The plaintiff in most cases should be given an opportunity to file and serve an amended complaint. See Foman v. Davis, 371 U.S. 178, 182 (1962) (rules of civil procedure should be liberally construed to do substantial justice and lower court erred in denying motion to amend complaint where amendment would have stated alternative theory of recovery); Small v. Mungo, 254 S.C. 438, 442-44, 175 S.E.2d 802, 804 (1970) (affirming dismissal of complaint for failure to proceed, but finding it should have been dismissed without prejudice); Dockside Assn., Inc. v. Deytens, Simmons Carlisle, 297 S.C. 91, 374 S.E.2d 907 (Ct.App. 1988) (citing Rule 15(a), SCRCP, that plaintiff generally is allowed to amend a complaint to correct deficiencies which resulted in dismissal under provisions of Rule 12(b)); Davis v. Lunceford, 279 S.C. 503, 507, 309 S.E.2d 791, 793 (Ct.App. 1983) (trial court properly dismissed action in which plaintiff served summons but failed to timely serve complaint, but dismissal with prejudice was improper because such a dismissal is in nature of discontinuance of action and is not an adjudication on the merits; action should have been dismissed without prejudice);accord Arkansas Dept. of Environ. Quality v. Brighton, 102 S.W.3d 458, 468 (Ark. 2003) (complaint dismissed for failure to state facts upon which relief can be granted should be dismissed without prejudice in order for plaintiff to decide whether to serve amended complaint or appeal); Thacker v. Bartlett, 785 N.E.2d 621, 624 (Ind.App. 2003) (dismissal for failure to state a claim is without prejudice because the complaining party may either file an amended complaint or stand upon complaint and appeal); Giuliani v. Chuck, 620 P.2d 733, 737 (Haw.App. 1980) (complaint is not subject to dismissal with prejudice unless it appears to a certainty that no relief can be granted under a
The plaintiff in most cases should be given an opportunity to file and serve an amended complaint. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (rules of civil procedure should be liberally construed to do substantial justice and lower court erred in denying motion to amend complaint where amendment would have stated alternative theory of recovery); Small v. Mungo, 254 S.C. 438, 442-44, 175 S.E.2d 802, 804 (1970) (affirming dismissal of complaint for failure to proceed, but finding it should have been dismissed without prejudice); Dockside Assn.,Inc. v. Detyens, Simmons Carlisle, 297 S.C. 91, 374 S.E.2d 907 (Ct.App. 1988) (citing Rule 15(a), SCRCP, that plaintiff generally is allowed to amend a complaint to correct deficiencies which resulted in dismissal under provisions of Rule 12(b)); Davis v. Lunceford, 279 S.C. 503, 507, 309 S.E.2d 791, 793 (Ct.App. 1983) (trial court properly dismissed action in which plaintiff served summons but failed to timely serve complaint, but dismissal with prejudice was improper because such a dismissal is in nature of discontinuance of action and is not an adjudication on the merits; action should have been dismissed without prejudice); accord Arkansas Dept. of Environ. Quality v.Brighton, 352 Ark. 396, 102 S.W.3d 458, 468 (2003) (complaint dismissed for failure to state facts upon which relief can be granted should be dismissed without prejudice in order for plaintiff to decide whether to serve amended complaint or appeal); Thacker v. Bartlett, 785 N.E.2d 621, 624 (Ind.App. 2003) (dismissal for failure to state a claim is without prejudice because the complaining party may either file an amended complaint or stand upon complaint and appeal); Giulianiv. Chuck, 1 Haw.App. 379, 620 P.2d 733, 737 (1980) (complaint is not subject to dismissal with prejudice unless it appears to a certainty that no relief can be
This is the third appeal in this medical malpractice action that arose from an allegedly defective surgical procedure performed in December 1972. See Davis v. Lunceford, 274 S.C. 576, 266 S.E.2d 73 (1980); Davis v. Lunceford, 279 S.C. 503, 309 S.E.2d 791 (S.C.App. 1983), cert. denied, Order filed May 17, 1984. Because of the need for final resolution in this case, we have allowed this direct appeal from the lower court's order denying appellant's motion for summary judgment.
Having found that the trial court did not abuse its discretion in failing to find excusable neglect, we need not consider whether Tesauro had a meritorious defense. McInerny v. Toler, 260 S.C. 382, 196 S.E.2d 122 (1973); Pruitte v. Burns, 212 S.C. 325, 47 S.E.2d 785 (1948); Davis v. Lunceford, 279 S.C. 503, 309 S.E.2d 791 (S.C.App. 1983). Accordingly, the order of the trial court is