Weir v. Citicorp Nat. Services, Inc.

Decision Date04 May 1993
Docket NumberNo. 23935,23935
CourtSouth Carolina Supreme Court
PartiesJames WEIR, Respondent, v. CITICORP NATIONAL SERVICES, INC., Appellant. . Heard

Julianne Farnsworth and Rebecca G. Fulmer, both of McNair Law Firm, P.A., Columbia, for appellant.

Kenneth R. Young, Jr. and Lohman D. Reiter, II, both of Young, Young & Reiter, Sumter, for respondent.

MOORE, Justice:

This is a libel action. The jury awarded Respondent James Weir $25,000.00 actual damages and $500,000.00 punitive damages. The trial judge granted a new trial nisi remittitur to $275,000.00 as to the punitive damages. We affirm.

FACTS

In August 1988, Weir, a real estate agent, discussed buying a van with Burdette Motors. Weir signed a motor vehicle sales installment contract and security agreement, a motor vehicle service contract, and a power of attorney all dated August 5, 1988, and a credit application dated August 1, 1988. Burdette Motors subsequently assigned the contract to Appellant Citicorp National Services, Inc. (Citicorp), on August 5, 1988, for $26,420.00. Weir testified he decided not to buy the van prior to taking possession and informed Burdette Motors of his decision.

Citicorp sent Weir a late payment notice in October 1988. In late 1988, Weir became interested in buying a house. On January 5, 1989, Weir signed a contract on the house which included an addendum removing the standard financing contingency. Pursuant to the contract, Weir was to obtain a commitment letter for financing before January 15, 1989, with the closing to take place prior to April 1, 1989.

Weir's credit report on January 26, 1989, showed a balance owed to Citicorp which increased the overall debt-to-income ratio. It, however, did not contain any delinquent accounts and Weir's credit was reported as satisfactory. Weir attempted to remove the Citicorp account by writing three letters to Citicorp. On April 20, 1989, a second credit report showed the account with Citicorp delinquent. When Weir was unable to obtain financing, the sellers of the house sued on the real estate contract and were awarded a $16,944.28 judgment. Eventually, in October 1989 Citicorp removed all derogatory remarks from Weir's credit report and labeled the problem with the account "dealer fraud."

Weir brought this libel action against Citicorp seeking actual and punitive damages. The trial judge denied Citicorp's motions for a directed verdict. The jury returned a verdict of $25,000.00 in actual damages and $500,000.00 in punitive damages. Citicorp made motions for a judgment notwithstanding the verdict (JNOV) and a new trial absolute, which were also denied. The trial judge granted Citicorp's motion for a new trial nisi remittitur thereby reducing the punitive damage award to $275,000.00. Citicorp appeals.

ISSUES

1) Did the trial judge err in failing to grant Citicorp's motions for directed verdict and JNOV?

2) Did the trial judge err in failing to admit two letters from Citicorp to Weir?

3) Did the trial judge err in excluding other evidence?

4) Did the trial judge err in not granting Citicorp's motions for a new trial on the ground the verdict was excessive?

5) Does the punitive damages award violate Citicorp's due process rights?

DISCUSSION
1) Directed verdict and JNOV motions

Citicorp argues the trial judge erred in denying its motions for directed verdict and JNOV based on several grounds. In reviewing a directed verdict motion, this Court must view the evidence and all reasonable inferences in the light most favorable to the party opposing the motion. Santee Portland Cement Co. v. Daniel Int. Corp., 299 S.C. 269, 384 S.E.2d 693 (1989).

First, Citicorp argues the communication was true. The truth of the communication is considered a complete defense. 50 Am.Jur. Libel And Slander § 176 (1970). Citicorp argues it reported the debt owed to it based upon the signed sales contract and thus it argues the report was true. Weir contends he did not buy the van and there was not a contract and, therefore, the damaging credit report was false. When the truth of the defamatory communication is in dispute, the issue is a jury question. Id.

Second, Citicorp argues it was entitled to the qualified privilege defense. South Carolina has adopted the defense of qualified privilege for a mercantile agency in respect to reports on the credit and financial standing of an individual or business concern communicated confidentially, in the regular course of business, and in good faith to a subscriber having an interest in the particular matter. Cullum v. Dun & Bradstreet, Inc., 228 S.C. 384, 90 S.E.2d 370 (1955). In Thornton v. New South Life Ins. Co., 262 S.C. 651, 207 S.E.2d 88 (1974), the Court interpreted the Cullum holding so as not to require proof of actual negligence. The Court held the privilege is qualified and will be lost if the agency acted maliciously or in reckless disregard of its duty to exercise reasonable care to make a fair and accurate report. Id.

