Brown v. LeveretteBrown v. Leverette
Appellants Brown brought this action against the individual respondents for personal injury and loss of consortium as a result of an automobile accident allegedly caused by the respondents’ negligent maintenance of an unpaved road in Lexington County. Respondents moved to dismiss the action pursuant to Rule 12(b)(6) of the South Carolina Rules of Civil Procedure. The trial court granted the motion. We reverse.
The appellants initially brought an action on June 24, 1981, against the County of Lexington based upon the sаme facts as set out below, naming only the County as a party defendant. The County demurred to the complaint. The trial court ruled the action could only be brought against the County pursuant to
Appellants commenced the instant suit against the respоndents in their individual capacity by filing a Summons and Complaint on June 28,1985. The complaint alleges that on July 7, 1979, the appellant Beverly Brown was injured when the car in which she was a passenger struck a pothоle(s) on an unpaved highway in Lexington County. The appellants assert that the respondents owed а duty to properly maintain the roads and that their negligent perfor-
Respondents moved to dismiss the complaint pursuant to Rule 12(b)(6) of the South Carolina Rules of Civil Procedure on the grounds that: 1) the respondents were not chargеd with the duty of maintaining the county highways at the time of the accident; 2) the suit is barred by the one year statute of limitation provided in § 57-17-830, supra; and 3) the action is barred by res judicata and collateral estoppel. The respondents submitted affidavits in support of the motion. The trial court ruled in the affirmative on each ground of the respondents’ motiоn and dismissed the complaint. Appellant contends the trial court erred in dismissing the action.
Rule 12(b)(6) of thе South Carolina Rules replaces and performs the same function as the old statutory pleading rules regarding demurrers.
New Hanover County Department of Social Services, ex rel. Gore v. Grahаm,
288 S. C. 138,
“[I]f on a motion asserting the defense numbered (6) tо dismiss for failure to state facts sufficient to constitute a cause of action, matters outside thе pleading are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56,- and all parties shall be given reasonable opportunity .to present all material made pertinent to such a motion by Rule 56.” [Emphasis added.]
This Court has not previously had an opportunity to interpret this рrovision. It is our view the language of the Rule is clear, and it states plainly that the trial court may treаt a 12(b)(6) motion as a motion for summary judgment and consider matters presented outside of the pleаdings
if
the parties are afforded a reasonable opportunity to respond to such matters in accordance with Rule 56(c) and (e) of the South Carolina Rules of Civil Procedure. The notice provisions in Rule 56 are incorporated into
The order of the trial court does not speсifically indicate the court considered the respondents’ supporting affidavits in ruling on the 12(b)(6) motion аnd heard the motion as a motion for summary judgment. However, it is apparent the trial court necеssarily looked beyond the complaint and considered the responents’ affidavits in ruling on the motion in order for the court to conclude in its order that “at the time of the matters alleged in the Comрlaint, [respondents] were not charged with the duty of maintaining the county highways and traffic control devices on the county highways of Lexington County.” This conclusion is not ascertainable from the face оf the complaint and could only have been discerned from the affidavits. The trial court gave nо notice to the parties that it was going to consider the affidavits and hear the 12(b)(6) motion as a mоtion for summary judgment. The first indication that the respondents’ affidavits would be used to support the 12(b)(6) motion was the trial court’s order of dismissal.
We conclude the trial court erred in considering the respondents’ supporting affidavits in ruling on the 12(b)(6) motion. It is also our opinion that the trial court’s ruling on the statute of limitations, res judicata and collateral estoppel was error because these defenses were not apparent from the face of the complaint.