Murray v. Holnam, Inc., No. 3283.

• Court: Court of Appeals of South Carolina
• Writing for the Court: ANDERSON.
• Citation: 344 S.C. 129,542 S.E.2d 743
• Parties: John MURRAY, Appellant, v. HOLNAM, INC. and Thomas Thornton, Defendants, of whom Holnam, Inc. is Respondent.
• Docket Number: No. 3283.
• Decision Date: 08 January 2001

344 S.C. 129
542 S.E.2d 743

John MURRAY, Appellant,
v.
HOLNAM, INC. and Thomas Thornton, Defendants, of whom Holnam, Inc. is Respondent

No. 3283.

Court of Appeals of South Carolina.

Heard December 13, 2000.

Decided January 8, 2001.

344 S.C. 133

Coming B. Gibbs, Jr., of Gibbs & Holmes, of Charleston, for Appellant

J. Michelle Childs and Susan P. McWilliams, both of Nexsen, Pruet, Jacobs & Pollard, of Columbia, for Respondent.

ANDERSON, Judge:

John Murray appeals from an order of the Circuit Court granting summary judgment to his former employer, Holnam,

344 S.C. 134

Inc., as to Murray's slander cause of action. We reverse and remand

FACTS/PROCEDURAL BACKGROUND

Holnam operates a cement plant near Holly Hill, South Carolina. The plant includes a quarry which houses a large diesel fuel storage tank. Holnam hired Murray in 1989 as a control room operator. Murray's responsibilities involved operating cement-mixing machinery. Michael Smoak supervised Murray's shift. When Smoak was absent, Murray acted as the relief supervisor.

While working as relief supervisor one evening in June, 1996, Murray noticed that Chris Barnes, a coworker, was absent for approximately six hours. Murray confronted Barnes, who denied the absenteeism. Murray and Barnes argued. Murray threatened to report Barnes to Smoak. Barnes accused Murray of stealing diesel fuel by loading it into a fuel tank on the back of his truck. Murray declared he notified Smoak of the incident and of Barnes' allegation. Murray told Derome Wilson, a coworker, of Barnes' accusation, and of Murray's report to Smoak. Murray claims Smoak told him not to worry about the incident or Barnes' allegation.

Shortly after the occurrence, Barnes called Jim Bacot, a Holnam purchasing agent, and alleged he saw Murray steal diesel fuel on at least two occasions. According to Barnes, he and a coworker, Terry Jenkins, watched Murray fill his tanks with diesel fuel on the nights of March 15, 1996, and May 21, 1996. Barnes maintained they viewed the incidents from the top of an elevator about 100 yards from the storage tank. He averred that on May 21, 1996, he and Jenkins checked the gauge of the diesel tank and concluded Murray took 371 gallons. When asked whether he would have "told anybody about the diesel fuel" if Murray had not informed Smoak that he had been absent from work for six hours, Barnes responded: "I can't say."

At his deposition, Terry Jenkins denied observing Murray steal fuel or antifreeze. Further, as to the alleged May 21, 1996, incident, Jenkins acknowledged he did not check the gauge of the diesel tank prior to Murray entering the quarry. Jenkins stated one time he was on top of a crane when he saw

344 S.C. 135

Murray in the quarry, but he could not see Murray's actions because it was dark. However, in a statement prepared by the human resources manager, Jenkins stated he observed Murray steal fuel and antifreeze. Jenkins, Barnes' high school acquaintance, admitted Barnes told him he was going to report Murray for stealing in response to Murray reporting Barnes absent from work

Bacot reported the allegations to his supervisor and to Robbie Mims, production superintendent. At the time, Bonnie Connelly was the human resources manager and William Patterson was the plant manager. Mims and Smoak decided to "keep a watch on" Murray. Smoak believed Murray arrived at work the evening of June 8, 1996, with an empty tank on his truck. Mims thought Murray left the following morning with the tank full. Mims admitted he did not see Murray take any fuel. Patterson and Connelly explained to Mims that they could not proceed with action against Murray based solely on Barnes' allegations and Mims' and Smoak's suppositions.

