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2008-UP-283 - Gravelle v. Roberts

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


Gordon Gravelle o/a “CodePro Manufacturing,” Appellant,

v.

Kenneth Roberts, an individual, and Beacon Safe & Lock, Inc. and DOES I through V, and Roe Corporations VI through X, inclusive, Respondent.


Appeal From Horry County
Brooks P. Goldsmith, Circuit Court Judge


Unpublished Opinion No.  2008-UP-283
Submitted May 1, 2008 – Filed June 2, 2008


AFFIRMED


Gordon Gravelle, of Ontario, Canada, for Appellant.

Linda Weeks Gangi, of Conway, for Respondent.

PER CURIAM:  In this libel action, Gordon Gravelle (Gravelle) appeals the trial court’s (1) verdict in favor of Kenneth Roberts (Roberts), (2) dismissal of his post-trial motions, (3) denial of a motion to represent himself, and (4) exclusion of evidence.  We affirm.

FACTS

Gravelle filed a lawsuit in Nevada for defamation against Jim Webb (Webb) and Jay Long (Long).  The suit stemmed from a “buyers beware” letter posted by Webb on ClearStar Security Network (ClearStar), a website for locksmiths, following Webb’s purchase of a faulty machine manufactured by Gravelle.  Long is the creator of ClearStar.  The suit was dismissed and costs were assessed against Gravelle in the amount of $90,000.  Gravelle then filed a lawsuit in California against the same individuals.  Subsequently, Webb was dismissed from the California lawsuit, and Gravelle re-filed his lawsuit against Long in Nevada state court and federal court. 

Due to Gravelle’s lawsuits against Long, Roberts wrote a post on ClearStar asking fellow locksmith members of ClearStar to contribute money to help Long defend the suits.  Roberts’ post, captioned “ClearStar under Fire (Again) . . . Terrorism of a Different Color,” stated in full:

When we can no longer speak openly and freely on Forums such as Clearstar we certainly have been terrorized.  I think most of us who use Clearstar, for the intent that [Long] created it, will agree that it has become one of the most useful tools that we have.  My hope is that it will continue to mature as one of the best technical resources we have as Locksmiths.

So I ask all who pay the 40 bucks a year . . . the 250 or 500 for lifetime…to consider how much money Clearstar has made and/or saved you this year.  Think about it.

Lets [sic] say you have worked hard this year . . . very hard . . . trying to grow and improve your business.  Then you get hit with a lawsuit (one which you don’t deserve to be part of) costly, distracting and depressing.  Your friend’s [sic] rally for you and the court with its wisdom throws the suit out . . . you relax.

Now in a different venue . . . the State of California, the Lawsuit is new again . . . .

Terrorism of a different Color . . . frivolous lawsuits.

The Clearstar Defense Fund is open for business.

[Roberts]

Based on this post, Gravelle filed a complaint in South Carolina against Roberts[1] for libel.[2]  He filed this complaint in South Carolina because Roberts is an officer and employee of Beacon Safe & Lock, Inc., which is a South Carolina corporation.  Gravelle claimed Roberts’ post accused him of “filing frivolous lawsuits and carrying out deplorable actions akin to that of Osama Bin Ladin, [imputing toward him and his company] a lack of integrity, honesty, trust, professionalism . . . which held him up to ridicule, scorn mocking, etc . . . and lower[ing] him within his professional community.” 

At the close of Gravelle’s case, Roberts moved for a directed verdict and Gravelle moved to represent himself pro se, though he wanted to retain his current counsel as second chair.  The trial court denied Gravelle’s motion for hybrid representation and granted Roberts’ motion for a directed verdict, finding the publication was not defamatory as a matter of law, and alternatively, even if it was defamatory, it was not actionable per se.  Gravelle then filed a motion for a new trial, which was dismissed as untimely.  This appeal follows.

LAW/ANALYSIS

I. Directed Verdict

Gravelle maintains the trial court erred by granting Roberts’ directed verdict motion.  We disagree.

