STATE OF SOUTH CAROLINA

In The Supreme Court

Skydive Myrtle Beach, Inc. (f/k/a Skydive Myrtle Beach, 

LLC), Petitioner,

v.

Horry County, Horry County Department of Airports, H. 

Randolph Haldi, Pat Apone, Tim Jackson, and Jack Teal, 

Defendants,

of whom H. Randolph Haldi, Pat Apone, Tim Jackson, and 

Jack Teal are Respondents.

Appellate Case No. 2017-001382

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Horry County

Larry B. Hyman Jr., Circuit Court Judge 

Opinion No. 27867

Heard November 8, 2018 – Filed March 13, 2019

REVERSED 

Robert B. Varnado and Alexis M. Wimberly, both of 

Brown & Varnado, LLC, of Mt. Pleasant, for Petitioner. 

Samuel F. Arthur, III, of Aiken, Bridges, Elliott, Tyler & 

Saleeby, P.A., of Florence, for Respondents. 
JUSTICE FEW: Skydive Myrtle Beach, Inc. brought this lawsuit alleging Horry 

County, Horry County Department of Airports, and several of their individually 

named employees improperly attempted to remove Skydive from the space it leased

at Grand Strand Airport in North Myrtle Beach, South Carolina. The circuit court 

dismissed Skydive's claims against the individually named employees pursuant to 

Rule 12(b)(6) of the South Carolina Rules of Civil Procedure, without allowing 

Skydive leave to amend its complaint. The court of appeals affirmed in an 

unpublished opinion. Skydive Myrtle Beach, Inc. v. Horry County, Op. No. 2017-

UP-118 (S.C. Ct. App. filed March 8, 2017). We reverse the court of appeals and 

remand to the circuit court to allow Skydive an opportunity to file an amended 

complaint. 

I. Rule 15(a), SCRCP

Horry County and the Department of Airports answered Skydive's complaint. The 

individually named employees (Respondents) filed a motion to dismiss pursuant to 

Rule 12(b)(6). Following a hearing on Respondents' motion, the circuit court 

requested proposed orders from Skydive and Respondents. Skydive submitted two 

proposed orders to the court. Each time, Skydive requested in writing it be allowed

to amend its complaint to cure any pleading defects in the event the court decided to 

grant Respondents' motion. Nevertheless, the court granted Respondents' motion 

and dismissed Skydive's claims against Respondents without considering Skydive's 

request to amend its complaint. The order specifically provided the dismissal was

"with prejudice."

When a trial court finds a complaint fails "to state facts sufficient to constitute a 

cause of action" under Rule 12(b)(6), the court should give the plaintiff an 

opportunity to amend the complaint pursuant to Rule 15(a) before filing the final 

order of dismissal. See Foman v. Davis, 371 U.S. 178, 179, 182, 83 S. Ct. 227, 228, 

230, 9 L. Ed. 2d 222, 224, 226 (1962) (where a complaint is dismissed "for failure 

to state a claim upon which relief might be granted," leave to amend the complaint 

"should, as the rules require, be 'freely given'" (quoting Rule 15(a), Fed. R. Civ. P.)); 

Dockside Ass'n, Inc. v. Detyens, Simmons & Carlisle, 297 S.C. 91, 95, 374 S.E.2d 

907, 909 (Ct. App. 1988) (holding "Dockside should have been given leave to amend 

its complaint" before it was finally dismissed pursuant to Rule 12(b), SCRCP (citing 

Foman, 371 U.S. at 182, 83 S. Ct. at 230, 9 L. Ed. 2d at 226)). Rule 15(a) "strongly 

favors amendments and the court is encouraged to freely grant leave to amend." 

Patton v. Miller, 420 S.C. 471, 489-90, 804 S.E.2d 252, 261 (2017) (quoting Parker 
v. Spartanburg Sanitary Sewer Dist., 362 S.C. 276, 286, 607 S.E.2d 711, 717 (Ct. 

App. 2005)). 

The circuit court erred by failing even to consider allowing Skydive to amend its 

complaint. See Patton, 420 S.C. at 490, 804 S.E.2d at 262 (holding the trial court's 

failure to exercise its discretion under Rule 15(a) is itself an abuse of discretion).

