Huntley v. Young

462 S.E.2d 860 (1995)

Wilson D. HUNTLEY, Jr. and Wely, Inc., Respondents, v. Edward L. YOUNG, Appellant.

No. 24319.

Supreme Court of South Carolina.

Submitted May 18, 1994.

Decided September 18, 1995.

David W. Keller, Jr. and S. Porter Stewart, II, both of McGowan, Keller, Eaton & Stewart, Florence, for appellant.

James C. Cox, Jr. and James H. Lucas, both of Saleeby & Cox, P.A., Hartsville, for respondents.

PER CURIAM:

This is an appeal from an order denying appellant's Rule 12(b)(6), SCRCP, motion to dismiss all nine causes of action alleged in *861 respondents' complaint. Although generally the denial of a Rule 12(b)(6) motion is not directly appealable, we have allowed an appeal in cases such as this where the issue is whether a claim is properly asserted as a direct action or as a shareholder's derivative action. Compare Moyd v. Johnson, 289 S.C. 482, 347 S.E.2d 97 (1986) with Hite v. Thomas & Howard Co., 305 S.C. 358, 409 S.E.2d 340 (1991). We now reconsider Hite, and overrule it to the extent it holds this type of order is directly appealable.

The denial of a Rule 12(b)(6) motion does not establish the law of the case nor does it preclude a party from raising the issue at a later point or points in the case. Since the order denying the Rule 12(b)(6) motion does not finally decide any issue, it is not directly appealable. See McLendon v. South Carolina Dept. of Highways and Public Transportation, ___ S.C. ___, 443 S.E.2d 539 (1994).

Each party shall bear its own costs and attorneys' fees. This appeal is

DISMISSED.