Huntley v. Young

462 S.E.2d 860, 319 S.C. 559, 1995 S.C. LEXIS 161

Opinion

Per Curiam:

This is an appeal from an order denying appellant’s Rule 12(b)(6), SCRCP, motion to dismiss all nine causes of action alleged in respondents’ complaint. Although generally the denial of Rule 12(b)(6) motion is not directly appealable, we have allowed an appeal in cases such as this where the issue is whether a claim is properly asserted as a direct action or as a shareholder’s derivative action. Compare Moyd v. Johnson, 289 S.C. 482, 347 S.E. (2d) 97 (1986) with Hite v. Thomas & Howard Co., 305 S.C. 358, 409 S.E. (2d) 340 (1991). We now reconsider Hite, and overrule it to the extent it holds this type of order is directly appealable.

The denial of a Rule 12(b)(6) motion does not establish the law of the case nor does it preclude a party from raising the issue at a later point or points in the case. Since the order denying the Rule 12(b)(6) motion does not finally decide any issue, it is not directly appealable. See McLendon v. South Carolina Dept. of Highways and Public Transportation, 313 S.C. 525, 443 S.E. (2d) 539 (1994).

Each party shall bear its own costs and attorneys’ fees. This appeal is

Dismissed.