for respondent.

BELL, Judge:

This is an action in negligence. Glenn Woodard sued Westvaco Corporation seeking damages for personal injuries. The complaint alleged that while Woodard was employed as a driver for Southern Bulk Haulers, a trucking firm, he drove a tanker truck to Westvaco's plant in North Charleston to pick up a load of a chemical known as "black liquor" for delivery to storage tanks at the Exxon oil terminal located a few miles away. Woodard was injured when a hose delivering the chemical under pressure from an overhead pipe disengaged and sprayed him with hot liquid, knocking him from the top of the tanker to the pavement. Westvaco moved for summary judgment, asserting that Woodard was a statutory employee whose exclusive remedy was under the Workers' Compensation Law. It argued the court lacked subject matter jurisdiction to hear the negligence claim. The circuit court denied the motion, ruling that, viewed in the light most favorable to Woodard, there was a genuine issue whether he was a statutory employee. Westvaco appeals. We reverse and remand.

The appeal presents two questions for decision: (1) Is an order denying a motion for summary judgment on the ground of lack of subject matter jurisdiction an appealable order? (2) Did the judge err as a matter of law in failing to rule that Woodard was a statutory employee?

I.

Normally, an order denying a motion for summary judgment is not immediately appealable. See Bocook Outdoor Media, Inc. v. Summey Outdoor Advertising, Inc., 294 S.C. 169, 363 S.E.2d 390 (Ct.App.1987). However, if the motion raises lack of subject matter jurisdiction, the rule is different.

A.

The proper procedure for raising lack of subject matter jurisdiction prior to trial is to file a motion to dismiss pursuant to Rule 12(b)(1), SCRCP, rather than a motion for summary judgment pursuant to Rule 56, SCRCP. This is because summary judgment is an adjudication of the merits of the case, whereas dismissal for lack of subject matter jurisdiction is not an adjudication on the merits. See Gulledge v. Young, 242 S.C. 287, 130 S.E.2d 695 (1963); Nauful v. Milligan, 258 S.C. 139, 187 S.E.2d 511 (1972); Prakash v. American University, 727 F.2d 1174 (D.C.Cir.1984).

If a party files a Rule 56 motion for summary judgment on the ground of lack of subject matter jurisdiction, the trial court should treat the motion as if it were a Rule 12(b)(1) motion to dismiss. Prakash, supra. When the allegations of the complaint are factually sufficient under Rule 8(a)(1), SCRCP, but do not affirmatively show subject matter jurisdiction, the motion to dismiss may be supported by, and the court may consider, affidavits or other evidence proving lack of jurisdiction. See Graham v. Lloyd's of London, 296 S.C. 249, 251, 371 S.E.2d 801, 802 n. 1 (Ct.App.1988); Thornhill Publishing Co. v. General Telephone & Electronics Corporation 594 F.2d 730 (9th Cir.1979).

In this case, the circuit court erred in concluding it must view the evidence in the light most favorable to the party resisting the motion and deny the motion because the evidence, so viewed, created a genuine issue of material fact. The question of subject matter jurisdiction is a question of law for the court. See Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963). Here, moreover, the facts material to resolving the question of jurisdiction were not in dispute. Accordingly, the court should have decided the question of its own jurisdiction on the facts before it.

B.

There remains the question whether an interlocutory order denying a motion to dismiss for lack of subject matter jurisdiction is immediately appealable. To answer this question, we must review the precedents with care.

Rule 12(b)(1), SCRCP, is derived from and identical to the corresponding provision of the Federal Rules of Civil Procedure. Compare Rule 12(b)(1), SCRCP with Rule 12(b)(1), FRCP. Although there is a dearth of federal cases addressing the issue, the Ninth Circuit Court of Appeals has expressly held that denials of motions to dismiss under Rule 12(b)(1) are not appealable final orders. See Whaley v. Rydman, 887 F.2d 976 (9th Cir.1989). ¹ Although not directly addressing Rule 12(b)(1) motions, the United States Supreme Court, in Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945), also held that denials of motions to dismiss on jurisdictional grounds are not immediately reviewable. We also note that in Hartwick College v. United States, 801 F.2d 608 (2d Cir.1986), the Second Circuit Court of Appeals entertained an appeal from the denial of a 12(b)(1) motion after the trial on the merits. This case suggests the proper time to hear an appeal from the denial of a Rule 12(b)(1) motion is after final judgment.

