BB & T v. Pender

Citations: 367 S.C. 7; 625 S.E.2d 205; 2005 S.C. LEXIS 382Docket: No. 26089

Court: Supreme Court of South Carolina; December 27, 2005; South Carolina; State Supreme Court

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BB. T of South Carolina (Appellant) filed an appeal against a lower court's order that quashed a subpoena duces tecum served on a nonparty before enforcement of a judgment. The Supreme Court of South Carolina certified the case for review but ultimately dismissed the appeal, determining that the lower court's order was not immediately appealable. 

Factual background indicates that on January 14, 2003, Appellant initiated a debt collection action against Kim A. Pender, resulting in a default judgment in March 2003. In April 2003, the Law Offices of Paul J. Kamber, representing a different Kim A. Pender, sought to confirm if their client was the same individual. After failed communications regarding identification data, Appellant issued a subpoena for Kamber's entire file on May 12, 2003. Respondent, Kamber’s legal assistant, moved to quash the subpoena, citing attorney-client privilege and the absence of a pending action against Pender. 

The circuit court granted Respondent’s motion, stating that Rule 69, SCRCP, does not allow discovery post-judgment except in supplementary proceedings or to aid execution, and that the requested documents were protected by attorney-client privilege. 

Legal issues addressed included whether the order quashing the subpoena was immediately appealable and whether the lower court erred in its ruling. The analysis concluded that the order was not immediately appealable under South Carolina law, which permits review of intermediate orders only in conjunction with a final judgment.

An order affecting a substantial right in a legal action can be appealable under certain conditions, including when it determines the action, grants or denies a new trial, or strikes out pleadings. Generally, only final judgments are subject to appeal, as highlighted in case law, which defines a final judgment as one that conclusively divests parties of rights in a way that the court cannot restore them to their original state. Interlocutory orders, which leave further actions necessary for determining rights, are not considered final and are typically not appealable. Specific statutes, such as 14-3-330, govern the immediate appealability of interlocutory orders affecting substantial rights, allowing for appeals on orders that discontinue actions or affect the merits of the case.

In this context, an order quashing a subpoena duces tecum is deemed interlocutory and not immediately appealable, as it does not involve the merits or affect a substantial right. The appellant's argument that the order granted an injunction and thus was appealable is rejected, as the court finds that the order does not meet the criteria for immediate appealability. Although the order is dismissed as not appealable, the court addresses the issue of post-judgment discovery under Rule 69, SCRCP, stating that such discovery cannot be conducted without a writ of execution or supplementary proceedings.

Rule 69, titled 'Execution', establishes that a writ of execution is the standard process to enforce a monetary judgment, barring any contrary court direction. It outlines that execution procedures, including supplementary proceedings, will adhere to existing laws. Judgment creditors or their successors can conduct examinations of any person, including the judgment debtor, as part of the discovery process. The rule aligns closely with the Federal Rule, adapting state practices under S.C. Code Sections 15-39-10 through 15-39-150, and enables discovery under Rules 26 to 37. Interpretation of the South Carolina Rules of Civil Procedure follows the same principles as statutory interpretation, emphasizing clarity in language, context, and the overarching purpose of the rules. Specifically, the phrase 'in the aid of the judgment or execution' implies that a writ of execution or supplementary proceedings must precede post-judgment discovery. The court dismissed the appeal regarding the order quashing a subpoena because it was not immediately appealable and clarified that discovery under Rule 69 requires prior issuance of a writ of execution or initiation of supplementary proceedings. The court's decision also affirms that supplementary proceedings are equitable.

The judgment under Fed. R. Civ. P. 58 concludes the determination of liability and relief but initiates collection proceedings if the defendant does not pay. A contested collection may result in a judgment or multiple judgments that provide supplementary relief to the plaintiff. The final judgment in the collection process is the one from which the defendant can appeal, as established in Johnson v. Serv. Mgmt. Inc. Judgments are typically enforced through writs of execution issued to the sheriff, as outlined in S.C. Code Ann. § 15-35-180. This statute allows for enforcement regarding payments or delivery of property. Additionally, S.C. Code Ann. § 15-39-80 mandates specific requirements for the execution's content, including direction to the sheriff and clear identification of the judgment and relevant details. If a judgment remains unsatisfied, the creditor can initiate supplementary proceedings to discover assets, as per S.C. Code Ann. § 15-39-310. These proceedings can also help access property not reachable by standard execution methods, such as choses in action, as noted in Lynn v. International Brotherhood of Firemen Oilers. Rule 34, SCRCP, references Rule 45, SCRCP regarding these processes.