/opinions/HTMLFiles/COA/3744.htm

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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.

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Appeal From Horry County
J. Michael Baxley, Circuit Court Judge

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Opinion No. 3744
Heard September 9, 2003 Filed February 9, 2004

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AFFIRMED IN PART, REVERSED IN PART

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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 courts 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.

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 Dept 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)).

STANDARD OF REVIEW

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 General 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)).

ANALYSIS

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 against his former employer, alleging that the former employer had conspired with others to terminate his employment. Our supreme court sustained the summary judgment for the former employer, reasoning that an at-will employee may be terminated at any time for any reason or no reason at all. Id. at 765, 259 S.E.2d at 815. The supreme court based its decision largely on the employers ability to fire plaintiff at any time, for no reason or for a bad reason.

Ross clearly holds that at-will employees can be fired for any reason. Moody v. McLellan, 452, 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 employees 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).

Burroughs & Chapin, Wendel, Dowling, the Myrtle Beach Herald, and Johnson (the remaining respondents) present a different issue than the one addressed in Ross. They are not Anguss 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-partys conspiracy caused the former employer to fire the employee. We believe that an at will-employee can maintain such an action.

In Todd v. S.C. Farm Bureau, 283 S.C. 155, 321 S.E.2d 602 (Ct. App. 1984) (overruled on other grounds), the Court recognized that a former employee could bring an action for tortious interference against a third party, even if the employment was at will. In that case, Farm Bureau, the employer, had hired Equifax to investigate some irregularities. Equifax identified Todd, an employee, as the alleged wrongdoer. Farm Bureau then fired Todd. Todd sued Farm Bureau and Equifax. The jury found for Todd, awarding him damages. Farm Bureau and Equifax appealed. The Court ruled that where a third party induces an employer to discharge an employee who is working under a contract terminable at will, but which employment would have continued indefinitely except for such interference, a cause of action arises in favor of the employee against the third person, if the alleged inducement influence[d], or coerce[d] one of the parties to the contract to abandon the relationship or breach the contract. Id. at 163, 321 S.E.2d at 607 (citation omitted). However, the Court found that the evidence failed to show that Equifax had participated in a conspiracy and reversed. [1]

Other jurisdictions have adopted the same principle. The Georgia Court of Appeals ruled in favor of an attorney who had sued a railroad company because the railroad company had induced the [attorneys] client, and conspired with him to fire the attorney. Studdard v. Evans, 135 S.E.2d 60, 64 (Ga. Ct. App. 1964). As a result, the attorney was forced to withdraw from the case. The railroad company argued that the attorney did not state a cause of action because the client was free to fire him at any time. The court rejected the argument. The court held that the fact that employment is at the will of the employer, [does] not give immunity to a third person who, without justification, interferes with the relation between the parties to the contract. Id.

North Carolina reached a similar conclusion in Smith v. Ford Motor Co., 221 S.E.2d 282 (N.C. 1976). There, the court first defined an outsider as one who was not a party to the terminated contract and who had no legitimate business interest of his own in the subject matter thereof. Smith, 221 S.E.2d at 292. Then the court explained:

The question presented to us by this appeal is: If A, knowing B is employed by C under a contract terminable at will by C, maliciously causes C to discharge B, which C would not otherwise have done, can B maintain in the courts of this State an action against A for damages? Our conclusion is that he can.

Id. at 290.

These facts are similar if not identical to those alleged by Angus. If the remaining respondents maliciously caused Horry County to discharge Angus, assuming that Angus was able to continue performing her job well then the answer is yes, Angus can bring an action against them. [2]

As stated earlier, the trial court in the current case relied on Ross in reaching its conclusion. Ross in turn cites Kirby v. Gulf Oil, 230 S.C. 11, 94 S.E.2d 21 (1956) as its authority for the principle that a conspiracy may not be based upon an act done in the exercise of a legal right. Ross, 273 S.C. at 765, 259 S.E.2d at 815. Kirby cites McMaster v. Ford Motor Co., 122 S.C. 244, 115 S.E. 244 (1921) and Howle v. Mountain Ice Co., 167 S.C. 41, 165 S.E. 724 (1932). But any reliance on Ross and those cases is misplaced. Kirby, McMaster and Howle are all easily distinguishable from Anguss claim, for there is no third party involvement in those cases.

