Cruce v. Berkeley County School District

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Jeffrey Lance Cruce, Respondent,

v.

Berkeley County School District, Appellant.

Appellate Case No. 2018-000791

Appeal From Berkeley County
Kristi Lea Harrington, Circuit Court Judge

Opinion No. 5854
Heard February 2, 2021 – Filed September 1, 2021

REVERSED

E. Brandon Gaskins, of Moore & Van Allen, PLLC, and
Joshua Steven Whitley, of Smyth Whitley, LLC, both of
Charleston; Andrew F. Lindemann, of Lindemann &
Davis, P.A., and Richard J. Morgan, of Burr & Forman
LLP, both of Columbia, all for Appellant.

Lucy Clark Sanders and Nancy Bloodgood, both of
Bloodgood & Sanders, LLC, of Mount Pleasant, for
Respondent.

KONDUROS, J.: Berkeley County School District (the District) appeals the
circuit court's denial of its motions for a directed verdict and a judgment
notwithstanding the verdict (JNOV) on Jeffrey Lance Cruce's defamation cause of
action. The District contends it had absolute sovereign immunity because Cruce
qualified as either a public official or a limited public figure. It also maintains
Cruce failed to prove each element of defamation. We reverse.

FACTS/PROCEDURAL HISTORY

Cruce was a high school teacher in South Carolina for twenty-eight years, an
athletic director in Berkeley County at various high schools1 for a total of twenty-
one years, and head football coach at high schools for about twenty years. He
began serving as head football coach, athletic director, and teacher at Berkeley
High School (the School) in 2011. In December 2015, the District removed him as
athletic director and football coach. The District reassigned him to a middle school
as a guidance counselor starting in January of 2016. Cruce left the District and
retired at the completion of the school year.

During his tenure as head football coach at the School, Cruce had one winning
season and several losing seasons, including a three-wins-and-seven-losses record
during his final football season. That season, Cruce used an analytics-based
strategy in coaching the team.2

As athletic director, Cruce was certified to maintain student athlete eligibility files
(eligibility files) in Berkeley County, and the eligibility files were generally
audited three times a year. A few months before he was removed as athletic
director, the high school league conducted an audit and determined everything was
proper.

On January 7, 2016, Chris Stevens, Berkeley High School's head athletic trainer,
sent an email to the School's athletic coaches—paid and volunteer—as well as
others involved in the athletic department and some administrators at the School,
totaling approximately forty-five recipients. The subject of the email was "Student
Athlete Eligibility and Medical Files." The email stated:

Today, January 7th 2016, myself, [C]oach Ward, and Mr.
Gallus went into the athletic director[']s office to check
on the status of the student files left by our previous
athletic director. After spending some time looking
through files it has come to my attention that there could

1
The county includes seven high schools.
2
Cruce and the District differ as to the focus of his strategy. Cruce termed it as a
"less-hitting philosophy." The District referred to it as a "no-punting" philosophy.
be some documents that could be misplaced and others
that are out of order. From a liability stand point with
competing sports and athletes it is necessary that all of
the files be present to safeguard the athletes as well as to
maintain the proper care for those athletes if something
were to happen.

I will be in the [athletic director's] office during the next
few day[s] to make sure the correct files are in place for
competing athletes and those weightlifting after school to
make sure EVERY child has the correct paperwork on
file.

I would ask if you have athletes competing and/or
conditioning at the present time, this includes
weightlifting, that you send me a copy of that roster
ASAP so that I can check your student-athletes off the
"no-fly" list. ALL students MUST have the following
files in order to participate in scholastic sports:

- Risk Acknowledgment and Consent to Participate form
- Pre-participation Physical Examination form (signed by
a doctor)
- Proper understanding of HIPAA and FERPA rights
- Emergency Insurance Information and Consent to Treat
form
- ANY special accommodations such as asthma, allergies
etc. must have a written Doctor's note filed and must
have necessary treatment (Inhaler, Epi-pen) present at all
times.
- Copies of Birth Certificate and Social Security Cards.

I will update everyone again next week once everything
has been checked off. Thank you in advance for your
cooperation.

In 2016, Cruce filed an action against the District for wrongful termination and
defamation. As to the defamation cause of action, Cruce alleged the District's
agents, while acting within the scope of their authority, made false and defamatory
statements about his "fitness for his profession to employees, students, volunteers,
potential employers, and members of the community" "with conscious indifference
to and complete disregard of the truth of their statements and the effect that the
false statements would have on [him] and his career." Cruce asserted the
statements were plain in meaning and constituted defamation per se because they
stated he was unfit for his profession. He further contended the statements were
made with common law malice. The District answered, raising several defenses
including that the South Carolina Tort Claims Act barred the claims in whole or in
part. The District asserted because Cruce could not show actual malice, his claims
were barred because he was "a public official, [a] limited purpose public official,
and/or any complained-of speech was on a matter of public concern."

