Scott v. McCain
Decision Date | 14 January 1981 |
Docket Number | No. 21373,21373 |
Citation | 275 S.C. 599,274 S.E.2d 299 |
Parties | R. C. SCOTT (and six other Respondents in six separate cases identical to his, to wit: Everette W. Noel, Avory Bland, Jr., Herman E. Cain, Mark S. Adams, J. Raymond Cook and Virgil Wall), Appellants, v. Thomas C. McCAIN, Respondent. |
Court | South Carolina Supreme Court |
J. Roy Berry, Johnston, W. Ray Berry, Columbia, and Joe F. Anderson, of Anderson & Anderson, Edgefield, for appellants.
Laughlin McDonald, Atlanta, Ga., for respondent.
The appellants, present and former members of Edgefield County School District Board of Trustees and the former Chief School Administrator of the District appeal the decision of the trial court denying their demurrers to respondent Thomas C. McCain's counterclaims alleging abuse of process. We remand for the reasons set forth herein.
The appellants brought this action against the respondent for libel. In their amended complaints, they allege that McCain wilfully, knowingly and with actual malice had a libelous pamphlet printed accusing the appellants of wilfully filing false reports with the United States Government. 1
McCain filed a third amended answer which contains a counterclaim alleging that appellants filed the complaints to deprive him of protected speech and associational rights and to punish and retaliate against him for the past exercise of such rights. The process is alleged to have been used unlawfully, wilfully for a wrongful purpose, with malice and without probable cause. The appellants demurred to the counterclaim, contending that mere institution of the suit without more does not support a cause for abuse of process.
The torts of abuse of process and malicious prosecution are sometimes confused but their distinctions have been made clear in this State in the case of Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206, 153 S.E.2d 693 (1967). The focus in the abuse of process action is on the improper use of process after it has been issued. Annot., Abuse of Process, 8 A.L.R. 580; 1 Am.Jur.2d Abuse of Process § 13; 72 C.J.S. Process § 120. As stated in Huggins v. Winn-Dixie Greenville, Inc., supra, quoting Prosser, Handbook of the Law of Torts, 2d Ed. § 100, pp. 668, 669:
See also Bell Lines, Inc. v. Strickland, 254 S.C. 148, 173 S.E.2d 788 (1970); Cisson v. Pickens Savings & Loan Association, 258 S.C. 37, 186 S.E.2d 822 (1972); Russell v. Risher, 272 S.C. 182, 249 S.E.2d 908 (1978).
Some confusion surrounds the trial court's action on the motion. The matter was heard in chambers and the trial judge initially sustained the demurrers but granted McCain leave to amend his counterclaim. This order was apparently filed. McCain meanwhile filed a fourth amended answer and counterclaim. The trial judge then on reconsideration filed an order vacating his first ruling sua sponte and by it denied the demurrer.
Once filed, the first order was not subject to sua sponte vacation. As recently stated, ...
To continue reading
Request your trial-
Food Lion v. UNITED FOOD & COMMERCIAL
...act in the use of the process not proper under regular conduct of the proceedings'") (citation omitted); Scott v. McCain, 275 S.C. 599, 600-02, 274 S.E.2d 299, 300-01 (1981) (holding defendant's counterclaim alleging plaintiffs filed lawsuits to deprive him "of protected speech and associat......
-
Hainer v. American Medical Intern., Inc.
...in so doing. This is simply insufficient to create liability under this cause of action. Rycroft v. Gaddy, supra; Scott v. McCain, 275 S.C. 599, 274 S.E.2d 299 (1981). Accordingly , the Court of Appeals' holding on this issue is affirmed in 4. DIRECTED VERDICT--OUTRAGE The only remaining is......
-
Sierra v. Skelton
...Line of Columbia, Inc., 296 S.C. 66, 370 S.E.2d 711 (1988); Johnson v. Painter, 279 S.C. 390, 307 S.E.2d 860 (1983); Scott v. McCain, 275 S.C. 599, 274 S.E.2d 299 (1981); Russell v. Risher, 272 S.C. 182, 249 S.E.2d 908 (1978); Cisson v. Pickens Savings and Loan Ass'n, 258 S.C. 37, 186 S.E.2......
-
First Union Mortg. Corp. v. Thomas, 2261
...improper. An abuse of process claim generally focuses on the improper use of process after it has been issued. Scott v. McCain, 275 S.C. 599, 274 S.E.2d 299 (1981). An ulterior purpose exists if the process is used to gain an objective not legitimate in the use of the process. However, ther......