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South Carolina
Judicial Department
3048 - Portman, et al. v. Garbade, et al.
Portman, et al. v. Garbade, et al.

In The Court of Appeals

Barnard M. Portman, Gary D. Brown, Donald V. Barkowitz and Michael K. Gardner, Appellants,


Donald H. Garbade, Jr., Richard L. Garbade, Nancy Garbade Jenkins, Arnold Berg Garbade, Jr., David M. Garbade, Phillip M. Garbade and Edward Perry Garbade, Of Whom

Donald H. Garbade, Jr., Richard L. Garbade, and Nancy Garbade Jenkins are Respondents.


Appeal From Jasper County
R. Markley Dennis, Jr., Circuit Court Judge

Opinion No. 3048
Heard January 14, 1999 - Filed September 20, 1999


Darrell T. Johnson, Jr., of Darrell T. Johnson, Jr. Law Offices, of Hardeeville, for appellants.

A. Parker Barnes, Jr. and David S. Black, both of A. Parker Barnes, Jr. & Associates, of Beaufort, for respondents.


HUFF, J: Barnard M. Portman, Gary D. Brown, Donald V. Barkowitz and Michael K. Gardner (Attorneys) brought this action seeking partition of land in which they claim they owned a percentage of the interest of their former clients, Donald H. Garbade, Jr., Richard L. Garbade, and Nancy Garbade Jenkins (Garbades). The trial court granted the Garbades' Rule 12(b)(6), SCRCP motion. We affirm.


The Attorneys represented the Garbades in a will contest that was finally decided in their favor by the South Carolina Supreme Court in Garbade v. Garbade, 260 S.C. 58, 194 S.E.2d 186 (1973). As a result of the will contest, each of the Garbades inherited a one-seventh undivided interest in the property.

On September 16, 1996, the Attorneys filed this action seeking partition of the property. They claimed they contractually owned a fifty percent undivided interest in the Garbades' combined three-sevenths undivided interest. This claim is based on an oral contingency fee agreement for legal fees the Attorneys incurred representing the Garbades in the will contest that was decided more than twenty years previously.

The Garbades answered asserting numerous defenses. They also filed a motion to dismiss pursuant to Rule 12(b)(6), SCRCP asserting numerous bases for dismissal. At the hearing, the trial court stated it was granting the motion to dismiss because the Attorneys were not tenants in common in the property and were not entitled to partition under S.C. Code Ann. ยง15-61-10 (1976).(1) The order lists the grounds raised for dismissal as (1) the Attorneys lack of standing to bring the partition action; (2) the suit's being barred by the statute of limitations; (3) the minority of two of the Garbades at the time of alleged contract, thus their having lacked capacity to enter into the alleged contract; (4) and the failure to satisfy the statute of frauds because no writing exists. The order granted the motion to dismiss with prejudice without stating on which ground, or grounds, the dismissal was based.

The Attorneys filed a motion for reconsideration asserting that the basis for the trial court's granting the motion to dismiss was its holding that an equitable interest did not support a partition action and implicit in such a ruling is the inference that the dismissal was without prejudice. The Attorneys claimed they should have been granted the opportunity to amend their complaint. The trial court denied the motion in a form order.


The Attorneys first argue the trial court erred in finding facts and considering matter outside of the four corners of their complaint. The Attorneys never made any objection to the trial court's questions at the hearing.(2) Moreover, in their motion for reconsideration, they did not argue the trial court had considered matters outside of the scope of Rule 12(b)(6), SCRCP. This issue, therefore, is not preserved for appellate review. Food Mart v. South Carolina Dep't. of Health and Envtl. Control, 322 S.C. 232, 471 S.E.2d 688 (1996) (matters not argued to or ruled on by the trial court are not preserved for appellate review).

The Attorneys also argue the trial court erred in granting the motion to dismiss on the ground that an equitable interest could not be partitioned. The trial court's order, however, did not limit the basis of its dismissal to the Attorneys' lack of standing to bring the partition action. Instead, it listed a number of grounds stated in the Garbades' motion to dismiss and then granted the motion. Thus, the other grounds listed in the order are alternate grounds for dismissal of the case. Because the Attorneys failed to appeal these alternate grounds, they stand as the law of the case. In re: Morrison, 321 S.C. 370, 468 S.E.2d 651 (1996) (ruling which is not contested on appeal is the law of the case); Biales v. Young, 315 S.C. 166, 432 S.E.2d 482 (1993) (failure to argue alternative ground is abandonment of issue and precludes consideration on appeal): Columbia (SC) Teachers Federal Credit Union v. Newsome Chevrolet-Buick, 303 S.C. 162, 399 S.E.2d 444 (Ct. App. 1990) (alternative ruling of trial court not excepted to, constitutes basis for affirming the trial court and is not reviewable on appeal). Accordingly, we affirm the trial court's ruling on this issue.

Finally, the Attorneys contend the trial court erred in dismissing their complaint with prejudice instead of allowing them to amend. We disagree.

Prior to the adoption of the Rules of Civil Procedure,(3) the South Carolina Supreme Court stated:

Ordinarily, when a demurrer is sustained for mere insufficiency, the complaint should not be absolutely dismissed, if the omission can be supplied by amendment, for the latter course saves the delay, trouble, and expense of bringing a new action. But, when the complaint shows affirmatively that plaintiff is not entitled to relief in any view of the case, dismissal of the action is proper; and, in such cases, the judgment of dismissal will bar another action for the same cause.

Owens v. Atlantic Coast Lumber Corp., 108 S.C. 258, 94 S.E. 15 (1917). See, e.g., A. McCoy's, Inc. v. Garner, 281 S.C. 378, 315 S.E.2d 812 (Ct. App. 1984) (affirming trial court's dismissal with prejudice of appellant's claim for alleged debt by decedent where appellant failed to file a properly attested claim against the estate).

The trial court's dismissal of the complaint on the alternate grounds, including the statute of limitations and statute of frauds, is the law of the case. Clearly, under these grounds, the Attorneys are not entitled to relief in any view of the case. We, therefore, cannot say the trial court erred in dismissing the case with prejudice. Accordingly, the order below is


GOOLSBY, J., concurs. HOWARD, J., dissenting in a separate opinion.

1. This section provides, in pertinent part, "All joint tenants and tenants in common who hold, jointly or in common, . . . shall be compellable to make severance and partition of all such lands, tenements and hereditaments."

2. After asserting his clients had an equitable interest in the property the Garbades hold legal title to, counsel stated, "Our short answer to all of the other allegations is that all of those are affirmative defenses." Counsel never argued the trial court could not consider affirmative defenses in deciding a 12(b)(6)motion.

3. Port Royal Terminal Corp. v. South Carolina Ports Authority, 291 S.C. 130, 352 S.E.2d 482 (1987) ("There is no substantive difference between a demurrer on the ground a complaint fails to state facts sufficient to constitute a cause of action and a Rule 12(b)(6) motion to dismiss upon the same ground. Differences are procedural only and involve the time and manner of presentation.").