II. Rule 12(b)(6), SCRCP

Rule 12(b)(6) permits the trial court to address the sufficiency of a pleading stating 

a claim; it is not a vehicle for addressing the underlying merits of the claim. See, 

e.g., Charleston Cty. Sch. Dist. v. Harrell, 393 S.C. 552, 557, 713 S.E.2d 604, 607 

(2011) ("In considering a motion to dismiss pursuant to Rule 12(b)(6), SCRCP, the 

circuit court must base its ruling solely upon the allegations set forth on the face of 

the complaint."); Brown v. Leverette, 291 S.C. 364, 366, 353 S.E.2d 697, 698 (1987) 

(". . . solely upon the allegations set forth on the face of the complaint"); see also

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 

929, 940-41 (2007) ("[A] well-pleaded complaint may proceed even if it strikes a 

savvy judge that actual proof of those facts is improbable, and that a recovery is very 

remote and unlikely.") (internal quotations omitted); Republican Party of N. 

Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) ("A motion to dismiss under 

Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve 

contests surrounding the facts, the merits of a claim, or the applicability of 

defenses."). At the Rule 12 stage, therefore, the first decision for the trial court is to 

decide only whether the pleading states a claim. Skydive was—any plaintiff is—

entitled to litigate the validity of its original pleading without having to convince the 

trial court of the merits of its underlying claim.

If the trial court rules there has been a "failure to state facts sufficient to constitute a 

cause of action," then the question could become whether the plaintiff wishes to 

challenge the ruling by filing a Rule 59(e), SCRCP, motion. Filing a Rule 59(e) 

motion is not an option, however, unless the plaintiff has a legitimate argument the 

trial court erred in finding the complaint deficient. See Rule 11(a), SCRCP ("The 

. . . signature of an attorney . . . constitutes a certificate by him that . . . there is good 

ground to support [the pleading] . . . ."). Plaintiff's counsel will often decide in the 

course of litigating the validity of the original complaint that the complaint actually 

was deficient. But even if a plaintiff has an argument the complaint was valid, filing 

a Rule 59(e) motion is not a mandatory option. Skydive was—any plaintiff is—

entitled to accept the court's ruling the original complaint was deficient, and replead 

in an attempt to fix the deficiency. 
Ordinarily, therefore, the time for requesting leave to amend to correct a Rule 

12(b)(6) pleading defect is after the trial court has determined the original pleading 

was deficient. In this case, because Skydive twice asked for leave to amend before 

its complaint was dismissed, it had the option of renewing its requests in a formal 

Rule 15(a) motion. However, the circuit court's "with prejudice" order put Skydive 

in a difficult position because it made Skydive practically unable to litigate a motion 

to amend before it must file the appeal. The Rule 203(b)(1), SCACR, deadline of 

thirty days is stayed only if a Rule 59(e) motion is filed.1

 If Skydive—if any 

plaintiff—has no legitimate argument as to the merits of the Rule 12(b)(6) ruling, 

and therefore cannot file a Rule 59(e) motion, that plaintiff has no way of tolling the 

thirty day deadline for filing an appeal while the motion to amend is litigated. 

Similarly, a plaintiff who chooses to replead is practically prevented from doing so 

when the dismissal order is with prejudice because the time for appeal will not be 

tolled unless the plaintiff files a Rule 59(e) motion addressing the merits of the Rule 

12(b)(6) ruling. If Skydive either believed it had no basis on which to file such a 

Rule 59(e) motion, or simply preferred to replead instead, it was unable to litigate a 

motion to amend.

Thus, the circuit court erred not only in refusing to consider the request to amend, 

but also in effectively preventing Skydive from litigating a post-ruling motion to 

amend by immediately dismissing the claims "with prejudice." 

III. Proper Considerations under Rule 15(a)

A trial court has discretion to deny a motion to amend if the party opposing the 

amendment can show a valid reason for denying the motion. See Rule 15(a) (stating 

"leave shall be freely given when justice so requires and does not prejudice any other 

party"); Foman, 371 U.S. at 182, 83 S. Ct. at 230, 9 L. Ed. 2d at 226 (listing valid 

reasons for denying a motion to amend); Patton, 420 S.C. at 490, 804 S.E.2d at 262 

(stating "the circuit court should have considered whether the defendants were 

prejudiced by the amendment, or whether there was some other substantial reason 

to deny it"); 420 S.C. at 491 n.9, 804 S.E.2d at 262 n.9 (stating the burden of 

establishing a reason for denying the motion is on the party opposing the 

amendment); Forrester v. Smith & Steele Builders, Inc., 295 S.C. 504, 507, 369 

S.E.2d 156, 158 (Ct. App. 1988) (stating "a proper reason" to deny a motion to 

 

1 No other tolling provision in Rule 203(b)(1) would apply in this circumstance.
amend could be "bad faith, undue delay, or prejudice"); Id. ("In the absence of a 

proper reason, . . . a denial of leave to amend is an abuse of discretion.").

