In The Court of Appeals

TCI Media, Inc., Appellant,


NuVox Communications, Inc., Respondent.

Appeal From Greenville County
Honorable Michael G. Nettles, Circuit Court Judge

Unpublished Opinion No. 2009-UP-004
Heard November 6, 2008 – Filed January 7, 2009


Mark Weston Hardee, Esquire, and William Norman Nettles, Esquire, both of Columbia, for Appellant.

Samuel W. Outen, Esquire, and William J. Watkins, Jr., Esquire, both of Greenville, for Respondent.

GEATHERS, J.: This appeal arises from the grant of a motion to dismiss.  The circuit court’s order of dismissal was precipitated by the Respondent’s motion to dismiss pursuant to Rule 12(b)(1), SCRCP, for lack of subject matter jurisdiction. 


Appellant TCI Media, Inc. (TCI) contracted with Respondent NuVox Communications, Inc. (NuVox) to provide certain services to TCI, including the electronic storage of specific information.  Pursuant to its contractual rights, TCI requested customer information from NuVox, and NuVox denied TCI’s request. 

Simultaneously, TCI was involved in criminal litigation in the United States District Court of the Southern District of Ohio (District Court) regarding its business transactions.  During the federal investigation, the Department of Justice served subpoenas on NuVox, seeking disclosure of certain stored e-mail accounts registered to one of TCI’s co-defendants.  In response, TCI and its co-defendants instituted civil litigation seeking discovery, a return of assets seized by the federal government, and injunctive relief, among other claims.  The District Court stayed the civil litigation pending resolution of the criminal case. 

Subsequently, TCI filed the instant action to obtain the previously requested information.  The complaint alleged that NuVox breached the contract and its fiduciary duty by declining to provide the information to TCI.  TCI admitted at the hearing on the motion to dismiss, and on appeal, that it sought this information to assist it in the federal criminal litigation.  In response, NuVox filed a motion to dismiss, or in the alternative, to stay litigation, on two grounds.  NuVox asserted that (1) the District Court issued two orders prohibiting further discovery in civil litigation, such as that sought by TCI, and (2) 18 U.S.C.A. § 2703(e) prohibited the very litigation commenced by TCI.[1]  The circuit court found that the District Court’s orders were not binding in the state court proceeding and that the federal statute was inapplicable in the instant case.  Nonetheless, the circuit court dismissed the matter, finding that TCI brought the lawsuit solely to circumvent the discovery provisions of the Federal Rules of Criminal Procedure, and that such action constituted an abuse of process. 


TCI only discusses and provides authority for one of its issues on appeal, and therefore, the other issue is deemed abandoned.[2]  See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (issues not argued in the brief are deemed abandoned and will not be considered on appeal); Ellie, Inc. v. Miccichi, 358 S.C. 78, 99, 594 S.E.2d 485, 496 (Ct. App. 2004) (where an issue is not argued within the body of the brief but is only a short conclusory statement, it is abandoned on appeal). Hence, the only issue on appeal is whether the circuit court erred in granting NuVox’s motion to dismiss by considering TCI’s purpose for requesting its records. 


In this case, Respondent filed a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.  A question of subject matter jurisdiction is a question of law for the court.  Lake v. Reeder Constr. Co., 330 S.C. 242, 247, 498 S.E.2d 650, 653 (Ct. App. 1998).


A.  Subject Matter Jurisdiction

A challenge to subject matter jurisdiction can be raised by a motion to dismiss pursuant to Rule 12(b)(1), SCRCP.  Ballenger v. Bowen, 313 S.C. 476, 478, 443 S.E.2d 379, 380, n.2 (1994); Wheeler v. Morrison, 313 S.C. 440, 442, 438 S.E.2d 264, 265 (Ct. App. 1993).

Subject matter jurisdiction is the “power to hear and determine cases of the general class to which the proceedings in question belong.”  Coon v. Coon, 364 S.C. 563, 566, 614 S.E.2d 616, 617 (2005); Mr. T v. Ms. T, 378 S.C. 127, 133, 662 S.E.2d 413, 416 (Ct. App. 2008).  “Subject matter jurisdiction is met if the case is brought in the court which has the authority and power to determine the type of action at issue.”  Washington v. Whitaker, 317 S.C. 108, 115, 451 S.E.2d 894, 898 (1994). 

There is only one circuit court in South Carolina and it has uniform subject matter jurisdiction throughout the State.  Dove v. Gold Kist, 314 S.C. 235, 238, 442 S.E.2d 598, 600 (1994); see also S.C. Const. art. V, § 1.  The circuit court has subject matter jurisdiction over civil and criminal actions.  Id.  Therefore, the circuit court had subject matter jurisdiction to adjudicate the contract dispute between TCI and NuVox. 

