McBride v. School District of Greenville

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

Sherrie Mann McBride, Appellant,

v.

School Distict of Greenville County, Respondent.

Appellate Case No. 2011-194866

Appeal From Greenville County
C. Victor Pyle, Jr., Circuit Court Judge
Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2013-UP-430
Heard October 8, 2013 – Filed November 20, 2013

AFFIRMED

Katherine Carruth Goode, of Winnsboro, for Appellant.

N. Heyward Clarkson, III, and John D. Harjehausen, both
of Clarkson Walsh Terrell & Coulter, PA, of Greenville,
for Respondent.

PER CURIAM: In this civil action, Appellant Sherrie McBride argues the trial
court erred in: (1) allowing Respondent School District of Greenville County
(District) to amend its answer to assert qualified privilege and immunity as
affirmative defenses prior to the 2011 trial; (2) granting the District's motion for a
directed verdict as to McBride's abuse of process cause of action; (3) granting the
District's motion for a directed verdict as to McBride's defamation cause of action;
(4) denying her due process by excluding relevant evidence and preventing her
from fully presenting evidence; and (5) adopting the prior trial testimony of Nancy
Mann as reconstruction of her testimony in this trial. We affirm.

1. We hold the trial court did not err in allowing the District to amend its
answer. A trial court is to freely grant leave to amend when justice requires and
there is no prejudice to the other party. Rule 15, SCRCP. A motion to amend is
addressed to the sound discretion of the trial court, and the party opposing the
motion has the burden of establishing prejudice. Harvey v. Strickland, 350 S.C.
303, 313, 566 S.E.2d 529, 535 (2002). The prejudice that would warrant denial of
a motion to amend the pleadings is a lack of notice that a new issue is to be tried
and a lack of opportunity to refute it. Collins Entm't, Inc. v. White, 363 S.C. 546,
562, 611 S.E.2d 262, 270 (Ct. App. 2005). McBride claims she suffered prejudice
due to the close proximity of the amendment of the answer and the trial date;
however, the District served McBride with notice of the amendment more than two
months before trial. Furthermore, immediately after the trial court allowed the
District to amend its answer, McBride insisted on going forward with the trial the
next week even though the trial court offered to delay the trial to a date months
later. A party cannot complain of error her own conduct has induced. Erickson v.
Jones St. Publishers, L.L.C., 368 S.C. 444, 476, 629 S.E.2d 653, 670 (2006).

2. We hold the trial court did not err in directing a verdict for the District on
the abuse of process cause of action. In reviewing a grant of a directed verdict, this
court adopts the same standard as the trial court. Burnett v. Family Kingdom, Inc.,
387 S.C. 183, 188, 691 S.E.2d 170, 173 (Ct. App. 2010). When this court reviews
a grant of a directed verdict, the evidence and all reasonable inferences therefrom
must be viewed in the light most favorable to the non-prevailing party. Davis v.
Tripp, 338 S.C. 226, 238, 525 S.E.2d 528, 534 (Ct. App. 1999). A directed verdict
should not be granted unless only one reasonable inference can be drawn from the
evidence. Garrett v. Locke, 309 S.C. 94, 98, 419 S.E.2d 842, 845 (Ct. App. 1992).
"If the evidence is susceptible to more than one reasonable inference, the case
should be submitted to the jury." Quesinberry v. Rouppasong, 331 S.C. 589, 594,
503 S.E.2d 717, 720 (1998). "The tort of abuse of process consists of two
elements: an ulterior purpose, and a willful act in the use of the process that is not
proper in the regular conduct of the proceeding." Swicegood v. Lott, 379 S.C. 346,
351-52, 665 S.E.2d 211, 213 (Ct. App. 2008). This court held the evidence
presented in the 2007 trial gave rise to a jury question on the abuse of process
cause of action. McBride v. Sch. Dist. of Greenville Cnty., 389 S.C. 546, 565, 698
S.E.2d 845, 855 (Ct. App. 2010). We recognize discrepancies in the evidence
presented in the 2007 trial and the 2011 trial. During the 2007 trial, student John
Doe testified that school resource officer Daniel Oslager pressured Doe into
implicating McBride in illegal activity. This testimony, combined with testimony
regarding phone calls between Oslager and Berea High School Principal William
Roach, merited the abuse of process claim going to the jury. McBride, 389 S.C. at
565, 698 S.E.2d at 855. Unlike the 2007 trial, the 2011 trial did not feature any
evidence regarding Oslager pressuring Doe into implicating McBride in illegal
activity. There was no other evidence in the 2011 trial giving rise to a jury issue
on this cause of action. Therefore, we agree with the trial court that the District
was entitled to a directed verdict on McBride's claim for abuse of process.