A court's decision to deny a motion to amend should not be based on the court's 

perception of the merits of an amended complaint. Patton, 420 S.C. at 490-91, 804 

S.E.2d at 262 (citing Tanner v. Florence Cty. Treasurer, 336 S.C. 552, 558-60, 521 

S.E.2d 153, 156-57 (1999). In rare cases, however, a trial court may deny a motion 

to amend if the amendment would be clearly futile. See Jennings v. Jennings, 389 

S.C. 190, 209, 697 S.E.2d 671, 681 (Ct. App. 2010) ("Although leave to amend 

should generally be 'freely given,' . . . it may be denied where the proposed 

amendment would be futile."),

2 rev'd on other grounds, 401 S.C. 1, 736 S.E.2d 242 

(2012); 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice 

and Procedure § 1487 (3d ed. 2010) ("If a proposed amendment is not clearly futile, 

then denial of leave to amend is improper.").

Here, the circuit court did not conduct an analysis to determine whether any 

amendment would be futile. The court of appeals, however—without articulating 

any such analysis—found the "amendment would be futile." Skydive, Op. No. 2017-

UP-118 at 3 n.1. We have attempted to conduct the analysis to determine whether,

in fact, any amendment would be futile. Even on the limited record before us, as we 

will explain, it is clear to us that allowing Skydive to amend its complaint would not 

be "clearly futile." 

We begin by stressing the difficulty of determining whether allowing an amendment 

to a pleading would be futile without examining the proposed amendment. In this 

case, the circuit court dismissed Skydive's claims against Respondents without 

having seen any attempt at amending the complaint. We cannot imagine a 

circumstance in which a trial court should refuse to allow an amendment on the 

ground of futility without seeing what the amendment would look like.3 The 

 

2 In Jennings, the court of appeals did not specifically state the amendment would 

"clearly" have been futile. A close examination of the court of appeals' explanation 

of its decision reveals, however, the proposed amendment in that case was "clearly 

futile." See 389 S.C. at 209, 697 S.E.2d at 681 (explaining the proposed new 

defendant was the attorney who was given printed emails, but had no direct access 

to the email account, and the alleged liability extended under the law only to persons 

who "actually engaged" in accessing the email account). 

3 As we will discuss below, an appellate court must consider the merits of an 

amendment to a complaint that in fact failed to state a claim, but was improperly 
immediate filing of a "with prejudice" dismissal order effectively prevented Skydive 

from preparing and presenting to the court an amended complaint before the thirtyday deadline for serving the appeal ran.

Turning to what we can discern of the futility of an amendment from the limited 

record before us, Skydive began operating a skydiving business out of the Grand 

Strand Airport in North Myrtle Beach in 2012 pursuant to a lease agreement Skydive 

executed with Ramp 66, LLC. At the time of the agreement, Ramp 66 managed the 

Grand Strand Airport as an agent of the Department of Airports and Horry County. 

In August 2013, the Department resumed control of the airport from Ramp 66. 

Respondents Pat Apone and Tim Jackson—employees of the Department—

allegedly informed Skydive a new lease agreement between the County and Skydive 

was necessary for Skydive to continue its operations at the airport. Apone and 

Jackson told Skydive a new lease required County approval. Skydive executed a 

six-month temporary lease with the Department until the County approved a longterm lease. 

Over the next few months, Skydive continued operating its business out of the 

airport. Skydive alleges it relied on Apone and Jackson's assurances that a longterm lease would soon be executed. However, several disputes arose between 

Skydive, Respondents, and the governmental entities related to Skydive's business 

operations, Skydives requests for maintenance and repair, and unauthorized entries 

onto Skydive's premises by agents of the Department. In February 2014, after the 

expiration of the temporary lease, Respondent H. Randolph Haldi—an employee of 

the County—delivered a new non-negotiable, six-month temporary lease to Skydive. 

