Angus v. Burroughs & Chapin Co.

• Decision Date: 09 February 2004
• Docket Number: No. 3744.,3744.
• Citation: 596 S.E.2d 67,358 S.C. 498
• Court: South Carolina Court of Appeals
• Parties: Linda ANGUS, Appellant, v. BURROUGHS & CHAPIN CO., Myrtle Beach Herald, Doug Wendel, Pat Dowling, Deborah Johnson, Chandler C. Prosser, Marvin Heyd, Chandler Brigham, and Terry Cooper, Respondents.

358 S.C. 498

596 S.E.2d 67

Linda ANGUS, Appellant, v. BURROUGHS & CHAPIN CO., Myrtle Beach Herald, Doug Wendel, Pat Dowling, Deborah Johnson, Chandler C. Prosser, Marvin Heyd, Chandler Brigham, and Terry Cooper, Respondents.

No. 3744.

Court of Appeals of South Carolina.

Heard September 9, 2003.

Decided February 9, 2004.

Withdrawn, Substituted and Refiled May 12, 2004.

Rehearing Denied May 12, 2004.

L. Sidney Connor, IV of Surfside Beach, for Appellant.

Jerry Jay Bender and Robert L. Widener, both of Columbia; L. Morgan Martin, Linda Weeks Gangi and Michael W. Battle, all of Conway; Scott B. Umstead, Thomas C. Brittain and William Edward Lawson, all of Myrtle Beach; and William C. Barnes, of Florence, for Respondents.

BEATTY, J.

Linda Angus appeals the circuit court' order granting summary judgment on her cause of action for civil conspiracy. We affirm in part and reverse in part.

FACTS/PROCEDURAL HISTORY

Linda Angus began employment with Horry County as its county administrator and chief operating officer on June 3, 1996. Her employment contract stated that she was "employed at the will" of the Horry County Council. The contract stipulated that Angus was to be given 365 days notice or 365 days severance pay in the event of a termination. On June 22, 1999, Horry County terminated her employment. Pursuant to the terms of the agreement, Angus was paid for 365 days and was extended the appropriate benefits.

On January 14, 2000, Angus filed a complaint against Burroughs & Chapin Co., Doug Wendel, Pat Dowling, Myrtle Beach Herald, Deborah Johnson, Chandler Prosser, Marvin Heyd, Chandler Brigham, and Terry Cooper ("the respondents"). Wendel and Dowling were employees of Burroughs & Chapin; Johnson was an employee of the Myrtle Beach Herald; Prosser, Heyd, Brigham, and Cooper were all Horry County Council members. Angus alleged numerous causes of action, including tortious interference with contractual relations, defamation, civil conspiracy, and unfair trade practices, all arising from the termination of her employment by Horry County. Specifically, Angus alleged that the respondents "conspired with numerous persons ... to see that Angus was terminated from her employment as Horry County Administrator." And she alleged that the respondents did this to gain financial advantage and to avoid regulatory requirements.

After orders dismissing the causes of action for intentional interference with contractual relations, defamation, and unfair trade practices, the only remaining cause of action was for civil conspiracy. In an order dated November 28, 2001, the circuit court granted summary judgment to all Respondents as to the civil conspiracy claims. Angus appeals.

STANDARD OF REVIEW

"Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Dawkins v. Fields, 345 S.C. 23, 27, 545 S.E.2d 515, 517 (Ct.App.2001) (citing Rule 56(c), SCRCP; Quality Towing, Inc. v. City of Myrtle Beach, 340 S.C. 29, 33, 530 S.E.2d 369, 371 (2000)). "Summary judgment should not be granted even when there is no dispute as to the evidentiary facts if there is dispute as to the conclusions to be drawn from those facts." Id. at 28, 545 S.E.2d at 517 (citing Piedmont Engineers, Architects & Planners, Inc. v. First Hartford Realty Corp., 278 S.C. 195, 196, 293 S.E.2d 706, 707 (1982)). "In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party." Id. at 28, 545 S.E.2d at 518 (citing Bishop v. South Carolina Dep't of Mental Health, 331 S.C. 79, 85, 502 S.E.2d 78, 81 (1998)). "Summary judgment should be invoked cautiously to avoid improperly denying a party a trial on the disputed factual issues." Id. (citing Baughman v. Am. Tel. & Tel. Co., 306 S.C. 101, 112, 410 S.E.2d 537, 543 (1991)).

ANALYSIS

Angus argues the trial court erred in granting the respondents' motion for summary judgment as to the claim for civil conspiracy. We agree in part.

