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2008-UP-260 - Hallmark Marketing v. Zimeri

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Hallmark Marketing Corporation, Respondent,

v.

Zimeri, Inc., and Antonio Zimeri, June Zimeri, Walter Zimeri and Diana Zimeri, Appellants.


Appeal From Greenville County
John L. Breeden, Jr., Circuit Court Judge


Unpublished Opinion No.  2008-UP-260
Heard April 9, 2008 – Filed May 14, 2008
Withdrawn, Substituted and Refiled June 30, 2008 


REVERSED and REMANDED


T.S. Stern, Jr., of Greenville, for Appellants.

Chris Gantt-Sorensen and W. Francis Marion, Jr., both of Greenville, for Respondent.

PER CURIAM:  Zimeri, Inc. appeals the circuit court’s order dismissing its counterclaims for (1) breach of contract accompanied by a fraudulent act and (2) violation of the South Carolina Unfair Trade Practices Act[1] (SCUTPA).  We accept the circuit court’s determination and treatment of Hallmark’s motion before it as a Rule 12(b)(6), SCRCP, motion to dismiss, and reverse and remand pursuant to Rule 220(b)(2), SCACR, and the following authorities:  Charleston County School Dist. v. Laidlaw Transit, Inc., 348 S.C. 420, 424, 559 S.E.2d 362, 364 (Ct. App. 2001) (stating a motion to dismiss a counterclaim must be based solely on the allegations set forth in the counterclaim); Stiles v. Onorato, 318 S.C. 297, 300, 457 S.E.2d 601, 602-3 (1995) (“A Rule 12(b)(6) motion may not be sustained if facts alleged and inferences reasonably deducible therefrom would entitle the [complainant] to any relief on any theory of the case.”);  Dye v. Gainey, 320 S.C. 65, 68, 463 S.E.2d 97, 99 n.2 (Ct. App. 1995) (“Since a decision on a Rule 12(b)(6) motion is confined to the four corners of the complaint, the trial judge erred in considering a potential defense.”);  Daisy Outdoor Advertising Co., Inc. v. Abbott, 322 S.C. 489, 493, 473 S.E.2d 47, 49 (1996) (finding a party bringing a SCUTPA claim must only allege and then ultimately prove facts demonstrating the potential for repetition of the defendant’s acts to prove an adverse effect on the public interest).

For the foregoing reasons, the circuit court’s order is

REVERSED and REMANDED.

HEARN, C.J., and PIEPER, J., and CURETON, A.J., concur.


[1] S.C. Code Ann. § 39-5-10 (Supp. 2007).