Chapter 72 Judgments and Orders Subject to Appeal

LibrarySouth Carolina Civil Procedure (SCBar) (2020 Ed.)
Chapter 72 Judgments and Orders Subject to Appeal
Rule 721

Appeal may be taken, as provided by law, from any final judgment or appealable order.

Note:

This Rule 72 parallels, in part, S.C. Code § 14-3-330, but is designed to reduce appeals from interlocutory or intermediate orders in an action. It accords with the modern decisions of the Supreme Court narrowing "dilatory appeals" from such interlocutory orders as grant or deny motions addressed to the pleadings, motions at trial, and the like. All such questions are left to the appeal from final judgment or order of dismissal. There is no conflict with the Supreme Court jurisdictional statutes and all statutory rights to appeal are preserved specifically by subdivision (6).

Note to 1989 Amendment:

The jurisdiction of all courts is determined by the Constitution, the jurisdictional statutes, and the case law interpreting those provisions. Rule 72 as originally written created confusion and unintended arguments that the civil rules changed the scope of appeal. Rule 72 was not intended to alter, amend or supercede previously existing law concerning appeals. The amendment rephrases Rule 72 as a general statement that appeals are as provided by law, and is consistent with Rule 73 which states that the procedure on appeal is governed by the Rules of the Supreme Court.

Article V, § 5, of the Constitution sets forth the jurisdiction of the Supreme Court. Some of the relevant statutes are § 14-3-320 (equitable matters); § 14-3-330 (matters of law); § 17-17-140 (habeas corpus). Some of the important cases are: North Carolina Federal Savings and Loan Ass'n v. Twin States Dev. Corp., 289 S.C. 480, 347 S.E.2d 97 (1986) (§ 14-3-330 controls appeals not Rule 72); Coleman v. Keels, 30 S.C. 614, 9 S.E. 270 (1889) (certiorari); Ex parte Mackey, 15 S.C. 322 (1880) (mandamus); Southern Railway Co. v. Coltex, 285 S.C. 213, 329 S.E.2d 736 (1985) (new trial because of error of law); Simms v. Phillips, 46 S.C. 149, 24 S.E. 87 (1896) (subject matter jurisdiction); Nat. Exchange Bank v. Stelling, 32 S.C. 102, 10 S.E. 766 (1890) (personaljurisdiction); Godley v. Uniroyal, Inc., 278 S.C. 571, 300 S.E.2d 78 (1983) (venue not immediately appealable).

A. Introduction

Rule 72 provides that appeals are governed by statute and case law. Rule 72 was amended in 1989 to delete language which suggested that the civil rules affected appellate procedure. A similar change was made in 1986 to Rule 52(a) because the original language could have been construed to affect the standard of review under the "two judge" rule.2 The procedure under Rule 54(b), when judgment is entered on some but not all claims, is also not a prerequisite for appellate review.3

B. Appellate Review of Final Orders

Article V, § 5 of the State Constitution establishes the Supreme Court's jurisdiction. The key appellate jurisdictional statute is S.C. Code Ann. § 14-3-330 (2017) for actions at law and S.C. Code Ann. § 14-3-320 (2017) for actions in equity4 although other statutes may be relevant to particular matters.5

All final orders are appealable.6 Final orders terminate the case or fix the rights of the parties so that the court has nothing further to do in the action.7 Although final orders enter judgment or dismiss the action, they do not necessarily have to terminate the entire case. An order dismissing some but not all claims, or some but not all parties, is final as to the claims and parties dismissed.8 If the order dismisses all claims against a party, the litigation has terminated as to that party and the order is then appealable. If only some claims have been dismissed, the loser has the choice of immediately appealing the dismissed claims or awaiting the final judgment on all claims and appealing the previously dismissed claims at that time.9 The Supreme Court has suggested that if a Rule 54(b) certification has been made, the dismissed claims should be immediately appealed.10 However, Rule 54(b) certification is not appropriate until the court has entered a final judgment as to the issue, and where the decision is still subject to revision by the trial court, an immediate appeal is not appropriate.11 In some circumstances, an interlocutory order that is not appealable becomes appealable because the order acts as a final judgment.12

