Couram v. SC Department of Social Services

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Glenda Couram,       
Appellant,

v.

The South Carolina Department of Social Services,       
Respondent.

Appeal From Lexington County

Gary E. Clary, Circuit Court Judge

Unpublished Opinion No. 2003-UP-034

Submitted June 3, 2002 - Filed January 14, 2003

AFFIRMED IN PART AND

REVERSED IN PART

Gloria Y. Leevy, of Columbia, for appellant.

Patrick J. Frawley, of Lexington, for respondent.

PER CURIAM: Glenda Couram appeals the grant of summary judgment
to defendant Lexington County Department of Social Services on her claims of
wrongful termination, intentional infliction of emotional distress/ outrage,
(1) defamation, and malicious prosecution. We affirm in part and reverse
in part.

FACTS/PROCEDURAL HISTORY

In 1997 Glenda Couram was an at-will employee of the Lexington County Department
of Social Services (DSS). In early June, as part of her employment, Couram was
required to take a child under DSS supervision to the Lexington County Department
of Mental Health (DMH). Believing Couram had administered corporal punishment
to the child, DMH employees reported their observations to DSS. Although Couram
denied the allegations, DSS terminated her employment and initiated criminal
proceedings for simple assault. Couram was tried on the charge and acquitted
on April 23, 1998.

On September 29, 1998, Couram wrote a letter to DSS Director William Walker
notifying him of her intent to file an administrative claim against the agency
for violating her civil rights and requesting information on the appropriate
process. However, by her own admission Couram did not serve the underlying complaint
until November 24, 1999. DSS answered on December 21, 1999, pleading, inter
alia, a statute of limitations defense.

On April 27, 2000, DSS filed a motion for summary judgment. The trial court
held a hearing on June 9, 2000 and on June 22 issued an order granting summary
judgment to DSS based on the applicable statute of limitations. Couram subsequently
filed a motion to reconsider, which the court denied. On September 18, 2000,
the trial court entered its final judgment on all causes of action. This appeal
followed.

LAW/ANALYSIS

Standard of Review

"The purpose of summary judgment is to expedite disposition of cases which
do not require the services of a fact finder." George v. Fabri, 345 S.C. 440,
452, 548 S.E.2d 868, 874 (2001). Summary judgment, therefore, is appropriate
when the information before the court shows no genuine issue of material fact
and that the moving party is entitled to a judgment as a matter of law. See
Rule 56 (c), SCRCP. "In determining whether any triable issues of fact exist,
the evidence and all reasonable inferences therefrom must be viewed in the light
most favorable to the non-moving party." Osborne ex rel. Osborne v. Adams, 346
S.C. 4, 7, 550 S.E.2d 319, 321 (2001).

Discussion

Couram argues the trial court erred in granting summary judgment to DSS on
her causes of action for wrongful termination, intentional infliction of emotional
distress/outrage, defamation, and malicious prosecution. With the exception
of the latter claim, we disagree.

As an action filed against a state agency, in this case DSS, Couram's case
is governed by the South Carolina Tort Claims Act. See S.C. Code Ann. § 15-78-20(b)
(Supp. 2001) ("The remedy provided by this chapter is the exclusive civil remedy
available for any tort committed by a governmental entity, its employees, or
its agents . . . ."). Thus, in the absence of a properly submitted verified
claim pursuant to § 15-78-80 extending the filing time by one year, the statute
of limitations applicable to such actions is two years. Id. at § 15-78-110.

The trial court found Couram's letter to William Walker did not meet the statutory
requirements of a verified claim and Couram does not dispute this finding. Instead,
she argues the trial court should have extended the statute of limitations to
three years because she "substantially complied" with the verified claim procedure.
However, our courts repeatedly have held that such claims must comply strictly
with the verification procedure outlined in the Tort Claims Act, and that "[s]ubstantial
compliance is not sufficient." Vines v. Self Mem'l Hosp., 314 S.C. 305, 307,
443 S.E.2d 909, 910 (1994); see Joubert v. S.C. Dep't of Soc. Servs., 341 S.C.
176, 534 S.E.2d 1 (Ct. App. 2000). Accordingly, we hold the trial court did
not err in employing the Act's two-year statute of limitations to each cause
of action.

Couram, however, further contends the trial court erred in concluding her actions
were time-barred, arguing the court erroneously used June 1997 as the triggering
date for limitations purposes rather than April 23, 1998, the date she was acquitted
of simple assault. According to Couram, the causes of action alleged did not
accrue until after her acquittal on the criminal charge. Again, with the exception
noted above, we disagree.

