Brock v. Langville

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

George H. Brock, Appellant,

v.

Kris Langville, Individually, and d/b/a Preferred
Paralegals, LLC; Donna Carlson; Jeremy Marsh,
Individually, and d/b/a The Techknow Dude, LLC; and
Katherine Jernigan, Defendants,

Of Which Kris Langville, Individually, and d/b/a
Preferred Paralegals, LLC; Donna Carlson; and
Katherine Jernigan are the Respondents.

Appellate Case No. 2019-001707

Appeal From Greenville County
Alex Kinlaw, Jr., Circuit Court Judge

Unpublished Opinion No. 2023-UP-025
Submitted October 3, 2022 – Filed January 25, 2023

AFFIRMED

Jacob Michael Hughes, of Svalina Law Firm, PA, of
Beaufort, for Appellant.

Kenneth Edward Norsworthy, Jr., of Norsworthy Law,
Ltd. Co., of Greer, for Respondents.
PER CURIAM: George Brock appeals the circuit court's order dismissing his
civil conspiracy action against Kris Langville, Donna Carlson, and Katherine
Jernigan (collectively, Respondents) pursuant to Rule 12(b)(7), SCRCP. We
affirm.
FACTS/PROCEDURAL HISTORY

In 2016, Ron Johnson sued his former employer George Brock for breach of
contract in relation to unpaid wages (2016 case).1 Brock counterclaimed against
Johnson for intentional interference with a business opportunity, alleging Johnson
acted with Respondents to interfere with the sale of his accounting practice.
Respondents, who are former employees at Brock's accounting practice, testified
against him. The jury found in favor of Johnson on his breach of contract action
and did not find in favor of Brock on his counterclaim. Before trial, Brock
requested consent from Johnson's counsel to join Respondents in the 2016 case.
Brock's 2016 counsel stated in an email to opposing counsel "it now appears that
[Respondents] may well have actionable involvement, as joint tort feasors and/or
co-conspirators." Brock states in his brief "for whatever reason, this request was
denied." Brock did not further pursue the request to join Respondents.
In 2018, Brock sued Respondents for civil conspiracy (2018 case). Brock alleged
Respondents and Johnson harmed his accounting practice by conspiring to steal tax
software, access his private email and correspondence, publish confidential
information related to his business, and file a lawsuit against him. 2 Among other
defenses in their answer and counterclaims, Respondents asserted the doctrines of
issue preclusion and collateral estoppel barred Brock's claim. Respondents stated
Brock's suit was "essentially an identical lawsuit to his suit against Ron Johnson,
for which an adjudication on the merits of the case occurred."

Respondents filed a motion to dismiss the 2018 case, and the circuit court held two
hearings on the motion. Respondents argued Brock should have joined

1
The transcript, pleadings, and verdict form from the 2016 case are not included in
the record on appeal. Respondent's counsel read parts of the 2016 trial transcript
and deposition testimony to the circuit court at the hearings for the 2018 case and
included excerpts of the trial transcript and deposition testimony in the memoranda
in support of the motion to dismiss the 2018 case.
2
Johnson is not named as a defendant in the 2018 case.
Respondents in the 2016 case under Rule 19, SCRCP, and stated the suit was
barred by collateral estoppel because Brock's "entire complaint is almost identical
to the claims brought factually in the [2016 case]." Respondents' counsel read
multiple excerpts from Brock's deposition and trial testimony in the 2016 case in
which he claimed his staff was conspiring against him by reading his emails,
drafting a complaint against him, and spying on his computer.3

The circuit court dismissed Brock's complaint with prejudice pursuant to Rule
12(b)(7), SCRCP, finding Brock "failed to properly join [Respondents] in his
previous action pursuant to Rule 19, SCRCP."

ISSUE ON APPEAL

Did the circuit court err in dismissing Brock's civil conspiracy claim against
Respondents?

STANDARD OF REVIEW

"The question of whether to allow a stranger to use offensive collateral estoppel so
as to bar a party from relitigating an issue in a subsequent action is one addressed
to the broad discretion of the trial judge." Roberts v. Recovery Bureau, Inc., 316
S.C. 492, 497, 450 S.E.2d 616, 619–620 (Ct. App. 1994). Such a decision is
reviewed under an abuse of discretion standard. Id.

LAW/ANALYSIS

Brock argues it was not proper for the circuit court to consider the 2016 case in
relation to a Rule 12(b)(7) motion because the motion was not made in the 2016
case and was therefore waived. While we agree that the 2018 circuit court could
not rule on a motion that was never made in the 2016 case,4 we interpret the circuit
court's order as one involving collateral estoppel, and it should, therefore, be
affirmed. See Moorhead v. First Piedmont Bank and Trust Co., 273 S.C. 356, 360,
256 S.E.2d 414, 416 (1979) ("No principle in the disposition of appeals is more

3
Brock argues he did not sue Respondents for civil conspiracy in 2016 because his
2016 counsel was unaware of the existence of a conspiracy until late in the 2016
trial. However, Brock's statements in his pre-trial depositions refute this argument.
4
See Kiriakides v. Atlas Food Sys. & Servs. Inc., 343 S.C. 587, 596, 541 S.E.2d
257, 262 (2001) (noting the defense of failure to join indispensable parties is
waived if not raised at trial).
firmly established then that a right decision upon a wrong ground will be
affirmed." (quoting Foster v. Taylor, 210 S.C. 324, 329, 42 S.E.2d 531, 534
(1947))).

