Summary
characterizing as equitable the relief provided by S.C. Code Ann. § 33-14-310(d)
Summary of this case from Kiriakides v. Atlas Food Systems ServOpinion
24319
Submitted May 18, 1994
Decided September 18, 1995
Appeal From Circuit Court, Florence County David H. Maring, Sr., J.
David W. Keller, Jr. and S. Porter Stewart, II both of McGowan, Keller, Eaton Stewart, Florence, for appellant.
James C. Cox, Jr. and James H. Lucas both of Saleeby Cox, P.A., Hartsville, for respondents.
This is an appeal from an order denying appellant's Rule 12 (b)(6), SCRCP, motion to dismiss all nine causes of action alleged in respondents' complaint. Although generally the denial of a Rule 12 (b)(6) motion is not directly appealable, we have allowed an appeal in cases such as this where the issue is whether a claim is properly asserted as a direct action or as a shareholder's derivative action. Compare Moyd v. Johnson, 289 S.C. 482, 347 S.E.2d 97 (1986) with Hite v. Thomas Howard Co., 305 S.C. 358, 409 S.E.2d 340 (1991). We now reconsider Hite, and overrule it to the extent it holds this type of order is directly appealable.
The denial of a Rule 12 (b)(6) motion does not establish the law of the case nor does it preclude a party from raising the issue at a later point or points in the case. Since the order denying the Rule 12 (b)(6) motion does not finally decide any issue, it is not directly appealable. See McLendon v. South Carolina Dept. of Highways and Public Transportation, 313 S.C. 525, 443 S.E.2d 539 (1994).
Each party shall bear its own costs and attorneys' fees. This appeal is
Dismissed.