Civil Practice – Appeals – Interlocutory Order – Dismissal with Leave to Amend – First Impression

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Tillman v. Tillman (Lawyers Weekly No. 011-040-17, 4 pp.) (D. Garrison Hill, J.) Appealed from Dorchester County Circuit Court (Diane Schafer Goodstein, J.) S.C. App.

Holding: Where the circuit court’s order granted plaintiff’s motion to dismiss defendants’ counterclaim while simultaneously inviting defendants to move to amend their counterclaim, the order is not immediately appealable.

Appeal dismissed.

This precise issue does not seem to have arisen since adoption of our Appellate Court Rules and our Rules of Civil Procedure.

The fate of appellant’s counterclaims has not been finally determined as long as his motion to amend hangs in the balance. In the unlikely event that the motion to amend is denied, then appellant retains the right, after the lawsuit ends, to appeal the denial along with the dismissal of his counterclaims.

Many federal circuits have held that orders dismissing a party’s pleadings pursuant to Rule 12, FRCP, but with leave to amend, are not appealable final judgments within the meaning of 28 U.S.C. § 1291.

Here, appellant’s rights have yet to be finally determined by the circuit court. Appellant has not reached the end of the road, however long and winding he may have made it. The order is not immediately appealable.

Dismissed.