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THE STATE OF SOUTH CAROLINA
In The Supreme Court
Anne T. Hainer, Petitioner,
v.
American Medical
International, Inc., East
Cooper Community
Hospital, Inc., Cindy
Woltman, Patricia
Condon, and Katherine
Sellers,
Respondents.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Charleston County
Daniel E. Martin, Sr., Judge
Opinion No. 24702
Heard January 21, 1997 - Filed October 14, 1997
AFFIRMED IN RESULT.
Justin O'Toole Lucey, of Mount Pleasant, for petitioner.
E. Douglas Pratt-Thomas and Allison M. Carter of Wise,
Pratt-Thomas, Pearce, Epting and Walker, of Charleston, for
respondents.
WALLER, A.J.: We granted certiorari to review the Court of Appeals' opinion
in Hainer v. American Med. Internat'l, Inc., 320 S.C. 316, 465 S.E.2d 112 (Ct. App.
1995). We affirm as modified.
FACTS
p49
Petitioner, Anne T. Hainer (Hainer), was a registered nurse at East Cooper
Community Hospital (Hospital). She was disciplined by the State Nursing Board
for "patient abandonment" when, without notifying appropriate personnel, she
resigned her position on July 16, 1989
Hainer subsequently instituted this action for abuse of process and
intentional infliction of emotional distress (outrage) against Hospital,1 claiming it
wrongfully reported her to the State Nursing Board. The jury returned a verdict
of $75,000.00 actual and $225,000.00 punitive damages for Hainer. The Court of
Appeals reversed, finding Hospital entitled to a directed verdict on both causes of
action. We granted certiorari and instructed the parties to brief the following
questions:
1. May a truthful communication be malicious under S.C. Code Ann.
§ 40-33-936 (1986)?
2. If so, was there any evidence of malice?
3. Was there evidence of abuse of process to withstand a directed
verdict motion?
4. Was there evidence of intentional infliction of emotional distress
sufficient to withstand a directed verdict motion?
1. MALICE UNDER § 40-33-936
In addressing the abuse of process claim, the Court of Appeals focused on the
statutory privilege contained in S.C. Code Ann. § 40-33-936 (1986), which provides
that a communication to the Nursing Board is privileged "except upon proof that
such communication was made with malice." Essentially, the Court of Appeals held
that, as the Board found Hainer guilty of misconduct, Hospital had just cause to
report her, and therefore the report could not have been maliciously made.2
Accordingly, it held Hospital was property, granted a directed verdict on this claim.
S.C. Code Ann. § 40-33-936 (1986) provides, in part:
Every communication, whether oral or written, made by ... any person,
... to the Board ... shall be privileged: and no action or proceeding, ...
2 In light of this finding, the logical extension would have been for the Court
of Appeals to hold that the statutory privilege of § 40-33-936 preempted both the
abuse of process and the outrage claims.
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shall lie against any such person, ... on whose behalf such
communication shall have been made ... , except upon proof that such
communication was made with malice.
It is uncontested the report to the Board was true3 and that Hospital has a
duty to report "misconduct."4 Accordingly, the issue is whether, under such
circumstances, a report may ever be deemed malicious.
We find no authority for the proposition that truth negates malice as a
matter of law. On the contrary, truth is clearly not dispositive of the element of
malice in a number of causes of action. See e.g. Upchurch v. New York Times
314 S.C. 531, 431 S.E.2d 558 (1993)(truth not a defense to intentional infliction of
emotional distress); Huggins v. Winn-Dixie, Greenville, Inc., 249 S.C. 206, 153
S.E.2d 693 (1967)(unlike malicious prosecution claim, plaintiff need not prove prior
action unfounded to sustain abuse of process claim), see also Hubbard and Felix,
The South Carolina Law of Torts, 342 (1990)(hereinafter Hubbard & Felix) (abuse
of process claims founded on perversion of process, rather than illegality);
Snakenburg v. The Hartford Cas. and Ins. Co., 299 S.C. 164, 383 S.E.2d 2 (Ct. App.