Approximately one year later, in May of 1997, Barnes contacted Bacot and stated: "We've got a new administration and maybe we ought to give it another try." Bacot was unaware of the altercation between Murray and Barnes. Barnes alleged four additional incidents of Murray stealing fuel, oil, and antifreeze. After Barnes reported this information to him, Bacot notified Debbie Lightfoot, the new human resources manager, and Tom Thornton, the new plant manager. Bacot and Mims explained to Thornton and Lightfoot that the 1996 allegations had been determined to be insufficient by the previous management team. Lightfoot investigated by interviewing numerous employees.

On June 13, 1997, when Murray drove into the parking lot at work, Smoak requested Murray accompany him to Thornton's office. Thornton, Lightfoot, Smoak, and Mims were present. Thornton informed Murray he was suspended for stealing company property. When Murray asked what he was accused of stealing, Thornton refused to answer stating the Orangeburg County Sheriffs Office was investigating. Thornton did not notify Murray of a definite time for the suspension but stated someone from Holnam would get in touch with him.

344 S.C. 136

Murray testified that on Thursday of the following week, Lightfoot called him and asked him to meet with Holnam representatives the following day. The same people that attended the suspension meeting were at this second meeting. Thornton again advised Murray that he had been accused of stealing company property. Thornton refused to: (1) tell Murray what he was accused of stealing; (2) identify the witnesses reporting the theft; or (3) explain the allegations. Murray initially assumed the accusation stemmed from an incident involving a coat. Murray next suspected the accusations were related to the incident with Barnes. Murray explained he had reported the incident to Smoak. Smoak denied Murray communicated this information to him.

Murray produced receipts for fuel he purchased. Thornton informed Murray the receipts were insufficient. Murray was terminated at the meeting. Murray denied stealing fuel, oil, or antifreeze from Holnam. The allegations were never reported to the sheriff's office. No one from Holnam investigated the incident between Barnes and Murray.

Barnes and Jenkins testified Mike Smoak held a meeting of his employees, including at least six workers, and told them Murray was fired for misappropriating or misusing company property. Smoak alleges he held the meeting after the suspension and notified the employees that Murray was "suspended for misuse of company property pending investigation." Murray's appeal centers on the statement made by Smoak to the employees in the meeting.

Murray filed this action against his former employer, Holnam, Inc., and Thomas Thornton, Holnam's plant manager, alleging wrongful discharge and slander. Holnam and Thornton moved for summary judgment. Prior to the hearing on this motion, Murray moved to amend the complaint to include a cause of action for libel. In addition, Murray withdrew the wrongful discharge claim. Although the trial judge did not specifically address the motion to amend, he considered the parties' arguments on libel and ruled on the issue.¹

344 S.C. 137

The trial judge granted summary judgment to Holnam and Thornton. Murray appeals the portion of the order granting summary judgment to Holnam on the slander claim. Murray does not appeal the grant of summary judgment to Thornton.

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. Quality Towing, Inc. v. City of Myrtle Beach, 340 S.C. 29, 530 S.E.2d 369 (2000); Young v. South Carolina Dep't of Corrections, 333 S.C. 714, 511 S.E.2d 413 (Ct.App.1999); Rule 56(c), SCRCP. See also Bruce v. Durney, 341 S.C. 563, 534 S.E.2d 720 (Ct.App.2000) (motion for summary judgment shall be granted if pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and moving party is entitled to judgment as matter of law). 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. Rothrock v. Copeland, 305 S.C. 402, 409 S.E.2d 366 (1991); 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. Brockbank v. Best Capital Corp., 341 S.C. 372, 534 S.E.2d 688 (2000); Carolina Alliance for Fair Employment v. South Carolina Dep't of Labor, Licensing and Regulation, 337 S.C. 476, 523 S.E.2d 795 (Ct.App.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.

344 S.C. 138

Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 534 S.E.2d 672 (2000); Vermeer, supra.

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.

An appellate court reviews the granting of summary judgment under the same standard applied by the trial court pursuant to Rule 56, SCRCP. Brockbank, supra; Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998).

LAW/ANALYSIS

I. Defamation and Agency

Murray contends the trial judge erred in concluding Holnam was...