Haldi also delivered to Skydive a seventy-two hour eviction notice in the event

Skydive declined to execute the temporary lease. Skydive alleged this "amounted 

to a retaliatory eviction notice." Skydive then filed this lawsuit against Respondents

and the governmental entities.

In the Rule 12(b)(6) motion, Respondents argued they were entitled to dismissal 

pursuant to subsection 15-78-70(a) of the South Carolina Tort Claims Act, which 

affords immunity to employees of governmental entities for actions taken in their 

 

dismissed "with prejudice" without granting leave to amend, in determining whether 

to remand to permit the plaintiff to amend. Spence v. Spence, 368 S.C. 106, 130, 

628 S.E.2d 869, 881-82 (2006).
official capacities.4

 The allegations recited above do not reveal any actions taken by 

the individual Respondents outside of their official capacities. Respondents relied 

on paragraph 8 of Skydive's complaint, which was reincorporated into each cause of 

action and provided, "At all relevant times [Respondents] were acting as agents of 

Defendants County and [the Department]." 

The circuit court agreed and granted the motion. The court characterized paragraph 

8 of Skydive's complaint as "an unequivocal allegation" that Respondents—if they 

acted at all—were doing so on behalf of the governmental entities within the scope 

of their official duties. Therefore, the court found Respondents were entitled to 

immunity under the Tort Claims Act and dismissed Respondents from Skydive's 

action.

The question before us is not whether the circuit court was correct the original 

complaint failed to refute Respondents' immunity defense. Rather, the question is 

whether the circuit court's error in refusing to allow Skydive to amend the complaint 

warrants a remand. As we will explain below in our discussion of Spence, we must 

remand unless we find any amendment would be clearly futile. As we will explain 

now, a close examination of the record indicates allowing Skydive to amend the 

complaint in an attempt to fix its pleading deficiencies would not be futile. 

Determining whether an amendment to Skydive's complaint would be futile requires 

us to consider the exceptions to immunity set forth in subsection 15-78-70(b). 

Skydive contends Respondents conspired to remove Skydive from the airport and 

engaged in conduct "designed to ruin or damage" Skydive's business. In furtherance 

of the conspiracy, Skydive contends Respondents refused to answer Skydive's 

correspondence, refused to refuel Skydive's aircraft, concealed Skydive's packages 

and mail, entered into Skydive's place of business without authorization, and 

interfered with Skydive's day-to-day operations. To prove civil conspiracy, a 

plaintiff must prove the defendant acted "for the purpose of injuring the plaintiff." 

City of Hartsville v. S.C. Mun. Ins. & Risk Fin. Fund, 382 S.C. 535, 546, 677 S.E.2d 

 

4 Under the Tort Claims Act, "[a]n employee of a governmental entity who commits 

a tort while acting within the scope of his official duty is not liable therefor except 

as expressly provided for in subsection (b)." S.C. Code Ann. § 15-78-70(a) (2005). 

Subsection (b) provides exceptions to this immunity "if it is proved that the 

employee's conduct was not within the scope of his official duties or that it 

constituted actual fraud, actual malice, intent to harm, or a crime involving moral 

turpitude." S.C. Code Ann. § 15-78-70(b) (2005).
574, 579 (2009). These allegations appear to satisfy the "intent to harm" exception. 

§ 15-78-70(b). 

Skydive claims Jackson defamed Skydive by communicating to other tenant 

businesses "false statements that were intended to impeach the honesty, integrity, 

virtue, or reputation" of Skydive. Jackson allegedly "published these statements 

with actual or implied malice" in an attempt "to injure [Skydive] in its office, 

business, or occupation," thereby exposing Skydive "to public hatred, contempt, 

[and] ridicule." Skydive further claims Apone and Jackson fraudulently 

misrepresented the county approval process for Skydive to obtain a long-term lease, 

which "caused . . . injury to [Skydive's] business interests . . . [and] its ability to 

lawfully operate." These allegations appear to satisfy the "actual fraud" or "actual 

malice" exceptions. Id. 

The record on appeal also includes claims that Respondents acted outside the scope 

of their employment at times. Specifically, Skydive alleges Haldi and Apone, 

[I]n their individual capacities and . . . acting outside the 

course and scope of their employment created a plan to 

deprive [Skydive] of its existing long-term lease by 

refusing to provide a copy of the fully-executed lease to 

[Skydive], issuing an adhesion temporary permit under 

threat of eviction, and accusing [Skydive] of unpublished 

and non-existent rule, regulation, and ordinance violations 

amounting to a plan to illegally shut down and 

permanently remove [Skydive] from [the airport].

