TCI Media v. NuVox

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

TCI Media,
Inc., Appellant,

v.

NuVox Communications,
Inc., Respondent.

Appeal From Greenville County

Honorable Michael G. Nettles, Circuit
Court Judge

Unpublished Opinion No. 2009-UP-004

Heard November 6, 2008 – Filed January 7,
2009

REVERSED

Mark Weston Hardee, Esquire, and William
Norman Nettles, Esquire, both of Columbia, for Appellant.

Samuel W. Outen, Esquire, and William J.
Watkins, Jr., Esquire, both of Greenville, for Respondent.

GEATHERS, J.: This appeal arises from the
grant of a motion to dismiss.  The circuit court’s order of dismissal was
precipitated by the Respondent’s motion to dismiss pursuant to Rule 12(b)(1),
SCRCP, for lack of subject matter jurisdiction. 

FACTUAL AND PROCEDURAL BACKGROUND

Appellant TCI Media, Inc. (TCI) contracted with
Respondent NuVox Communications, Inc. (NuVox) to provide certain services to
TCI, including the electronic storage of specific information.  Pursuant to its
contractual rights, TCI requested customer information from NuVox, and NuVox denied
TCI’s request. 

Simultaneously, TCI was involved in criminal
litigation in the United States District Court of the Southern District of Ohio
(District Court) regarding its business transactions.  During the federal
investigation, the Department of Justice served subpoenas on NuVox, seeking
disclosure of certain stored e-mail accounts registered to one of TCI’s
co-defendants.  In response, TCI and its co-defendants instituted
civil litigation seeking discovery, a return of assets seized by the federal government,
and injunctive relief, among other claims.  The District Court stayed the civil
litigation pending resolution of the criminal case. 

Subsequently, TCI filed the instant action to obtain
the previously requested information.  The complaint alleged that NuVox
breached the contract and its fiduciary duty by declining to provide the information
to TCI.  TCI admitted at the hearing on the motion to dismiss, and on appeal,
that it sought this information to assist it in the federal criminal litigation. 
In response, NuVox filed a motion to dismiss, or in the alternative, to stay
litigation, on two grounds.  NuVox asserted that (1) the District Court issued
two orders prohibiting further discovery in civil litigation, such as that
sought by TCI, and (2) 18 U.S.C.A. § 2703(e) prohibited the very litigation
commenced by TCI.[1]  The circuit court found that the District Court’s orders were not binding
in the state court proceeding and that the federal statute was inapplicable in
the instant case.  Nonetheless, the circuit court dismissed the matter, finding
that TCI brought the lawsuit solely to circumvent the discovery provisions of
the Federal Rules of Criminal Procedure, and that such action constituted an
abuse of process. 

ISSUE ON APPEAL

TCI only discusses and provides authority for one of
its issues on appeal, and therefore, the other issue is deemed abandoned.[2]  See First Sav. Bank v. McLean, 314
S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (issues not argued in the brief are
deemed abandoned and will not be considered on appeal); Ellie, Inc. v.
Miccichi, 358 S.C. 78, 99, 594 S.E.2d 485, 496 (Ct. App. 2004) (where an
issue is not argued within the body of the brief but is only a short conclusory
statement, it is abandoned on appeal). Hence, the only issue on appeal is
whether the circuit court erred in granting NuVox’s motion to dismiss by
considering TCI’s purpose for requesting its records. 

STANDARD OF REVIEW

In this case, Respondent filed a 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction.  A question of subject matter
jurisdiction is a question of law for the court.  Lake v. Reeder
Constr. Co., 330 S.C. 242, 247, 498 S.E.2d 650, 653 (Ct. App. 1998).

LAW/ANALYSIS

A.  Subject Matter Jurisdiction

A challenge to subject matter jurisdiction can be
raised by a motion to dismiss pursuant to Rule 12(b)(1), SCRCP.  Ballenger v.
Bowen, 313 S.C. 476, 478, 443 S.E.2d 379, 380, n.2 (1994); Wheeler v.
Morrison, 313 S.C. 440, 442, 438 S.E.2d 264, 265 (Ct. App. 1993).

Subject matter jurisdiction is the “power to hear and
determine cases of the general class to which the proceedings in question
belong.”  Coon v. Coon, 364 S.C. 563, 566, 614 S.E.2d 616, 617 (2005); Mr.
T v. Ms. T, 378 S.C. 127, 133, 662 S.E.2d 413, 416 (Ct. App. 2008).  “Subject
matter jurisdiction is met if the case is brought in the court which has the
authority and power to determine the type of action at issue.”  Washington v. Whitaker, 317 S.C. 108, 115, 451 S.E.2d 894, 898 (1994). 

There is only one circuit court in South Carolina and it has
uniform subject matter jurisdiction throughout the State.  Dove v. Gold Kist,
314 S.C. 235, 238, 442 S.E.2d 598, 600 (1994); see also S.C. Const. art.
V, § 1.  The circuit court has subject matter jurisdiction over civil and
criminal actions.  Id.  Therefore, the circuit court had subject matter
jurisdiction to adjudicate the contract dispute between TCI and NuVox. 

