BY BILL CRESENZO and DAVID DONOVAN
bcresenzo@sclawyersweekly.com
A skydiving company that was evicted from Grand Strand Airport will get to take a second leap at suing employees of the Horry County Department of Airports after the South Carolina Supreme Court ruled that the company should have been given a chance to amend its deficient complaint. The justices overturned a ruling by the state’s Court of Appeals and clarified a comment from a prior opinion that it said the appeals court had erroneously relied upon in multiple cases.
Skydive Myrtle Beach claims that its 2014 eviction from the airport was improper and retaliatory. Besides suing Horry County and its Department of Airports, it also sued several of the department’s employees in their individual capacities. Circuit Court Judge Harry Lyman Jr. later granted the employees’ motion to dismiss the suit against them for failing to state a claim because Skydive’s complaint alleged that their actions were taken while acting in their official capacities, which would entitle them to immunity under the state’s Tort Claims Act.
Hyman dismissed the claims with prejudice and without considering Skydive’s request to amend its complaint. The Court of Appeals affirmed in an unpublished opinion, but Justice John Few, writing for the court in a March 13 opinion, said that the trial court should have looked before it leapt and given Skydive the chance to at least restate its claims. Few said that based on the limited record in the chance, there was nothing to suggest that permitting Skydive to do so would be a futile endeavor.
Under South Carolina’s rules of civil procedure, a plaintiff needs the court’s permission to rework a complaint to cure deficiencies, but the rules state that permission should be freely given if justice requires and no party will be prejudiced. Few wrote that a court’s decision to deny a motion to amend should be based on this standard, and not on its perception of the merits of an amended complaint.
“The circuit court dismissed Skydive’ claims against respondents without having seen any attempt at amending the complaint,” Few wrote. “We cannot imagine a circumstance in which a trial court should refuse to allow an amendment on the ground of futility without seeing what the amendment would look like … Skydive was—any plaintiff is— entitled to litigate the validity of its original pleading without having to convince the trial court of the merits of its underlying claim.”
Few noted that the immunity provision of the Tort Claims Act doesn’t apply if a plaintiff can show that the government employees intended to cause the plaintiffs harm. Given the facts alleged by Skydive, Few wrote, the justices couldn’t definitively say that it would be impossible for Skydive to state a valid claim overcoming the immunity provision in an amended pleading. It was quite alright, Few said, that Skydive might plead alternative, or even mutually exclusive, theories of relief at this stage.
The Court of Appeals, in affirming the trial court’s ruling, had relied on a comment in the Supreme Court’s 2006 decision in Spence v. Spence, which said that even if a plaintiff is erroneously denied the chance to amend a complaint, appellate courts could, in their discretion, affirm the dismissal of the complaint with prejudice.
But Few said that the comment had been “misunderstood” in Skydive’s case and others. An appellate court can only exercise such discretion if an opportunity to amend a complaint would clearly be futile–something that couldn’t be definitively said in Skydive’s case.
Justice Kaye Hearn dissented, finding that the issue of whether Skydive should be allowed to file an amended complaint had not been properly preserved for appeal.
Robert Varnado and Alexis Wimberly of Brown & Varnado in Mount Pleasant represented Skydive Myrtle Beach. Samuel Arthur of Aiken, Bridges, Elliott, Tyler & Saleeby in Florence represented the employees. Arthur could not be reached for comment. Neither side’s attorneys could be reached for comment.
The 16-page decision is Skydive Myrtle Beach, Inc. v. Horry County (Lawyers Weekly No. 010-011-19). The full text of the opinion is available online at sclawyersweekly.com.
Follow Bill Cresenzo on Twitter @bcresenzosclw