Imagine you and your opposing counsel can stipulate to the facts in your case. You also agree that you win if the law is this and lose if the law is that. Both of you cross move for summary judgment. In a single order, the trial judge rules that your opponent has the better legal argument, denies your motion, and grants summary judgment against you. What may you appeal?
You will almost certainly be limited to appealing the summary judgment granted against you. You can’t appeal the denial of your cross motion for summary judgment—even if the facts are stipulated and the Court of Appeals agrees with your view of the law.
How did we get here?
For background, an order granting summary judgment, even a partial one, is appealable. Nauful v. Milligan, 258 S.C. 139, 187 S.E.2d 511 (1972). But the denial of summary judgment is not. Ballenger v. Bowen, 313 S.C. 476, 443 S.E.2d 379 (1994).
So what happens when one order includes both rulings?
The Supreme Court has for years held that it has the discretion to review an entire order if the order contains an appealable issue. E.g., Tate v. Oxner, 236 S.C. 313, 114 S.E.2d 225 (1960); Woods v. Rock Hill Fertilizer Co., 102 S.C. 442, 86 S.E. 817 (1915). So the Court as late as 2002 stated that it could review the denial of summary judgment if the ruling was included within an order that also granted a cross-motion for summary judgment. Morris v. Anderson County, 349 S.C. 607, 564 S.E.2d 649 (2002).
Then came Olson.
The Olson Decision
The plaintiff in Olson alleged a statutory claim and common-law negligence claim. The trial court granted the defendant summary judgment on the statutory claim and denied summary judgment on the negligence claim. The defendant appealed both rulings.
The Court of Appeals struggled with whether it had the discretion to review the denial of summary judgment, and ultimately declined to review the ruling. On further review, the Supreme Court held that the denial of summary judgment was not appealable even after final judgment. Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 580 S.E.2d 440 (2003),
Since Olson, the Supreme Court and Court of Appeals have refused to review a denial of a summary judgment even if the ruling is contained within an appealable order.
In one case, the trial court granted the defendant summary judgment in part because the contract sued on was unenforceable under state law. The trial court also denied the plaintiff’s cross-motion for summary judgment on whether the contract was enforceable on foreign policy grounds.
So the issue over whether the contract sued on was enforceable was squarely before the Supreme Court. The Court still declined to address the ruling denying summary judgment, holding that it was not appealable. FACES, Inc. v. Tripon, 394 S.C. 197, 715 SE 2d 331 (2011).
The Court of Appeals rendered a similar holding late last month. The trial court in a debt- collection action granted the debtor summary judgment on the statute of limitations and denied the creditor’s cross-motion for summary judgment on the merits. The Court of Appeals reversed the summary judgment but refused to review the denial of the cross motion for summary judgment even though both rulings were in the same order. Coastal Federal Credit Union v. Brown, 417 S.C. 544, 790 S.E.2d 417 (Ct.App. 2016).
Fuller v. Blanchard, 358 S.C. 536, 595 S.E.2d 831 (Ct.App. 2004), makes the point more forcefully. The parties there cross moved for summary judgment on whether the defendant owed the plaintiff a duty of care and whether the Workers’ Compensation Act barred the suit. The facts were apparently undisputed. The legal issues raised in the cross motions were identical.
The trial court agreed with the plaintiff’s view of the law, granted the plaintiff summary judgment, and denied the doctor’s motion for summary judgment. On the doctor’s appeal, the Court of Appeals noted that the two rulings overlapped and that the parties on appeal had blurred the distinction between granting a summary judgment and denying one.
Even so, the Court of Appeals stressed that it was reviewing that part of the order that granted summary judgment and emphasized that it structured its opinion to address only the grant of summary judgment. Fuller, 358 S.C. at 546 n. 21, 595 S.E.2d at 836 n. 21.
What to do?
So what do you do if you appeal the summary judgment entered against you and convince the Court of Appeals that you are right on the law? You still can’t get the Court of Appeals to enter judgment for you on the undisputed facts.
But you can make a second motion for summary judgment in the trial court after remand. In Blyth v. Marcus, 335 S.C. 363, 517 S.E.2d 433 (1999), the trial court granted a defendant summary judgment on the statute of limitations. The Court of Appeals reversed. On remand, the defendant again moved for summary judgment on the statute of limitations. The trial court again granted summary judgment.
In the second appeal, the plaintiff argued that the successive motion was improper. The Supreme Court disagreed. It reasoned that the Court of Appeals’ reversal of the first grant of summary judgment was equivalent to the denial of summary judgment. From there it concluded that issues raised in the first motion then may be raised again later in the proceedings by a motion to reconsider.
So you may move for summary judgment a second time and use your appellate victory in overturning the summary judgment granted against you. After all, the trial court is bound by the law established in the appeal. Ackerman v. McMillian, 324 S.C. 440, 477 S.E.2d 267 (Ct.App. 1996).
Has anyone caught your opposing counsel trying the appeal an order denying summary judgment? What happened?