THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Bruce S. Skinner, M.D.,
Appellant,
v.
Trident Medical Center, L.L.C., Successor to North Trident Regional Hospital,
Inc. and Cheryl Aloway, Respondents.
Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court
Judge
Unpublished Opinion No. 2004-UP-496
Submitted September 15, 2004 Filed September 30, 2004
AFFIRMED
Gregg E. Meyers, of Charleston, for Appellant.
C. Mitchell Brown, Elizabeth H. Campbell, of Columbia; M.
Dawes Cook, Lucinda Wichmann, and Wendy J. Keefer, all of Charleston, for Respondent
PER CURIAM: This is an appeal from an order
granting respondents, Trident Medical Center, L.L.C. and Cheryl Aloway, a new
trial absolute following a jury verdict for Dr. Bruce Skinner on claims of defamation,
negligent supervision, and conversion. We affirm.
[1]
FACTUAL/PROCEDURAL BACKGROUND
This action arose out of certain events Dr. Skinner
alleged occurred in connection with his employment as an internist with Trident
Medical Center, L.L.C. Dr. Skinner began his employment with Trident on January
5, 1998 in an office in St. Stephen, South Carolina. Originally, Trident planned
to keep Dr. Skinner at the St. Stephen office only a short time, and thereafter
relocate him to a new office in the Crowfield area. According to Trident, due
to market factors and structural problems with the facility, Trident decided
to close the St. Stephen office. Because of several changes in circumstances,
Trident needed the doctor at the Crowfield location to have hospital admitting
privileges. Dr. Skinner did not have those privileges, and Trident decided
to terminate Dr. Skinners employment per its standard contract allowing sixty
days notice for termination without cause. Dr. Skinner was provided with notice
in April 1998 and his position was terminated in June 1998.
During the time Dr. Skinner worked in the St. Stephen
office he had conflicts with the area office manager, Cheryl Aloway, over office
issues such as billing and the condition of the office. Following his termination,
Dr. Skinner was unsuccessful in finding employment as a physician. Thereafter,
Dr. Skinner instituted this action against Trident and Aloway alleging, among
other things, that (1) Aloway made false, slanderous statements about Dr. Skinner,
(2) Trident negligently supervised Aloway, and (3) Trident had converted a patient
list Dr. Skinner had supplied to Trident to its own use and refused to return
the list to Dr. Skinner. Dr. Skinner maintained his difficulty in obtaining
employment as a physician was due to malicious slander by Aloway, Tridents
negligent supervision of Aloway, and conversion of a computer patient list of
Dr. Skinners. Trident and Aloway asserted that Dr. Skinners inability to
find physician related employment was due to a number of factors including his
lack of admitting privileges and board certification, the fact that he was out
of work for a year and a half prior to his employment with Trident and had not
built up a network of relations with other doctors and hospitals, and the fact
that Dr. Skinners application letters gave indications to prospective employers
that he was unemployable.
Dr. Skinners slander claim stems from statements
made by Aloway, who was an area manager for Trident overseeing eight separate
offices, including the St. Stephen office where Dr. Skinner worked. Aloway
admittedly made statements to three other Trident employees that Dr. Skinner
was believed to have taken some equipment from the office that he was not supposed
to take, and that he had sabotaged the office by leaving water running in a
stopped-up sink overnight.
Aloway testified as to what prompted her statements
that Dr. Skinner had sabotaged the office. She stated Dr. Skinner was supposed
to fill in at the St. Stephen office while Trident awaited the arrival of a
doctor from Canada to take over that office. At that time, the plan was then
to move Dr. Skinner to the Crowfield office. However, the Canadian doctor had
trouble with his visa, possibly postponing his arrival by six months. Dr. Skinner
had been complaining about the condition of the St. Stephen office, and expressed
concern that he would have to stay there and would never get to the Crowfield
office. One of Aloways superiors, Ian Watson, was scheduled to visit the St.