North Carolina, like South Carolina, has modelled its rules of civil procedure on the Federal Rules. North Carolina's Rule 12(b)(1) is identical to the provisions of the South Carolina and the Federal Rules. Compare N.C.Gen.Stat. § 1A-1 Rule 12(b)(1) (1992), with Rule 12(b)(1), SCRCP and Rule 12(b)(1), FRCP. In two well reasoned opinions, the North Carolina appellate courts have held that the denial of a Rule 12(b)(1) motion to dismiss is not immediately appealable. See Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982); Shaver v. North Carolina Monroe Construction Co., 54 N.C.App. 486, 283 S.E.2d 526 (1981).

Historically, the rule in South Carolina has been to the contrary. In 1895, our Supreme Court held that the denial of a motion to dismiss for lack of subject matter jurisdiction is immediately appealable. See Simms v. Phillips, 46 S.C. 149, 24 S.E. 97 (1896). This law was carried over unchanged when South Carolina adopted the South Carolina Rules of Civil Procedure in 1985. Under former Rule 72(4), SCRCP, an order granting or refusing a motion to dismiss an action for lack of subject matter or personal jurisdiction was immediately appealable. In North Carolina Federal Savings & Loan Ass'n v. Twin States Development Corp., 289 S.C. 480, 347 S.E.2d 97 (1986), our Supreme Court held the right to appeal is controlled by statutory law. It stated the Rules of Civil Procedure relating to appeals shall not be construed to extend or limit appellate jurisdiction. Two years later, the Court decided Botany Bay Marina, Inc. v. Townsend, 296 S.C. 330, 372 S.E.2d 584 (1988). Botany Bay cited Simms v. Phillips and Rule 72(4) as authority that motions to dismiss for lack of subject matter jurisdiction are immediately appealable. In 1989, former Rule 72 was repealed. New Rule 72 provides: "Appeal may be taken, as provided by law, from any final judgment or appealable order." After the adoption of new Rule 72, the Supreme Court again confirmed that orders determining questions of subject matter jurisdiction are immediately appealable. See Carter v. Florentine Corp., --- S.C. ----, 423 S.E.2d 112 (1992). In view of the Carter decision, it would seem clear that interlocutory orders denying a Rule 12(b)(1) motion remain immediately appealable.

However, in an opinion filed on February 1, 1993, the Supreme Court held the denial of a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction is not appealable. See Mid-State Distributors, Inc. v. Century Importers, Inc., --- S.C. ----, 426 S.E.2d 777 (1993). The Court used two rationales: (1) Denial of the motion to dismiss did not "involve the merits," which the Court defined as "an order which 'must finally determine some substantial matter forming the whole or a part of some cause of action or defense.' " The Court specifically overruled an 1886 case and an 1890 case, both of which had allowed an immediate appeal from motions to dismiss for lack of personal jurisdiction. The Court said these cases were outdated, because they were decided when the definition of "involving the merits" was much broader. (2) The Court also reasoned the denial did not prejudice the defendant, but rather simply required him to proceed to trial where he could later prevail on the jurisdictional issue. It stated the appellant had "not arrived at the end of the road."

The reasoning in Mid-State is even more compelling when applied to the denial of a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Like a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, a Rule 12(b)(1) motion does not address or dispose of a case on the merits. Moreover, because subject matter jurisdiction cannot be conferred by consent of the parties, cannot be waived, and can be raised at any time, the moving party has "not arrived at the end of the road," if a Rule 12(b)(1) motion is denied in an interlocutory order. Interlocutory denial of a Rule 12(b)(1) motion does not constitute legal prejudice to the moving party, but simply requires him to proceed to trial. He can still raise and prevail on the jurisdictional issue at trial or on appeal.

For these reasons, the decision in Mid-State casts substantial doubt on the continuing vitality of the holdings in Carter v. Florentine and Simms v. Phillips. However, two weeks after deciding Mid-State, the Supreme Court decided Timms v. Greene, --- S.C. ----, 427 S.E.2d 642 (1993). In Timms, the Court affirmed the trial court's denial of a motion to dismiss for lack of subject matter jurisdiction without discussing whether the denial of the motion was immediately appealable. One week later, the Court again considered a denial of a motion to dismiss for lack of subject matter jurisdiction. This time the Court reversed the trial court's denial of the motion,...