"Collateral estoppel, also known as issue preclusion, prevents a party from
relitigating an issue that was decided in a previous action, regardless of whether
the claims in the first and subsequent lawsuits are the same." Carolina Renewal,
Inc. v. S.C. Dep't of Transp., 385 S.C. 550, 554, 684 S.E.2d 779, 782 (Ct. App.
2009). "The party asserting collateral estoppel must demonstrate that the issue in
the present lawsuit was: (1) actually litigated in the prior action; (2) directly
determined in the prior action; and (3) necessary to support the prior judgment."
Id. "The doctrine of collateral estoppel, or issue preclusion, . . . rests generally on
equitable principles." Town of Sullivan's Island v. Felger, 318 S.C. 340, 344, 457
S.E.2d 626, 628 (Ct. App. 1995).

Although Respondents were not parties in the 2016 action, collateral estoppel can
still apply. "While the traditional use of collateral estoppel required mutuality of
parties to bar relitigation, modern courts recognize the mutuality requirement is not
necessary for the application of collateral estoppel where the party against whom
estoppel is asserted had a full and fair opportunity to previously litigate the issues."
Carolina Renewal, Inc., 385 S.C. at 554, 684 S.E.2d at 782 (quoting Snavely v.
AMISUB of S.C., Inc., 379 S.C. 386, 398, 665 S.E.2d 222, 228 (Ct. App. 2008)).

The record reveals the issue in the 2018 case was actually litigated in the 2016
case, directly determined, and necessary to support the 2016 judgment. Indeed, it
appears Respondents' actions with Johnson were the cornerstone of Brock's theory
of intentional interference with a business opportunity in the 2016 case. Brock
claimed, in 2016, that Respondents were conspiring with Johnson to sue him, spy
on him, and "hurt" him. The factual allegations underpinning the 2016 case appear
to be identical to those made in the 2018 case. In the 2016 case, Brock testified
Johnson acted in conspiracy with each of the Respondents using various methods
to interfere with the sale of his accounting practice. Brock makes that identical
claim against Respondents in the 2018 case under the guise of civil conspiracy.

Although there was not a jury verdict in relation to civil conspiracy in 2016, the
issue was directly determined. After consultation with the trial court, Brock
decided to drop all counterclaims except interference with a business opportunity.
Respondents' current counsel was counsel for Johnson in the 2016 case, and he
stated to the 2018 circuit court:
We went in chambers after the jury was let out before
closing arguments. And [the judge] said, I don't think
these claims of [plaintiff] are going to survive, and I don't
think these claims of [defendant] are going to survive. I
haven't heard enough evidence to let those go forward on
charges. And they volunteered to drop them. And we
volunteered to drop everything but our breach of contract
claim. I mean, it was . . . all tried.

Further, Brock attempted to add Respondents as third-party defendants, but failed
to sufficiently do so.5 This demonstrates he had an opportunity to fully and fairly
litigate the issue of civil conspiracy in the 2016 case.

Brock argues Respondents were permissive, not indispensable, parties to the 2016
case because the case "involved Johnson's alleged intentional interference with a
business opportunity by publishing confidential company information in his
lawsuit against Brock." Brock argues he had no obligation to sue Respondents in
the 2016 case. We disagree. As noted above, the issues in the 2016 and 2018
cases are based on the same occurrences. Brock failed to join Respondents in the
2016 action by raising a counterclaim against them. Therefore, he is barred from
bringing an action against them now. See First-Citizens Bank & Tr. Co. of S.C. v.
Hucks, 305 S.C. 296, 298, 408 S.E.2d 222, 223 (1991) ("By definition, a
counterclaim is compulsory only if it arises out of the same transaction or
occurrence as the opposing party's claim."); Beach Co. v. Twillman, Ltd., 351 S.C.
56, 62, 566 S.E.2d 863, 865 (Ct. App. 2002) ("If a compulsory counterclaim is not
raised in the first action, a defendant is precluded from asserting the claim in a
subsequent action.").

Accordingly, the order of the circuit court is

AFFIRMED. 6

WILLIAMS, C.J., and THOMAS, J., and LOCKEMY, A.J., concur.

5
Brock's counsel on appeal was not involved in the 2016 case.
6
We decide this case without oral argument pursuant to Rule 215, SCACR.