Finan v. Vista Wings, LLC ( 2022 )

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
Richard A. Finan, Appellant,
v.
Vista Wings, LLC, d/b/a Wild Wing Café - Columbia,
Respondent.
Appellate Case No. 2018-002054
Appeal From Richland County
Paul M. Burch, Circuit Court Judge
Unpublished Opinion No. 2022-UP-027
Submitted December 1, 2021 – Filed January 19, 2022
APPEAL DISMISSED
Shaun C. Blake and Jenkins McMillan Mann, both of
Rogers Lewis Jackson Mann & Quinn, LLC, of
Columbia, for Appellant.
Mark Steven Barrow and Ryan C. Holt, both of Sweeny
Wingate & Barrow, PA, of Columbia, for Respondent.
PER CURIAM: Richard Finan appeals the circuit court's denial of his motion to
amend his complaint under Rule 15, SCRCP. We dismiss the appeal because the
order is not immediately appealable.
"By its nature, the question of whether an order is immediately appealable is
determined on a case-by-case basis." Morrow v. Fundamental Long–Term Care
Holdings, LLC, 412 S.C. 534, 538, 773 S.E.2d 144, 146 (2015). "An appeal
ordinarily may be pursued only after a party has obtained a final judgment."
Hagood v. Sommerville, 362 S.C. 191, 194, 607 S.E.2d 707, 708 (2005). "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, 412 S.C. at 537, 773
S.E.2d at 145. "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 v. S. C. Elec. & Gas Corp., 391 S.C. 297, 300,
705 S.E.2d 475, 477 (Ct. App. 2011).
Section 14-3-330 of the South Carolina Code (2017) addresses appellate
jurisdiction and provides in part:
The Supreme Court shall have appellate jurisdiction for
correction of errors of law in law cases, and shall review
upon 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;
(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
subsection 14-3-330(1). An order involving the merits is one that "must finally
determine some substantial matter forming the whole or a part of some cause of
action or defense." Mid–State Distribs., Inc. v. Century Imps., Inc., 310 S.C. 330,
334, 426 S.E.2d 777, 780 (1993) (quoting Knowles v. Standard Sav. & Loan Ass'n,
274 S.C. 58, 59, 261 S.E.2d 49, 49 (1979)). Interlocutory orders affecting a
substantial right may be immediately appealed pursuant to subsection 14-3-330(2).
Orders affecting a substantial right "discontinue an action, prevent an appeal, grant
or refuse a new trial, or strike out an action or defense." MidState 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 but gave the
defendant leave to file a formal motion to amend. Tillman at 248, 801 S.E.2d at
758–59. The defendant's formal motion to amend was pending before the circuit
court during the appeal. Id. at 251, 801 S.E.2d at 760. This court stated that if "the
motion to amend is denied, then Appellant retains the right, after the lawsuit ends,
to appeal the denial . . . ." Id. at 250, 801 S.E.2d at 760 (emphasis added).
In Tatnall v. Gardner, 350 S.C. 135, 138, 564 S.E.2d 377, 379 (Ct. App. 2002),
this court determined that it lacked jurisdiction to hear an appeal of an order
denying a defendant's motion to amend her answer to assert third party claims
against a co-defendant because the order neither determined a substantial matter
nor prevented a judgment from being rendered from which the defendant could
then seek review.
Here, as in Tillman and Tatnall, Finan may appeal the trial court's order denying
his motion to amend at the conclusion of the present action. The order has not
determined a substantial matter forming the whole or a part of some cause of
action or defense, and it has not discontinued an action, prevented an appeal,
granted or refused a new trial, or struck out an action or defense as contemplated
by section 14-3-330. Therefore, we dismiss the appeal.
APPEAL DISMISSED.1
WILLIAMS, A.C.J., and MCDONALD, J., and LOCKEMY, A.J., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.