THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Joshua Hawkins and Floyd S. Mills, III, Appellants, 

v. 

Secretary of State Mark Hammond, South Carolina 

Secretary of State's Office, Respondents, 

and 

Thomas Alexander, in his official capacity as President 

of the South Carolina Senate, and Murrell Smith, in his 

official capacity as the Speaker of the South Carolina 

House of Representatives, Respondents. 

Appellate Case No. 2019-000330 

Appeal From Anderson County 

R. Scott Sprouse, Circuit Court Judge 

Opinion No. 5913 

Heard April 5, 2022 – Filed May 25, 2022 

AFFIRMED 

Drew Bradshaw, Druanne D. White, Kyle J. White, and 

Trevor B. White, all of White, Davis & White Law Firm, 

of Anderson, and Joshua T. Hawkins and Helena L. 

Jedziniak, both of Hawkins & Jedziniak, LLC, of 

Greenville, all for Appellants. 

A. Mattison Bogan and Matthew A. Abee, both of 

Nelson Mullins Riley & Scarborough, LLP, of Columbia, 
 

for Respondents Thomas Alexander, in his official 

capacity as President of the South Carolina Senate, and 

Murrell Smith, in his official capacity as the Speaker of 

the South Carolina House of Representatives. 

Karl Smith Bowers, Jr., of Bowers Law Office, of 

Columbia, for Respondents Mark Hammond and the 

South Carolina Secretary of State's Office. 

THOMAS, J.: Joshua Hawkins and Floyd S. Mills, III (Appellants) filed this 

action against Secretary of State Mark Hammond, the South Carolina Secretary of 

State's Office, the Honorable Thomas Alexander, in his official capacity as 

President of the South Carolina Senate, and the Honorable Murrell Smith, in his 

official capacity as the Speaker of the South Carolina House of Representatives 

(collectively, Respondents), seeking to invalidate two tort reform laws as 

unconstitutional.1

 Appellants appeal the circuit court's dismissal of the action, 

arguing (1) their claims are not barred by res judicata; (2) they have standing to 

challenge the tort reform laws; (3) the Secretary of State failed to comply with 

constitutional prerequisites to validity; and (4) their claims were timely. We 

affirm. 

FACTS 

Appellants filed this declaratory judgment action alleging they are practicing 

attorneys in South Carolina whose finances are directly impacted by the enactment 

of the South Carolina Noneconomic Damages Award Act of 20052

 (the 2005 Act) 

and the South Carolina Fairness in Civil Justice Act3

 (the 2011 Act).4 Appellants 

1

 Pursuant to Rule 25, SCRCP, the circuit court substituted the Honorable Harvey 

S. Peeler, Jr., in his capacity as President of the South Carolina Senate for the 

Honorable Hugh K. Leatherman, Sr. We now substitute the Honorable Thomas 

Alexander, in his official capacity as President of the South Carolina Senate and 

the Honorable Murrell Smith, in his official capacity as the Speaker of the South 

Carolina House of Representatives. See Rule 25(d)(1), SCRCP (establishing 

automatic substitution of state officials).

2

 2005 Act No. 32, eff. July 1, 2005.

3

 2011 Act No. 52, eff. Jan. 1, 2012. 

4

 The Acts were codified in 2018 by 2018 Act No. 129. 
 

 

allege the Acts, which established damages caps in civil litigation and made 

various other changes, effectively reduced recovery for them in civil lawsuits. 

Appellants allege the Acts are invalid and unconstitutional because they were 

passed without the Great Seal, as required by Article 3, Section 18 of the South 

Carolina Constitution, and because they were not transferred to the South Carolina 

Department of Archives and History within five years of passage, as required by 

the Secretary of State. According to Appellants, the Acts were never valid, and to 

the extent they now have the Great Seal affixed, they are still invalid and 

unenforceable. Appellants sought a declaration of the unconstitutionality and 

invalidity of the Acts, injunctive relief, attorneys' fees and costs, and any other 

available relief. 

Respondents filed motions to dismiss the action, arguing the following: (1) there 

was substantial compliance with the constitutional mandate that the Great Seal be 

affixed to acts of the General Assembly, which has retroactive effect because the 

Great Seal has now been affixed to the Acts; (2) the claims are moot because the 

Acts have been codified; (3) Appellants lack standing; (4) the claims should be 

dismissed because the federal claims are untimely; and (5) the claims are barred by 

res judicata. 