Stephen office to evaluate the condition of the building. Around that time,
Dr. Skinner made a comment to Aloway concerning whether he should make the office
look worse than it actually was, in anticipation of Watsons visit. The night
before Watson was scheduled to come to the St. Stephan location, there was a
leak in the kitchen that flooded out into the hallway and onto the carpet.
When the plumber arrived, he could find nothing to have caused the leak, but
indicated he believed someone had intentionally stopped up the sink, let the
water runoff, and then unstopped it. When Aloway talked to Dr. Skinner about
the leak, he indicated he felt the housekeeper had done it. The housekeeper
denied having caused the leak, and told Aloway that when she left the building
that night, Dr. Skinner was still there. Aloway theorized that if the St. Stephen
office were to close, Dr. Skinner would be able to get to the Crowfield location
sooner. She thus came to the conclusion that, if anyone had caused the damage,
it was Dr. Skinner.
As to the missing equipment, Aloway testified,
while Dr. Skinner had been authorized to take some equipment home with him,
she suspected he had taken some other equipment from the office for which he
had not received permission. When she expressed these concerns to her superior,
she was told to simply call Dr. Skinner and ask him to bring the equipment back.
She was not to make a specific list of the items, but was to leave it up to
Dr. Skinners discretion as to what he would return. Aloway arranged to have
the items returned to Tridents Crowfield office. When she went there to pick
up the equipment, she was surprised and frustrated to find only one small box
that did not contain all the items she had expected, and questioned the staff
as to whether that was all that was left there. When the staff indicated that
was the extent of the returned items and then questioned Aloway, she expressed
to the three co-workers that Dr. Skinner had taken some things. She further
admitted that she may have blurted out that Dr. Skinner had also sabotaged
his office.
Aloway also admitted she may have expressed her
beliefs regarding Dr. Skinner to another person after she was no longer employed
by Trident. After leaving Trident in August 1998, Aloway went to work for an
association of independent physicians (IPA). Dr. Bounds, who served on the
board of directors of IPA, received a call from Dr. Skinner, asking if Dr. Bounds
had heard Aloway say anything negative about him. At that time, Aloway had
never mentioned Dr. Skinner to Dr. Bounds and Dr. Bounds informed Dr. Skinner
of this. Thereafter, Dr. Bounds saw Aloway at an IPA meeting and asked her
what had occurred with Dr. Skinner. Aloway then responded that Dr. Skinner
had stolen an EKG machine and had sabotaged the St. Stephen office. Aloway
testified she only made this statement as a direct answer to an inquiry from
a board member who was her boss, and she would not have said anything about
it if it had not been raised in a question from her boss. Aloway testified
that she still believed the statements she made about Dr. Skinner were true.
Dr. Skinners conversion claim involves a list containing
potential patient contact information. Dr. Skinner obtained this list of potential
patients in the summer of 1996, while he was employed at the Naval Hospital
in Charleston. After he began his employment with Trident, Dr. Skinner gave
the list to Aloway so that announcements of his employment could be sent out.
Aloway testified she passed the list on to a secretary at Trident. She further
stated that Trident had not requested the list, but Dr. Skinner had suggested
they use the list for the announcement and Trident agreed. However, the list
ultimately was not used due to Dr. Skinners termination. Dr. Skinner requested
return of the list when he was terminated, but the list was lost and Trident
was never able to locate it. Trident and Aloway presented evidence that, because
the list was around two years old by the time Dr. Skinner left Trident and included
military personnel who likely had moved on, it was of little to no value. They
further presented evidence that Dr. Skinner was not the rightful owner of the
list and that Trident had not used the list for its own benefit.
The case was submitted to the jury under the causes
of action of slander, conversion, and negligent supervision. Without objection,
the jury received instruction on the law of defamation which included statements
made under a qualified privilege [2] and/or statements invited or procured by a plaintiff such that
the publication was insufficient to support an action for defamation.
[3] The jury further received instruction on the law of conversion. [4]
On December 19, 2002, the jury returned its verdict.