Kirby involved real estate. Kirby had a month-to-month lease on a gas station, but Kirbys landlord, Whitlock, terminated the lease, causing Kirby to lose the business. Kirby sued, alleging Whitlock, Gulf Oil, and Whitlocks son conspired to take his gas station. The supreme court sustained a dismissal in favor of the defendants, holding that a conspiracy may not be based upon an act done in the exercise of a legal right. Kirby, 230 S.C. at 27. The court found that Whitlock, Sr., had terminated the lease for his own reasons, without any prompting from anyone. Neither Whitlocks son nor Gulf Oil had played an active role in Kirbys ruin.

McMaster, too, is easily distinguished from this case. In McMaster, the issue revolved around a partys right to determine with whom to conduct business. McMaster sued Ford and Fords dealers because Ford would not use and would not allow its dealers to use McMasters products on Ford-manufactured automobiles. Since the dealers were Fords agents, no independent third party was involved. See Todd, 283 S.C. at 164, 283 S.E.2d at 607 (1984) (citing Muller v. Stromberg, 427 So.2d 266 (Fla. Dist. App. 1983) (ruling that an officer or agent of a corporation acting for or on behalf of the corporation is not a third party)). In dismissing the action, the McMaster court explained that [w]hile there is some difference of opinion, the weight of authority is in favor of the general proposition that an act done in the exercise of a legal right cannot be treated as wrongful and actionable merely because a malicious motive prompted the exercise of the right. McMaster, 122 S.C. at 246. But that general principle protects only a person directly involved in the underlying relationship, not a third party. [3]

Moreover, the McMaster court relied secondarily on the absence of an unlawful act and of an unlawful means. The court reasoned that the allegation of conspiracy was of no import in the legal consequences, because[the] defendants did nothing unlawful and resorted to no unlawful means to accomplish their purpose. Id. at 247. However, as indicated earlier, an unlawful means and unlawful purpose are required elements of a criminal, not civil, conspiracy. An action for civil conspiracy may exist even though no unlawful means were used. See LaMotte v. Punch Line, 296 S.C. 66, 70, 370 S.E.2d 711, 713 (1988); Lee, 289 S.C. at 11, 344 S.E.2d at 382.

Finally, in Howle, the plaintiff sued the defendants alleging they conspired to eliminate competition in the ice business. Even while sustaining a dismissal of the action, the supreme court clarified its position:

[A]s to conspiracy, [the principle] that two or more may lawfully do, under agreement and regardless of purpose or motive whatever one may lawfully do singly is not the majority view or that of this court. We should not be understood as holding that under no circumstances can an act resulting in damage, when done by two or more pursuant to an agreement, be actionable if a like act, when done by one alone, would not be actionable. The decision here is based solely upon the insufficiency of the evidence to show an agreement between the defendants the gravamen of the charge.

Id. at 47, 165 S.E. at 729 (affd on rehg) (emphasis added).

In the current case, the remaining respondents argued, and the trial court accepted, that [s]ince Mrs. Angus employment was terminable at will, she has no cause of action for civil conspiracy. That conclusion is excessively broad. In Lee, the Court pointedly rejected the notion that liability for the tort of conspiracy cannot be grounded on a lawful act. 289 S.C. at 12, 344 S.E.2d at 382.

The United States Supreme Court had reached a similar conclusion much earlier in Truax v. Raich, 36 S.Ct. 7, 9 (1915):

It is said that the bill does not show an employment for a term, and that under an employment at will the complainant could be discharged at any time, for any reason or for no reason, the motive of the employer being immaterial. The conclusion, however, that is sought to be drawn, is too broad. The fact that the employment is at the will of the parties, respectively, does not make it one at the will of others. The employee has manifest interest in the freedom of the employer to exercise his judgment without illegal interference or compulsion and, by the weight of authority, the unjustified interference of third persons is actionable although the employment is at will.

(emphasis added).

Its ruling notwithstanding, Ross does not control the current case. The facts as alleged here place the remaining respondents squarely at the heart of the conspiracy. The theory of the case is not that Horry County decided to fire Angus and conspired with the remaining respondents to achieve that result, but rather that they decided to get rid of Angus and induced Horry County to fire her.

Based on the foregoing, the trial courts order is AFFIRMED as to the council members and REVERSED as to the remaining respondents.

HUFF, J., and CURETON, A.J., concur.

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