In ruling on a motion for directed verdict, the trial court is required to view the evidence and inferences reasonably drawn therefrom in the light most favorable to the party opposing the motion and deny the motion when either the evidence yields more than one inference or its inference is in doubt.  Law v. S.C. Dep’t of Corr., 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006).  The appellate court will reverse the trial court’s ruling on a directed verdict motion only when there is no evidence to support the ruling or when the ruling is controlled by an error of law.  Id. at 434-35, 629 S.E.2d at 648.  When considering a directed verdict motion, neither the trial court nor the appellate court has authority to determine issues of credibility or to resolve conflicts in the testimony or evidence.  Erickson v. Jones St. Publishers, L.L.C., 368 S.C. 444, 463, 629 S.E.2d 653, 663 (2006).

“[L]ibel is a written defamation or one accomplished by actions or conduct.”  Holtzscheiter v. Thompson Newspapers, Inc., 332 S.C. 502, 508, 506 S.E.2d 497, 501 (1998).  “The tort of defamation allows a plaintiff to recover for injury to his or her reputation as the result of the defendant’s communications to others of a false message about the plaintiff.”  Parrish v. Allison, 376 S.C. 308, 320, 656 S.E.2d 382, 388 (Ct. App. 2007).  To recover for defamation, the plaintiff must establish: “(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.”  Lynch v. Toys “R” Us-Del., Inc., 375 S.C. 604, 619, 654 S.E.2d 541, 549 (Ct. App. 2007).  Pursuant to the first element, the trial court must initially determine if the statement is reasonably capable of conveying a defamatory meaning.  Parrish, 376 S.C. at 321, 656 S.E.2d at 389. 

A statement can be defamatory per se or defamatory per quodId.  Defamation per se occurs when the defamatory meaning of a statement is obvious on the face of the statement, whereas defamation per quod occurs when extrinsic evidence must be introduced in order to prove the defamatory meaning.  Holtzscheiter, 332 S.C. at 508-09, 506 S.E.2d at 501. 

Roberts’ post is not defamatory on its face and, therefore, is not defamatory per se.  See Whitaker v. Sherbrook Distrib. Co., 189 S.C. 243, 245, 200 S.E. 848, 849 (1939) (stating for words to be libelous per se, the court must be able to presume without extrinsic evidence the plaintiff has been degraded or suffered some loss due to these words).  Roberts’ post complains about frivolous lawsuits but does not name Gravelle as the instigator of the suits.  While we recognize Gravelle’s name need not be referenced in the writing to support a libel action, we find the description in the writing too vague and any damage too nebulous to amount to defamation.  Cf. Nash v. Sharper, 229 S.C. 451, 456, 93 S.E.2d 457, 459 (1956) (“To support an action for a libel, the plaintiff’s name need not be mentioned in the writing; it is sufficient that there is a description of, or reference to, him, by which he may be known.”).

Further, Gravelle failed to present any evidence indicating the statement was defamatory per quodSee Fleming v. Rose, 338 S.C. 524, 532-33, 526 S.E.2d 732, 737 (Ct. App. 2000), overruled on other grounds by Fleming v. Rose, 350 S.C. 488, 567 S.E.2d 857 (2002) (“If the defamatory meaning is not clear unless the hearer knows facts or circumstances not contained in the statement itself, then the statement is defamatory per quod.”).  Indeed, Gravelle was unable to show that even if additional information was known to the reader that the statement was false or that it resulted in harm to his reputation.

Moreover, even if Roberts’ statement was defamatory, no evidence was presented showing the defamation was actionable.  See Capps v. Watts, 271 S.C. 276, 281, 246 S.E.2d 606, 609 (1978) (“If a publication is not both libelous and actionable, a cause of action for libel cannot lie.”).  Specifically, Gravelle failed to plead and prove common law actual malice and special damages, and the statement is not the type from which the law presumes malice.  See Holtzscheiter, 332 S.C. at 510, 506 S.E.2d at 501-02 (stating the law presumes malice and general damages with defamation that is actionable per se, but plaintiff must plead and prove malice and special damages if it is not actionable per se).  Accordingly, the trial court did not err by directing a verdict in favor of Roberts.