Originally, the jurys verdict was as follows: (a) for Dr. Skinner on the conversion
claim in the amount of $250,000.00 actual damages, (b) for Dr. Skinner against
Aloway individually on the defamation claim for $25,000.00 actual and $25,000.00
punitive damages, (c) for Dr. Skinner against both Aloway and Trident on the
defamation claim for $1 million actual and $10 million punitive damages, and
(d) for Dr. Skinner against Trident on the negligent supervision claim in the
amount of $10 million actual damages. The court and the parties agreed that
actual damages could not differ for the defamation claim against Aloway and
the defamation claim against Trident, which was only vicariously liable. In
addition, the court and the parties agreed it was illogical to award greater
damages for the defamation claim than the negligent supervision claim. Accordingly,
the court instructed the jury to clarify its verdict on the defamation and negligent
supervision claims, but did not resubmit the conversion action to the jury.
When the jury returned after further instructions, it found for Dr. Skinner
in the amount of $10 million for negligent supervision against Trident, and
against both Trident and Aloway in the amount of $10 million actual damages
and $10 million punitive damages for slander. Dr. Skinner subsequently elected
to recover the slander award rather than the negligent supervision award.
In an order filed on June 23, 2003, the trial judge
exercised his discretion as the thirteenth juror and granted Trident and Aloway
a new trial. He found the evidence did not support the verdicts and justice
had not prevailed. In the alternative, the trial judge concluded a new trial
was warranted because the verdicts were so excessive as to indicate they were
the result of passion, prejudice, caprice, or some other influence outside the
evidence presented. Dr. Skinner appeals the order granting a new trial.
LAW/ANALYSIS
Dr.
Skinner argues the trial court erred in finding the evidence did not justify the
verdicts on the conversion and defamation awards and therefore the order
granting a new trial under the thirteenth juror doctrine should be reversed.
We disagree.
The
thirteenth juror doctrine is a vehicle by which the trial judge may grant a new
trial absolute when he finds that the evidence does not justify the verdict. Folkens v. Hunt, 300 S.C. 251, 254, 387 S.E.2d 265,
267 (1990). Such a ruling has also
been termed a granting of a new trial upon the facts. Id. The
trial judge has the authority to grant a new trial outright when, sitting as the
thirteenth juror charged with the duty of seeing that justice is done, he is
convinced that a new trial is necessitated on the basis of the facts in the
case. Graham v. Whitaker,
282 S.C. 393, 401, 321 S.E.2d 40, 45 (1984).
This doctrine is so named because it entitles the trial judge to sit, in
essence, as the thirteenth juror when he finds the evidence does not justify the
verdict, and then to grant a new trial based solely upon the facts.
Norton v. Norfolk S. Ry. Co., 350 S.C. 473, 478, 567 S.E.2d 851,
854 (2002). [T]he trial judge is
the thirteenth juror, possessing the veto power to the Nth degree, and, it must
be presumed, recognizes and appreciates his responsibility, and exercises the
discretion vested in him with fairness and impartiality.
Worrell v. South Carolina Power Co., 186 S.C. 306, 313-14, 195
S.E. 638, 641 (1938). As the
thirteenth juror, the trial judge can hang the jury by refusing to agree to a
jury verdict that is otherwise unanimous. Id.
The effect is the same as if the jury failed to reach a verdict,
resulting in a new trial. Folkens,
300 S.C. at 254, 387 S.E.2d at 267. Neither
judge nor jury is required to give reasons for the outcome.
Id. Further, a trial
judges order granting or denying a new trial upon the facts will not be
disturbed unless his decision is wholly unsupported by the evidence, or the
conclusion reached was controlled by an error of law.
Id.
As to the conversion claim, Dr. Skinner contends
the information contained in the patient list would have enabled him to
establish his own practice and the $250,000 award therefore was not excessive.
He further argues that, because the defamation was per se,
general damages are presumed, and that, along with evidence presented regarding
malicious actions by Trident and Aloway as well as Dr. Skinners resulting
unemployment and the intangible injuries suffered by him, justified the
award.