At trial, Cruce testified Stevens was not certified to handle student athlete
eligibility files and did not know what documents had to be included in the files.
Cruce indicated only athletic directors are certified to maintain the athlete
eligibility files. Cruce stated only head coaches were allowed to review eligibility
files and most of the forty-five email recipients were not head coaches and thus
those recipients did not need to know information about eligibility files. Stevens
testified his job was to take care of athletic injuries and illnesses; he indicated he
was not an athletic director. He agreed he was not certified to maintain eligibility
files. He provided that some of the recipients of the email were former coaches.

Cruce disputed the statement in the email that the files could be a liability because
his files were usually audited three times a year and the last audit that occurred was
only a few months before the email was written and was "clean." Cruce further
testified the information contained in the email about what documents should be in
the eligibility files was incorrect. Cruce provided, "You have to be certified to --
there are certain files -- as an athletic director, there's three things you've got to
have on file. You've got to have a current physical; you've got to have a birth
certificate; and you've got to have their grades on file." Cruce testified several
forms the email specified as missing from the files were not missing for a variety
of reasons: the risk acknowledgement and consent to participate form was attached
to the physical itself; HIPPA and FERPA forms were not required to be in the file;
information about special accommodations for a student were written by the doctor
on the physical form; and a social security card was not required to be in the file.

The principal was asked if the email was "talking about a former employee" and
"talking about problems that have been found in his office," and he responded
affirmatively to both questions.
Cruce and his principal's testimony at trial differed as to the focus of his coaching
strategy for 2015. Cruce maintained it was a "less-hitting philosophy." He
asserted that while not punting was part of the philosophy, it "has no bearing on
what the philosophy is." When asked if "that philosophy involved use of statistics,
number of plays that were run, yards that were gained," he responded, "It was
driven by offensive productivity, yes, sir."

The principal testified:

[Cruce] said, I'm going to be using analytics, because I --
there's one gentleman in Little Rock who does the no
punting and does all this stuff, so I'm going to use
analytics this year.

And that's where he talked about earlier about telling me
about the no-kick rule.

When he said, no punting, it also meant no kicking extra
points, no punting under any situation, 4th and 20 doesn't
matter, and no kickoffs. So all of our kickoffs were --
basically were either muffs or short little kicks instead of
deep kicks.

And that's where that whole conversation kind of went
down with our analytics, him explaining all of that. And
that's why analytics was number one.

The District maintained Cruce sought out media attention due to his use of a no-
punt philosophy. The District provided almost two hundred articles that mentioned
the football team for the years Cruce was the coach and the following year. The
District pointed to a few articles—one from Kansas City discussing the no-punt
strategy, the coach who created it, and other coaches who were using it as well as
some local articles that mentioned the strategy in reporting on game outcomes or
predictions for area football games during the 2015 season. Most of the articles
were summaries of or predictions for area football games over the years Cruce
coached at Berkeley High School; less than ten reference the no-punt strategy.
Some of the articles are about the team the season following Cruce's departure and
Cruce's lawsuit.

Cruce further testified:
The no-punt philosophy, what you said -- the strategy of
the no-punt philosophy, that wasn't the strategy. The guy
in the paper in all -- everybody got enamored with the no
punt. It was a philosophy based on a strategy with
numbers involved and no punt was part of it. The no
punt -- we punted that season.

So when you assess a new philosophy, which I've done
through my whole career, this philosophy worked. And
everybody got enamored with the word no punt. We
punted during the season. So as your philosophy takes
shape, as a coach, you monitor and adjust.

So there were times during the season that we did punt.
So the writer of this particular article leaves out part of
what was said in that, and that being that the -- putting
your chips all in one spot was about the safety of the
kids, about not hitting as much in practice, about taking
full gear off on a Wednesday.

....

I said it to the reporter and the reporter took liberties of
what he wrote. I can't -- I can't make the reporter write
everything that we talked about.

Cruce testified that as the football team's head coach, he had a Friday night radio
spot one year early on at the School in 2011 or 2012. He provided that if there was
a game, such as basketball, baseball, or football, the coach for that team had access
to media. He indicated:

My teams got press coverage. I just happened to be the
head coach, but they wrote about my team, not
necessarily about me.