II. New Trial Motion

Gravelle contends the trial court erred by dismissing his motion for a new trial as untimely.  We disagree.

Motions for new trials are governed by Rule 59 of the South Carolina Rules of Civil Procedure.  Boone v. Goodwin, 314 S.C. 374, 376, 444 S.E.2d 524, 525 (1994).  Rule 59(b), SCRCP, provides:  “The motion for a new trial shall be made promptly after the jury is discharged, or in the discretion of the court not later than 10 days thereafter.” 

The trial court granted Roberts’ motion for a directed verdict and discharged the jury on May 24, 2005.  Gravelle did not serve his motion for a new trial until June 9, 2005.  Because the motion was not made within the ten days required by Rule 59(b), SCRCP, the trial court dismissed the motion as untimely.  Gravelle does not dispute his motion was served after ten days had elapsed from the time the jury was discharged.  Accordingly, the trial court did not abuse its discretion by electing not to entertain Gravelle’s motion.

III. Hybrid Representation

Gravelle argues the trial court erred in denying his motion for hybrid representation.  We find this argument to be abandoned on appeal.

An issue is deemed abandoned and will not be considered on appeal if the argument is raised in a brief but not supported by authority.  Historic Charleston Holdings, LLC v. Mallon, 365 S.C. 524, 533 n.7, 617 S.E.2d 388, 393 n.7 (Ct. App. 2005).  Gravelle has failed to cite any authority in support of his assertion that the trial court erred in denying his motion for hybrid representation, and he has, therefore, abandoned this issue on appeal. 

IV. Evidence

Gravelle maintains the trial court erred by excluding evidence supporting his special damages claim and evidence offered to show the effects of Roberts’ alleged libel.  We disagree.

“The admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.”  Todd v. Joyner, 376 S.C. 114, 118-19, 654 S.E.2d 862, 864 (Ct. App. 2007).  “An abuse of discretion occurs when the ruling is based on an error of law or a factual conclusion without evidentiary support.”  Conner v. City of Forest Acres, 363 S.C. 460, 467, 611 S.E.2d 905, 908 (2005).

a. Special Damages

The trial court excluded Gravelle’s special damages exhibit because his damages were speculative and not compensable under South Carolina law.  South Carolina does not permit recovery for speculative damages.  Llewellyn v. Atl. Greyhound Corp., 204 S.C. 156, 170, 28 S.E.2d 673, 678 (1944).  Gravelle argued his special damages amounted to $110,490, which included: (1) deposition and trial expenses of airline tickets, hotel accommodations, car rentals, and out-of-pocket expenses such as food and gas, (2) loss of business (coinciding with deposition and trial dates), (3) prospective advertisement expenditures, and (4) expenses associated with attending trade shows.  As the trial court noted, the damages Gravelle sought were “primarily related to the case.”  The only damages not related to his lawsuit were future advertising expenses.  The evidence supports the trial court’s conclusion that these damages were speculative or not the type of damages compensable under South Carolina law.

b. Effects of Libel Evidence

The trial court excluded the evidence depicting responses by other individuals to Roberts’ post, finding the evidence was hearsay.  Gravelle argues these responses are essential to establish the damage his reputation sustained as a direct and proximate result of Roberts’ statements.  The responses offered, however, were written by third parties, not Roberts.  These responses were hearsay because they were written by third parties not testifying at trial or otherwise under oath and offered to prove Gravelle’s reputation was damaged, and no exception applied to render this hearsay admissible.  See  Rule 801(c), SCRE (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”); Rule 802, SCRE (stating hearsay is not admissible unless an exception applies).  Accordingly, the trial court did not err in refusing to admit the responses.

CONCLUSION

Accordingly, the decision of the trial court is

AFFIRMED.[3]

WILLIAMS, THOMAS, and PIEPER, JJ., concur. 


[1] The action was filed against Roberts as an individual and as the principle officer of Beacon Safe & Lock, Inc. and DOES I through V, and Roe Corporations VI through X. 

[2] Gravelle also sued for tortious interference with prospective or existing business relations, but he abandoned the claim at trial. 

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