In reviewing the trial courts decision to
grant a new trial under the thirteenth juror doctrine, this court does not,
however, look to whether the evidence presented below could support the
jurys verdict. The granting of a new trial upon the facts is not the equivalent
of granting a directed verdict. McEntire v. Mooregard Exterminating
Servs., Inc., 353 S.C. 629, 632, 578 S.E.2d 746, 748 (Ct. App. 2003).
Unlike a directed verdict motion, in considering whether to grant a new
trial under the thirteenth juror doctrine, the trial judge weighs the evidence,
and he need not view it in a light most favorable to the opposing party.
Id. Though the trial judge may be compelled to submit the issues
to the jury, it does not follow that he cannot subsequently grant a new
trial absolute under the thirteenth juror doctrine. Worrell, 186
S.C. at 313-14, 195 S.E. at 641. Rather, our review is limited to consideration
of whether evidence exists to support the trial courts order. Folkens,
300 S.C. at 255, 387 S.E.2d at 267. Unless the decision to grant a new
trial on the facts is wholly unsupported by the evidence or the trial judges
conclusion was controlled by an error of law, the order will not be disturbed
on appeal. Id. Where conflicting evidence exists on the contested
issues, the trial courts ruling is not wholly unsupported by the evidence,
and its decision will not be overturned. Id. at 255, 387 S.E.2d
at 267.
Under our limited scope of review, we cannot
say the courts ruling is wholly unsupported by the evidence. Conflicting
evidence was presented by the parties as to whether the statements made
by Aloway were privileged and/or invited. Further, the evidence was in
conflict as to whether Trident was properly excused from returning the patient
list to Dr. Skinner because the list was simply lost rather than intentionally
withheld, whether Dr. Sinner had title to or the right to possession of
the list, or whether the list had any value such that the failure to return
it resulted in any damage to Dr. Skinner. Further, there is no indication,
and appellant does not argue, that the trial judge was controlled by an
error of law, such as the application of an incorrect standard. Accordingly,
we find no error in the trial judges decision to grant a new trial pursuant
to the thirteenth juror doctrine
[5] and the order below is
HEARN, C.J., and HUFF and KITTREDGE, JJ., concur.
[1] We decide this case without oral argument pursuant to Rule 215, SCACR.
[2] A communication made in good faith on any subject matter in which
the person communicating has an interest or duty is qualifiedly privileged
if made to a person with a corresponding interest or duty even though it
contains matter which, without this privilege, would be actionable. Murray
v. Holnam, Inc., 344 S.C. 129, 140-41, 542 S.E.2d 743, 749 (Ct. App.
2001). Communications between officers and employees of a corporation
are qualifiedly privileged if made in good faith and in the usual course
of business. Id.
[3] It is a sound principle of law that a person cannot invite or provoke
another to make a slanderous charge against him, and then sue such person
for damages on account of such charge. Boling v. Clinton Cotton Mills,
163 S.C. 13, 24, 161 S.E. 195, 199 (1931).
[4] Conversion is the unauthorized assumption and exercise of the right
of ownership over goods or personal chattels belonging to another, to the
alteration of the condition or the exclusion of the owners rights. Crane
v. Citicorp Natl Servs., Inc., 313 S.C. 70, 73, 437 S.E.2d 50, 52 (1993).
It is a wrongful act which emanates by either a wrongful taking or wrongful
detention. Regions Bank v. Schmauch, 354 S.C. 648, 667, 582 S.E.2d
432, 442 (Ct. App. 2003). To establish the tort of conversion, it is
essential that the plaintiff establish either title to or right to the possession
of the personal property. Crane, 313 S.C. at 73, 437 S.E.2d at
52.
[5] Because we affirm the trial judges order granting a new trial pursuant
to the thirteenth juror doctrine, we need not address Dr. Skinners assertion
that the trial judge also erred in his alternative ruling that a new trial
was warranted because the verdicts were so excessive as to indicate they
were the result of passion, prejudice, caprice, or some other influence
outside the evidence presented.