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Breland v. Love Chevrolet Olds3/6/2000
reviously litigated in this Court. See Godley v. Uniroyal, Inc., 278 S.C. 571, 300 S.E.2d 78 (1983).
Already the progress of this case has been delayed several years over the issue of venue. Requiring a defendant to wait until after trial to appeal the issue of proper venue is the most appropriate course to take where any error in that decision will not prejudice the defendant anymore than other interlocutory orders which, if in error, would require a new trial. .
Since any trial court error concerning venue will be correctable upon appeal, the only damage a losing party will sustain is the expense of litigating in an improper county. Even though proper venue is a substantial right, we have previously found the avoidance of a trial is not a sufficient to justify immediate appellate review. See Shields v. Martin Marietta Corp., 303 S.C. 469, 402 S.E.2d 482 (1991). In this case, since any venue error will be correctable upon appeal after trial, we find the right of proper venue has not been affected such that the order would be immediately appealable.
II. Previous Cases Allowing Immediate Appeal
The Defendants argue that the order denying a transfer of venue is appealable because this Court has entertained such appeals before. We disagree.
On several occasions, this Court has entertained immediate appeals from orders granting or denying motions for change of venue. See Ellis v. Oliver, 307 S.C. 365, 415 S.E.2d 400 (1992); Blizzard v. Miller, 306 S.C. 373, 412 S.E.2d 406 (1991); Carroll v. Guess, 302 S.C. 175, 394 S.E.2d 707 (1990); Chestnut v. Reid, 299 S.C. 305, 384 S.E.2d 713 (1989). However, appealability was not an issue raised by any party in those cases. The fact that an appellate court may have decided an appeal of a particular type of order on the merits is not dispositive of whether the order is appealable when the issue of appealability was not raised. Woodard v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995); State v. Lockhart, 275 S.C. 160, 267 S.E.2d 720 (1980); Wallace v. Interamerican Trust Co. , 246 S.C. 563, 144 S.E.2d 813 (1965).
Those cases also fail to discuss Godley v. Uniroyal, Inc., 278 S.C. 571, 300 S.E.2d 78 (1983), Sanders v. Amoco Oil Co., 283 S.C. 195, 320 S.E.2d 334 (Ct. App. 1984), and Lewis v. Atkinson Implement Co. Inc., 280 S.C. 87, 311 S.E.2d 80 (Ct. App. 1983) which clearly hold such orders are not immediately appealable. Therefore, Defendant's argument that these cases support the appealability of such venue decisions is without merit.
CONCLUSION
Based on the foregoing, the order of the Court of Appeals is AFFIRMED.
MOORE, WALLER, BURNETT, JJ., and Acting Associate Justice R. Markley Dennis, Jr., concur.
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