Skydive Myrtle Beach, Inc. v. Horry County ( 2024 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Skydive Myrtle Beach, Inc., Appellant,
v.
Horry County and Horry County Department of Airports,
Respondents.
Appellate Case No. 2021-000217
Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge
Unpublished Opinion No. 2024-UP-248
Submitted May 1, 2024 – Filed July 3, 2024
APPEAL DISMISSED
Robert Bratton Varnado, of Brown & Varnado, LLC, of
Charleston, and Reese R. Boyd, III, of Davis & Boyd,
LLC, of Myrtle Beach, both for Appellant.
Michael Warner Battle, of Battle Law Firm, LLC, of
Conway, for Respondents.
PER CURIAM: Skydive Myrtle Beach, Inc. (Skydive) appeals the circuit court's
order denying its motion to amend its complaint following remand from the South
Carolina Supreme Court. Because this order is not immediately appealable, we
dismiss the appeal.
This case has a long procedural history, and the parties have brought and been
involved in other state and federal court actions with each other. The present
action began on February 28, 2014, when Skydive filed a complaint in the circuit
court against Horry County (the County), the Horry County Department of
Airports (the Department), and certain individuals employed by the County
(Employees). Employees filed a motion to dismiss under Rule 12(b)(6), SCRCP,
and following a hearing, the circuit court requested proposed orders from Skydive
and Employees. Skydive twice requested in writing to be allowed to amend its
complaint if the court decided to grant the motion to dismiss. The circuit court
ultimately issued an order granting Employees' motion to dismiss with prejudice.
The allegations in the complaint against the County and the Department remained.
Skydive appealed to this court, which affirmed the circuit court's order. Skydive
Myrtle Beach, Inc. v. Horry County (Skydive I), Op. No. 2017-UP-118 (S.C. Ct.
App. filed Mar. 8, 2017), rev'd and remanded, 426 S.C. 175, 826 S.E.2d 585(2019). Skydive filed a petition for writ of certiorari to the supreme court, which
the supreme court granted. Following arguments, the supreme court reversed this
court's decision and remanded the matter "to the circuit court to allow Skydive an
opportunity to file an amended complaint." Skydive Myrtle Beach, Inc. v. Horry
County (Skydive II), 426 S.C. 175, 179, 826 S.E.2d 585, 587 (2019). The supreme
court determined "[t]he circuit court erred by failing even to consider allowing
Skydive to amend its complaint." Id. at 180, 826 S.E.2d at 587. The circuit court
also erred "in effectively preventing Skydive from litigating a post-ruling motion to
amend by immediately dismissing the claims 'with prejudice.'" Id. at 182, 826
S.E.2d at 588. The supreme court noted that at the time of dismissal, the circuit
court had not seen any proposed amendment. Id. at 183, 826 S.E.2d at 589. The
supreme court held "[t]he circuit court should have allowed Skydive an opportunity
to amend its complaint pursuant to Rule 15(a)[, SCRCP]." Id. at 192, 826 S.E.2d
at 594. The supreme court remanded the case to the circuit court. Id. The
supreme court sent the remittitur for the case on March 29, 2019.
On March 12, 2020, Skydive moved to amend its 2014 complaint, and the motion
attached a proposed amended complaint. The proposed complaint alleged
additional facts, added a new defendant,1 and included Employees, who were
previously dismissed in the 12(b)(6) motion. On July 10, 2020, the circuit court,
1
The new defendant was an attorney employed by the County, Arrigo Carotti.
without conducting a hearing, denied Skydive's motion to amend its complaint by a
Form 4 order. Skydive moved for reconsideration, and the circuit court held a
hearing on that motion. Thereafter, the circuit court denied Skydive's motion to
reconsider by Form 4 order. 2
"An appellate court may determine the question of appealability . . . as a matter of
law." Ashenfelder v. City of Georgetown, 389 S.C. 568, 571, 698 S.E.2d 856, 858
(Ct. App. 2010). "The provisions of [s]ection 14-3-330 [of the South Carolina
Code (2017)] . . . have been narrowly construed and immediate appeal of various
orders issued before or during trial generally has not been allowed." Hagood v.
Sommerville, 362 S.C. 191, 196, 607 S.E.2d 707, 709 (2005). "The provisions of
section 14-3-330 are narrowly construed and serve the underlying policy favoring
judicial economy by avoiding 'piecemeal appeals.'" Stone v. Thompson, 426 S.C.
291, 295, 826 S.E.2d 868, 870 (2019) (quoting Hagood, 362 S.C. at 196, 607
S.E.2d at 709 ("Piecemeal appeals should be avoided and most errors can be
corrected by the remedy of a new trial.")). "[A] narrow construction of section
14-3-330(2)(c) requires us to focus on the effect of the order . . . ." Thornton v.
S.C. Elec. & Gas Corp., 391 S.C. 297, 303, 705 S.E.2d 475, 478 (Ct. App. 2011).
"[T]he question of whether an order is immediately appealable is determined on a
case-by-case basis." Stone, 426 S.C. at 295, 826 S.E.2d at 870.
"An appeal ordinarily may be pursued only after a party has obtained a final
judgment." Hagood, 362 S.C. at 194, 607 S.E.2d at 708. "A final judgment is one
that ends the action and leaves the court with nothing to do but enforce the
judgment by execution." Tillman v. Tillman, 420 S.C. 246, 249, 801 S.E.2d 757,
759 (Ct. App. 2017). "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." Id. "The determination of whether a trial court's order is
immediately appealable is governed by statute." Morrow v. Fundamental Long-
Term Care Holdings, LLC, 412 S.C. 534, 537, 773 S.E.2d 144, 145 (2015). "An
interlocutory order not governed by a specialized appealability statute is not
immediately appealable unless it fits into one of the categories listed in section
14-3-330 . . . ." Thornton, 391 S.C. at 300, 705 S.E.2d at 477.