In South Carolina, "[a] civil conspiracy exists when there is (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, (3) which causes the plaintiff special damage." Robertson v. First Union Nat. Bank, 350 S.C. 339, 348, 565 S.E.2d 309, 314 (Ct.App.2002) (citing Island Car Wash, Inc. v. Norris, 292 S.C. 595, 600, 358 S.E.2d 150, 152 (Ct.App.1987)). "A civil conspiracy may, of course, be furthered by an unlawful act. [but] an unlawful act is not a necessary element of the tort. An action for conspiracy may lie even though no unlawful means are used and no independently unlawful acts are committed." Lee v. Chesterfield Gen. Hosp., 289 S.C. 6, 11, 344 S.E.2d 379, 382 (Ct.App.1986). "A conspiracy is actionable only if overt acts pursuant to the common design proximately cause damage to the party bringing the action." Future Group, II v. Nationsbank, 324 S.C. 89, 100, 478 S.E.2d 45, 51 (1996) (citing Todd v. S.C. Farm Bureau Mut. Ins. Co., 276 S.C. 284, 292, 278 S.E.2d 607, 611 (1981)).¹

In granting summary judgment, the trial court relied exclusively on Ross v. Life Ins. Co. of Va., 273 S.C. 764, 259 S.E.2d 814 (1979). There, plaintiff brought a wrongful termination action naming only his former employer. The plaintiff alleged that the former employer had conspired with others to terminate his employment. Our supreme court sustained the summary judgment for the former employer. The court reasoned that an "[at-will] employment contract [is] terminable at the will of either party ... at any time for any reason or for no reason at all." Id. at 765, 259 S.E.2d at 815 (emphasis added).

Ross clearly holds that employers can fire at-will employees for any reason. Moody v. McLellan, 295 S.C. 157, 162, 367 S.E.2d 449 (1988). It also holds that an at-will employee cannot maintain an action against a former employer for civil conspiracy that resulted in the employee's termination. Mills v. Leath, 709 F.Supp. 671, 675 (D.S.C.1988). The trial court was therefore correct to dismiss the action as to the four council members.

Angus claims that she was suing them not as council members, but in their capacity as individuals. That argument is unpersuasive. The employment agreement stated on its face that Angus served "at the will" of the Council. Clearly, the council members acted within their authority when they fired Angus and they cannot be sued for doing what they had a right to do. See Antley v. Shepherd, 340 S.C. 541, 550, 532 S.E.2d 294, 298 (Ct.App.2000) (holding that a county official was immune from liability in his individual capacity since that official acted within his authority in firing an employee who was serving at the will of the official), aff'd as modified, Antley v. Shepherd, 349 S.C. 600, 564 S.E.2d 116 (2002).

Angus's claim against Burroughs & Chapin, Wendel, Dowling, the Myrtle Beach Herald, and Johnson ("the remaining respondents") presents a different issue than the one addressed in Ross.² As demonstrated earlier, Ross, by its very language, applies only to the two parties involved in the at-will employment relationship. But the remaining respondents are neither. They are not Angus's former employers. As to them, the appropriate inquiry is whether an at-will employee can maintain an action for civil conspiracy against a third-party (other than the former employer) on the theory that the third-party's conspiracy caused the former employer to fire the employee. We believe that an at will-employee can maintain such an action. The at-will employment doctrine does not extend its protection to third parties.

Lee is instructive in this regard. In that detailed opinion, the Court sustained an action by a plaintiff physician assistant whose staff privileges had been curtailed by the hospital.³ The plaintiff claimed that the hospital had conspired with others to limit the number of procedures he could perform "`to restrain and eliminate, for their own financial advantage and professional enhancement, the element of fair competition,' " to the plaintiffs financial and professional detriment. The hospital argued that the physician assistant had failed to state a cause of action since "a private hospital [was] free .. . to decide the nature and extent of medical practice permitted to persons it grants staff privileges." Id. at 9, 344 S.E.2d at 381. The Court disagreed. It ruled that the key issue was not the authority of a hospital to curtail staff privileges, but whether the decision was made "in furtherance of a conspiracy, the primary purpose of which was to injure the plaintiff." Id. The Court adopted the broad principle that a "combination of two or more persons willfully to injure a man in his trade is unlawful and, if it results in damage to him, is actionable." Id. at 13, 344 S.E.2d at 383. The Court made clear that a party can face liability even for an act "he was free to do," if that act was "done in furtherance of a conspiracy." Id. at 12, 344 S.E.2d at 383.

That analysis undercuts the interpretation of Ross offered by the remaining respondents. While Ross does foreclose actions against former employers, the remaining respondents go further. They insist that no action for conspiracy can lie against a third party if the employment is at-will. The underpinning of that argument, as Ross makes clear, is that parties cannot face liability for doing something they had a right to do. But as Lee explains, "`a conspiracy to injure might give rise to civil liability even though the end were brought about by conduct and acts which by themselves and apart from the element of combination or concerted action could not be regarded as a legal wrong.'" (citation omitted). Id. Lee's holding is unambiguous: even a person or party who had the right to take a certain action can be liable if that action was taken as part of a conspiracy.⁴ Here, there is not...