Anita-Obong v. Tivener

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Essien Antia-Obong,       
Respondent,

v.

Phillip Tivener,       
Appellant.

Appeal From Charleston County

Thomas L. Hughston, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-715

Submitted October 15, 2003 – Filed December
11, 2003

AFFIRMED

Lisa A. Reynolds, of Charleston, for Appellant.

Jackson Seth Whipper,
of N. Charleston, for Respondent.

PER CURIAM:  Phillip Tivener appeals the
circuit court’s ruling allowing Essien Antia-Obong an extension of time in which
to file an amended complaint, and for declining to grant his motion for summary
judgment.  We affirm. [1]

FACTS/PROCEDURAL HISTORY

Antia-Obong filed a summons and complaint against
Tivener.  Tivener answered and eventually filed a motion for summary judgment
based upon the failure of the complaint to assert a critical element of the
tort.  By order dated September 13, 2002, the circuit court denied Tivener’s
motion.  The order also granted Antia-Obong thirty days to file an amended complaint
“to conform with discovery and properly stating cause against [Tivener] . .
. [i]f not, summary judgment granted.” 

Antia-Obong filed an amended complaint within the
thirty days, but still failed to assert a critical element of the tort.  Tivener
submitted a proposed supplemental order to the circuit court memorializing the
court’s previous consideration of summary judgment against Antia-Obong.  Instead
of granting Tivener’s motion for summary judgment, the circuit court issued
a second order on October 17, 2002, granting Antia-Obong an additional sixty
days to file a proper amended complaint.  Tivener filed a motion to strike or
vacate the October 17 order, which the circuit court denied. 

LAW/ANALYSIS

A party may not normally appeal a court order allowing
a plaintiff to file an amended complaint.  Pruitt v. Bowers, 330 S.C.
483, 499 S.E.2d 250 (Ct. App. 1998); see Davis‑McGee Mule Co.
v. Marett, 129 S.C. 36, 37, 123 S.E. 323, 323 (1924) (“No appeal can be
made except from a final judgment.”).  This Court may consider an issue that
would otherwise be interlocutory where it is presented with a lower court’s
grant of summary judgment.  See Pruitt, supra. 

Tivener’s appeal is interlocutory as it attempts
to bring before this court the propriety of the trial court’s order allowing
Antia-Obong additional time to file an amended complaint.  Further, Tivener’s
appeal does not fall within the limited exception stated in Pruitt because
the trial court denied his motion for summary judgment.  Holloman v. McAllister,
289 S.C. 183, 345 S.E.2d 728 (1986) (a party may not appeal an order denying
summary judgment).

Tivener attempts to overcome this hurdle by arguing
the court’s September 13th ruling automatically granted summary judgment in
the event Antia-Obong failed to file a conforming amended complaint. We do not
construe the September 13th order as automatically granting summary judgment,
nor did Tivener at the time, as is evidenced by the fact that he requested another
order granting summary judgment. 

Tivener’s central argument is the trial judge violated
provisions of Rule 59 by sua sponte altering its earlier order. 
As such, Tivener requests this court to require the trial court to enforce its
September 13th order by finding Antia-Obong failed to properly amend the complaint
thus triggering approval of Tivener’s motion for summary judgment.  We decline
to do so.

Although Tivener correctly states the premise of
Rule 59 and the law relating to the authority of the court to modify final judgments,
he misapplies it to the facts of this case.  Rule 59 applies to final appealable
judgments, and the trial court’s September 13th order was not an order granting
final judgment.  Instead, it was an order denying summary judgment, granting
an extension for Antia-Obong to file an amended complaint, and essentially containing
a warning as to the consequences of a failure to do so. 

As the order was not a final order of judgment
the trial court is not barred from sua sponte altering its previous
ruling.  Accordingly, we are without power to command the trial court to grant
the summary judgment it warned of in its September 13th order.
[2]  

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.

[1]         We decide this case without oral
argument pursuant to Rule 215, SCACR.

[2]        In his appeal Tivener queries whether “the
court err[ed] in reversing its grant of summary judgment in favor of the defendant?” 
As we noted before, the trial court denied Tivener’s motion for summary judgment
and such matters are not normally proper for appellate review.  See
Holloman, supra.