Skydive Myrtle Beach, Inc. (f/k/a Skydive Myrtle Beach, LLC), Petitioner,
Horry County, Horry County Department of Airports, H. Randolph Haldi, Pat Apone, Tim Jackson, and Jack Teal, Defendants, of whom H. Randolph Haldi, Pat Apone, Tim Jackson, and Jack Teal are Respondents. Appellate Case No. 2017-001382
November 8, 2018
WRIT OF CERTIORARI TO THE COURT OF APPEALS
from Horry County Larry B. Hyman Jr., Circuit Court Judge
B. Varnado and Alexis M. Wimberly, both of Brown &
Varnado, LLC, of Mt. Pleasant, for Petitioner.
F. Arthur, III, of Aiken, Bridges, Elliott, Tyler &
Saleeby, P.A., of Florence, for Respondents.
Myrtle Beach, Inc. brought this lawsuit alleging Horry
County, Horry County Department of Airports, and several of
their individually named employees improperly attempted to
remove Skydive from the space it leased at Grand Strand
Airport in North Myrtle Beach, South Carolina. The circuit
court dismissed Skydive's claims against the individually
named employees pursuant to Rule 12(b)(6) of the South
Carolina Rules of Civil Procedure, without allowing Skydive
leave to amend its complaint. The court of appeals affirmed
in an unpublished opinion. Skydive Myrtle Beach, Inc. v.
Horry County, Op. No. 2017-UP-118 (S.C. Ct. App. filed
March 8, 2017). We reverse the court of appeals and remand to
the circuit court to allow Skydive an opportunity to file an
Rule 15(a), SCRCP
County and the Department of Airports answered Skydive's
complaint. The individually named employees (Respondents)
filed a motion to dismiss pursuant to Rule 12(b)(6).
Following a hearing on Respondents' motion, the circuit
court requested proposed orders from Skydive and Respondents.
Skydive submitted two proposed orders to the court. Each
time, Skydive requested in writing it be allowed to amend its
complaint to cure any pleading defects in the event the court
decided to grant Respondents' motion. Nevertheless, the
court granted Respondents' motion and dismissed
Skydive's claims against Respondents without considering
Skydive's request to amend its complaint. The order
specifically provided the dismissal was "with
trial court finds a complaint fails "to state facts
sufficient to constitute a cause of action" under Rule
12(b)(6), the court should give the plaintiff an opportunity
to amend the complaint pursuant to Rule 15(a) before filing
the final order of dismissal. See Foman v. Davis,
371 U.S. 178, 179, 182, 83 S.Ct. 227, 228, 230, 9 L.Ed.2d
222, 224, 226 (1962) (where a complaint is dismissed
"for failure to state a claim upon which relief might be
granted," leave to amend the complaint "should, as
the rules require, be 'freely given'" (quoting
Rule 15(a), Fed. R. Civ. P.)); Dockside Ass'n, Inc.
v. Detyens, Simmons & Carlisle, 297 S.C. 91, 95, 374
S.E.2d 907, 909 (Ct. App. 1988) (holding "Dockside
should have been given leave to amend its complaint"
before it was finally dismissed pursuant to Rule 12(b), SCRCP
(citing Foman, 371 U.S. at 182, 83 S.Ct. at 230, 9
L.Ed.2d at 226)). Rule 15(a) "strongly favors amendments
and the court is encouraged to freely grant leave to
amend." Patton v. Miller, 420 S.C. 471, 489-90,
804 S.E.2d 252, 261 (2017) (quoting Parker v.
Spartanburg Sanitary Sewer Dist., 362 S.C. 276, 286, 607
S.E.2d 711, 717 (Ct. App. 2005)).
circuit court erred by failing even to consider allowing
Skydive to amend its complaint. See Patton, 420 S.C.
at 490, 804 S.E.2d at 262 (holding the trial court's
failure to exercise its discretion under Rule 15(a) is itself
an abuse of discretion).
Rule 12(b)(6), SCRCP
12(b)(6) permits the trial court to address the sufficiency
of a pleading stating a claim; it is not a vehicle for
addressing the underlying merits of the claim. See,
e.g., Charleston Cty. Sch. Dist. v. Harrell,
393 S.C. 552, 557, 713 S.E.2d 604, 607 (2011) ("In
considering a motion to dismiss pursuant to Rule 12(b)(6),
SCRCP, the circuit court must base its ruling solely upon the
allegations set forth on the face of the complaint.");
Brown v. Leverette, 291 S.C. 364, 366, 353 S.E.2d
697, 698 (1987) (". . . solely upon the allegations set
forth on the face of the complaint"); see also Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct.
1955, 1965, 167 L.Ed.2d 929, 940-41 (2007) ("[A]
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and
that a recovery is very remote and unlikely.") (internal
quotations omitted); Republican Party of N. Carolina v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) ("A
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses."). At the Rule 12 stage,
therefore, the first decision for the trial court is to
decide only whether the pleading states a claim. Skydive
was-any plaintiff is- entitled to litigate the validity of
its original pleading without having to convince the trial
court of the merits of its underlying claim.
trial court rules there has been a "failure to state
facts sufficient to constitute a cause of action," then
the question could become whether the plaintiff wishes to
challenge the ruling by filing a Rule 59(e), SCRCP, motion.
