FLEMINGN v. Rose, 3101.

Citation338 S.C. 524,526 S.E.2d 732
Decision Date17 January 2000
Docket NumberNo. 3101.,3101.
PartiesLt. J.A. FLEMING, Jr., Appellant, v. Boykin ROSE and James Caulder, Respondents.
CourtCourt of Appeals of South Carolina

John A. O'Leary, of O'Leary Associates, of Columbia, for appellant.

James A. Stuckey and Alexia Pittas-Giroux, both of Stuckey Law Offices, of Charleston, for respondents.

ANDERSON, Judge:

In this tort action, Lt. J.A. Fleming, Jr., formerly of the South Carolina Highway Patrol, appeals from the trial court's order granting summary judgment to Boykin Rose of the South Carolina Department of Public Safety and James Caulder of the South Carolina Highway Patrol. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL BACKGROUND

In the early morning hours of December 19, 1991, four Highway Patrol Troopers and their wives were involved in a traffic accident as they returned from the Georgetown County Patrol Unit Christmas party, which was held at a restaurant in Myrtle Beach. A car struck the troopers' van as it approached the intersection of South Carolina Highway 707 and the U.S. 17 by-pass.

The Highway Patrol initially investigated the accident. At the hospital, Trooper Glenn Cottingham, the driver of the van, told Investigator Jerry Gowdy, the van was traveling at 70 miles per hour at one point. Cottingham claimed that at the time of the accident he was driving approximately 45 miles per hour.

In 1992, Trooper Jerry Cobb, a passenger in the van, became dissatisfied with his portion of the insurance settlement from the accident. Cobb told Cottingham he had to have $80,000.00 and that "heads are going to roll."

In May of 1992, Trooper Cobb called Fleming and asked to meet him. The two men met in a Wal-Mart parking lot. It was an informal meeting. They discussed golf and other matters of a social nature. Additionally, Cobb told Fleming (1) he was angry because Trooper Cottingham and his wife were "going to get all the damn insurance money" from the accident; (2) he was upset because the people in Georgetown had collected money for the Cottinghams, but not for Cobb and his wife; (3) that "all his supervisors in every place he had been are always bringing him to Florence over things he had done wrong, and ... he was tired of it"; and (4) that Cobb's attorney was getting his statement back from SLED. To Fleming, the meeting was just a courtesy he extended to a fellow officer who asked to speak with him. The following Monday, Fleming relayed to Caulder everything Cobb had told him. Further, Fleming advised Caulder "the shit is getting ready to hit the fan in Georgetown."

Internal Affairs then conducted a second investigation into the accident. Pursuant to this investigation, Cottingham and other troopers involved in the accident and investigation were indicted. When special prosecutors later dismissed the indictments, Boykin Rose, Director of the newly formed Department of Public Safety, assigned Principal Deputy Director, Robert Ivey, to review past investigations and files and to conduct an administrative inquiry into the actions of the troopers involved in the accident and the role of the Highway Patrol regarding its previous investigation of the accident.

At the conclusion of the investigation, Ivey submitted a summary report to Rose. A few days later, Ivey presented a memo to Rose which contained recommendations for disciplinary actions against the troopers involved in the accident. This memo included a recommendation that Lt. James Fleming, who was not involved in either the accident or any of the subsequent investigations, be suspended for five days for allegedly failing to thoroughly interview Trooper Jerry Cobb. Additionally, the memo contained the allegation that Fleming failed to pass on crucial details regarding the accident. In response to these allegations, Fleming maintained Cobb did not convey information to him regarding the specific speed the van was traveling and further he relayed all information he learned from Cobb to his supervisor, Captain Caulder. Caulder confirmed Fleming's testimony Fleming informed him of the meeting with Cobb. Caulder further stated he decided not to pass any of the information he received from Fleming on to his supervisors.