Skydive further alleges Haldi, Apone, Jackson, and Teal (an employee of the 

Department),

[I]n their individual capacities and all acting outside the 

course and scope of their employment continued a plan to 

deprive [Skydive] of its business lease by drafting, 

presenting and having Illegal Regulations enacted by the 

County Council, reporting violations of the Illegal 

Regulations to FAA as grounds for federal violations, 

harassing [Skydive's] customers, and interfering with its 

customers.
In other instances, Skydive claims Respondents acted in the scope of employment 

but outside the scope of their official duties. For example, Skydive claims 

Respondents acted "under cloak of state authority" to carry out "malicious actions." 

Respondents' "duties" certainly did not include acting with malice toward the lessees 

of the Department. Further, by alleging Respondents conspired to remove Skydive's 

business from the airport, defamed Skydive's business, and fraudulently 

misrepresented the county lease approval process, Skydive suggests Respondents 

were acting against the interests of their employers, which certainly would be outside 

of their official duties. 

A governmental employee is not afforded immunity under the Tort Claims Act for 

conduct outside the scope of his official duties, or for conduct that amounts to actual 

fraud, actual malice, or an intent to harm. § 15-78-70(b). Therefore, although 

Skydive alleged in its complaint that Respondents were acting as agents of the 

governmental entities, the facts and claims recited above set forth several plausible 

grounds upon which Skydive could successfully allege Respondents are not entitled 

to immunity. It is not our role to determine whether the allegations Skydive might 

make in an amended pleading will state a valid claim. However, we cannot 

definitively say it is impossible for Skydive to plead a valid claim against 

Respondents. 

We now address two points the court of appeals listed as additional bases for 

affirming the circuit court's dismissal with prejudice without leave to amend. First, 

the court of appeals stated, "We agree with the circuit court that it would be 

inequitable to allow Skydive to assert conflicting theories that the individual 

defendants acted both inside and outside the scope of their official duties." Skydive, 

Op. No. 2017-UP-118 at 2. Neither the circuit court nor the court of appeals cited 

any provision of law that supports either dismissing a complaint or refusing to allow 

its amendment on the basis that the pleading is unfair or inequitable. We are not 

aware of any provision of law that prevents a party from making "inequitable" 

allegations. But see Rule 12(f), SCRCP (providing "the court may order stricken 

from any pleading any insufficient defense or any redundant, immaterial, 

impertinent or scandalous matter"). 

We find it is entirely appropriate for Skydive to allege that some of an individual's 

actions were within the scope of their official duties, and some were not, or even to 

plead alternative theories of liability depending on whether an individual's actions 

were within the scope of their duties. See Rule 8(a), SCRCP ("Relief in the 

alternative or of several different types may be demanded."). Pleading alternative 

theories of recovery based on the uncertainty of whether an employee acted within 
the scope of his employment or his official duties is common. See, e.g., Dickert v. 

Metro. Life Ins. Co., 311 S.C. 218, 220, 428 S.E.2d 700, 701 (1993), as modified on 

reh'g (Apr. 7, 1993) (reversing the circuit court for not permitting simultaneous 

causes of action against co-worker and employer based on the same conduct, stating, 

"Co-Employee may . . . be held individually liable for an intentional tort he may 

have committed while acting within the scope of employment"). While Dickert is 

out of context from this case, other courts have addressed similar alternative theories 

of recovery. In United Technologies Corp. v. Mazer, 556 F.3d 1260 (11th Cir. 2009), 

for example, the district court granted a motion to dismiss for failure to state a claim. 

556 F.3d at 1266. "The district court was . . . disturbed by [the plaintiff's] allegation 

that Mazer acted both personally and on behalf of [his employer]5 West–Hem, which 

the court found to be irreconcilably inconsistent." 556 F.3d at 1273. The Eleventh 

Circuit dismissed the district court's concern,

[W]e are not troubled by what the district court saw as 

inconsistent allegations. Rule 8(d) of the Federal Rules of 

Civil Procedure[6] expressly permits the pleading of both 

alternative and inconsistent claims. Thus, [the] complaint 

is not subject to dismissal simply because it alleges that 

both Mazer, individually, and West–Hem committed the 

tortious conduct, even if it would be impossible for both 

to be simultaneously liable (which question of 

impossibility we need not, and do not, resolve).

