To date, these posts mainly discuss what one must do in the trial court and appellate court to obtain appellate review. This post and the next two shift gears to cover the kind of orders that may be appealed.
Section 14-3-330, S.C. Code Ann., primarily governs which orders may be appealed and provides for immediate appellate review of four type of orders:
- orders or judgments that are final
- orders “involving the merits”
- orders affecting a “substantial right”
- orders involving an injunction
Orders that are final must so completely fix the rights of the parties that the court has nothing further to do in the action. Ashenfelder v. City of Georgetown, 389 S.C. 568, 573, 698 S.E.2d 856, 859 (Ct.App. 2010). Once such a judgment is entered, a party may appeal any intermediate order or decree that necessarily affects that final judgment. Link v. School District of Pickens County, 302 S.C. 1, 6-7, 393 S.E.2d 176, 179 (1990).
A “final judgment” also traditionally requires that the ruling dispose of all the issues in the action. Link, 302 S.C. at 5 n. 3, 393 S.E.2d at 178 n. 3 (1990). But Rule 54(b), SCRCP, may have altered this understanding. It allows a trial court to certify or direct the entry of a “final judgment” as to one or some of the claims in the action. The effect of this certification or lack of it remains unsettled.
The Supreme Court has specifically noted that the effect of granting a Rule 54(b) certification is unsettled. Until its interplay with Section 14-3-330 is better resolved, the Court cautioned that the “safer course is to immediately appeal any order certified under Rule 54(b).” Link, 302 S.C. at 5, n. 3, 393 S.E.2d at 178 n. 3.
The effect of a lack of Rule 54(b) certification is also unsettled. The Supreme Court has twice held that an order which is appealable under Section 14-3-330 is not rendered unappealable for lack of a Rule 54(b) certification. Link, 302 S.C. at 4-5, 393 S.E.2d at 177-178; Lebovitz v. Mudd, 289 S.C. 476, 347 S.E.2d 94 (1986). This could occur, for example, if an order “involved the merits” by resolving a claim or defense without resolving all of the claims or defenses.To “involve the merits,” the order need only finally determine some substantial matter forming the whole or a part of some cause of action or defense. Link, 302 S.C. at 5, n. 3, 393 S.E.2d at 178 n. 3.
More recently, however, the Court of Appeals focused on a wrinkle in Rule 54(b). The rule provides that the lack of certification allows trial courts to revise rulings that resolve less than the entire case. The Court took this to mean that such orders, absent a Rule 54(b) certification, are not final enough for the appellate court to review. Ashenfelder, 389 S.C. at 574-579, 698 S.E.2d at 859-872.
Has anyone out there caught opposing counsel trying to appeal an order that is not immediately appealable? Please let us hear from you.You can reach me by replying to the post or at www.attorneyroberthill.com.