1989)(tort of wrongful publicizing of private affairs); Rycroft v. Gaddy, 281 S.C. 119,
314 S.E.2d 39 (Ct. App. 1984)(invasion of privacy).5 Accordingly, we find the fact
that the report was true does not negate malice as a matter of law.
Further, we are unpersuaded by Hospital's claim that, because it had a
statutory duty to report misconduct, malice is precluded. Where the terms of the
statute are clear, the court must apply those terms according to their literal
meaning. Adkins v. Varn, 312 S.C. 188, 439 S.E.2d 822 (1993). This Court cannot
construe a statute without regard to its plain and ordinary meaning, and may not
resort to subtle or forced construction in an attempt to limit or expand a statute's
scope. Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993). See also Estate
of Guide v. Spooner, 318 S.C.335 457 S.E.2d 623 (Ct. App 1995)(if Legislature had
intended certain result in statute, it would have said so).
Nothing in § 40-33-936 evinces a Legislative intent to exempt truthful
communications from a finding of malice. If the fact of the duty negated malice,
the Legislature would have granted an absolute privilege since there is a duty to
estopped to relitigate the issue of her misconduct.
4 S.C. Code Ann. § 40-33-9-10 requires employers of nurses to report any
instances of misconduct.
5 Moreover, it is patent that truthful information may be divulged in a malicious
manner as, for example, disclosure of the fact that a person has a venereal disease,
is an adulterer, a racist, etc.
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report all perceived misconduct, and the statute makes no distinction for the
reporting of truthful versus untruthful information. We therefore find that the
filing of a truthful report pursuant to § 40-33-936 does not negate malice as a
matter of law.6
Further, we find that, in order to defeat the privilege afforded reports made
pursuant to § 40-33-936, a plaintiff must demonstrate the defendant made the
communication with common law actual malice.7
Privileged communications are either absolute or qualified. When a
communication is absolutely privileged, no action lies for its publication, no matter
what the circumstances under which it is published, i.e., an action will not lie even
if the report is made with malice. Richardson v. McGill, 213 S.C. 142, 255 S.E.2d
341 (1979); Wright v. Sparrow, 298 S.C. 469, 38l S.E.2d 503 (Ct. App. 1989);
Crowell v. Herring, 301 S.C. 4, 392 S.E.2d 464 (Ct. App. 1990). When qualified
however, the plaintiff may recover if he shows the communication was actuated by
malice. Id. One publishing under a qualified privilege is liable upon proof of
actual malice. Constant v. Spartanburg Steel Products 316 S.C. 86, 447 S.E.2d
194 (1994). Actual malice can mean the defendant acted recklessly or wantonly,
or with conscious disregard of the plaintiffs rights. Constant v. Spartanburg Steel
Products, supra. Common law actual malice has also been defined as meaning
"the defendant was actuated by ill will in what he did, with the design to
causelessly and wantonly injure the plaintiff, or that the statements were published
with such recklessness as to show a conscious indifference towards plaintiffs rights.
Jones v. Garner, 250 S.C. 479, 488, 158 S.E.2d 909 (1968); see also Hubbard and
Felix at p. 398.
Here, § 40-33-936 creates a qualified privilege. Accordingly, where a plaintiff
demonstrates the defendant acted with common law actual malice, the privilege of
section 40-33-936 does not apply.8
however, be relevant to the jury's determination of whether the defendant in fact
acted with malice.
7 We note that, in using the term "actual malice," we do not refer to what is
commonly known as "constitutional actual malice." There is a distinction between
the two. See Hubbard and Felix, The South Carolina Law of Torts, p. 398.
"Constitutional actual malice" refers to the defendant's knowledge of the
publication's falsity or reckless disregard of its truth or falsity. Id.; Sanders v.
Prince, 304 S.C. 236, 403 S.E.2d 640 (1991). The present case involves common
law actual malice.
8 We remind trial judges that in cases in which the issue of punitive damages
is submitted to the jury, there must be clear and convincing evidence of actual
p52
2. EVIDENCE OF MALICE
At trial and before the Court of Appeals, Hospital claimed a truthful
communication made pursuant to a statutory duty could never be deemed malicious.
