The last post discussed final orders as one of the four types of appealable orders. This post discusses non-final, interlocutory orders that “involve the merits,” “affect a substantial right,” and injunctions.
To “involve the merits,” an order “must finally determine some substantial part of some cause of action or defense in the case.” Neeltec Enter., Inc. v. Long, 391 S.C. 177, 178, 705 S.E.2d 57, 58 (S.C.App. 2011). The key is that the order be a final determination on at least part of the case. And this may require a Rule 54(b) certification from the trial judge. Under Rule 54(b), an order on less than all the claims “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
Courts more frequently encounter claims that an interlocutory order is immediately appealable because it affects a substantial right. This provision is narrowly construed to cover only those cases where the substantial right at issue cannot be later vindicated on appeal after the entire case is over. See, e.g., Thornton v. South Carolina Elec. & Gas Corp., 391 S.C. 297, 305, 705 S.E.2d 475, 479 (S.C.App. 2011).
As one example, orders concerning the mode of trial affect a substantial right, cannot be vindicated after final judgment, and are thus immediately appealable. Salmonsen v. CGD, Inc., 377 S.C. 442, 661 S.E.2d 81 (2008)(order revising class action from opt-out to opt-in class immediately appealable as an order affecting the mode of trial); Hagood v. Sommerville, 362 S.C. 191, 607 S.E.2d 707 (2005)(order granting a motion to disqualify an attorney affects the mode of trial and is immediately appealable).
Also unlike most other appeals, an order affecting the mode of trial must be immediately appealed or the right to appeal is lost. In other cases, a party may immediately appeal an order affecting a substantial right or wait to raise the issue on appeal from the final judgment. Price v. Peachtree Elec. Services, Inc., 396 S.C. 403, 721 S.E.2d 461, 463 (S.C.App. 2011).
S.C. Code Ann. Section 14-3-330 also allows immediate appeals from orders granting, continuing, modifying, or refusing an injunction. Unless ordered by the trial court, such an appeal does not stay the case or prevent the case from moving forward on the merits. Poynter Inv. Inc. v. Century Builders of Piedmont, Inc., 387 S.C. 583, 694 S.E.2d 15 (2010).
Has anyone out there caught opposing counsel trying to improperly appeal an interlocutory order? We would love to hear from you. You may reply to this post or reach me at www.attorneyroberthill.com.