Anita-Obong v. Tivener

THE STATE OF SOUTH CAROLINA In The Court of Appeals Essien Antia-Obong, Respondent, v. Phillip Tivener, Appellant. Appeal From Charleston County Thomas L. Hughston, Jr., Circuit Court Judge Unpublished Opinion No. 2003-UP-715 Submitted October 15, 2003 – Filed December 11, 2003 AFFIRMED Lisa A. Reynolds, of Charleston, for Appellant. Jackson Seth Whipper, of N. Charleston, for Respondent. PER CURIAM: Phillip Tivener appeals the circuit court’s ruling allowing Essien Antia-Obong an extension of time in which to file an amended complaint, and for declining to grant his motion for summary judgment. We affirm. [1] FACTS/PROCEDURAL HISTORY Antia-Obong filed a summons and complaint against Tivener. Tivener answered and eventually filed a motion for summary judgment based upon the failure of the complaint to assert a critical element of the tort. By order dated September 13, 2002, the circuit court denied Tivener’s motion. The order also granted Antia-Obong thirty days to file an amended complaint “to conform with discovery and properly stating cause against [Tivener] . . . [i]f not, summary judgment granted.” Antia-Obong filed an amended complaint within the thirty days, but still failed to assert a critical element of the tort. Tivener submitted a proposed supplemental order to the circuit court memorializing the court’s previous consideration of summary judgment against Antia-Obong. Instead of granting Tivener’s motion for summary judgment, the circuit court issued a second order on October 17, 2002, granting Antia-Obong an additional sixty days to file a proper amended complaint. Tivener filed a motion to strike or vacate the October 17 order, which the circuit court denied. LAW/ANALYSIS A party may not normally appeal a court order allowing a plaintiff to file an amended complaint. Pruitt v. Bowers, 330 S.C. 483, 499 S.E.2d 250 (Ct. App. 1998); see Davis‑McGee Mule Co. v. Marett, 129 S.C. 36, 37, 123 S.E. 323, 323 (1924) (“No appeal can be made except from a final judgment.”). This Court may consider an issue that would otherwise be interlocutory where it is presented with a lower court’s grant of summary judgment. See Pruitt, supra. Tivener’s appeal is interlocutory as it attempts to bring before this court the propriety of the trial court’s order allowing Antia-Obong additional time to file an amended complaint. Further, Tivener’s appeal does not fall within the limited exception stated in Pruitt because the trial court denied his motion for summary judgment. Holloman v. McAllister, 289 S.C. 183, 345 S.E.2d 728 (1986) (a party may not appeal an order denying summary judgment). Tivener attempts to overcome this hurdle by arguing the court’s September 13th ruling automatically granted summary judgment in the event Antia-Obong failed to file a conforming amended complaint. We do not construe the September 13th order as automatically granting summary judgment, nor did Tivener at the time, as is evidenced by the fact that he requested another order granting summary judgment. Tivener’s central argument is the trial judge violated provisions of Rule 59 by sua sponte altering its earlier order. As such, Tivener requests this court to require the trial court to enforce its September 13th order by finding Antia-Obong failed to properly amend the complaint thus triggering approval of Tivener’s motion for summary judgment. We decline to do so. Although Tivener correctly states the premise of Rule 59 and the law relating to the authority of the court to modify final judgments, he misapplies it to the facts of this case. Rule 59 applies to final appealable judgments, and the trial court’s September 13th order was not an order granting final judgment. Instead, it was an order denying summary judgment, granting an extension for Antia-Obong to file an amended complaint, and essentially containing a warning as to the consequences of a failure to do so. As the order was not a final order of judgment the trial court is not barred from sua sponte altering its previous ruling. Accordingly, we are without power to command the trial court to grant the summary judgment it warned of in its September 13th order. [2] AFFIRMED. HUFF, STILWELL, and BEATTY, JJ., concur. [1] We decide this case without oral argument pursuant to Rule 215, SCACR. [2] In his appeal Tivener queries whether “the court err[ed] in reversing its grant of summary judgment in favor of the defendant?” As we noted before, the trial court denied Tivener’s motion for summary judgment and such matters are not normally proper for appellate review. See Holloman, supra.