Hospital conceded at oral argument before this Court, however, that if we found a
truthful report could be malicious, then the matter of the sufficiency of the evidence
of malice was for the jury. Accordingly, we need not conduct an exhaustive review
of the evidence to determine its sufficiency.
Malice may be proved by direct or circumstantial evidence. Smith v. Smith,
194 S.C. 247, 9 S.E.2d 584 (1947). Proof that statements were published in an
improper and unjustified manner is sufficient evidence to submit the issue of actual
malice to a jury. Mains v. K-Mart 297 S.C. 142, 375 S.E.2d 311 (Ct. App. 1988).
Although circumstantial, there was some evidence from which the jury could
infer malice. Accordingly, the issue was for the jury.9
3. DIRECTED VERDICT - ABUSE OF PROCESS
As there was some evidence from which the jury could have inferred malice,
we must determine whether Hainer met her burden of proving the remaining
elements of abuse of process. We find that she did not and, accordingly, affirm in
result the Court of Appeals' holding that a directed verdict was properly granted
on the abuse of process claim.
The essential elements of abuse of process are an ulterior purpose and a
willful act in the use of the process not proper in the conduct of the proceeding.
Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206, 153 S.E.2d 693 (1967). Some
definite act or threat not authorized by the process or aimed at an object not
legitimate in the use of the process is required. There is no liability where the
defendant has done nothing more than carry out the process to its authorized
conclusion even though with bad intentions. Id.; Rycroft v. Gaddy, 281 S.C. 119,
314 S.E.2d 39 (Ct. App. 1984); Hubbard & Felix, supra at 382-383. The improper
purpose usually takes the form of coercion to obtain a collateral advantage, not
properly involved in the proceeding itself. Id. Abuse of process requires both an
ulterior purpose and a willful act not proper in the regular course of the
S.E.2d 397 (Ct. App. 1987); S.C. Code Ann. § 15-33-135 (Supp. 1996).
9 The Court of Appeals' opinion is modified to the extent it held there was no
evidence of malice.
p53
proceeding. See Sierra v. Skelton, 307 S.C. 217, 414 S.E.2d 169 (Ct. App. 1992).10
Here, Hainer's evidence is simply insufficient to meet the elements of abuse
of process. The evidence, viewed in the light most favorable to Hainer, is that
several days after her resignation on July 16, 1989, she had a meeting with
Hospital employees at which Hainer was advised she would "have to [be]
reported] to the State Board of Nursing for patient abandonment." Notably,
Hainer did not testify that she was "threatened" with a complaint to the Board if
she did not report to work; she testified only that she was told that she would have
to be reported. Hainer testified that she heard absolutely nothing more from
Hospital until sometime in February, 1990, when she was contacted by the State
Nursing Board concerning the complaint which had been filed against her by the
Hospital.11 There is absolutely no evidence in the record that, in between these
dates, Hospital in any way threatened, coerced, harassed, or otherwise contacted
Hainer.
Hainer essentially bases her abuse of process claim on the fact that, at trial,
Hospital vacillated as to the date it learned "patient abandonment" was a
reportable offense.12 The argument follows that, since it did not even know if
"patient abandonment" was a reportable offense, it must have been using it as a
threat against her and other nurses to "keep them in line." The problem with this
claim is on the improper use of the process after it has been issued. Scott v.
McVain, 275 S.C. 599, 274 S.E.2d 299 (1981); Hubbard & Felix, supra at p. 384.
But see Sierra v. Skelton, supra. Under this view, there was clearly no willful act
subsequent to issuance of the process in this case. However, we need not decide
whether a claim for abuse of process will lie in cases where the willful act occurs
prior to the institution of proceedings since, here, there is simply no willful act in
the use of the proceedings.
11 In the interim between July and February, other nurses were allegedly
"threatened" by Hospital with charges of "patient abandonment." One of those
nurses, Sandra Enright, was told by Nurse Woltman that if she did not report
during Hurricane Hugo, she would be reported to the Nursing Board. Enright filed
suit against Hospital in November, 1989; her suit was subsequently settled.