....

I had opportunities to praise my kids and give stats that
would promote my program and my kids, yes, sir, I did.
....

Well, the old saying goes, the buck stops here, and if they
were going to talk to anybody, they were going to talk to
me. So they didn't talk to an assistant coach because
there w[ere] no wins or losses by their names. It was
always the head coach. So, yes, sir, most interviews you
see in the paper will be from the head coach.

At the close of Cruce's case3 and again at the close of all the evidence, the District
moved for a directed verdict on several grounds, including sovereign immunity
under the Tort Claims Act, section 15-78-60(17) of the South Carolina Code
(2005). The District argued Cruce was a limited public figure, which required that
he prove actual malice. The District also asserted no statement in Stevens's
January 7, 2016 email was defamatory. The circuit court granted a directed verdict
in the District's favor on the wrongful termination claim. The circuit court also
granted a directed verdict to the District on the defamation claim based on the
District's silence when it removed Cruce as head football coach and athletic
director. However, the circuit court denied the District's directed verdict motion on
the remaining defamation claim arising from the January 7, 2016 email. The
circuit court found as a matter of law Cruce did not qualify as a limited public
figure under defamation law.

The jury found for Cruce and awarded him $200,000 in damages. The District
moved for a JNOV, new trial absolute, or a new trial nisi remittitur. On March 29,
2018, the circuit court denied the District's posttrial motions. This appeal
followed.

STANDARD OF REVIEW

When ruling on a directed verdict motion, "the trial court is required to view the
evidence and the inferences that reasonably can be drawn therefrom in the light
most favorable to the" nonmoving party. Sabb v. S.C. State Univ., 350 S.C. 416,
427, 567 S.E.2d 231, 236 (2002). This court must follow the same standard.
Welch v. Epstein, 342 S.C. 279, 299, 536 S.E.2d 408, 418 (Ct. App. 2000). A
motion for JNOV "is a renewal of the directed verdict motion." Glover v. N.C.

3
Due to timing issues, the circuit court continued the motions until after the
District called its witness.
Mut. Life Ins. Co., 295 S.C. 251, 256, 368 S.E.2d 68, 72 (Ct. App. 1988). "If more
than one reasonable inference can be drawn or if the inferences to be drawn from
the evidence are in doubt, the case should be submitted to the jury." Chaney v.
Burgess, 246 S.C. 261, 266, 143 S.E.2d 521, 523 (1965). When the only
reasonable inference from the evidence is the plaintiff has failed to prove a
material element of his cause of action, it becomes the duty of the court to grant a
directed verdict against the party having the burden of proof. Bragg v. Hi-Ranger,
Inc., 319 S.C. 531, 534-35, 462 S.E.2d 321, 323 (Ct. App. 1995). This court will
reverse the trial court's denial of a motion for a directed verdict only when no
evidence supports its ruling. Steinke v. S.C. Dep't of Labor, Licensing &
Regulation, 336 S.C. 373, 386, 520 S.E.2d 142, 148 (1999). "When reviewing a
motion for directed verdict, this court . . . may only reverse a jury's verdict if the
factual findings implicit within it are contrary to the only reasonable inference
from the evidence." Maher v. Tietex Corp., 331 S.C. 371, 376, 500 S.E.2d 204,
207 (Ct. App. 1998). "When considering directed verdict motions, neither the trial
court nor the appellate court has authority to decide credibility issues or to resolve
conflicts in the testimony or evidence." Erickson v. Jones St. Publishers, LLC, 368
S.C. 444, 463, 629 S.E.2d 653, 663 (2006).

LAW/ANALYSIS

The District contends the circuit court erred in denying its motion for directed
verdict and JNOV as it had absolute sovereign immunity under the Tort Claims
Act because Cruce was a public official or a limited public figure. It argues
because Cruce was a public official or limited public figure, he was required to
prove the District acted with actual malice. It asserts section 15-78-60(17) of the
South Carolina Code (2005) establishes a governmental entity is not responsible
for employee conduct constituting actual malice. We agree.