During a hearing on the motions to dismiss, Appellants argued if the laws became 

valid with the later application of the Great Seal, the Acts were valid prospectively 

only, and Appellants were still entitled to challenge the validity of the Acts during 

the period of time between passage and the application of the seal. 

The circuit court found (1) Appellants' claims were barred by res judicata; (2) 

Appellants lacked standing to bring the claims; (3) the state law claim was moot 

due to codification and because the Acts now have the Great Seal affixed to them; 

and (4) the federal claims were barred by the statute of limitations. Thus, the court 

dismissed the action with prejudice. This appeal followed. 

STANDARD OF REVIEW 

"In reviewing the dismissal of an action pursuant to Rule 12(b)(6), SCRCP, the 

appellate court applies the same standard of review as the trial court." Doe v. 

Marion, 373 S.C. 390, 395, 645 S.E.2d 245, 247 (2007). In considering 

a motion to dismiss under Rule 12(b)(6), the trial court's ruling must be based 

"solely on allegations set forth in the complaint." Spence v. Spence, 368 S.C. 106, 

116, 628 S.E.2d 869, 874 (2006). "The question is whether, in the light most 

favorable to the plaintiff, and with every doubt resolved in his behalf, the 
complaint states any valid claim for relief." Cap. City Ins. Co. v. BP Staff, Inc., 

382 S.C. 92, 99, 674 S.E.2d 524, 528 (Ct. App. 2009). 

LAW/ANALYSIS 

I. RES JUDICATA 

Appellants argue the circuit court erred in finding their claims were barred by res 

judicata. We disagree. 

The circuit court found Appellants alleged the Acts unconstitutionally reduced 

their recovery in prior civil actions in which Appellants were counsel, and the 

doctrine of res judicata bars Appellants from raising their claims now when they 

could have been raised in the prior actions. 

"Res judicata bars subsequent actions by the same parties [or their privies] when 

the claims arise out of the same transaction or occurrence that was the subject of a 

prior action between those parties." Plum Creek Dev. Co. v. City of Conway, 334 

S.C. 30, 34, 512 S.E.2d 106, 109 (1999); see Venture Eng'g, Inc. v. Tishman 

Constr. Corp. of S.C., 360 S.C. 156, 162, 600 S.E.2d 547, 550 (Ct. App. 2004) 

(explaining res judicata applies to parties or their privies). "One in privity is one 

whose legal interests were litigated in the former proceeding." Roberts v. Recovery 

Bureau, Inc., 316 S.C. 492, 496, 450 S.E.2d 616, 619 (Ct. App. 1994). "'Privity' as 

used in the context of res judicata . . . , does not embrace relationships between 

persons or entities, but rather it deals with a person's relationship to the subject 

matter of the litigation." Richburg v. Baughman, 290 S.C. 431, 434, 351 S.E.2d 

164, 166 (1986). The doctrine of res judicata bars litigants "from raising any 

issues which were adjudicated in the former suit and any issues which might have 

been raised in the former suit." Plum Creek, 334 S.C. at 34, 512 S.E.2d at 

109 (quoting Hilton Head Ctr. of S.C., Inc. v. Pub. Serv. Comm'n of S.C., 294 S.C. 

9, 11, 362 S.E.2d 176, 177 (1987)). 

Appellants argue their claims that the Acts are unconstitutional and invalid have 

not been litigated. However, the challenges to the constitutionality and validity of 

the Acts could have been raised in any of the prior actions in which Appellants 

represented clients whose recoveries were limited by the Act, which led to 

Appellants' fees being limited. We find no error by the circuit court. Id. at 34, 512 

S.E.2d at 109 (barring a litigant from raising issues which might have been raised 

in a former suit). 
 

II. STANDING 

Appellants argue they have standing because the laws directly impact them and are 

of public importance. We disagree. 

Appellants essentially claim they settled cases for less money than they could have 

received prior to the Acts; thus, their fees were diminished and they were directly 

impacted by the Acts. The circuit court found that although Appellants claimed 

they experienced reduced recovery in past cases and will continue to do so, the 

Acts challenged do not address attorneys' fees, which are a matter of private 

contract. The court found Appellants lacked standing because there is no causal 

connection between the constitutionality of the Acts and Appellants' alleged injury. 