12 According to Hospital's director of nursing, the reason for the delay in filing
a complaint was that she did not learn until February 8, 1990 (in a phone
conversation with B.J. Church of the Nursing Board) that "patient abandonment"
was a reportable offense required by the Nurse Practice Act, S.C. Code Ann. § 40-
33-935 (Supp. 1995) to be reported to the State Board. It is undisputed that
although "patient abandonment" became a reportable offense in June, 1989, the
regulations to that effect were not in print in July, 1989. 26 S.C. Code Re-s. 91-
19(c)(3)(n)(Supp. 1995).
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argument is twofold. First, it is undisputed that, at least as to Hainer, she was
told in July, 1989 that Hospital would have to report her to the Board. Second,
it is uncontradicted that Hospital had absolutely no contact with Hainer between
the date of that meeting and the lodging of the complaint with the Nursing Board.
The fact that other nurses may have been threatened with "patient abandomnent"
charges, or that another nurse filed suit against Hospital in November is simply
insufficient to demonstrate that Hospital abused the process against Hainer.
Although Hainer's evidence may be susceptible of an inference of an ulterior
purpose, i.e., that Hospital filed the report either to discredit Hainer, or to chill
other nurses from testifying in the Enright suit, Hainer has simply failed to
demonstrate in what manner Hospital committed a "willful act not proper in the
regular conduct of the proceeding." Huggins v. Winn-Dixie Greenville, Inc., supra.
Cf. Kollodge v. State of Alaska, 757 P.2d 1024 (Ak. 1988); Tomash v. John Deere
Industrial Equipment, 399 N.W.2d 387 (Iowa 1987).
The only arguable "act" cited by Hainer is the fact that Hospital delayed
filing its complaint with the Board for several months. However, S.C. Code Ann.
§ 40-33-970 sets forth no time frame in which to report misconduct and,
accordingly, there is nothing improper in the fact that Hospital delayed filing its
complaint. As noted by the Court of Appeals in Skelton there must be an overt
act, and an improper purpose alone is insufficient. 307 S.C. at 222, 414 S.E.2d at
172. See also Huggins supra; W. Page Keeton, Prosser and Keeton on The Law
of Torts 898 (5th Ed. 1984). At best, the evidence here demonstrates that Hospital
carried out the process to its authorized conclusion, even if it had bad intentions
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 result.
4. DIRECTED VERDICT - OUTRAGE
The only remaining issue is whether Hospital was entitled to a directed
verdict on Hainer's claim of outrage. We concur with the Court of Appeals' opinion
that Hospital's actions here do not rise to the level of outrage. Cf. People v.
Yarborough, 509 N.E.2d 747 (Ill. 1987)(even if report of misconduct against nurse
was filed in bad faith and with malice, it was not enough to be characterized as
extreme and outrageous). Accordingly, we affirm the Court of Appeals' opinion on
this issue.
AFFIRMED IN RESULT.
FINNEY, C.J., MOORE and BURNETT, JJ., concur. TOAL, A.J.,
dissenting in separate opinion.
p55
TOAL, A.J.: I dissent, in part, because I differ with the portion of the
majority's opinion which bears on the issue of abuse of process. As there was
evidence of abuse of process to withstand a directed verdict motion, the trial
court properly submitted the issue to the jury. Accordingly, the decision of
the Court of Appeals should be reversed.
The leading South Carolina case on the issue of abuse of process is
Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206, 153 S.E.2d 693 (1967).
The case sets forth the following definition of abuse of process:
The essential elements of abuse of process, as the tort has
developed, have been stated to be: first, an ulterior purpose, and
second, a wilful act in the use of the process not proper in the
regular conduct of the proceeding. Some definite act or threat
not authorized by the process, or aimed at an objective not
legitimate in the use of the process, is required; and there is no
liability where the defendant has done nothing more than carry
out the process to its authorized conclusion, even though with
bad intentions. The improper purpose usually takes the form of
coercion to obtain a collateral advantage, not properly involved in
the proceeding itself, such as the surrender of property or the
payment of money, by the use of the process as a threat or club.
Huggins, 249 S.C. at 209, 153 S.E.2d at 694.
