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Shields v. Martin Marietta Corp.

Supreme Court of South Carolina
Feb 4, 1991
303 S.C. 469 (S.C. 1991)

Summary

holding an order restoring a case to the active docket is not directly appealable

Summary of this case from SunTrust Mortg., Inc. v. Ostendorff

Opinion

23335

Submitted December 14, 1990.

Decided February 4, 1991.

James M. Brailsford, III, of Robinson, McFadden Moore, Columbia, for appellant Martin Marietta Corp. Frederick A. Gertz, of Gertz Moore, Columbia, for appellant City of Cayce. Timothy G. Quinn, of Ellison, Quinn Alley, Columbia, and Jean Perrin Derrick, Lexington, for respondents.


Submitted Dec. 14, 1990.

Decided Feb. 4, 1991.


Martin Marietta Corporation (Martin Marietta) and the City of Cayce (City) appeal an Order restoring Respondents' (The Shields) wrongful death and survival actions to the active docket.

We dismiss the appeal without prejudice.

FACTS

In 1983, the Shields' 27 month old son, Eric, drowned in flood waters which had accumulated in his yard. The Shields instituted these actions in February, 1984, alleging that various acts and omissions of Martin Marietta, City and a third defendant, Owen Electric Steel, Inc. (Owen), combined to cause the flooding.

When the Shields settled with Owen in October, 1984, the cases were stricken from the trial roster pursuant to former Circuit Court Rule 81. In December, 1984, the trial court (1) granted Martin Marietta's motion to strike a strict liability cause of action, and (2) allowed the Shields 30 days to amend their complaints. In January, 1985, the Shields filed amended complaints which were timely answered.

Current Rule 40(c)(3) S.C.R.C.P.

The cases remained dormant until May, 1989, when Martin Marietta and City filed motions to dismiss for lack of prosecution. These motions were denied. Thereafter, on December 28, 1989, the Shields' motion to restore the cases to the active docket was granted.

Martin Marietta and City appeal the Order restoring the cases.

DISCUSSION

An intermediate/interlocutory order is immediately appealable only if it involves the merits of the case or affects a substantial right. S.C. Code Ann. § 14-3-330 (1976). Such orders are reviewable after final judgment. Pendergrass v. Martin, 275 S.C. 413, 272 S.E.2d 172 (1980).

Avoidance of trial is not a "substantial right" entitling a party to immediate appeal of an interlocutory order. Blackwelder v. State Dept. of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777 (1983). The decision on a motion to restore the case to the active docket is not a final judgment and is interlocutory and, therefore, not immediately appealable. Lucas v. St. Patrick's Roman Catholic Church Corp., 123 Conn. 166, 193 A. 204 (1937). See, also, Governor's Grove Condominium Assoc., Inc. v. Hill Development Corp., 187 Conn. 509, 446 A.2d 1082 (1982).

Appeal dismissed without prejudice.

FINNEY, J., not participating.


Summaries of

Shields v. Martin Marietta Corp.

Supreme Court of South Carolina
Feb 4, 1991
303 S.C. 469 (S.C. 1991)

holding an order restoring a case to the active docket is not directly appealable

Summary of this case from SunTrust Mortg., Inc. v. Ostendorff

holding decision on a motion to restore the case to the active docket is not immediately appealable

Summary of this case from Pocisk v. Sea Coast Construction

explaining an order restoring a case to the active docket is not directly appealable

Summary of this case from Coffey v. Webb
Case details for

Shields v. Martin Marietta Corp.

Case Details

Full title:Deborah SHIELDS and Michael Shields, Administrators of the Estate of Eric…

Court:Supreme Court of South Carolina

Date published: Feb 4, 1991

Citations

303 S.C. 469 (S.C. 1991)
402 S.E.2d 482

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"To involve the merits," pursuant to section 14-3-330(1), "the order must `finally determine some substantial…

SunTrust Mortgage, Inc. v. Ostendorff

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