As to Appellants' clients, the court found any reduction in their recovery did not 

impact Appellants personally, and because the former clients are not parties to this 

action, the court could not address their alleged damages. Finally, the court found 

the alleged recovery from future cases was conjectural, which rendered the claims 

"insufficiently concrete to be redressed or to provide [Appellants] standing." 

"Generally, a party must be a real party in interest to the litigation to have 

standing." Sloan v. Friends of Hunley, Inc., 369 S.C. 20, 28, 630 S.E.2d 474, 479 

(2006). "Standing to sue is a fundamental requirement in instituting an action." 

Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 639, 528 S.E.2d 647, 

649 (1999). "Standing refers to a party's right to make a legal claim or seek 

judicial enforcement of a duty or right." Michael P. v. Greenville Cnty. Dep't of 

Soc. Servs., 385 S.C. 407, 415, 684 S.E.2d 211, 215 (Ct. App. 2009)). "Standing 

may be acquired (1) by statute, (2) under the principle of 'constitutional standing,' 

or (3) via the 'public importance' exception to general standing requirements." 

Pres. Soc'y of Charleston v. S.C. Dep't of Health & Env't Control, 430 S.C. 200, 

209–10, 845 S.E.2d 481, 486 (2020).5 

5

 Appellants' allegation of standing under the public importance exception is not 

preserved for our review because the circuit court addressed only constitutional 

standing in its order, and Appellants failed to raise the issue in a post-trial motion. 

See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is 

axiomatic that an issue cannot be raised for the first time on appeal, but must have 

been raised to and ruled upon by the trial judge to be preserved for appellate 

review."). In addition, Appellants do not claim standing by statute. Thus, we 

address only constitutional standing. 
 

Our supreme court has explained the requirements of constitutional standing as 

follows: 

To possess constitutional standing, first, a party must 

have suffered an injury-in-fact which is a concrete, 

particularized, and actual or imminent invasion of a 

legally protected interest. Second, a causal connection 

must exist between the injury and the challenged 

conduct. Finally, it must be likely that a favorable 

decision will redress the injury. 

Youngblood v. S.C. Dep't of Soc. Servs., 402 S.C. 311, 317–18, 741 S.E.2d 515, 

518 (2013) (internal citations omitted). 

In this case, Appellants do not allege a "concrete, particularized, and actual or 

imminent invasion of a legally protected interest," which is required for 

constitutional standing. Even courts that have relaxed rules of standing to declare 

tort reform legislation unconstitutional have not permitted private actions. See, 

e.g., Basil M. Loeb, Comment, Abuse of Power: The Courts Are Disregarding 

Standing and Original Jurisdiction Principles So They Can Declare Tort Reform 

Unconstitutional, 84 Marq. L. Rev. 491, 505–06 (2000) (explaining the Ohio 

Supreme Court found standing in an action by the Ohio Academy of Trial Lawyers 

and the Ohio AFL-CIO challenging the constitutionality of a tort reform bill, but 

noted the claim would not be allowed as a private action). 

We find no error in the circuit court's finding that Appellants lacked constitutional 

standing to challenge the Acts. See ATC S. v. Charleston Cnty., 380 S.C. 191, 195, 

669 S.E.2d 337, 339 (2008) (concluding constitutional standing requires an injury 

to a legally protected interest); id. at 196, 669 S.E.2d at 340 (finding no 

constitutional standing based on alleged damages arising from perceived unfair 

competition); Sullivan v. S.C. Dep't of Corr., 355 S.C. 437, 444–45, 586 S.E.2d 

124, 127–28 (2003) (determining a prisoner was not entitled to judicial review of 

the denial of his application to participate in a treatment program because he did 

not have a liberty interest in participation in the program). 

CONCLUSION 

Based on the foregoing, the order on appeal is 
 

AFFIRMED.6 

MCDONALD and HEWITT, JJ., concur. 

6

 We need not consider Appellants' remaining arguments. See Futch v. McAllister 

Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) 

(providing that an appellate court need not address remaining issues when 

resolution of a prior issue is dispositive).