Section 14-3-330 sets out the matters that an appellate court has appellate
jurisdiction to review matters including:
2
Skydive filed a second motion for reconsideration. Before the circuit court heard
the second motion to reconsider, Skydive filed the present appeal.
(1) Any intermediate judgment, order[,] or decree in a
law case involving the merits in actions commenced in
the court of common pleas and general sessions, brought
there by original process or removed there from any
inferior court or jurisdiction, and final judgments in such
actions; provided, that if no appeal be taken until final
judgment is entered[,] the court may upon appeal from
such final judgment review any intermediate order or
decree necessarily affecting the judgment not before
appealed from [and]
(2) An order affecting a substantial right made in an
action when such order (a) in effect determines the action
and prevents a judgment from which an appeal might be
taken or discontinues the action, (b) grants or refuses a
new trial[,] or (c) strikes out an answer or any part
thereof or any pleading in any action[]
....
"Intermediate orders involving the merits may be immediately appealed pursuant
to [section] 14-3-330(1)." Ex parte Wilson, 367 S.C. 7, 13, 625 S.E.2d 205, 208
(2005). An order involving the merits "must finally determine some substantial
matter forming the whole or a part of some cause of action or defense." Id.(quoting Mid-State Distribs., Inc. v. Century Imps., Inc., 310 S.C. 330, 334, 426
S.E.2d 777, 780 (1993)). "Interlocutory orders affecting a substantial right may be
immediately appealed pursuant to [section] 14-3-330(2)." Id. "Orders affecting a
substantial right 'discontinue an action, prevent an appeal, grant or refuse a new
trial, or strike out an action or defense.'" Edwards v. SunCom, 369 S.C. 91, 94, 631
S.E.2d 529, 530 (2006) (quoting Mid-State Distribs., Inc., 310 S.C. at 334 n.4, 426
S.E.2d at 780 n.4).
In Tillman, the circuit court dismissed several of the defendant's counterclaims and
denied the defendant's oral motion to amend the counterclaims. 420 S.C. at 248,
801 S.E.2d at 758. However, the circuit court gave the defendant leave to file a
formal motion to amend. Id. at 248, 801 S.E.2d at 758-59. On appeal, this court
determined that if the circuit court ultimately denied the motion to amend, the
defendant would have the right to appeal that denial after the lawsuit ended. Id. at
250, 801 S.E.2d at 760. This court concluded, "[The defendant's] rights have yet to
be finally determined by the circuit court. [The defendant] has not reached the end
of the road, however long and winding he may have made it. The order is not
immediately appealable." Id. at 251, 801 S.E.2d at 760.
In Tatnall v. Gardner, this court determined it lacked jurisdiction to hear an appeal
from an order denying a defendant's motion to amend her answer to assert third-
party claims against a codefendant because the order neither determined a
substantial matter nor prevented a judgment from being rendered from which the
defendant could then seek review. 350 S.C. 135, 137-38, 564 S.E.2d 377, 378-79
(Ct. App. 2002). Similarly, in Baldwin Construction Co. v. Graham, our supreme
court determined an order denying a motion to amend an answer was not
immediately appealable and dismissed the appeal. 357 S.C. 227, 229-30, 593
S.E.2d 146, 147-48 (2004).
Skydive asserts its appeal of the circuit court's denial of its motion to amend its
complaint is immediately appealable, specifically under section 14-3-330(2)(a).
Skydive also contends the supreme court held in Patton v. Miller, 420 S.C. 471,
804 S.E.2d 252 (2017), that such a denial is immediately appealable. Although
Patton addressed the denial of a motion to amend, that motion was not the sole
decision being appealed; the supreme court first considered whether the circuit
court had erred in partially granting summary judgment. Id. at 479, 485, 489-93,
804 S.E.2d at 256, 259, 261-63. This court can consider a decision on a motion to
amend even though it is interlocutory when it accompanies the appeal of a grant of
a motion for summary judgment. See Pruitt v. Bowers, 330 S.C. 483, 488, 499
S.E.2d 250, 253 (Ct. App. 1998) (stating the appeal of an amendment order was
interlocutory and generally would not have been appealable except that it
accompanied an appeal from the grant of summary judgment). Patton is in
keeping with the practice of allowing interlocutory appeals when they accompany
an appeal with any immediately appealable issue. See Ferguson v. Charleston
Lincoln Mercury, Inc., 349 S.C. 558, 565, 564 S.E.2d 94, 98 (2002) (stating the
supreme court "reviews interlocutory orders when they contain other appealable
issues"), overruled on other grounds by Hughes ex rel. Est. of Hughes v. Bank of
Am. Nat'l Ass'n, 442 S.C. 113, 139-40 n.7, 898 S.E.2d 102, 116 n.7 (2024).
The order here is not immediately appealable. However, Skydive may appeal the
trial court's order denying its motion to amend its complaint at the conclusion of
the present action. The order denying Skydive's motion to amend did not
determine a substantial matter forming the whole or a part of some cause of action
or defense. Nor did the order discontinue an action, prevent an appeal, grant or
refuse a new trial, or strike an action or defense as section 14-3-330(2) provides.
Accordingly, we dismiss the appeal.
APPEAL DISMISSED. 3
WILLIAMS, C.J., and KONDUROS and VERDIN, JJ., concur.
3
We decide this case without oral argument pursuant to Rule 215, SCACR.