Ex Parte Wilson
Ex Parte Wilson
Opinion
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BB T of South Carolina (Appellant) appeals a lower court order quashing a subpoena duces tecum, which Appellant issued to a nonparty prior to commencing any procedure to enforce a judgment. We certified the case for review from the Court of Appeals, pursuant to Rule 204(b), SCACR. We dismiss the appeal because the lower court order is not immediately appealable.1
In April 2003, the Law Offices of Paul J. Kamber represented a Kim A. Pender in a real estate closing. In preparation for the closing, Kamber's office sought to determine whether Kamber represented the same Kim A. Pender who was subject to Appellant's default judgment. On April 14, 2003, Missy Wilson (Respondent), Kamber's legal assistant, faxed an inquiry to Appellant requesting identification data on the Pender subject to Appellant's judgment. On the same day, Appellant replied to the request and asked Kamber for identification data of his client. Kamber's office did not reply. On April 26, 2003, Appellant again requested the identification data on Kamber's client, but Kamber's office did not reply. *Page 11
On May 12, 2003, Appellant served Respondent or the records custodian of Kamber's office with a subpoena duces tecum requesting "your entire Kim Pender file." On or about May 19, 2003, Respondent served a motion to quash the subpoena duces tecum on the grounds the documents in the file were protected by the attorney-client privilege and there was no pending action between Appellant and Pender. Appellant filed a return to Respondent's motion on July 15, 2003.
At a hearing on Respondent's motion, Appellant admitted it had not attempted enforcement of the judgment against Pender by issuance of a writ of execution or through supplemental proceedings. Appellant argued post-judgment discovery before enforcement of the judgment is proper under Rule 69, SCRCP.
By Order filed July 17, 2003, the circuit court granted Respondent's motion to quash, concluding Rule 69, SCRCP, did not permit discovery after judgment except in supplementary proceedings or in aid of execution. Further, the requested documents were subject to attorney-client privilege, which had not been waived.
I. Is an order quashing a subpoena duces tecum, which was issued to a nonparty prior to the commencement of enforcement of a judgment, immediately appealable?II. Did the lower court err in granting Respondent's motion to quash on the ground that the discovery was improper under Rule 69, SCRCP?
The novel issue presented in this case is whether an order quashing a subpoena duces tecum, issued to a nonparty prior to the commencement of enforcement of a judgment, is immediately appealable. South Carolina Code Ann. §
The Supreme Court shall have appellate jurisdiction for correction of errors of law in law cases, and shall review upon appeal:
(1) Any intermediate judgment, order or decree in a law case involving the merits in actions commenced in the court of common pleas and general sessions, brought there by original process or removed there from any inferior court or jurisdiction, and final judgments in such actions; provided, that if no appeal be taken until final judgment is entered the court may upon appeal from such final judgment review any intermediate order or decree necessarily affecting the judgment not before appealed from;
(2) An order affecting a substantial right made in an action when such order (a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action, (b) grants or refuses a new trial or (c) strikes out an answer or any part thereof or any pleading in any action;
(3) A final order affecting a substantial right made in any special proceeding or upon a summary application in any action after judgment; and
(4) An interlocutory order or decree in a court of common pleas granting, continuing, modifying, or refusing an injunction or granting, continuing, modifying, or refusing the appointment of a receiver.
As a general rule, only final judgments are appealable.Culbertson v. Clemens,
We have previously held an order denying or compelling pretrial discovery is not directly appealable since it is an intermediate or interlocutory decision. Lowndes Products, Inc. v. Brower,
Similarly, an order quashing a subpoena duces tecum issued to a nonparty prior to commencement of enforcement of a judgment, is interlocutory and not immediately appealable. This discovery order is not a final order because it leaves some further act to be done by the court before the rights of the parties in an enforcement proceeding are determined.3
Absent some specialized statute, the immediate appealability of an interlocutory or intermediate order depends on whether the order falls within §
Appellant argues the order granted an injunction and is, therefore, immediately appealable pursuant to §
Rule 69 is entitled "Execution" and provides:
*Page 15Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be as provided by law. In the aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may examine any person, including the judgment debtor, in the manner provided in these rules for obtaining discovery.4
The Notes to Rule 69, SCRCP, state: "This Rule 69 is substantially the Federal Rule, omitting references to Federal Statutes. It preserves by reference present State practice under S.C. Code Sections
In interpreting the meaning of the South Carolina Rules of Civil Procedure, the Court applies the same rules of construction used to interpret statutes. Maxwell v. Genez,
When the phrase "[i]n the aid of the judgment or execution" in the last sentence of Rule 69 is construed in conjunction with the purpose of the rule — execution of a judgment either by a *Page 16
writ of execution or by supplemental proceedings — and the policy of the rule, the phrase must relate back to the two previous sentences. The phrase in question can be harmonized with the subject matter of the rule — Execution — by reading Rule 69 to require the issuance of a writ of execution or initiation of supplementary proceedings before post-judgment discovery is conducted. See Anchor Gas, Inc. v. Border Black Top, Inc.,
TOAL, C.J., WALLER, PLEICONES, JJ., and Acting Justice STEPHEN S. BARTLETT, concur.
The judgment entered pursuant to Fed.R.Civ.P.
58 ends the proceeding to determine liability and relief, but it begins the collection proceeding if the defendant refuses to pay. A contested collection proceeding will end in a judgment or a series of judgments granting supplementary relief to the plaintiff. The judgment that concludes the collection proceeding is the judgment from which the defendant can appeal.
Judgments generally are enforced by writs of execution issued to the sheriff. See S.C. Code Ann. §
15-35-180 (1976) (providing that judgments requiring the payment of money or the delivery of real or personal property "may be enforced in those respects by execution as provided in this Title."); S.C. Code Ann. §15-39-80 (setting forth the requirements for the contents of the execution, including that it be directed to the sheriff and intelligibly refer to the judgment, stating the court, the county in which the judgment roll or transcript is filed, and the amount of the judgment). If a judgment is unsatisfied, the judgment creditor may institute supplementary proceedings to discover assets. S.C. Code Ann. §15-39-310 . Supplementary proceedings also "furnish a means of reaching, in aid of the judgment, property beyond the reach of an ordinary execution, such as choses in action." Lynn v. International Brotherhood of Firemen Oilers,228 S.C. 357 ,362 ,90 S.E.2d 204 ,206 (1955).
Reference
- Full Case Name
- Ex Parte Missy Wilson, in Re Bb T of South Carolina v. Kim A. Pender, of Whom Bb T of South Carolina Is
- Cited By
- 36 cases
- Status
- Published