Greenville Pharmaceutical v. Parham & Smith

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Greenville Pharmaceutical Research, Inc., Appellant,

v.

Parham & Smith, LLC and Gerald H. Sokol, M.D.,
Defendants,

Of whom, Gerald H. Sokol, M.D., is the Respondent.

Appellate Case No. 2016-000569

Appeal From Greenville County
J. Cordell Maddox, Jr., Circuit Court Judge

Unpublished Opinion No. 2017-UP-460
Submitted November 1, 2017 – Filed December 13, 2017

AFFIRMED

Franklin Milton Mann, Jr., of Franklin Milton Mann Jr.
Attorney at Law, of Spartanburg, for Appellant.

T. David Rheney, of Gallivan, White & Boyd, PA, of
Greenville, for Respondent.

PER CURIAM: Greenville Pharmaceutical Research, Inc. (Greenville
Pharmaceutical) appeals an order from the circuit court granting Dr. Gerald H.
Sokol's motion to dismiss. On appeal, Greenville Pharmaceutical argues the circuit
court violated its due process rights by raising the issue of "witness immunity" for
the first time during the hearing on Dr. Sokol's Rule 12(b)(6), SCRCP, motion.
Greenville Pharmaceutical further argues the circuit court erred in dismissing its
complaint because it properly pled the elements of common-law fraud. We
affirm.1

We find the circuit court did not err in dismissing Greenville Pharmaceutical's
complaint pursuant to Rule 12(b)(6), SCRCP. See Rydde v. Morris, 381 S.C. 643,
646, 675 S.E.2d 431, 433 (2009) ("On appeal from the dismissal of a case pursuant
to Rule 12(b)(6), an appellate court applies the same standard of review as the
[circuit] court."); id. ("That standard requires the [c]ourt to construe the complaint
in a light most favorable to the nonmovant and determine if the 'facts alleged and
the inferences reasonably deducible from the pleadings would entitle the plaintiff
to relief on any theory of the case.'" (quoting Williams v. Condon, 347 S.C. 227,
233, 553 S.E.2d 496, 499 (Ct. App. 2001))).

Initially, we find the circuit court did not violate Greenville Pharmaceutical's due
process rights. Although not raised in any of the pleadings, the circuit court, sua
sponte, raised the issue of "witness immunity" due to a lack of a private cause of
action at the hearing of Dr. Sokol's 12(b)(6) motion. The circuit court gave
Greenville Pharmaceutical several opportunities at the hearing to argue for the
existence of a private cause of action against Dr. Sokol. The circuit court also
informed Greenville Pharmaceutical of its option to file a motion to reconsider
pursuant to Rule 59(e), SCRCP, and Greenville Pharmaceutical filed a motion to
reconsider. Thus, we find the circuit court did not violate Greenville
Pharmaceutical's due process rights. See Kurschner v. City of Camden Planning
Comm'n, 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008) ("The fundamental
requirements of due process include notice, an opportunity to be heard in a
meaningful way, and judicial review."); Blanton v. Stathos, 351 S.C. 534, 542, 570
S.E.2d 565, 569 (Ct. App. 2002) ("Procedural due process mandates that a litigant
be placed on notice of the issues which the court is to consider."); Olson v. S.C.
Dep't of Health and Envtl. Control, 379 S.C. 57, 69, 663 S.E.2d 497, 503-04 (Ct.
App. 2008) ("Procedural due process requirements are not technical, and no
particular form of procedure is necessary."); id. at 69, 663 S.E.2d at 504 ("Rather,
due process is flexible and calls for such procedural protections as the particular
situation demands.").

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
Moreover, we find the circuit court could have dismissed Greenville
Pharmaceutical's claim pursuant to Rule 12(b)(6), SCRCP, on the ground
Greenville Pharmaceutical failed to plead facts with particularity sufficient to
constitute a cause of action for common-law fraud. See Rule 12(b)(6), SCRCP
(stating a defendant may move for dismissal based on a failure to state facts
sufficient to constitute a cause of action); Turner v. Milliman, 392 S.C. 116, 122,
708 S.E.2d 766, 769 (2011) ("In order to establish a claim for fraud in the
inducement to enter a contract, a party must establish the following by clear and
convincing evidence: (1) a representation; (2) its falsity; (3) its materiality; (4)
either knowledge of its falsity or a reckless disregard of its truth or falsity; (5)
intent that the representation be acted upon; (6) the hearer's ignorance of its falsity;
(7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; and (9)
the hearer's consequent and proximate injury."); Rule 9(b), SCRCP ("In all
averments of fraud or mistake, the circumstances constituting fraud or mistake
shall be stated with particularity."); Winburn v. Ins. Co. of N. Am., 287 S.C. 435,
440, 339 S.E.2d 142, 145 (Ct. App. 1985) ("The false representation, however,
must be one of fact as distinguished from the mere expression of an opinion.").

AFFIRMED.

WILLIAMS, THOMAS, and MCDONALD, JJ., concur.