The tort of defamation allows plaintiffs to recover for injuries to their reputation as
the result of defendants' communications to others of falsities regarding the
plaintiffs. Boone v. Sunbelt Newspapers, Inc., 347 S.C. 571, 580, 556 S.E.2d 732,
737 (Ct. App. 2001). "Defamatory communications take two forms: libel and
slander. Slander is a spoken defamation while libel is a written defamation or one
accomplished by actions or conduct. If a communication is libelous, then the law
presumes the defendant acted with common law malice." Swinton Creek Nursery
v. Edisto Farm Credit, ACA, 334 S.C. 469, 484, 514 S.E.2d 126, 133-34 (1999)
(citation omitted). "In cases involving the defamation of a public official, the
plaintiff must prove that the defendant acted with constitutional actual malice, that
is, with knowledge that the statement was false or with reckless disregard of its
falsity." Sanders v. Prince, 304 S.C. 236, 239, 403 S.E.2d 640, 643 (1991) (citing
N.Y. Times v. Sullivan, 376 U.S. 254, 279-80 (1964)).

"The Tort Claims Act 'is the exclusive civil remedy available for any tort
committed by a governmental entity, its employees, or its agents except as
provided in [section] 15-78-70(b)'" of the South Carolina Code (2005). Curiel v.
Hampton Cnty. E.M.S., 401 S.C. 646, 649, 737 S.E.2d 854, 856 (Ct. App. 2012)
(quoting Wells v. City of Lynchburg, 331 S.C. 296, 302, 501 S.E.2d 746, 749 (Ct.
App. 1998)); see also S.C. Code Ann. § 15-78-200 (2005) ("Notwithstanding any
provision of law, this chapter, the 'South Carolina Tort Claims Act', is the
exclusive and sole remedy for any tort committed by an employee of a
governmental entity while acting within the scope of the employee's official
duty."). The Tort Claims Act provides: "The State, an agency, a political
subdivision, and a governmental entity are liable for their torts in the same manner
and to the same extent as a private individual under like circumstances, subject to
the limitations upon liability and damages, and exemptions from liability and
damages, contained herein." Proctor v. Dep't of Health & Envtl. Control, 368 S.C.
279, 290, 628 S.E.2d 496, 502 (Ct. App. 2006) (quoting S.C. Code Ann. § 15-78-
40 (2005)).

"Under the [Tort Claims Act], a governmental entity is not liable for a loss that
results from 'employee conduct outside the scope of his official duties or which
constitutes actual fraud, actual malice, intent to harm, or a crime involving moral
turpitude.'" Gause v. Doe, 317 S.C. 39, 41, 451 S.E.2d 408, 409 (Ct. App. 1994)
(emphasis added by court) (quoting S.C. Code Ann. § 15-78-60(17) (Supp. 1993)).
"In a case involving the defamation of a public official, the plaintiff must prove the
defendant acted with actual malice." Id. (footnote omitted). "The [Tort Claims
Act] clearly excludes a governmental entity's liability for an individual's loss
stemming from a state employee's conduct that constitutes actual malice." Id. at
42, 451 S.E.2d at 409. In Gause, this court held "the [Tort Claims Act] bars [the
plaintiff's] slander claim against the [police department] because [the plaintiff]
must prove the [police department's] employee's conduct constituted
actual malice in order to recover on this claim." Id.

An important step in beginning to analyze a defamation case is determining
whether the plaintiff is a public official, public figure, or private figure. Garrard v.
Charleston Cnty. Sch. Dist., 429 S.C. 170, 208, 838 S.E.2d 698, 718 (Ct. App.
2019), petition for cert. filed. This determination is a matter of law to be decided
by the court. Id. In considering whether a person is a public official, the
employee's position must invite public scrutiny and discussion of the person
holding it, unrelated to the current controversy. Id. A public official's status may
be sufficient because of the public interest in that official's activity in a particular
context instead of the official's place in the organization's hierarchy. Id.

For purposes of a First Amendment analysis, our courts
have held a variety of public school administrators and
employees to be public officials. See Sanders v. Prince,
304 S.C. 236, 403 S.E.2d 640 (1991) (finding school
board members to be public officials); Scott v. McCain,
272 S.C. 198, 250 S.E.2d 118 (1978) (finding school
trustee to be a public official). Other jurisdictions have
held that public school teachers and athletic coaches are
public officials for purposes of applying the New York
Times doctrine. See Mahoney v. Adirondack Publ'g Co.,
517 N.E.2d 1365, 1368 (N.Y. 1987) (finding a public
high school football coach to be a public figure);
Johnston v. Corinthian Television Corp., 583 P.2d 1101,
1102 (Okla. 1978) (finding person holding the dual
positions of public school coach and physical education
teacher to be a public official); Johnson v. Sw.
Newspapers Corp., 855 S.W.2d 182, 184 (Tex. Ct. App.
1993) (finding person holding the dual position of
athletic director and head football coach to be a public
official).

Garrard, 429 S.C. at 208, 838 S.E.2d at 718.