Huggins applied the above-cited principles to the following facts: The
plaintiff, a customer, had entered the defendant's store and had decided to
buy various food items. He picked up two small packages of ham, which he
dropped into his coat pocket, as he was not using a pushcart. He proceeded
to the check-out counter and paid for a bottle of oil and a bag of potatoes.
When he reached the door on his way out, the store manager stopped him
and asked if he had forgotten to pay for the ham, whereupon he replied that
he had forgotten about it, took it out of his pocket, and offered to pay for it.
The manager refused the proffered payment, called him to the rear of the
store, where he asked him why he had done this, to which the customer
replied that he had made a mistake and was sorry that it had happened.
The customer repeated his offer to pay for the ham, but the manager replied
that he would have to pay ten dollars for merchandise that the manager felt
the customer had previously taken from the store. When the customer
refused to do so, the manager had the police called, who eventually arrested
the customer and charged him with petit larceny. He was released on bond,
but was subsequently arrested for shoplifting. Upon trial, he was found not
p56
guilty.
Viewing the facts in the light most favorable to the customer (i.e. the
non-moving party), this Court concluded that there was evidence that "the
criminal process of the court was used for the ulterior purpose of coercing the
plaintiff into paying ten dollars for merchandise that the store manager 'felt'
he had previously taken, rather than for the sole purpose for which it could
properly have been intended, viz., to punish the plaintiff for 'shoplifting' two
packages of ham." Huggins, 249 S.C. at 212, 153 S.E.2d at 696.
As in Huggins, the facts of the present case also make out a claim for
abuse of process. Anne Hainer was described by her co-workers as a very
capable, competent nurse who worked at Hospital. On July 16, 1989, Hainer
left her job, leaving a resignation letter at Hospital. She called Hospital
personnel to ensure they had received her resignation letter. She was told
that she could not resign, but was fired, and that she had committed patient
abandonment.
Several days later, Hainer was called to Hospital for a meeting. At the
meeting, she was informed by Hospital personnel that they had to report her
to the State Board of Nursing for patient abandonment; however, they offered
to give Hainer back her job. Hainer stated, "I came away with the
understanding that -- that they had control over me." She further testified
that Hospital personnel threatened her with patient abandonment.
Hainer decided against resuming her job and wrote another letter of
resignation, which she mailed to Hospital in the latter part of July. She did
not hear back from Hospital, and Hospital did not report her for patient
abandonment at that time. Another nurse testified that Kathy Sellers, a
hospital supervisor, was very angry with what had happened and "was going
to go after [Hainer's] license" on the grounds of patient abandonment.
Two months after Hainer's resignation, Hospital personnel threatened
another nurse, Sandra Enright, in connection with staffing needs at the time
of Hurricane Hugo. Enright was called at home by her supervisor Cindy
Woltman the day before Hurricane Hugo hit South Carolina and was told to
report to work the next day. When Enright replied that she was planning
to evacuate the area with her family and that she was not scheduled to work,
Woltman told her that she would lose her license. When Enright asked on
what grounds, Woltman responded, "patient abandonment." Because of the
threat, Enright went to work the next day. At work, she discovered that
other nurses had received similar phone calls.
p57
Shortly after Hugo, Enright complained to Hospital personnel about her
license being threatened. Additionally, she met with Woltman to express her
concerns about the matter. Woltman told her that she had been instructed
to do so by other Hospital personnel and that they were ignorant of the
patient abandonment laws. Enright then brought up the subject of how Anne
Hainer had been threatened with patient abandonment to show that Hospital
was well aware of the patient abandonment laws. Woltman said that
Enright was right.
On November 22, 1989, Enright filed a lawsuit against Hospital and
certain Hospital personnel in relation to the Hugo incidents. Hainer had
agreed to testify in Enright's case that Hospital personnel had also
threatened to report her. After the suit was filed, Enright and her attorney
advised Hospital that they were aware of another employee (Anne Hainer)
having been threatened by Hospital personnel for patient abandonment.
They conveyed this information in March 1990. In the very same month,
Hospital filed with the State Nursing Board a charge of patient abandonment
against Anne Hainer. This was some eight months after Hainer's
resignation.
