Taylor v. Springs

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

Tammy Taylor, Appellant,

v.

April Springs, Angela Berry, A B Country Kitchen a/k/a
A&B Country Kitchen, Respondents.

Appellate Case No. 2017-000679

Appeal From Dillon County
Roger E. Henderson, Circuit Court Judge

Unpublished Opinion No. 2020-UP-100
Heard September 11, 2019 – Filed April 8, 2020

REVERSED AND REMANDED

Marcus LeFond Woodson, of The Woodson Law Firm,
LLC, of Marion, for Appellant.

Alan Lenneau Berry, Jr., of Law Office of Alan L. Berry,
Jr., LLC., of Latta, for Respondents.

PER CURIAM: The circuit court dismissed Tammy Taylor's personal injury
action, finding A B Country Kitchen was not a legal entity and Taylor had not
properly moved to amend her complaint to add the owners of the business as
defendants. Taylor appealed, arguing 1) A B Country Kitchen is bound by the
admissions in its answers that it is an operating business entity, and 2) no formal
motion to amend was necessary. We reverse and remand.

Initially, the circuit court denied A B Country Kitchen's motion to dismiss by Form
4 order stating "Motion for Summary Judgment Denied. Plaintiff allowed to
amend pleadings." The circuit court followed up with an email instructing Taylor
to amend her complaint. After Taylor filed her amended complaint, A B Country
Kitchen moved to reconsider, asserting it was entitled to dismissal, in part, because
there was no proper motion to amend before the court and Taylor failed to follow
the court's instructions as to the captioning of the amended complaint. Following a
hearing, the circuit court found A B Country Kitchen was a "nonexistent
defendant," the amended complaint was improperly captioned, and "[t]here was no
motion to amend the Plaintiff's Complaint before the Court. Relief should not have
been granted for a matter not properly before the Court." The court held "[a]fter
hearing the Motion to Reconsider, it appears the court was in error in not
dismissing the Plaintiff's complaint and in allowing Plaintiff to amend the
complaint."

Under Skydive Myrtle Beach, Inc. v. Horry County, this dismissal was error. In
Skydive, our supreme court instructed:

A circuit court does not have "discretion" to dismiss a
complaint with prejudice for failure to state a claim under
Rule 12(b)(6) without at least considering whether to
allow leave to amend under Rule 15(a). Under Rules
12(b)(6) and 15(a), the circuit court may not dismiss a
claim with prejudice unless the plaintiff is given a
meaningful chance to amend the complaint, and after
considering the amended pleading, the court is certain
there is no set of facts upon which relief can be granted.

426 S.C. 175, 189, 826 S.E.2d 585, 592 (2019). Taylor was not required to move
to amend her complaint unless and until the circuit court found her pleading to be
deficient. See id. at 181, 826 S.E.2d at 588 ("[T]he time for requesting leave to
amend to correct a Rule 12(b)(6) pleading defect is after the trial court has
determined the original pleading was deficient."). Taylor accepted the circuit
court's initial finding that her complaint was deficient and filed an amended
complaint in an attempt to fix the deficiency. See id. (recognizing a plaintiff is
"entitled to accept the court's ruling the original complaint was deficient, and
replead in an attempt to fix the deficiency"). It was unnecessary for her to file a
subsequent motion to amend in order to seek the relief the circuit court had already
initially granted.

Further, A B Country Kitchen admitted in its answer that "A B Country Kitchen is
a business which owns property and transacts business in Dillon County" and that
"on or about October 25, 2012, [Taylor] was on the property owned and operated
by Defendant as a paying customer and a business invitee." In the answer to the
amended complaint, defendants denied A B Country Kitchen owned property but
admitted "business is transacted under that trade name." In neither answer did any
defendant assert an affirmative defense challenging A B Country Kitchen's
existence as a legal entity. See Rule 9(a), SCRCP ("When a party desires to raise
an issue as to the legal existence of any party or the capacity of any party to sue or
be sued or the authority of a party to sue or be sued in a representative capacity, he
shall do so by specific negative averment, which shall include such supporting
particulars as are within the pleaders' knowledge."); Postal v. Mann, 308 S.C. 385,
387, 418 S.E.2d 322, 323 (Ct. App. 1992) ("It is well settled that parties are
judicially bound by their pleadings unless withdrawn, altered or stricken by
amendment or otherwise. The allegations, statements, or admissions contained in a
pleading are conclusive as against the pleader and a party cannot subsequently
take a position contradictory of, or inconsistent with, his pleadings and the facts
which are admitted by the pleadings are taken as true against the pleader for the
purpose of the action." (emphasis added)).

Accordingly, we reverse the circuit court's order granting A B Country Kitchen's
motion to dismiss and remand for further proceedings.

REVERSED AND REMANDED.

HUFF, WILLIAMS, and MCDONALD, JJ., concur.