556 F.3d at 1273-74. See also Johnson v. State Dep't of Health & Rehab. Servs., 

695 So. 2d 927, 930 (Fla. Dist. Ct. App. 1997) (in a tort claims case under a similar 

immunity provision, stating, "Johnson can therefore make claims against [the 

governmental entities] for acts of [their employees] committed within the scope of 

their employment and, in the alternative, pursue personal liability of these 

defendants").

Finally, we address the court of appeals' statement, "The circuit court did not abuse 

its discretion in dismissing the complaint with prejudice," relying on our decision in

Spence v. Spence, 368 S.C. 106, 628 S.E.2d 869 (2006). In this case and others, the 

 

5 "Mazer . . . is president and part owner of West–Hem . . . ." 556 F.3d at 1267.

6 Rule 8(d), Fed. R. Civ. P., is the federal counterpart to our Rule 8(a) "alternative" 

relief provision. 
court of appeals misinterpreted Spence. A circuit court does not have "discretion" 

to dismiss a complaint with prejudice for failure to state a claim under Rule 12(b)(6)

without at least considering whether to allow leave to amend under Rule 15(a). 

Under Rules 12(b)(6) and 15(a), the circuit court may not dismiss a claim with 

prejudice unless the plaintiff is given a meaningful chance to amend the complaint,

and after considering the amended pleading, the court is certain there is no set of 

facts upon which relief can be granted. As we will explain, Spence supports this 

principle.

In Spence, we made several observations about the dismissal of claims pursuant to 

Rule 12(b)(6). We stated, "When a complaint is dismissed under Rule 12(b)(6) for 

failure to state facts sufficient to constitute a cause of action, the dismissal generally 

is without prejudice. The plaintiff in most cases should be given an opportunity to 

file and serve an amended complaint." 368 S.C. at 129, 628 S.E.2d at 881. We then 

cited numerous decisions—including Foman and Dockside Association—in which 

the court held (1) the plaintiff should be given an opportunity to amend a complaint 

dismissed under Rule 12(b)(6), or (2) the trial court should not refuse the amendment 

on the ground of futility unless the amendment would be clearly futile. 368 S.C. at 

129-31, 628 S.E.2d at 881-82. Two of the cases we cited stand out as particularly 

important. First, we cited Arkansas Department of Environmental Quality v. 

Brighton Corp., 102 S.W.3d 458, 468 (Ark. 2003), for the proposition that a 

"complaint dismissed for failure to state facts upon which relief can be granted 

should be dismissed without prejudice in order for plaintiff to decide whether to 

serve [an] amended complaint." Spence, 368 S.C. at 129, 628 S.E.2d at 881.7

Second, we cited Giuliani v. Chuck, 620 P.2d 733, 737 (Haw. Ct. App. 1980), for 

the proposition that a "complaint is not subject to dismissal with prejudice unless it 

appears to a certainty that no relief can be granted under any set of facts that can be 

proved in support of its allegations." Spence, 368 S.C. at 129, 628 S.E.2d at 881

(emphasis added). 

In Spence, therefore, the circuit court erred by dismissing the complaint with 

prejudice without granting leave to amend. See 368 S.C. at 130, 628 S.E.2d at 882

(explaining Spence falls in a category of cases where "a complaint is dismissed with 

prejudice and the plaintiff erroneously is denied the opportunity to file and serve an 

 

7 We also cited Thacker v. Bartlett, 785 N.E.2d 621, 624 (Ind. Ct. App. 2003), for 

the proposition that "dismissal for failure to state a claim is without prejudice 

because the complaining party may either file an amended complaint or stand upon 

complaint and appeal." Spence, 368 S.C. at 129, 628 S.E.2d at 881.
amended complaint"). The bulk of the majority's discussion, however, focused on 

whether the circuit court committed a different error—finding the complaint failed 

to state a valid claim under Rule 12(b)(6). See 368 S.C. at 117-27, 628 S.E.2d at 

874-80 (the Court's majority explaining the circuit court did not err in finding no 

valid claim was pled). In a divided opinion with two Justices dissenting, this Court

upheld the circuit court's Rule 12(b)(6) ruling. See id.; 368 S.C. at 131-32, 628 

S.E.2d at 882-83 (Toal, C.J., dissenting); 368 S.C. at 132-33, 628 S.E.2d at 883

(Pleicones, J., dissenting). 