Hainer filed the present action alleging Hospital had engaged in a
pattern of intimidation of nurses by repeatedly threatening to file patient
abandonment charges against them. In particular, she contends that
Hospital pursued patient abandonment charges against her to prevent her
from serving as a witness in the Enright lawsuit and to prevent her from
disclosing Hospital's management practices. Such acts, she asserts, constitute
abuse of process.
Viewed in the light most favorable to the non-moving party, the facts
presented at trial offer ample evidence for Hainer's abuse of process claim to
survive Hospital's directed verdict motion. Evidence was presented that
Hospital was clearly aware of the charge of patient abandonment; that it
threatened Hainer with this charge; and that it threatened other nurses with
the same charge. The majority opinion rejects Hainer's claim for abuse of
process, concluding that there was not evidence of both an ulterior purpose
and a wilful act. To the contrary, evidence of both elements is present. The
ulterior purpose," taking "the form of coercion to obtain a collateral
advantage," was the prevention of Hainer from revealing information about
Hospital's improper managment practices and from serving as a witness in
the Enright's lawsuit. See Huggins, 249 S.C. at 209, 153 S.E.2d at 694. The
"wilful act in the use of the process not proper in the regular conduct of the
proceeding" was the threat to have Hainer's nursing license revoked. As
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Huggins stated, the "wilful act" may take the form of a "threat ... aimed at
an objective not legitimate in the use of the process." See id.
The majority asserts that there is no evidence of a wilful act because
Hainer was not in any way threatened. A review of the record would
indicate otherwise. The following facts amply bear this out:
1. Hospital fired Hainer and informed her she had committed patient
abandonment; yet, it offered Hainer back her job.
2. Hainer testified that "Miss Sellers and Miss Condon had . . .
threatened to report me to the State Board of Nursing for patient
abandonment."
3. Enright testified that Cindy Woltman "stated that Kathy Sellers was
very angry about what happened and was going to go after Anne's license.
And I asked her, 'On what grounds?' And she said, 'Patient abandonment .......
4. Enright testified about a conversation she had with Cindy Woltman:
"I said, 'You know as well as I do that they were going after Anne Hainer's
license and the reason they didn't is because they couldn't because she -- not
only -- not only did she not abandon her patients but it was ridiculous.' And
the point of me bringing up Anne Hainer was the fact that the hospital had
previous knowledge of the patient abandonment laws. And with that, she
stated I was right and she began to cry. "
5. Hospital filed charges against Hainer only after Enright and her
attorney advised Hospital that Hainer had agreed to testify that Hospital
personnel had also threatened to report her for patient abandonment.1D
These facts provide persuasive circumstantial evidence that Hospital
engaged in an act or threat aimed at an objective not legitimate in the use
of the process. The majority opinion suggests that only direct evidence of an
overt act will suffice to allow the case to be presented to the jury. This
conclusion is based on two faulty notions: First, that only direct, not
circumstantial, evidence is permitted in order to establish an abuse of process
claim. I am unaware of any authority for the proposition that the
evidentiary rules are somehow different for abuse of process actions. Second,
the majority opinion accepts the concept that an "overt act" is necessary in
order to make out a claim. As far as I can determine, the mention of the
necessity of an "overt act" in abuse of process cases appears for the first time
rests on Hospital's vacillation as to the dates it learned "patient
abandomnent" was a reportable offense. The above-listed facts would indicate
there is much more to Hainer's claim.
p59
in South Carolina jurisprudence in the 1992 Court of Appeals opinion Sierra
v. Skelton, 307 S.C. 217, 414 S.E.2d 169 (Ct. App. 1992). This was not a
requirement in any of this Court's abuse of process decisions.2D
If we approach the tort of abuse of process only in a hyper-technical
manner, then we vitiate the purpose for which the cause of action exists. As
Huggins explained, abuse of process is the employment of legal process for
some purpose other than that which it was intended by the law to effect.
Huggins, 249 S.C. at 210, 153 S.E.2d at 695. That case further stated that
it is the "abuse, the perversion, of the process, not its illegality, [that] is the
foundation of the cause of action." Huggins, 249 S.C. at 214, 153 S.E.2d at
697.