B.  Circuit Court’s Basis for Dismissing the Action       

The circuit court’s basis for dismissing the instant action was erroneous.  The circuit court did not specifically grant the motion to dismiss pursuant to Rule 12(b)(1), SCRCP.  Rather, the court granted the motion because it found that the “lawsuit was brought solely to circumvent the discovery provisions of the Federal Rules of Criminal Procedure.”  The court stated:

This court recognizes that if the primary purpose of [the instant case] was something other than conducting discovery for a federal criminal case pending in Ohio, it would not be objectionable that discovery in South Carolina might have the ancillary benefit of assisting TCI and the criminal defendants in the federal case.  However, this court cannot permit an action to be instituted solely to gain information, when that information should be obtained through the use of the Federal Rules of Criminal Procedure.

In other words, the circuit court conceded that it did have jurisdiction of the matter, but it simply did not sanction TCI’s motive for bringing the suit.  However, the purpose for which a lawsuit is commenced is not a relevant inquiry for determining whether a court has subject matter jurisdiction. 

Further, the circuit court’s reliance on Food Lion, Inc. v. United Food & Commercial Workers Int’l Union, 351 S.C. 65, 567 S.E.2d 251 (Ct. App. 2002) and Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206, 153 S.E.2d 693 (1967) as authority for dismissal is misplaced.  These cases involve the common-law tort of abuse of process, which provides a remedy for one harmed by another’s perversion of a legal procedure for a purpose not intended by the procedure.  See Food Lion, Inc. at 69-70, 567 S.E.2d at 253 (citing Huggins at 210, 153 S.E.2d at 695 and W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 121 at 897 (5th ed. 1984)). 

“An abuse of process action is not designed to compel compliance with court procedure or to deter future misconduct.  Rather, the tort is intended to compensate a party for harm resulting from another’s misuse of the legal system.”  Food Lion, Inc. at 74 n.5, 567 S.E.2d at 255 n. 5.  The misuse usually takes the form of coercion to obtain a collateral advantage, and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.  Hainer v. Am. Med. Int’l, Inc., 328 S.C. 128, 136, 492 S.E.2d 103, 107 (1997).

In the instant case, it is not evident that TCI, by its initiation of the lawsuit, misused the legal system through coercive acts that were intended to harm NuVox.  In fact, the circuit court found that TCI’s purpose for bringing the lawsuit was to obtain information.  While there may be other avenues for addressing TCI’s underlying motives, the procedural mechanism utilized by the circuit court is not the proper one; and, the authority underlying the abuse of process tort is not a proper basis for dismissing TCI’s suit.  Hence, the circuit court erred when it used the legal basis of abuse of process as authority for granting the dismissal.

C.  Rule 12(b)(6), SCRCP

While the Record on Appeal does not so indicate, TCI asserts, and the parties conceded at oral argument before this Court, that the trial court’s order of dismissal was more likely based on a 12(b)(6), rather than on a 12(b)(1), rationale.  However, even if the motion to dismiss was granted pursuant to Rule 12(b)(6), SCRCP, the result in the instant matter would be the same. 

The ruling on a 12(b)(6), SCRCP, motion to dismiss must be based solely on the allegations set forth in the complaint.  Plyler v. Burns, 373 S.C. 637, 645, 647 S.E.2d 188, 192 (2007).  The complaint should not be dismissed merely because the court doubts that the plaintiff will prevail in the action.  Doe v. Marion, 361 S.C. 463, 469, 605 S.E.2d 556, 559 (Ct. App. 2004). The motion cannot be granted if the facts set forth in the complaint and the inferences reasonably drawn therefrom would entitle the Plaintiff to relief on any theory of the case.  Ashley River Prop. I, L.L.C. v. Ashley River Prop. II, L.L.C., 374 S.C. 271, 278, 648 S.E.2d 295, 298 (Ct. App. 2007). Because TCI pleaded facts sufficient to state a cause of action for breach of contract, the trial court’s grant of dismissal pursuant to 12(b)(6) would also constitute reversible error. 


Accordingly, the circuit court’s order is


WILLIAMS, J., and PIEPER, J., concur.  

[1]  18 U.S.C.A. § 2703(e) provides: No cause of action shall lie in any court against any provider of wire or electronic communication services, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.

[2] Thus, we will not address the issue of whether a customer has the right to use the South Carolina judicial process to enforce contractual rights against a South Carolina business.