As Couram correctly notes, the discovery rule applies to actions brought pursuant
to the Tort Claims Act. See § 15-78-110(a) ("Except as provided for in Section
15-3-40, an action for damages under this chapter may be instituted at any time
within two years after the loss was or should have been discovered . . . .").
Under this rule, the statute of limitations begins to run when a cause of action
"reasonably ought to have been discovered." Bayle v. S.C. Dep't of Transp.,
344 S.C. 115, 123, 542 S.E.2d 736, 740 (Ct. App. 2001). In other words, the
beginning date is when an injured party "either knows or should have known [through]
the exercise of reasonable diligence" that he has or may have a claim against
a governmental entity. Id. Although Couram asserts that "the issue of when the
statute [of limitations] started to run is a disputed fact in this case," the
issue is not a subjective one amenable to resolution by a jury. To the contrary,
it is our courts that must decide whether the circumstances of a particular
case would put a person of common knowledge and experience on notice that a
claim for damages might exist. Id.; see Joubert, 341 S.C. at 191, 534 S.E.2d
at 8.

As discussed, since Couram failed to file a timely, properly verified claim
pursuant to the Tort Claims Act, the applicable statute of limitations to all
causes of action is two years. Moreover, it is undisputed Couram served DSS
with the underlying complaint on November 24, 1999. Thus, in order to survive
DSS' limitations defense, Couram was required to demonstrate to the trial court
that she did not know, nor should she have known, that her causes of action
existed prior to November 24, 1997. The trial court, however, found the triggering
date for all causes of actions occurred more than two years prior to Couram's
service of the complaint, i.e., either on the date of her termination by DSS
or the date DSS initiated a criminal complaint against her. With the exception
of the cause of action for malicious prosecution, as noted above, we agree.

According to the complaint, Couram's causes of action for wrongful termination,
intentional infliction of emotional distress/outrage, and defamation are all based on the same set of facts--that in June 1997 DSS, upon being informed
Couram had inflicted corporal punishment upon a child in her care, thereafter
terminated Couram's employment and initiated criminal proceedings against her.
Without question, at this time Couram was aware of the allegations against her
which led to her dismissal from DSS and arrest for simple assault.

Given her vehement denial of the allegations, and her statement in the complaint
that "there was no reason she should have been terminated at the time," we agree
with the trial court that Couram either knew or should have known a cause of
action might exist. Accordingly, we affirm the grant of summary judgment on
the causes of action for wrongful termination, intentional infliction of emotion
distress/outrage, and defamation, as they were not timely filed.

Couram's cause of action for malicious prosecution, however, is not time-barred.
To sustain an action for malicious prosecution, a plaintiff must prove a defendant,
without probable cause, maliciously instituted or continued or caused to have
instituted or continued civil or criminal judicial proceedings terminating
in the plaintiff's favor and resulting in injury or damage. Jordan v. Deese,
317 S.C. 260, 452 S.E.2d 838 (1995). Thus, a plaintiff cannot maintain an action
for malicious prosecution until after the original proceeding has terminated
in his favor. See id., 52 Am. Jur. 2d Malicious Prosecution § 28 (2000). Because
the cause of action does not accrue until proceedings terminate, the statute
of limitations for malicious prosecution does not begin to run until such time.
See McCammon v. Oldaker, 516 S.E.2d 38 (W. Va. 1999) (holding the statute of
limitations on an action for malicious prosecution does not begin to run until
after the termination of the prosecution in favor of the plaintiff); Christian
v. Lapidus, 833 S.W.2d 71 (Tenn. 1992) (stating an action for malicious prosecution
accrues when all elements of the tort are present).

Accordingly, despite her personal conviction she was being unfairly prosecuted,
Couram could not have known of the existence of a cause of action for malicious
prosecution until a jury acquitted her, thereby establishing an essential element
of the claim. It is undisputed the criminal action against Couram terminated
in her favor on April 23, 1998. As a result, the statute of limitations for
malicious prosecution began to run on that date. Because the parties agree Couram
served the underlying complaint on November 24, 1999, well within the two-year limitations period required by the Tort Claims Act,
her claim for malicious prosecution is timely. We therefore reverse the grant
of summary judgment on this cause of action.

Finally, Couram argues DSS should be estopped from asserting a statute of limitations
defense because the agency's own actions caused her complaint to be filed outside
the limitations period. Because Couram first raises this issue on appeal, it
is not preserved for review. See Staubes v. City of Folly Beach, 339 S.C. 406,
412, 529 S.E.2d 543, 546 (2000) ("It is well-settled that 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.").

AFFIRMED IN PART and REVERSED IN PART.

CURETON, STILWELL, and SHULER, JJ., concur.

1. Although Couram's complaint sets forth "intentional
infliction of emotional distress" and "outrage" as separate causes of action,
they are in fact one and the same tort. See, e.g., Holtzscheiter v. Thomson
Newspapers, Inc., 306 S.C. 297, 411 S.E.2d 664 (1991); Ford v. Hutson, 276 S.C.
157, 276 S.E.2d 776 (1981).