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24702 - Hainer v. American Medical International, Inc., et al.

Davis Adv. Sh. No. 29
S.E. 2d

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

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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc., et al.

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, ...


1 The hospital and its employees are referred to herein collectively as Hospital.

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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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc., et al.

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


3 The circuit court ruled, and the Court of Appeals held, Hainer was collaterally

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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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc., et al.

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


6 The fact that a report is both truthful and pursuant to a statutory duty may,

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

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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc., et al.

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


malice to warrant such an award. See Wilholt v. WCSC, Inc., 293 S.C. 34, 358

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.

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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc. et al.

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


10 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 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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ANNE T. HAINER v. AMERLCAN MEDICAL INTERNATIONAL, etc. et al.

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.

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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL , etc., et al.

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

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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc., et al.

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.

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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc., et al.

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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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc., et al.

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


1D The majority opinion asserts that Hainer's abuse of process claim just

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.

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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc., et al.

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.


2D Sierra v. Skelton should be overruled to the extent it would require

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.

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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc., et al.

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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ANNE T. HAINER v. AMERICAN MEDICAL INTERNATIONAL, etc. et al.

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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