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Senter v. Piggly Wiggly Carolina Company6/12/2000
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, . . . or (c) strikes out an answer or any part thereof or any pleading in any action;
We disagree. The code provision relied upon as controlling by the petitioner has been interpreted as not merely allowing, but rather as requiring immediate appeal when the trial court's order deprives a party of a mode of trial to which it is entitled as a matter of right. Creed v. Stokes, 285 S.C. 542, 331 S.E.2d 351 (1985). The majority of cases requiring immediate appeal involve review of denials of trial by jury and are based on the public policy consideration of advancing the constitutional mandate to preserve the right to trial by jury inviolate. Lester v. Dawson, 327 S.C. 263, 491 S.E.2d 240 (1997); C & S Real Estate Services, Inc. v. Massengale, 290 S.C. 299, 350 S.E.2d 191 (1986); First Union National Bank of South Carolina v. Soden, 333 S.C. 554, 511 S.E.2d 372 (Ct. App. 1998); Preferred Sav. Bank, Inc., v. Elkholy, 303 S.C. 95, 399 S.E.2d 195 (Ct. App. 1990). We decline petitioner's invitation to ~ extend our interpretation of this statute so as to permit or to require immediate appeal of orders denying bifurcation of the issues of liability and damages.
In a matter decided pursuant to § 14-3-330 (2), this Court recently held that a trial court's order denying a change of venue "did not 'affect' the defendant's right to venue in the county of its residence because any error in the order can be corrected on appeal following the trial." See Breland v. Love Chevrolet Olds. Inc., Op. No. 25080 (S.C. Sup. Ct. filed March 6, 2000)(Shearouse Adv. Sh. No. 9 at 30) (citing Knowles v. Standard Sav. & Loan Ass'n, 274 S.C. 58, 261 S.E.2d 49 (1979)). Such is the case here. This procedure will advance the salutary consideration of avoiding "piecemeal litigation" which would occur if immediate review of such pretrial motions were either mandated or permitted. Id.
Petitioner argues that the recent Court of Appeals decision in Flagstar Corp. v. Royal Surplus Lines, 332 S.C. 182, 503 S.E.2d 497 (Ct. App. 1999), in which the court held that a trial court's order granting bifurcation of issues in a contract case was immediately appealable, constitutes an implicit holding that a Rule 42(b) order is immediately appealable if it deprives a party of a mode of trial to which it is entitled as a matter of right. Flagstar, which was consolidated with this case for argument, affords no comfort to the petitioner in that we have this date reversed the Court of Appeals' holding in that case. Flagstar Corp. v. Royal Surplus Lines, Op. No. 25150 (S.C. Sup. Ct. filed June 12, 2000).
We therefore hold that an order denying bifurcation of the issues of liability and damages in a personal injury case is not immediately appealable, either permissibly or mandatorily, pursuant to S.C. Code Ann. § 14-3-330(2) (1976).
CONCLUSION
Based on the foregoing discussion, the order of the Court of Appeals is AFFIRMED.
TOAL, C.J., MOORE, WALLER, and BURNETT, JJ., concur.
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