Ferrara v. Hunt

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

William R. Ferrara, Appellant,

v.

Michael E. Hunt, Sheriff of Aiken County, and Charles
Cain in his individual capacity as Deputy Sheriff,
Defendants,

Of whom Michael E. Hunt is the Respondent.

Appellate Case No. 2013-000826

Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2015-UP-407
Submitted June 1, 2015 – Filed August 12, 2015

AFFIRMED

S. Jahue Moore, John Calvin Bradley, Jr., Michael
Brooks Biediger, and Margaret Amelia Hazel, all of
Moore Taylor Law Firm, P.A., of West Columbia, for
Appellant.
Robert David Garfield and Andrew F. Lindemann, both
of Davidson & Lindemann, P.A., of Columbia, for
Respondent.

PER CURIAM: William Ferrara appeals the circuit court's order granting Aiken
County Sheriff Michael E. Hunt's motion for summary judgment, arguing the
circuit court erred in (1) granting summary judgment as to his claim for malicious
prosecution, (2) granting summary judgment as to his defamation claims on the
grounds that Hunt's communication was protected by a qualified privilege, and (3)
its application of section 17-1-40 of the South Carolina Code (Supp. 2014). We
affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to whether the circuit court erred in granting summary judgment on Ferrara's
malicious prosecution claim: Turner v. Milliman, 392 S.C. 116, 121-22, 708 S.E.2d
766, 769 (2011) ("When reviewing a grant of summary judgment, appellate courts
apply the same standard applied by the trial court pursuant to Rule 56(c),
SCRCP."); id. at 122, 708 S.E.2d at 769 ("Summary judgment is appropriate when
the pleadings, depositions, affidavits, and discovery on file show there is no
genuine issue of material fact such that the moving party must prevail as a matter
of law."); Pallares v. Seinar, 407 S.C. 359, 366, 756 S.E.2d 128, 131 (2014) ("[T]o
maintain an action for malicious prosecution, a plaintiff must establish: (1) the
institution or continuation of original judicial proceedings; (2) by or at the instance
of the defendant; (3) termination of such proceedings in [the] plaintiff's favor; (4)
malice in instituting such proceedings; (5) lack of probable cause; and (6) resulting
injury or damage." (alterations in original) (emphasis added) (footnote and internal
quotation marks omitted)); Bailey v. United States, 133 S. Ct. 1031, 1037 (2013)
("The Fourth Amendment [of the United States Constitution], applicable through
the Fourteenth Amendment to the States, provides: The right of the people to be
secure in their persons . . . against unreasonable searches and seizures, shall not be
violated, and no [w]arrants shall issue, but upon probable cause . . . particularly
describing the place to be searched, and the persons or things to be seized."
(internal quotation marks omitted)); Shirley's Iron Works, Inc. v. City of Union,
403 S.C. 560, 573, 743 S.E.2d 778, 785 (2013) ("An unappealed ruling is the law
of the case and requires affirmance."); Laughon v. O'Braitis, 360 S.C. 520, 526,
602 S.E.2d 108, 111 (Ct. App. 2004) ("Under the doctrine of issue preclusion, if an
issue of fact or law was actually litigated and determined and necessary to a valid
and final judgment, the determination is conclusive in a subsequent action on that
claim or a different claim.").
2. As to whether the circuit court erred in granting summary judgment as to
Ferrara's defamation claims: West v. Morehead, 396 S.C. 1, 7, 720 S.E.2d 495, 498
(Ct. App. 2011) ("Under the law of defamation, . . . certain communications give
rise to qualified privileges, including the privilege to publish fair and substantially
accurate reports of judicial and other governmental proceedings without incurring
liability."); id. at 7, 720 S.E.2d at 499 ("Under this defense [of qualified privilege],
one who publishes defamatory matter concerning another is not liable for the
publication if (1) the matter is published upon an occasion that makes it
[qualifiedly or] conditionally privileged, and (2) the privilege is not abused."
(alterations in original) (internal quotation marks omitted)); id. at 8, 720 S.E.2d at
499 ("[T]he privilege extends only to a report of the contents of the public record
and any matter added to the report by the publisher, which is defamatory of the
person named in the public records, is not privileged." (emphasis added) (internal
quotation marks omitted)); id. at 7, 720 S.E.2d at 499 ("Whether the occasion is
one which gives rise to a qualified privilege is a question of law.").

3. As to whether the circuit court erred in granting summary judgment on Ferrara's
claim for relief under section 17-1-40: S.C. Code Ann. § 17-1-40(B)(2) (Supp.
2014) ("A municipal, county, or state agency, or an employee of a municipal,
county, or state agency that intentionally violates this subsection is guilty of
contempt of court."); Grosshuesch v. Cramer, 377 S.C. 12, 30, 659 S.E.2d 112,
121 (2008) ("[O]ur jurisprudence clearly establishes that the proper procedure to
determine whether a party should be held in contempt is to bring a summons and a
rule to show cause."); Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 267, 442
S.E.2d 611, 617 (1994) ("Charges of constructive contempt are brought by a rule to
show cause which must be based upon an affidavit or verified petition."); id. ("The
failure to support the rule to show cause by an affidavit or verified petition is a
fatal defect."). As to whether the circuit court erred in failing to consider Sheriff
Hunt's alleged violation of section 17-1-40 in the context of Ferrara's defamation
claim: Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is
axiomatic that an issue . . . must have been raised to and ruled upon by the trial
[court] to be preserved for appellate review."); I'On, L.L.C. v. Town of Mt.
Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000) (holding if the losing
party raised an issue to the circuit court, but the court failed to rule upon it, the
party must file a Rule 59(e) motion in order to preserve the issue).
AFFIRMED.1

FEW, C.J., and HUFF and WILLIAMS, JJ., concur.

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