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Tillman v. Tillman

Court of Appeals of South Carolina

June 14, 2017

Toni Lynn Tillman, Respondent,
v.
Timothy Troy Tillman and Crystal Tillman, Defendants, Of whom Timothy Troy Tillman is the Appellant. Appellate No. 2015-001291

          Submitted May 1, 2017

         Appeal From Dorchester County Diane Schafer Goodstein, Circuit Court Judge

          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.

          HILL, J.

         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 ...


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