In Garrard, a high school football coach (Coach Walpole) brought suit against a
newspaper for defamation. Id. at 181, 838 S.E.2d at 703-04. The circuit court
granted summary judgment to the newspaper, finding Coach Wadpole was a public
official and was required to prove the newspaper acted with actual malice. Id. at
188, 838 S.E.2d at 707. Coach Wadpole appealed, arguing he was a private figure
and not a public official. Id. at 207, 838 S.E.2d at 718. This court determined
"Coach Walpole is a public official for purposes of applying the New York Times
doctrine." Id. at 209, 838 S.E.2d at 719. The court noted "Coach Walpole holds
many positions within the School District"—head football coach, head coach of the
women's basketball team, and teacher. Id. "Coach Walpole testified that he
interacts with the parents of the athletes after each game and he participates in
newspaper and television interviews. Furthermore, as head coach, he is
responsible for the oversight of the teams' activities." Id. at 209-10, 838 S.E.2d at
719.

Initially, Cruce argues the District's argument he was a public official is not
preserved because the District did not raise it during the directed verdict motion
and first raised it in the JNOV motion. During the directed verdict motion, the
District repeatedly asserted Cruce was a limited public figure, and Cruce disagreed.
However, the District also referenced the related concept of a public official and
asserted other jurisdictions have held that all public employees are public officials.
In response to questioning by the circuit court if the statements had to relate to
coaching for the actual malice standard to apply, the District answered "it does not
matter if you follow the line of cases that says that every public employee is a
public official. Because in that case, whether a teacher or as a coach, he's a public
employee, he's a public official, and all public officials must prove actual malice."
"[A] party is not required to use the exact name of a legal doctrine in order to
preserve the issue." Herron v. Century BMW, 395 S.C. 461, 466, 719 S.E.2d 640,
642 (2011). As our supreme court has observed, "it may be good practice for us to
reach the merits of an issue when error preservation is doubtful." Atl. Coast
Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 330, 730 S.E.2d 282, 285
(2012). Accordingly, the issue was sufficiently argued to the circuit court to
address it on appeal.

Based on this court's decision in Garrard, the circuit court erred in not finding
Cruce was a public official or a limited public figure.4 Cruce was an athletic
director, a football coach, and a teacher, similar to Coach Wadpole in Garrard,
who was a coach of two different teams, including football, and a teacher.
Accordingly, Cruce was a public official.

Because Cruce was a public official, he has the burden of proving actual malice.
Under the Tort Claims Act, the District, as a governmental entity, is not liable for a
loss resulting from employee conduct that constitutes actual malice. Gause, 317
S.C. at 41, 451 S.E.2d at 409. Therefore, the Tort Claims Act bars Cruce's
defamation action because he has to prove the District's employee's conduct
constituted actual malice in order to recover on this claim. See id. at 42, 451
S.E.2d at 409 ("The [Tort Claims Act] clearly excludes a governmental entity's
liability for an individual's loss stemming from a state employee's conduct that
constitutes actual malice. We therefore agree with the trial court that the [Tort

4
Because our court's opinion in Garrard was not issued until November of 2019, it
was not available to the circuit court in the present case as the trial here occurred in
2017 and the circuit court issued its posttrial order in 2018.
Claims Act] bars [the plaintiff's] slander claim against the [police department]
because [the plaintiff] must prove the [police department's] employee's conduct
constituted actual malice in order to recover on this claim."); see also Kennedy v.
Richland Cnty. Sch. Dist. Two, 428 S.C. 98, 118, 833 S.E.2d 414, 425 (Ct. App.
2019) ("[A]ctual malice does, in fact, refer to constitutional malice when
defamation involves the First Amendment, a public official, or an issue of public
concern.").5

Accordingly, the Tort Claims Act bars the action as Cruce was required to prove
actual malice because he was a public official. Therefore, the circuit court's denial
of the District's motion for directed verdict and JNOV on Cruce's defamation cause
of action is

REVERSED.

GEATHERS and MCDONALD, JJ., concur.

5
The District also contends the circuit court erred in denying its motion for
directed verdict and JNOV because Cruce failed to prove each element of his
defamation cause of action. It contends the email was not false and defamatory. It
also asserts Cruce presented no evidence the email was sent with common law
malice or recklessness as to show conscious indifference or that the email
proximately caused any damages. Based on our holding that Cruce is a public
official or limited public figure, we need not address this issue. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (holding an appellate court need not review remaining issues when its
determination of a prior issue is dispositive of the appeal).