D&C Builders v. Buckley

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

D&C Builders, Inc., Appellant,

v.

Richard M. Buckley and Wells Fargo National
Association, Defendants,

Richard M. Buckley, Third-Party Plaintiff,

v.

Scott Dodenhoff, Third-Party Defendant,

Of whom Richard M. Buckley is the Respondent.

Appellate Case No. 2013-001645

Appeal from Greenville County
Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2016-UP-184
Heard October 14, 2015 – Filed April 20, 2016

APPEAL DISMISSED

Harold Stewart James, of Babb & Brown, PC, of
Greenville, and Brian A. Martin, of Brian A. Martin,
LLC, of Greer, for Appellant.

M. Stokely Holder, of Kenison Dudley & Crawford,
LLC, of Greenville, for Respondent.

PER CURIAM: D&C Builders, Inc. (D&C Builders) appeals the order of the trial
court directing it to submit to the court and opposing counsel a privilege log
containing the specific information and knowledge it contends Richard M.
Buckley's counsel acquired through their prior representation of D&C Builders.
D&C Builders argues the trial court erred in ordering it to reveal confidential
information to substantiate the disqualification of opposing counsel, refusing to
grant an injunction preventing opposing counsel from accessing the confidential
information D&C Builders was ordered to supply, and failing to disqualify
opposing counsel. We dismiss the appeal.

1. First, we question whether an actual controversy still exists as to disclosure of
the confidential information in a privilege log. At oral argument, D&C Builders
indicated it was not opposed to disclosing the information to the trial court in
camera and only contested providing the information to Buckley. Buckley stated
in his brief and at oral argument he conceded to the relief requested by D&C
Builders on this issue.

2. In any event, we find the trial court's order is not immediately appealable. See
Ex parte Capital U-Drive-It, Inc., 369 S.C. 1, 6, 630 S.E.2d 464, 467 (2006) ("The
determination of whether a party may immediately appeal an order issued before or
during trial is governed primarily by [section 14-3-330 of the South Carolina Code
(1976 & Supp. 2015)]."); id. ("An appeal ordinarily may be pursued only after a
party has obtained a final judgment."). The trial court's order does not involve the
issuance or denial of an injunction. See Injunction, Black's Law Dictionary (6th
ed. 1990) (defining "injunction" as a "prohibitive, equitable remedy issued or
granted by a court at the suit of a party complainant, directed to a party defendant
in the action . . . forbidding the latter from doing some act which he is threatening
or attempting to commit, or restraining him in the continuance thereof, such act
being unjust and inequitable, injurious to the plaintiff, and not such as can be
adequately redressed by an action at law"). Rather, as D&C Builders admitted at
oral argument, the trial court's order is akin to a discovery order, which generally is
not directly appealable. See Wieters v. Bon-Secours-St. Francis Xavier Hosp., Inc.,
381 S.C. 332, 333, 673 S.E.2d 417, 418 (2009) (stating "an order compelling
discovery is not immediately appealable even if it is challenged as violating the
attorney-client privilege"); Tucker v. Honda of S.C. Mfg., Inc., 354 S.C. 574, 577,
582 S.E.2d 405, 406-07 (2003) ("Since a contempt order is final in nature, an order
compelling discovery may be appealed only after the trial court holds a party in
contempt."); id. at 577, 582 S.E.2d at 407 ("Thus, a party may comply with the
order and waive any right to challenge it on appeal or refuse to comply with the
order, be cited for contempt, and appeal."). Furthermore, even if the trial court's
order could be construed as denying the motion to disqualify Buckley's counsel,
such an order is not immediately appealable. See EnerSys Del., Inc. v. Hopkins,
401 S.C. 615, 619, 738 S.E.2d 478, 480 (2013) (holding "an order denying a
motion to disqualify an attorney is not immediately appealable").

APPEAL DISMISSED.

HUFF, A.C.J., and WILLIAMS and THOMAS, JJ., concur.