Donald Stanley v. Southern State

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Donald Stanley and Sean Reiter, Individually and as
Class Representatives, Respondents,

v.

Southern States Police Benevolent Association, Inc.,
Appellant.

Appellate Case No. 2019-000182

Appeal From Charleston County
Edward W. Miller, Circuit Court Judge

Opinion No. 5882
Heard November 10, 2021 – Filed December 22, 2021

DISMISSED

James Andrew Yoho, of Boyle, Leonard & Anderson, P.A.
of Charleston; James Edward Bradley, of Moore Bradley
Myers, PA, of West Columbia; and Barry Goheen, of
Atlanta, Georgia; all for Appellant.

Andrew John Savage, III, of Savage Law Firm, of
Charleston; Eric Steven Bland, of Bland Richter, LLP, of
Columbia; Daniel Francis Lynch, IV, and Carl Everette
Pierce, II, both of Pierce, Sloan, Wilson, Kennedy &
Early, LLC, of Charleston; Scott Michael Mongillo and
Ronald L. Richter, Jr., both of Bland Richter, LLP, of
Charleston; and Joseph C. Wilson, IV, of Joseph C Wilson
Law Firm LLC, of Folly Beach; all for Respondents.
HILL, J.: This is an appeal of an order certifying a class action lawsuit against
Appellant, the Southern States Police Benevolent Association, Inc. (PBA). PBA
attacks the order on several fronts, but none of the preserved issues are immediately
appealable. We therefore dismiss the appeal.

I.

The order certifies as a class certain South Carolina PBA members for the purpose
of determining the scope of their rights to legal representation PBA provides. PBA
claims the trial court's class certification order should be reversed because it
improperly impairs PBA's business activities and wrongly certified a damages class.

We cannot address these issues because they are not immediately appealable.
Where, as here, a Rule 23, SCRCP, class certification order does not address the
merits, it is interlocutory and may not be appealed until after final judgment.
Hensley v. S.C. Dep't of Soc. Servs., 429 S.C. 144, 148, 838 S.E.2d 510, 512 (2020);
Salmonsen v. CGD, Inc., 377 S.C. 442, 452, 661 S.E.2d 81, 87 (2008). Believing it
has found a path around this precedent, PBA points to the following portion of the
certification order:

Any notices required by the law and the South Carolina
Rules of Civil Procedure shall be given to the class in a
form and manner to be determined by the Court upon
application by Plaintiffs or Defendants. In the interim, no
party shall communicate with the class members regarding
this class action and the allegations contained herein.

According to PBA, this provision amounts to an injunction, triggering S.C. Code
Ann. § 14-3-330(4) (2017), which provides an interlocutory order granting an
injunction is immediately appealable. See Eldridge v. City of Greenwood, 308 S.C.
125, 127, 417 S.E.2d 532, 534 (1992) (holding precertification order allowing
defendant but not plaintiff to contact potential class members amounted to an
injunction that was immediately appealable). PBA further asserts the order runs
afoul of Eldridge and Gulf Oil Co. v. Bernard, which require that orders restraining
communications with class members must "be based on a clear record and specific
findings reflecting a weighing of the need for a limitation and the potential
interference with the parties' rights." Gulf Oil Co. v. Bernard, 452 U.S. 89, 101,
(1981).
We question whether the communication order here, which was designed by the
skilled circuit judge to evaporate once the class notice was issued, is a true injunction
of the type envisioned by Eldridge. The order at issue there only applied to the
plaintiff, and was entered before the class was certified. Several courts and
commentators have cautioned that procedural orders in class action cases that in no
way provide substantive relief or address the merits of a case are not appealable as
injunctions under the federal final judgment statute. See Cobell v. Kempthorne, 455
F.3d 317, 322 (D.C. Cir. 2006) (setting forth test of when a provision of a Rule 23,
Fed. R. Civ. P., class certification order qualifies as an immediately appealable
injunction); 16 Charles Alan Wright, Arthur R. Miller, Federal Practice and
Procedure § 3922.2 (3d ed. 1998); 3 William B. Rubenstein, Newberg on Class
Actions § 8:41 (5th ed. 2021). We note the federal appealability statute mirrors the
phrasing regarding "injunctions" found in S.C. Code Ann. § 14-3-330(4). See 28
U.S.C.A. § 1292(a)(1) (2006) ("The courts of appeals shall have jurisdiction of
appeals from . . . [i]nterlocutory orders . . . granting, continuing, modifying, refusing
or dissolving injunctions . . . ."). We are also concerned that an overly generous
view of what constitutes an injunction for purposes of appealability may sap the
efficiency of class actions by allowing for immediate appeal of what in reality may
be an interlocutory procedural ruling. If any routine phrase in a class certification
order may be interpreted as an immediately appealable injunction, the entire class
action—premised as it is on the idea that the advantages of economy of scale might
help both sides and streamline the litigation—could be brought to a halt by a party
bent on delay.

But we do not have to confront these questions about what constitutes an
"injunction" here. The provision of the trial court's order limiting communication
was not discussed before the order was issued. PBA did not object to or mention the
provision in its Rule 59(e), SCRCP, motion and raises the issue for the first time on
appeal. We therefore find the issue unpreserved. When a party receives an order
containing relief that was not requested or contemplated, the party must present its
objections to the issue to the trial court in a Rule 59(e), SCRCP, motion to preserve
the issue for appeal. Pelican Bldg. Ctrs. of Horry-Georgetown, Inc. v. Dutton, 311
S.C. 56, 60-61, 427 S.E.2d 673, 675-76 (1993); In re Timmerman, 331 S.C. 455,
460, 502 S.E.2d 920, 922 (Ct. App. 1998). This gives the trial court the opportunity
to consider and rule upon the issue in the trial setting after it has been refined by
fact-finding and sharpened by argument. This in turn allows us to provide the
meaningful consideration only a complete record provides. As an appellate court,
"we are a court of review, not of first view." Cutter v. Wilkinson, 544 U.S. 709, 718
n.7 (2005).
Because PBA's challenge to the communication limitation is unpreserved and none
of PBA's other issues are immediately appealable, PBA's appeal is

DISMISSED.

KONDUROS and HEWITT, JJ., concur.