Brown v. Leonard
| Decision Date | 11 January 2008 |
| Docket Number | 2008-UP-039 |
| Parties | Charles Brown, Appellant, v. Deputy Winston Leonard, Orangeburg County Sheriff's Department, John Jordan, and Heilig Meyers, Respondents. |
| Court | South Carolina Court of Appeals |
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.
Submitted December 1, 2007.
Appeal From Orangeburg County James C. Williams, Jr., Circuit Court Judge
Fletcher N. Smith, Jr., of Greenville, for Appellant.
Marshall H. Waldron, Jr., of Bluffton, for Respondents.
Charles Brown (Brown) appeals the granting of summary judgment for the respondents arguing that the South Carolina Tort Claims Act (SCTCA) does not preclude a claim for malicious prosecution solely because the cause of action includes the element of malice. He also alleges that the statute of limitations on his negligent hiring cause of action did not begin to run until after the last act of tortious conduct i.e., the malicious prosecution, as opposed to the alleged unlawful arrest. We affirm. [1]
On April 17, 2001, Brown entered Heilig Meyers, a retail furniture store located in Orangeburg, wherein a confrontation occurred between Brown and the store employees. During the confrontation, a Heilig Meyers' employee called the Sheriff's Department. As Brown began to leave the store, he was met at the door by Deputy Winston Leonard (Leonard) of the Orangeburg County Sheriff's Department (hereinafter referred to as Sheriff's Department”). Deputy Leonard interviewed the employees at the store and learned that Brown allegedly assaulted and battered a store employee. At that point Leonard placed Brown under arrest for assault and battery. The charges against Brown were nolle prossed on November 3, 2003.
Brown filed this action on April 21, 2005, and attempted to serve it on the Sheriff's Department on April 22, 2005. Brown alleges that the respondents maliciously prosecuted him and that the Sheriff's Department was grossly negligent in hiring and supervising Leonard.
On March 22, 2006, the respondents filed their motion for summary judgment based upon Brown's failure to state a claim for which relief could be granted and that the court lacked personal jurisdiction over them. The court granted summary judgment for the respondents. This appeal follows.
When reviewing the grant of a summary judgment motion, this court applies the same standard of review as the trial court under Rule 56, SCRCP. Cowburn v. Leventis, 366 S.C. 20 30, 619 S.E.2d 437, 443 (Ct. App. 2005). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), SCRCP. To determine whether any triable issues of fact exist, the reviewing court must consider the evidence and all reasonable inferences in the light most favorable to the non-moving party. Law v. S.C. Dep't of Corrections, 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006).
[W]hen plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted.” Ellis v. Davidson, 358 S.C. 509, 518, 595 S.E.2d 817, 822 (Ct. App. 2004). However, [s]ummary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law.” Bennett v. Investors Title Ins. Co., 370 S.C. 578, 588, 635 S.E.2d 649, 654 (Ct. App. 2006). 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.” Nelson v. Charleston County Parks & Recreation Comm'n, 362 S.C. 1, 5, 605 S.E.2d 744, 746 (Ct. App. 2004).
Brown argues that the circuit court erred in finding the Sheriff's Department is immune from liability on the malicious prosecution cause of action due to S.C. Code Ann §15-78-60(17) (Supp. 2003) of SCTCA since the tort includes the element of malice. That section of the statute provides in pertinent part:
A strict reading of the statute indicates that a cause of action based upon conduct of an employee containing the element of malice cannot be maintained against the Sheriff's Department. In order to maintain an action for malicious prosecution, Brown must prove the following: 1) the institution or continuation of original judicial proceedings, either civil or criminal; 2) by, or at the instance of the respondents; 3) termination of such proceedings in Brown's favor; 4) respondents' malice in instituting such proceedings; 5) lack of probable cause; and 6) resulting injury or damage. Jordan v. Deese, 317 S.C. 260, 262, 452 S.E.2d 838, 839 (1995). To maintain a cause of action for malicious prosecution, plaintiff must prove malice in instituting the proceedings.” Pritchett v. Lanier, 766 F.Supp. 442, 453 (D.S.C. 1991) (citing Ruff v. Eckerd Drugs, Inc., 265 S.C. 563, 220 S.E.2d 649 (1975). The aforementioned statutory immunity from claims that require a showing of actual malice was applied in Gause v. Doe, 317 S.C. 39, 451 S.E.2d 408 (Ct. App. 1994). In that case, this court held that a cause of action for slander could not be maintained under SCTCA due to the fact that a mandatory element of the cause of action required a showing of malice. Id., 317 S.C. at 41-42, 451 S.E.2d at 409.