After its lengthy discussion of the Rule 12(b)(6) question, the majority turned to the 

"[the plaintiff's] conten[tion] the circuit court erred in denying her motion to amend 

the complaint," 368 S.C. at 128, 628 S.E.2d at 880, or—in light of the circuit court's

error in refusing leave to amend—whether we should remand to allow leave to 

amend. We explained, "An appellate court should [find the dismissal is without 

prejudice] when the plaintiff presents additional factual allegations or a different 

theory of recovery which, taken as true in a well-pleaded complaint, may state a 

claim upon which relief may be granted." 368 S.C. at 130, 628 S.E.2d at 881-82. In 

other words, we held an appellate court must find the dismissal was without 

prejudice and remand for the filing of an amended complaint unless the court 

concludes any amendment would be clearly futile.

The majority then considered the question of futility. 368 S.C. at 131, 628 S.E.2d at 

882. The majority noted the circuit court granted the Rule 12(b)(6) motion because 

the complaint gave "rise to no reasonable interpretation other than that the [new 

landowners] were bona fide purchasers for value." 368 S.C. at 116, 628 S.E.2d at 

874. The majority found a remand was not required because it determined no matter 

how the chain of title could be alleged, the new landowner was always going to be 

immune from liability as a bona fide purchaser. 368 S.C. at 122, 131, 628 S.E.2d at 

877, 882. The majority stated the plaintiff "failed to present any additional factual 

allegations or a different theory of recovery which may give rise to a cause of action 

upon which relief may be granted against" the new landowner. 368 S.C. at 131, 628 

S.E.2d at 882. Any amendment to the complaint in Spence, according to the 

majority, was clearly futile.8

 

 

8 Likewise, in Health Promotion Specialists, LLC v. South Carolina Board of 

Dentistry, 403 S.C. 623, 743 S.E.2d 808 (2013), this Court concluded the circuit 

court did not abuse its discretion in denying a party's motion to amend because the 

"seven-year" "delay in moving to amend the Complaint was inexplicable." 403 S.C. 

at 632, 743 S.E.2d at 813. This Court went on, however, to consider whether the 

proposed amendment would have been futile. 403 S.C. at 632-33, 743 S.E.2d at 
In the course of explaining our decision, however, we made a comment that has been 

misunderstood, and on which the court of appeals erroneously relied in this case and 

others.9

 We stated, 

On the other hand, when a complaint is dismissed with 

prejudice and the plaintiff erroneously is denied the 

opportunity to file and serve an amended complaint, but 

the plaintiff fails to present additional factual allegations 

or a different theory of recovery which may give rise to a 

claim upon which relief may be granted, the appellate 

court may in its discretion affirm the dismissal of the 

complaint with prejudice. 

368 S.C. at 130-31, 628 S.E.2d at 882. The statement must be considered in the 

context of two points we already made, "When a complaint is dismissed under Rule 

12(b)(6) . . . , the dismissal generally is without prejudice," and, "The plaintiff in 

most cases should be given an opportunity to file and serve an amended complaint." 

368 S.C. at 129, 628 S.E.2d at 881. We made the statement in the context of our 

discussion of futility, after explaining that if the proposed amendment is not clearly 

futile, the case must be remanded. The quoted statement makes the contrary point,

that if the court of appeals determines an amendment is clearly futile, instead of 

remanding, it "may in its discretion affirm the dismissal of the complaint with 

prejudice."

In this case, we cannot definitively say it would be impossible for Skydive to succeed 

with an amended pleading. Allowing leave to amend the complaint, therefore, was 

 

812-13. We stated "extensive discovery had been conducted" in a similar case 

involving the same parties, "there were no significant factual developments that 

warranted the untimely amendment," and "even if the amendment had been 

permitted, it would not have affected the grant of summary judgment to the 

[defendant]." 403 S.C. at 632, 743 S.E.2d at 812-13. The proposed amendment, 

therefore, was clearly futile because the defendant would have been entitled to 

judgment as a matter of law even with the amendment. 

