FEW, C.J.
Brian and Catherine Thornton brought this lawsuit as a class action for negligence, strict liability, and nuisance arising out of blasting activities conducted by South Carolina Electric and Gas Corporation (SCE & G) at the Lake Murray dam. SCE & G made a motion titled "Motion for Summary Judgment and to Strike Class Action Allegations." In substance, the motion sought three rulings relevant to this appeal. First, in what it labeled "motion to strike," SCE & G claimed "Plaintiffs cannot establish the requisite elements required for this case to be certified as a class action under Rule 23, SCRCP." Second, SCE & G moved for summary judgment based on the statute of limitations. Third, SCE & G argued the South Carolina Mining Act
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 of the South Carolina Code (1976 & Supp.2009). Ex Parte Capital U-Drive-It, Inc., 369 S.C. 1, 6, 630 S.E.2d 464, 467 (2006). The Thorntons contend the portion of the order dealing with class action allegations is appealable under section 14-3-330(2)(c) because it affects a substantial right by striking a pleading. They contend the portion of the order granting summary judgment that no private right of action exists under the Mining Act is also appealable under section 14-3-330(2)(c), and under section 14-3-330(1) because it involves the merits. We disagree. Under the circumstances of this case, neither portion of the order is immediately appealable. The portion of the order denying SCE & G's motion for summary judgment
The Thorntons' complaint defined the class to include: "All residents of Lexington County, South Carolina who suffered property damage as a result of the construction and blasting of the Lake Murray dam expansion project." After discovery, SCE & G filed its motion addressing the class action allegations. Though the motion was filed under Rule 12, SCRCP,
We believe the Thorntons' contention that this portion of the order is immediately appealable because it affects a substantial right by striking a pleading mistakenly equates an order granting a Rule 12(f) motion to strike with an order that is appealable under section 14-3-330(2)(c). We do not believe
In P.J. Construction Co., Inc. v. Roller, 287 S.C. 632, 340 S.E.2d 564 (Ct.App.1986), this court heard an appeal from an order striking two defenses from the answer. Before proceeding to the merits of the appeal, the court stated: "An order striking a portion of a pleading is immediately appealable." 287 S.C. at 633, 340 S.E.2d at 565 (citing Harbert, 74 S.C. at 16, 53 S.E. at 1002).
We find support for this view in several opinions of our supreme court. In Miles v. Charleston Light & Water Co., 87 S.C. 254, 69 S.E. 292 (1910), the supreme court considered the defendant's appeal from an interlocutory order denying its motion to make the plaintiff's complaint more definite and certain. 87 S.C. at 255-56, 69 S.E. at 293. After noting that such an order was not immediately appealable, the court heard the appeal anyway because "appeal has also been taken from the order upon the [defendant's] demurrer, which in effect strikes out a portion of the complaint," making it appealable under the predecessor to section 14-3-330(2)(c). 87 S.C. at 257, 69 S.E. at 293 (emphasis added). In Bowden v. Powell, 194 S.C. 482, 10 S.E.2d 8 (1940), the supreme court considered a post-judgment appeal from a pretrial order denying a motion to strike allegations in a complaint. 194 S.C. at 484, 10 S.E.2d at 9. In holding the order was not appealable, the court quoted Harbert to draw a distinction between the order before the court and an order granting a motion to strike a pleading, which the court noted is appealable:
Id. (quoting Harbert, 74 S.C. at 16, 53 S.E. at 1002); see also Caldwell v. McCaw, 141 S.C. 86, 91, 139 S.E. 174, 175 (1927).
Under the reasoning of Miles and Bowden, an appellate court should look to the effect of an interlocutory order to determine its appealability under section 14-3-330(2)(c). An order affects a substantial right by striking a pleading if the order removes a material issue from the case, thereby preventing the issue from being litigated on the merits, and preventing the party from seeking to correct any errors in the order during or after trial.
The decision we reach in this case is consistent with a recent opinion of the supreme court on an interlocutory appeal from an order granting a motion to strike class allegations: Grazia v. South Carolina State Plastering, LLC, 390 S.C. 562, 703 S.E.2d 197 (2010) (Shearouse Adv. Sh. No. 40 at 13). In Grazia, the plaintiffs' claim for defective stucco work fell under The Notice and Opportunity to Cure Construction Dwelling Defect Act,
Generally, orders granting partial summary judgment may be immediately appealable under either the "involving the merits" or "substantial right" categories of section 14-3-330(1) and (2)(c). See Link v. Sch. Dist. of Pickens County, 302 S.C. 1, 6, 393 S.E.2d 176, 178-79 (1990) (holding an order granting partial summary judgment may be appealable under either category). To decide whether a particular summary judgment order fits into either subsection, however, the court must examine the order to determine if it meets the subsection's criteria for appealability. We find the order granting summary judgment that no private cause of action exists under the Mining Act does not meet the criteria for either, and is therefore not immediately appealable.
The Thorntons asserted causes of action for negligence, strict liability, and nuisance. They did not plead a cause of action under the Mining Act. At oral argument, the Thorntons conceded they still have no intention of asserting a cause of action under the Mining Act. SCE & G stated in memoranda addressing appealability that its "motion for summary judgment was limited to the extent the Thorntons might try to assert a claim under the Act." This appeal thus presents the unique situation in which the trial court granted a motion for summary judgment as to a cause of action the Thorntons never pled. The Thorntons did include two violations of the Mining Act as specific allegations of negligence. SCE & G conceded at oral argument that the Thorntons' negligence cause of action, including the subsections referring to the Mining Act, remains in place as it was before the motion was granted.
We find that this order does not involve the merits under section 14-3-330(1). An order "involves the merits" when it finally determines a 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). The Thorntons may still pursue their negligence claim as originally pled in their complaint. If the trial judge permits it in the exercise of discretion, they may introduce evidence that SCE & G violated the Mining Act and
Further, because the Thorntons never asserted a cause of action under the Act, the order does not have the effect of removing any material issues from the case, and therefore does not affect a substantial right by striking a pleading. The Thorntons may still offer evidence of SCE & G's alleged violations of the Act in attempting to prove their negligence claim as pled. Because the order granting summary judgment neither involves the merits nor affects a substantial right, it is not immediately appealable.
In the cross-appeal, SCE & G contends the trial judge erred in denying its summary judgment motion as to the statute of limitations. SCE & G further contends the circuit court's order actually granted summary judgment for the Thorntons as to that issue. To the extent the judge merely denied summary judgment, the order is not appealable. Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 168, 580 S.E.2d 440, 444 (2003) (explaining the denial of summary judgment will not be considered on appeal even in the context of an otherwise proper appeal). The order is also not appealable as having granted summary judgment. As the Thorntons conceded at oral argument, the order does not grant summary judgment on this issue, and the question of whether the Thorntons complied with the statute of limitations remains one the circuit court must answer at trial.
An interlocutory order which is not governed by a specialized appealability statute may not be appealed before the entry of final judgment unless the order fits into one of the categories set forth in section 14-3-330 of the South Carolina Code. The order appealed in this case does not fit into any of the categories, and therefore is not immediately appealable.
HUFF and GEATHERS, JJ., concur.