Despite Fleming's protestations of innocence, the Department of Public Safety issued a press release on April 6, 1994, which grouped Fleming with the troopers involved in the accident and accused Fleming and the others of setting a "deplorable example." The contents of the press release were reprinted in newspapers throughout the state. Fleming unsuccessfully attempted to delay the inclusion of his name in the press release until he had an opportunity to clear himself. Rose reduced Fleming's sanction from a five day suspension to a letter of reprimand.

Approximately six months before the reprimand, Fleming had applied for early retirement from the Department of Public Safety in order to receive a retirement bonus. Following the reprimand, Fleming completed that process and retired. Thereafter, Fleming filed this action against Boykin Rose and James Caulder alleging slander, intentional infliction of emotional distress/outrageous conduct, and violation of due process. Rose and Caulder filed motions for summary judgment. The Circuit judge granted summary judgment in favor of Rose and Caulder on all three of Fleming's causes of action.

ISSUES
I. Did the trial judge err in granting summary judgment as to the libel cause of action?
II. Did the trial judge err in granting summary judgment as to the cause of action for intentional infliction of emotional distress?
III. Did the trial judge err in granting summary judgment as to the cause of action alleging a violation of due process?
STANDARD OF REVIEW

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999); Rule 56(c), SCRCP. In determining whether any triable issue of fact exists, as will preclude summary judgment, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party. Vermeer Carolina's, Inc. v. Wood/Chuck Chipper Corp., 336 S.C. 53, 518 S.E.2d 301 (Ct.App.1999). If triable issues exist, those issues must go to the jury. Young, supra.

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Carolina Alliance for Fair Employment v. South Carolina Dep't of Labor, Licensing and Regulation, et al., 337 S.C. 476, 523 S.E.2d 795 (1999). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party. Vermeer, supra.

Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Id. In general, if the pleadings and the evidentiary matter in support of summary judgment do not establish the absence of a genuine issue of material fact, summary judgment must be denied, even if no opposing evidentiary matter is presented. Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999). Because it is a drastic remedy, summary judgment should be cautiously invoked so no person will be improperly deprived of a trial of the disputed factual issues. Carolina Alliance, supra.

LAW/ANALYSIS
I. LIBEL

Fleming argues the trial court erred in granting summary judgment in favor of Rose and Caulder as to his cause of action for libel. Counsel for Fleming characterizes the action as one for slander. However, because this case involves the printing of allegedly defamatory statements, we are treating it as a libel action. See Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 506 S.E.2d 497 (1998) (Holtzscheiter II)

.

The scholarly work of Prosser & Keeton on the Law of Torts acknowledges that "there is a great deal of the law of defamation which makes no sense." W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 111, at 771 (5th ed.1984). In South Carolina, decisions emanating from the appellate entities have admittedly resulted in obfuscation:

The confusion in South Carolina defamation law has been compounded by the fact that this Court's opinions have not completely taken into consideration the impact of decisions by the United States Supreme Court. Since the 1960's, the Supreme Court has attempted "to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment." Gertz v. Robert Welch, Inc., 418 U.S. 323, 325, 94 S.Ct. 2997, 3000, 41 L.Ed.2d 789, 797 (1974). The effect of these decisions has been the interweaving of federal constitutional principles into the fabric of state defamation law. Because state defamation rules have become inextricably tied to these constitutional principles, it is not possible to review defamation issues in a state law vacuum.

Holtzscheiter II, 332 S.C. at 517, 506 S.E.2d at 505 (Toal, J., concurring in result in separate opinion).

The tort of defamation allows a plaintiff to recover for injury to his or her reputation as the result of the defendant's communications to others of a false message about the plaintiff. Swinton Creek Nursery v. Edisto Farm Credit, 334 S.C. 469, 514 S.E.2d 126 (1999). The focus of defamation is not on the hurt to the defamed party's feelings, but on the injury to his reputation. See Wardlaw v. Peck, 282 S.C. 199, 318 S.E.2d 270 (Ct.App.1984)

. Defamatory communications take two forms: libel and slander. Swinton Creek Nursery, supra. Slander is a spoken defamation, while libel is a written defamation or one accomplished by actions or conduct. Id.

The defamatory meaning of a message or statement may be obvious on the...

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