Brown asserts that Law v. S.C. Dep't of Corrections, 368 S.C. 424, 629 S.E.2d 642 (2006), stands for a contrary proposition. However, the trial court properly distinguished that case from the one at hand because in Law the court never addressed the malice immunity. Since the defense was not raised in Law and was not considered by the court, Law is not dispositive precedent on the issue. Hutto v. Southern Farm Bureau Life Ins. Co., 259 S.C. 170, 173, 191 S.E.2d 7, 8 (1972) (). Therefore, in the case at hand, the trial court properly granted summary judgment for the Sheriff's Department as to Brown's claim for malicious prosecution.
However, the malicious prosecution claim, as it pertains to Deputy Leonard, is not entitled to the same analysis. Although the Sheriff's Department is entitled to statutory immunity from claims requiring a showing of malice, individual employees are not entitled to benefit from that same immunity. Otherwise, employees of organizations covered by SCTCA would have immunity from any intentional tort. This concern was clearly considered by our legislature and is resolved by § 15-78-70(b) which provides an exception for certain actions on the part of governmental employees:
Nothing in this chapter may be construed to give an employee of a governmental entity immunity from suit and liability 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) (Supp. 2003) (emphasis added). Therefore, claims against such employees for torts which include these elements are not maintained under SCTCA but are pursued privately against the individual tortfeasor. The SCTCA provides the exclusive civil remedy available for any tort committed by a governmental entity, its employees, or its agents except as provided in Section 15-78-70(b).” S.C. Code Ann. § 15-78-20(b) (Supp. 2003) (emphasis added). Thus, the circuit court erred in dismissing the malicious prosecution claim against Deputy Leonard based upon the same immunity granted to the Sheriff's Department.
However, despite Brown's ability to pursue a claim against Leonard for malicious prosecution, his claim nonetheless must fail since he has not demonstrated the lack of probable cause as a matter of law. Probable cause, which is a defense to an action for malicious prosecution, has been defined as ‘the existence of such facts or circumstances as would excite the belief of a reasonable mind, acting on facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.'” Lynch v. Toys "R'' Us-Delaware, Inc., Op. No. 4316 (S.C. Ct. App. Filed Nov. 27, 2007) (Shearouse Adv. Sh. No. 41 at 68) (quoting Ruff v. Eckerds Drugs, 265 S.C. 563, 568, 220 S.E.2d 649, 652 (1975)). Thus, as far as determining the existence of probable cause, the facts must be regarded from the point of view of the prosecuting party; the question is not what the actual facts were, but what the prosecuting party honestly believed them to be. Law, 368 S.C. at 436, 629 S.E.2d at 649. Although the question of whether probable cause exists is ordinarily a jury question, in an action for malicious prosecution, it may be decided as a matter of law when the evidence yields but one conclusion. Id.
Here Deputy Leonard acted with probable cause in arresting and procuring an arrest warrant against Brown. Deputy Leonard arrived at the scene soon after the incident occurred and after the police were called to respond to the scene because of a disturbance at the business. The record shows that John Jordan and Sheila Snell gave statements to Deputy Leonard alleging that Brown, without provocation, punched Jordan in the face. The deputy also indicated to the magistrate issuing the warrant that there was swelling to the right side of John Jordan's face. The magistrate ultimately found probable cause existed...
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