Citicorp moved for a directed verdict on the ground that Weir had failed to establish malice. At trial, Weir contended Citicorp had failed to exercise its duty to correct the report. Weir introduced evidence that he had contacted Citicorp about the account many times without success. There was sufficient evidence in the record to submit to the jury the issue whether Citicorp acted recklessly or with malice. Therefore, the trial judge did not err in denying Citicorp's motions for a directed verdict.

Third, Citicorp alleges Weir assumed the risk when he entered the real estate contract and deleted the financing contingency. Citicorp argues Weir could not have met the January 15th deadline for the financing commitment letter because he failed to apply for financing until around January 21st. There was evidence presented at trial, however, that the other party to the real estate contract did not pursue this breach and the damages sued for flowed from Weir failing to close by April 1st which Weir alleged could have been accomplished but for the erroneous credit report. The trial judge did not err in submitting this issue to the jury.

Lastly, Citicorp argues the trial judge erred in failing to grant its motion for a JNOV on the ground there was not sufficient evidence to support an award of $25,000 in actual damages. Citicorp contends Weir proved only $16,944.28 in damages and he was not entitled to general damages. Weir offered the judgment for $16,944.28 to prove actual damages. Weir also offered the judgment to prove general damages to his reputation. The trial judge did not err in denying Citicorp's JNOV motion.

2) Letters ruled inadmissible

Citicorp argues the trial judge erred when he held two letters from Citicorp to Weir were inadmissible. Citicorp sought to introduce the letters to show Weir was on notice of the account prior to entering the real estate contract. Weir objected on the ground that the Citicorp employee was not qualified to testify the letters were mailed. The trial judge held the letters were inadmissible because Weir denied receiving the letters and the Citicorp employee could not testify with personal knowledge that the letters were mailed.

Admissibility of evidence is a matter of discretion and absent an abuse of discretion or an error of law, this Court will not disturb the trial court's ruling. Hofer v. St. Clair, 298 S.C. 503, 381 S.E.2d 736 (1989). A rebuttable presumption is established upon the evidence of mailing a properly addressed letter. Foster v. Ford Motor Credit Co., 302 S.C. 450, 395 S.E.2d 440 (1990). However, this is merely a presumption regarding receipt and does not affect admissibility. The trial judge erred in excluding the letters on this ground.

The authenticity of the letters, however, must be established before they may be admitted into evidence. JKT Co. v. Hardwick, 274 S.C. 413, 265 S.E.2d 510 (1980); Williams v. Milling-Nelson Motors, Inc., 209 S.C. 407, 40 S.E.2d 633 (1946). We find Citicorp failed to adequately proffer the qualifications of its witness to authenticate the letters. Although the basis for the trial judge's ruling may be incorrect, we find the letters were subject to exclusion. A correct decision of the trial court on the wrong ground will be affirmed on appeal. Moorhead v. First Piedmont Bank & Trust Co., 273 S.C. 356, 256 S.E.2d 414 (1979). Therefore, we hold the trial judge did not abuse his discretion in excluding the letters.

Furthermore, we do not see how the exclusion of these letters prejudiced Citicorp. First State Sav. & Loan v. Phelps, 299 S.C. 441, 385 S.E.2d 821 (1989) (to reverse the trial court's exclusion of evidence a party must show both error and prejudice). Weir testified he had notice of the problem he had with the Citicorp account prior to entering the real estate contract. The letters were merely cumulative evidence to establish Weir had notice of the delinquent account with Citicorp. Taylor v. Bridgebuilders, Inc., 275 S.C. 236, 269 S.E.2d 337 (1980). Therefore, we hold the exclusion of the letters was not prejudicial error. 1

3) Other evidentiary rulings

Citicorp contends the trial judge erred in refusing to admit other pieces of evidence. Citicorp sought to introduce evidence of a separate judgment against Weir to show his reputation in the community was already damaged by the previous judgment. The trial judge refused to admit the judgment into evidence because there was evidence the judgment was not entered on the judgment roll. We find no abuse of discretion. Hofer, supra.

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