Dismissal + Leave to Amend = No SC Appeal

Say a judge has dismissed some of your claims. You know that the judge is wrong but seek leave to amend just in case. Can you go ahead and appeal the dismissal before the judge rules on your motion for leave? Last week the South Carolina Court of Appeals answered no.

Hedging BetsIn Tilman v. Tilman, Op. No. 5493 (S.C. Ct.App. filed June 14, 2017), the trial judge dismissed several counterclaims. At the hearing on the motion, the Defendant orally moved for leave to amend. On reconsideration, the court denied the oral motion for leave but noted that the defendant was free to formally move to amend.

The defendant appealed the dismissal and then, after appealing, formally moved the trial judge for leave to amend. This presented the Court of Appeals with a choice between competing lines of cases.

One line of cases allows you to immediately appeal a Rule 12(b)(6) order that dismisses one of many claims. Lebovitz v. Mudd, 289 S.C. 476, 347 S.E.2d 94 (1986). The other line of cases holds that you can’t immediately appeal an order that denies leave to amend a pleading. See, e.g., Baldwin Const. Co. v. Graham, 357 S.C. 227, 593 S.E.2d 146 (2004).

So what to do if both things are going on?

The Court of Appeals reached back to a decision rendered in 1872 for the answer. The South Carolina Supreme Court held that year that you can’t immediately appeal an order sustaining a demurrer if the order also grants leave to amend. Cureton v. Hutchinson, 3 S.C. 606 (1872). The Supreme Court reasoned that an order sustaining a demurrer is not final if you can fix the problems by amending.

Under this reasoning, you can’t immediately appeal because leave to amend may avoid a need to appeal. And if the trial judge denies leave, then you may appeal both the dismissal and the denial of leave after a final judgment.

This is the general rule in the federal courts. See, e.g., Sapp v. City of Brooklyn Park, 825 F.3d 931 (8th Cir. 2016).

It seems that the appealing party went wrong when he moved the trial court for leave to amend after he appealed the dismissal of his original claims. Things may have turned out differently had he decided to stand on his original pleadings. The Court saw the decision to simultaneously appeal and move for leave as a tactical delay, and as a long and winding road that he made for himself.

Thoughts? Comments? Please leave a reply.

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