3. We hold the trial court did not err in directing a verdict for the District on
the defamation claim. To prove defamation, a plaintiff must show: "(1) a false and
defamatory statement was made; (2) the unprivileged publication of the statement
to a third party; (3) the publisher was at fault; and (4) either the statement was
actionable irrespective of harm or the publication of the statement caused special
harm." Williams v. Lancaster Cnty. Sch. Dist., 369 S.C. 293, 302-03, 631 S.E.2d
286, 292 (Ct. App. 2006). "The publication of a statement is defamatory if it tends
to harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with him."
Fleming v. Rose, 350 S.C. 488, 494, 567 S.E.2d 857, 860 (2002). In a defamation
action, the defendant may assert the affirmative defense of qualified privilege.
Murray v. Holnam, Inc., 344 S.C. 129, 139, 542 S.E.2d 743, 748 (Ct. App. 2001).
"Where the occasion gives rise to a qualified privilege, there is a prima facie
presumption to rebut the inference of malice, and the burden is on the plaintiff to
show actual malice or that the scope of the privilege has been exceeded." Swinton
Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 485, 514 S.E.2d 126,
134 (1999). "Communications between officers and employees of a corporation
are qualifiedly privileged if made in good faith and in the usual course of
business." Murray, 344 S.C. at 141, 542 S.E.2d at 749. Roach's statement to
Cochran that McBride "cleaned us out" was qualifiedly privileged. Roach was an
employee of the District and made the alleged statement to another District
employee, Cochran. Roach's job as school principal included the management of
teachers and school facilities. An inquiry into the location of school property fell
under Roach's usual course of business, as did an inquiry into whether McBride
had taken school property. A statement made in connection with an employer's
bona fide inquiry into possible employee misconduct is qualifiedly privileged.
Wright v. Sparrow, 298 S.C. 469, 474, 381 S.E. 2d 503, 507 (Ct. App. 1989).
4. We hold the trial court did not abuse its discretion in excluding evidence and
preventing McBride from fully presenting evidence. A trial court has broad
discretion in its supervision over the progression and disposition of a case in the
interests of justice and judicial economy. Capital City Ins. Co. v. B.P. Staff, Inc.,
382 S.C. 92, 103, 674 S.E.2d 524, 530 (Ct. App. 2009). "To warrant reversal
based on the admission or exclusion of evidence, the complaining party must prove
both the error of the ruling and the resulting prejudice." State v. Douglas, 367 S.C.
498, 508, 626 S.E.2d 59, 64 (Ct. App. 2006). McBride alleges the trial court erred
in excluding Cochran's testimony on complaints at the school; however, Cochran
was permitted to testify about these matters. Additionally, the trial court did not
abuse its discretion in limiting the scope of McBride's redirect examination of
Oslager. See State v. Stroman, 281 S.C. 508, 513, 316 S.E.2d 395, 399 (1984)
("The scope of redirect rests in the discretion of the trial court."). Furthermore,
McBride failed to make a proffer of any excluded evidence, and this court cannot
consider the alleged errors. See State v. Simmons, 360 S.C. 33, 46, 599 S.E.2d 448,
454 (2004) (holding the failure to make a proffer of excluded evidence will
preclude review on appeal).

5. We hold the trial court did not abuse its discretion in adopting Nancy Mann's
2007 testimony as an accurate reconstruction of her 2011 testimony. The trial
court has discretion in determining how to reconstruct missing portions of a
transcript; however, this discretion must lie within the limits required by
procedural due process. Adams v. H.R. Allen, Inc., 397 S.C. 652, 658, 726 S.E.2d
9, 13 (Ct. App. 2012). "Procedural due process requirements are not technical; no
particular form of procedure is necessary. The United States Supreme Court has
held, however, that at a minimum certain elements must be present. These include
(1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to
introduce evidence; and (4) the right to confront and cross-examine witnesses." In
re Dickey, 395 S.C. 336, 360, 718 S.E.2d 739, 751 (2011) (quoting In re Vora, 354
S.C. 590, 595, 582 S.E.2d 413, 416 (2003)). Here the limits required by
procedural due process were met. A hearing was held on the matter of Mann's
missing 2011 testimony and both parties provided witnesses who testified on the
content of that testimony. Each side had the opportunity to cross-examine all of
the witnesses and the witnesses presented conflicting accounts of Mann's
testimony. The trial judge noted that, while he could not exactly recall the
testimony, he believed the proposed testimony offered by McBride was not
accurate. The trial court deemed Mann's 2007 testimony as the best evidence of
Mann's 2011 testimony; consequently, the court adopted Mann's 2007 testimony as
an accurate reconstruction of the missing portion of the record.
AFFIRMED.

SHORT, WILLIAMS, and THOMAS, JJ., concur.