9 See, e.g., Paradis v. Charleston Cty. Sch. Dist., 424 S.C. 603, 616 n.3, 819 S.E.2d 

147, 154 n.3 (Ct. App. 2018) (refusing to remand for precisely the wrong reason, 

that the court of appeals was "unable to determine whether the circuit court abused 

its discretion in denying her request to amend," relying on a grant of "discretion" 

from Spence), reh'g denied (Oct. 18, 2018).
not clearly futile. The circuit court should not have denied—and we will not deny—

Skydive the opportunity to amend its complaint.

IV. Conclusion

The circuit court should have allowed Skydive an opportunity to amend its complaint 

pursuant to Rule 15(a). We REVERSE the court of appeals and REMAND this 

case to the circuit court.

BEATTY, C.J., and JAMES, J., concur. KITTREDGE, J., concurring in result 

only. HEARN, J., dissenting in a separate opinion.
JUSTICE HEARN: I respectfully dissent because I believe Skydive failed to 

preserve the issue of whether it should be allowed to file an amended complaint.

While Rule 15(a), SCRCP (which is substantially the same as its federal 

counterpart) requires courts to freely grant leave to amend a complaint when 

justice so requires, I do not believe Skydive properly invoked it in this case. 

Skydive never requested leave to amend before or during the hearing on 

Respondents' motion to dismiss. Instead, in cover letters accompanying proposed 

orders, Skydive requested leave to amend its complaint if the court dismissed it in 

full. Skydive did not include any details about how it would so amend, nor did it 

attach a proposed amended complaint.10 Accordingly, I would not criticize the 

circuit court judge for "failing to even consider allowing Skydive to amend its 

complaint" when Skydive arguably failed to request to do so in a sufficient 

manner. 11

The circuit court never mentioned or specifically ruled on any request for leave to 

amend in its written order. Indeed, it is entirely possible the court was never even 

aware of the request given its informal, limited nature. In my view, this situation 

presented a classic case warranting a Rule 59(e) motion, not only to bring the 

omission to the attention of the circuit court judge, but also to preserve the issue 

for appeal. "A party may wish to file such a motion when she believes the court 

has misunderstood, failed to fully consider, or perhaps failed to rule on an 

argument or issue, and the party wishes for the court to reconsider or rule on it. A 

party must file such a motion when an issue or argument has been raised, but not

 

10 However, an amended complaint dated approximately one year after the 

correspondence appeared in the record on appeal, despite never having been 

submitted to the trial court. Pursuant to Rule 210(c), SCACR, the amended 

complaint—upon which the majority bases a portion of its futility analysis—

should not have been included in the record.

11 See Beydoun v. Sessions, 871 F.3d 459 (6th Cir. 2017) (district court did not 

abuse its discretion in denying leave to amend where plaintiff made an oral motion 

to amend if the court was inclined to grant defendants' motion to dismiss and did 

not indicate particular grounds upon which he sought to amend); German v. 

Campbell Co. School Dist. No. 1, 630 F.3d 977 (10th Cir. 2010) (trial court 

properly denied leave to amend where plaintiff, in her opposition to a motion to 

dismiss, suggested she should be allowed to amend if her pleadings were found to 

be infirm); In re 2007 Novastar Financial, Inc., Securities Litigation, 579 F.3d 878 

(8th Cir. 2009) (same).
ruled on, in order to preserve it for appellate review." Elam v. S.C. Dep't of 

Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004). Skydive filed no such motion 

here and thereby failed to "try to convince the lower court it has ruled wrongly" 

before arguing to the appellate court to reverse. I'on, L.L.C. v. Town of Mt. 

Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000). 

To be clear, I would not require a party to submit a proposed amended complaint 

with each request to amend. But here, where Skydive merely included its request 

in a cover letter to a proposed order after the hearing and then failed to file a Rule 

59(e) motion when the court did not rule on it in its order, I believe Skydive failed 

to preserve the issue on appeal. 

Moreover, I do not believe the court of appeals abused its discretion by declining 

to modify the dismissal to one without prejudice pursuant to Spence v. Spence, 368 

S.C. 106, 628 S.E.2d 869 (2006). In Spence, the plaintiff filed a Rule 59(e) motion 

seeking leave to serve an amended complaint rather than dismissal with prejudice. 

Nothing in Spence displaced our longstanding rules of preservation. As a result, I 

would affirm the appellate court's determination that Skydive is not entitled to file 

an amended complaint.