A reading of Huggins reveals that this Court employed a flexible
approach to analyzing whether process had been abused. For example, in the
case, the defendant argued that since the customer's arrest in the store and
subsequent arrest on the warrant for shoplifting took place after the actions
of the store manager, those actions did not constitute abuse of process
because "process" was not then in existence. The opinion rejected this
technical argument,3D calling it "unsound" and concluding that the defendant
cannot divorce itself from responsibility for the proceedings that
resulted from the store manager's action; and the testimony in
this record warrants the inference that the arrest, the charge of
petit larceny, and the subsequent arrest, indictment and trial on
the charge of shoplifting, all of which on their face related only
to two packages of ham, were tainted throughout with the
ulterior and improper purpose of coercing the respondent to pay
for merchandise that the store manager "felt" or suspected he had
previously taken.
Huggins, 249 S.C. at 212, 153 S.E.2d at 696.
In addition to Huggins, our opinion in Broadmoor Apartments v.
an overt act for an abuse of process claim to be made out.
3D The majority opinion's discussion in footnote 10, stating there is
authority for the proposition that the focus of an abuse of process claim is on
the improper use of the process after it has been used, does not comport with
the clear holding in Huggins.
p60
Horwitz, 306 S.C. 482, 413 S.E.2d 9 (1991) also exemplifies this Court's
flexible approach in analyzing abuse of process claims. In that case,
Broadmoor executed a contract with a purchaser for the sale of an apartment
complex. The required $75,000 deposit was reduced to $50,000 by agreement
of the parties. A few months later, the purchaser requested that the deposit
be further reduced to $25,000. This request was rejected by Broadmoor. The
deposit was not paid; nevertheless, the purchaser purported to assign the
contract of sale to a third-party. Such an assignment was not permitted
under the contract. The third-party attempted to cover the deposit by issuing
a $50,000 draft; however, the bank account on which the draft was drawn
had a balance of $10. Subsequently, the third-party filed a lis pendens to
enjoin sale of the property. The lis pendens and specific performance actions
were resolved in Broadmoor's favor,
Broadmoor then sued purchaser and third-party for slander of title and
abuse of process. The abuse of process action resulted in a jury verdict of
$750,000. In reviewing the denial of a motion for directed verdict, this Court
found that the trial court had properly submitted the abuse of process issue
to the jury. We simply concluded that there was evidence "from which the
jury could infer that [third-party] willfully abused the process, with the
ulterior purpose of preventing a sale to [others] in hopes of obtaining
financial backing with which to purchase the property at an advantageous
price." Broadmoor, 306 S.C. at 487, 413 S.E.2d at 12. Thus, Broadmoor
affirms the teaching of Huggins that "it is the malicious misuse or perversion
of the process for an end not lawfully warranted by it that constitutes the
tort known as abuse of process." Huggins, 249 S.C. at 209, 153 S.E.2d at
695.
The Restatement's formulation of abuse of process further supports the
method of analysis set forth in Huggins and Broadmoor. Restatement
(Second) of Torts § 682 (1977) provides: "One who uses a legal process,
whether criminal or civil, against another primarily to accomplish a purpose
for which it is not designed, is subject to liability to the other for harm
caused by the abuse of process." The comment to the section reveals that the
gravamen of the misconduct "is the misuse of the process, no matter how
properly obtained, for any purpose other than that which it was designed to
accomplish. "
A fundamental purpose of the disciplinary process for nurses is the
"protection of the public." See S.C. Code Ann. § 40-33-930 (Supp. 1996). The
process seeks to discipline those nurses who have not conformed to the
standards of the profession. The purpose of the process is not to coerce,
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harass, or threaten nurses. It was not intended to serve as a "club" to be
used by hospital supervisors to intimidate nurses into working when they are
not required to work, to prevent nurses from disclosing information about
improper hospital practices, or to scare off potential witnesses in actions
against hospitals. In the instant case, there is ample evidence of a misuse
or perversion of the process for an end not lawfully warranted. Accordingly,
I believe the trial court did not err in denying Hospital's motion for directed
verdict on this issue.
For the foregoing reasons, I dissent, in part, from the majority opinion.
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