Filing a Rule 59(e) motion is not an option, however, unless
the plaintiff has a legitimate argument the trial court erred
in finding the complaint deficient. See Rule 11(a),
SCRCP ("The . . . signature of an attorney . . .
constitutes a certificate by him that . . . there is good
ground to support [the pleading] . . . .").
Plaintiff's counsel will often decide in the course of
litigating the validity of the original complaint that the
complaint actually was deficient. But even if a plaintiff has
an argument the complaint was valid, filing a Rule 59(e)
motion is not a mandatory option. Skydive was-any plaintiff
is- entitled to accept the court's ruling the original
complaint was deficient, and replead in an attempt to fix the
therefore, the time for requesting leave to amend to correct
a Rule 12(b)(6) pleading defect is after the trial court has
determined the original pleading was deficient. In this case,
because Skydive twice asked for leave to amend before its
complaint was dismissed, it had the option of renewing its
requests in a formal Rule 15(a) motion. However, the circuit
court's "with prejudice" order put Skydive in a
difficult position because it made Skydive practically unable
to litigate a motion to amend before it must file the appeal.
The Rule 203(b)(1), SCACR, deadline of thirty days is stayed
only if a Rule 59(e) motion is filed. If Skydive-if any
plaintiff-has no legitimate argument as to the merits of the
Rule 12(b)(6) ruling, and therefore cannot file a Rule 59(e)
motion, that plaintiff has no way of tolling the thirty day
deadline for filing an appeal while the motion to amend is
litigated. Similarly, a plaintiff who chooses to replead is
practically prevented from doing so when the dismissal order
is with prejudice because the time for appeal will not be
tolled unless the plaintiff files a Rule 59(e) motion
addressing the merits of the Rule 12(b)(6) ruling. If Skydive
either believed it had no basis on which to file such a Rule
59(e) motion, or simply preferred to replead instead, it was
unable to litigate a motion to amend.
the circuit court erred not only in refusing to consider the
request to amend, but also in effectively preventing Skydive
from litigating a post-ruling motion to amend by immediately
dismissing the claims "with prejudice."
Proper Considerations under Rule 15(a)
court has discretion to deny a motion to amend if the party
opposing the amendment can show a valid reason for denying
the motion. See Rule 15(a) (stating "leave
shall be freely given when justice so requires and does not
prejudice any other party"); Foman, 371 U.S. at
182, 83 S.Ct. at 230, 9 L.Ed.2d at 226 (listing valid reasons
for denying a motion to amend); Patton, 420 S.C. at
490, 804 S.E.2d at 262 (stating "the circuit court
should have considered whether the defendants were prejudiced
by the amendment, or whether there was some other substantial
reason to deny it"); 420 S.C. at 491 n.9, 804 S.E.2d at
262 n.9 (stating the burden of establishing a reason for
denying the motion is on the party opposing the amendment);
Forrester v. Smith & Steele Builders, Inc., 295
S.C. 504, 507, 369 S.E.2d 156, 158 (Ct. App. 1988) (stating
"a proper reason" to deny a motion to amend could
be "bad faith, undue delay, or prejudice");
Id. ("In the absence of a proper reason, . . .
a denial of leave to amend is an abuse of discretion.").
court's decision to deny a motion to amend should not be
based on the court's perception of the merits of an
amended complaint. Patton, 420 S.C. at 490-91, 804
S.E.2d at 262 (citing Tanner v. Florence Cty.
Treasurer, 336 S.C. 552, 558-60, 521 S.E.2d 153, 156-57
(1999). In rare cases, however, a trial court may deny a
motion to amend if the amendment would be clearly futile.
See Jennings v. Jennings, 389 S.C. 190, 209, 697
S.E.2d 671, 681 (Ct. App. 2010) ("Although leave to
amend should generally be 'freely given,' . . . it
may be denied where the proposed amendment would be
futile."),  rev'd on other grounds, 401
S.C. 1, 736 S.E.2d 242 (2012); 6 Charles Alan Wright, Arthur
R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 1487 (3d ed. 2010) ("If a proposed amendment is
not clearly futile, then denial of leave to amend is
the circuit court did not conduct an analysis to determine
whether any amendment would be futile. The court of appeals,
however-without articulating any such analysis-found the
"amendment would be futile." Skydive, Op.
No. 2017-UP-118 at 3 n.1. We have attempted to conduct the
analysis to determine whether, in fact, any amendment would
be futile. Even on the limited record before us, as we will
explain, it is clear to us that allowing Skydive to amend its
complaint would not be "clearly futile."
begin by stressing the difficulty of determining whether
allowing an amendment to a pleading would be futile without
examining the proposed amendment. In this case, the circuit
court dismissed Skydive's claims against Respondents
without having seen any attempt at amending the complaint. We
cannot imagine a circumstance in which a trial court should
refuse to allow an amendment on the ground of futility
without seeing what the amendment would look
like. The immediate filing of a "with
prejudice" dismissal order effectively ...