The service of a notice of appeal divests the trial court of jurisdiction over the order appealed. However, the trial court retains jurisdiction over matters that are not affected by the appeal.13 Thus, the trial court may entertain a motion for attorneys' fees when that issue had not been appealed at the conclusion of the case.14 An immediately appealable interlocutory order also transfers jurisdiction over the issue appealed to the appellate court. However, if the order is not immediately appealable, the service of the notice of appeal does not divest the trial court of jurisdiction to proceed with the matter. For example, the notice of appeal of the denial of a continuance did not divest the trial court of jurisdiction over the case.15

C. Appealability of Interlocutory Orders

The general rule is that an interlocutory order is not immediately appealable, but is reviewable only at the conclusion of the entire case. The court may then review any intermediate order necessarily affecting the judgment, even though the final judgment is not appealed.16 Interlocutory orders do not terminate the case but permit the case to continue or leave further matters for the court.17 Examples of interlocutory orders are orders granting or refusing change of venue,18 denials of motions to dismiss or for summary judgment,19 or those orders granting or denying amendments to the pleadings,20 controlling discovery,21 or managing other aspects of the trial such continuances22 or stays pending other actions in the trial courts.23

Some orders are found interlocutory because they may be refiled in light of subsequently developed information. Motions for summary judgment directed to the merits may be renewed after discovery, for example.24 Similarly, Rule 12(b) (6) motions challenging the sufficiency of a claim are specifically renewable.25 Most orders entered under the Rules of Civil Procedure are interlocutory and not directly appealable. The appealability of orders entered under a particular civil rule is discussed in the section devoted to that rule or topic.

Some interlocutory orders are immediately appealable by statute.26 The first two sections of Section 14-3-330 permit review of orders falling into two general categories, those "affecting the merits" and those "affecting a substantial right."27 In addition, those provisions and the remaining two sections identify specific types of orders that are immediately appealable.28 The Supreme Court increasingly has looked beyond these generalizations to the precise language of the statute and generally applied a narrow construction to the language resulting in fewer interlocutory appeals. The Supreme Court in a rare case may use a discretionary writ to review an otherwise unappealable interlocutory order that raises an important issue.29

Section 14-3-330, however, does not apply to appeals in administrative agency matters which are governed by the Administrative Procedures Act that limits appeals to those from final judgments. In this context, a final judgment is one that disposes of the whole subject matter leaving only the enforcement of the judgment.30

1. Interlocutory Orders Involving the Merits of the Action

The first part of Section 14-3-330 provides that an order involving the merits may be directly appealed.31 The Supreme Court has rejected nineteenth century precedent that interpreted this section broadly.32 The court now reads the statute so that it applies only to orders that "finally determine some substantial matter forming the whole or part of some cause of action or defense . . . ."33 Following that definition, the court has held that an order that denies a motion directed to any number of issues is not immediately appealable under this provision, including personal jurisdiction,34 subject matter jurisdiction,35 venue,36 the release a mechanics lien,37 the grant of a stay,38 quashing of a subpoena,39 and similar orders which still leave some matter to be determined below.40 However, other orders satisfy the definition, including an order unsealing family court records,41 a finding of compensatory contempt although damages are not determined,42 and an order that addresses a challenge to the form of an action which may affect the mode of trial.43

The stated rationale in many of these cases is that the motion raising the issue was denominated as one to dismiss or for summary judgment and, hence, the resulting order denying the motion was not final because the motion can be renewed. While it is true that for some matters, such as personal jurisdiction, which are decided on the basis of a prima facie showing on the pleadings can be renewed at trial,44 this is not always so. There are orders framed as motions renewable in form that are intended to completely dispose of the issue so that it will not be revisited by the trial judge. An order referring a matter to a master is dispositive on the right to a jury trial and must be immediately appealed or the right is lost.45 An order made after full discovery on the issue is meant to be a final disposition of the matter. Moreover, Rule 43(l) prevents counsel from renewing motions unless there is a new basis for the motions. The United State Supreme Court has recognized the difference between orders that are inherently tentative and those that are meant to be dispositive of the issue at the trial level.46 Therefore, that the issue is raised by a motion to dismiss or other motion that can be renewed should not automatically lead to the conclusion that the result is an interlocutory and immediately unappealable order. The analysis should be on the issue presented and whether it dispositively grants or denies a...

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