B.  Circuit Court’s Basis for Dismissing the Action       

The circuit court’s basis for dismissing the instant action
was erroneous.  The circuit court did not specifically grant the motion to
dismiss pursuant to Rule 12(b)(1), SCRCP.  Rather, the court granted the motion
because it found that the “lawsuit was brought solely to circumvent the
discovery provisions of the Federal Rules of Criminal Procedure.”  The court
stated:

This court recognizes that if the primary purpose of
[the instant case] was something other than conducting discovery for a federal
criminal case pending in Ohio, it would not be objectionable that discovery in
South Carolina might have the ancillary benefit of assisting TCI and the
criminal defendants in the federal case.  However, this court cannot permit an
action to be instituted solely to gain information, when that information
should be obtained through the use of the Federal Rules of Criminal Procedure.

In other words, the circuit court conceded that it did have
jurisdiction of the matter, but it simply did not sanction TCI’s motive for
bringing the suit.  However, the purpose for which a lawsuit is commenced is
not a relevant inquiry for determining whether a court has subject matter
jurisdiction. 

Further, the circuit court’s reliance on Food Lion,
Inc. v. United Food & Commercial Workers Int’l Union, 351 S.C. 65, 567
S.E.2d 251 (Ct. App. 2002) and Huggins v. Winn-Dixie Greenville, Inc.,
249 S.C. 206, 153 S.E.2d 693 (1967) as authority for dismissal is misplaced.  These
cases involve the common-law tort of abuse of process, which provides a remedy
for one harmed by another’s perversion of a legal procedure for a purpose not
intended by the procedure.  See Food Lion, Inc. at 69-70, 567
S.E.2d at 253 (citing Huggins at 210, 153 S.E.2d at 695 and W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 121 at 897 (5th ed. 1984)). 

“An abuse of process action is not designed to compel
compliance with court procedure or to deter future misconduct.  Rather, the
tort is intended to compensate a party for harm resulting from another’s misuse
of the legal system.”  Food Lion, Inc. at 74 n.5, 567 S.E.2d at 255 n.
5.  The misuse usually takes the form of coercion to obtain a collateral
advantage, and there is no liability where the defendant has done nothing more
than carry out the process to its authorized conclusion, even though with bad
intentions.  Hainer v. Am. Med. Int’l, Inc., 328 S.C. 128, 136, 492
S.E.2d 103, 107 (1997).

In the instant case, it is not evident
that TCI, by its initiation of the lawsuit, misused the legal system through
coercive acts that were intended to harm NuVox.  In fact, the circuit court
found that TCI’s purpose for bringing the lawsuit was to obtain information.  While there may be other avenues for addressing TCI’s
underlying motives, the procedural mechanism utilized by the circuit court is
not the proper one; and, the authority underlying the abuse of process tort is
not a proper basis for dismissing TCI’s suit.  Hence, the circuit court erred when it used the legal basis of abuse
of process as authority for granting the dismissal.

C.  Rule 12(b)(6), SCRCP

While
the Record on Appeal does not so indicate, TCI asserts, and the parties
conceded at oral argument before this Court, that the trial court’s order of
dismissal was more likely based on a 12(b)(6), rather than
on a 12(b)(1), rationale.  However, even if the motion to dismiss was granted
pursuant to Rule 12(b)(6), SCRCP, the result in the instant matter would be the
same. 

The ruling on a 12(b)(6), SCRCP, motion to dismiss
must be based solely on the allegations set forth in the complaint.  Plyler
v. Burns, 373 S.C. 637, 645, 647 S.E.2d 188, 192 (2007).  The complaint
should not be dismissed merely because the court doubts that the plaintiff will
prevail in the action.  Doe v. Marion, 361 S.C. 463, 469, 605 S.E.2d 556,
559 (Ct. App. 2004). The motion cannot be
granted if the facts set forth in the complaint and the inferences reasonably
drawn therefrom would entitle the Plaintiff to relief on any theory of the
case.  Ashley River Prop. I, L.L.C. v. Ashley River Prop. II, L.L.C., 374 S.C. 271, 278, 648 S.E.2d 295, 298 (Ct. App. 2007). Because TCI
pleaded facts sufficient to state a cause of action for breach of contract, the
trial court’s grant of dismissal pursuant to 12(b)(6) would also constitute
reversible error. 

CONCLUSION

Accordingly,
the circuit court’s order is

REVERSED.

WILLIAMS, J., and PIEPER, J., concur.  

[1]  18 U.S.C.A. § 2703(e) provides: No cause of
action shall lie in any court against any provider of wire or electronic
communication services, its officers, employees, agents, or other specified
persons for providing information, facilities, or assistance in accordance with
the terms of a court order, warrant, subpoena, statutory authorization, or
certification under this chapter.

[2] Thus, we will not address the issue of whether a
customer has the right to use the South Carolina judicial process to enforce
contractual rights against a South Carolina business.