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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Charles Brown, Appellant,

v.

Deputy Winston Leonard, Orangeburg County Sheriff's Department, John Jordan, and Heilig Meyers, Respondents.

Appeal From Orangeburg County
 James C. Williams, Jr., Circuit Court Judge

Unpublished Opinion No. 2008-UP-039
Submitted December 1, 2007 – Filed January 11, 2008

AFFIRMED AS MODIFIED

Fletcher N. Smith, Jr., of Greenville, for Appellant.

Marshall H. Waldron, Jr., of Bluffton, for Respondents.

PER CURIAM: 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]

FACTS

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.

STANDARD OF REVIEW

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).

LAW/ANALYSIS

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:

The governmental entity is not liable for a loss resulting from:
(17) employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.

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) (“It is, of course, settled law that ‘a case cannot be considered as a binding precedent on a legal point that was not argued in the case and not mentioned in the opinion.’”).  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 upon issuance of the warrant. The existence of probable cause is apparent from the record.  Again, we must decide probable cause based on the facts presented to the deputy.  If the statements provided to the deputy were false or incorrect, then potential liability exists as to those individuals who may have provided any false or incorrect statements; however, such acts would not diminish the existence of probable cause absent some basis for the deputy to believe them to be false.  Brown has also filed a malicious prosecution claim against John Jordan and Helig Meyers based upon their allegedly false assertion that he committed an assault; those claims are not the subject of this appeal.  Therefore, the fact that the statements were made to the deputy suggests the existence of probable cause as a matter of law.

While Brown asserts that Leonard did not see or observe Brown punching or assaulting anyone, this assertion does not entitle Brown to maintain a malicious prosecution action.  The deputy provided statements under oath to the magistrate about facts which suggested that a crime had been committed.  The magistrate found probable cause that a crime had been committed.  On appeal, Brown does not challenge the finding of probable cause by the magistrate.  Instead, the gravamen of Brown’s claim is that the statements made were allegedly false.  His inconsistent and conclusory allegation that no one provided any statements to the deputy is unsupported by the record and the record is lacking as to any basis upon which Brown acquired such personal knowledge.  See, e.g., Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188 (1990) (“The object of [Rule 56] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.”); Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744 (1946) (stating speculation and conjecture are not a substitute for probative facts); Zarecki v. Nat'l R.R. Passenger Corp., 914 F.Supp. 1566, 1574 (N.D.Ill. 1996) (“An affidavit that does not set forth the facts and reasoning used in making a conclusion amounts to nothing more than a denial of the adverse party's pleading.”).  Indeed, the only evidence of record is that the statements were made to the deputy outside of Brown’s presence.  Moreover, the only argument made to the court appeared in Brown’s brief and asserted only that the warrant, without more, is not enough to establish probable cause.  Accordingly, a claim for malicious prosecution may not be maintained against Leonard under these circumstances.  Law enforcement must be free to reasonably act under the circumstances presented without fear of the filing of a lawsuit absent any evidence of wrongdoing or improper conduct.

In addition, Brown did not establish Leonard’s malice in instituting the judicial proceedings.  Malice is defined as “the deliberate intentional doing of an act without just cause or excuse.” Law, at 437, 629 S.E.2d at 649 (quoting Eaves v. Broad River Elec. Co-op., Inc., 277 S.C. 475, 479, 289 S.E.2d 414, 416 (1982)).  

Malice does not necessarily mean a defendant acted out of spite, revenge, or with a malignant disposition, although such an attitude certainly may indicate malice. Malice also may proceed from an ill-regulated mind which is not sufficiently cautious before causing injury to another person. Moreover, malice may be implied where the evidence reveals a disregard of the consequences of an injurious act, without reference to any special injury that may be inflicted on another person. Malice also may be implied in the doing of an illegal act for one's own gratification or purpose without regard to the rights of others or the injury which may be inflicted on another person. In an action for malicious prosecution, malice may be inferred from a lack of probable cause to institute the prosecution.

Law, at 437, 629 S.E.2d at 649 (citing Margolis v. Telech, 239 S.C. 232, 122 S.E.2d 417, 420 (1961)).

Leonard was investigating a complaint of an assault and battery, took witness statements and observed the evidence on the scene.  In so doing, Leonard made the determination that there was probable cause to institute judicial proceedings against Brown for assault and battery.  Brown has failed to establish by competent facts that at any time Leonard lacked probable cause or was operating with malice.  

Finally, Brown argues that his negligent hiring and supervision claim, as opposed to the malicious prosecution claim, was improperly barred based on the statute of limitations.  Brown alleges that the statute of limitations should not have begun to run on his claims for negligent hiring and supervision until his charges were nolle prossed on November 3, 2003.  The trial judge in his order granting summary judgment found that the statute of limitations on that claim began to run on April 17, 2001, the date of his arrest.  The trial judge concluded that upon his arrest Brown knew, or should have known by the exercise of reasonable diligence, that the cause of action existed.  Epstein v. Brown, 363 S.C. 372, 380, 610 S.E.2d 816, 820 (2005).  We agree with this conclusion.  A negligence action arising after April 5, 1988, must be commenced within three years “after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action.” S.C. Code Ann. § 15-3-535 (Supp. 1996); Christensen v. Mikell, 324 S.C. 70, 73, 476 S.E.2d 692, 694 (1996).  “The exercise of reasonable diligence” means that an injured party must act promptly “where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.” Wiggins v. Edwards, 314 S.C. 126, 128, 442 S.E.2d 169, 170 (1994) (quoting Snell v. Columbia Gun Exchange, 276 S.C. 301, 303, 278 S.E.2d 333, 334 (1981)).  Furthermore, in determining when the limitations period begins to run, the proper focus is upon the date of discovery of the injury, not the date of the discovery of the wrongdoer. Wiggins, 314 S.C. at 128, 442 S.E.2d at 170.  Regardless of whether the SCTCA two year statute of limitations or the standard three year statute of limitations is applicable, Brown’s claim for negligent hiring and supervision was filed outside of either statute of limitations.  Brown didn’t file his complaint until April 22, 2005, four years and five days after his time to file began to run.  Accordingly, although Brown’s claim for malicious prosecution was timely, the claim for negligent hiring and supervision was properly dismissed for being untimely.[2]

Since we ultimately affirm the trial court on both issues presented, we need not address the respondents’ contention that the court lacked personal jurisdiction due to improper service of process. Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding that the court need not rule on remaining issues when the disposition of a prior issue is dispositive of the appeal).[3]

CONCLUSION

Upon a careful review of the record, Brown’s cause of action for negligent hiring and supervision was properly dismissed as being untimely.  Further, SCTCA precludes Brown from bringing a claim for malicious prosecution against the Orangeburg County Sheriff’s Department.  In addition, while the malicious prosecution claim should not have been dismissed as to Deputy Leonard based upon the same exception for malice  available to the governmental entity under SCTCA, the dismissal of the cause of action is nonetheless appropriate due to the existence of probable cause as a matter of law. 

For the foregoing reasons, the order of the trial court is hereby

AFFIRMED.

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

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] No issue on appeal has been presented as to the running of the statute of limitations on the malicious prosecution claim as it was never addressed by the trial court due to dismissal of the claim under the SCTCA.

[3] Brown includes in his brief on appeal that he also had an outstanding claim for false arrest.  However, no such claim appears in his complaint and the argument was never presented to or ruled upon by the trial court.  As such it is not preserved for us to review.  Floyd v. Floyd, 365 S.C. 56, 73, 615 S.E.2d 465, 474 (Ct. App. 2005) (holding an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review).