In this defamation case, David Castine appeals the circuit court's grant of summary judgment in favor of Frances Castine. He argues he presented sufficient evidence of the truth of the allegedly defamatory statements to withstand summary judgment. Furthermore, he contends the circuit court erred in finding his communications as a citizen regarding a public employee were not privileged. Finally, David argues the circuit court erred in finding he acted with malice as a matter of law. We affirm.
Frances and David were previously related by marriage, as father-in-law and daughter-in-law. When Frances's husband passed away in 2007, the estate settlement caused tension between Frances and David.
Frances eventually obtained employment with Lexington County (the County) and has held her position for over three years. After discovering she had been hired by the County, David contacted several members of the Lexington County Council regarding the County's hiring practices. He stated he was concerned about Frances's employment with the County because she had a criminal record, was fired from the South Carolina Department of Motor Vehicles (SCDMV) for misconduct, and was a known user of illegal drugs. David was directed by a County councilman to contact the County's human resources manager about the issue. After contacting the human resources manager, David was told to put the concerns in writing and that the matter would be handled confidentially.
On April 1, 2009, David wrote his concerns were
He also stated Frances was "a well-known drug user and has been for over 25 years.... These drugs include marijuana and cocaine." David sent a second letter to Katherine Hubbard, the County administrator on October 23, 2009. In that letter, he requested to have questions answered, including:
In his deposition, David agreed with Frances's counsel that the intent behind his actions was to hurt Frances and have her fired. However, he later attempted to clarify his intent by testifying "every citizen has a right to protect the people that work for [the County]."
In a complaint filed in May 2009, Frances asserted causes of action for defamation/slander, negligence/recklessness, intentional interference with contractual rights, and a preliminary and permanent injunction. In his answer, David admitted he provided information to the County at its request but asserted that the information was true and privileged. Prior to trial, Frances filed a motion for summary judgment on the issue of liability. During a hearing before the circuit court, David put forth two defenses to preclude summary judgment on his defamation charge. First, he asserted an absolute defense of truth. Second, he asserted a defense of privilege, either qualified or absolute.
The circuit court determined Frances was entitled to a judgment as a matter of law on the issue of defamation and the matter should proceed to trial on the issue of damages. The court found David's statements were defamatory per se.
When reviewing the grant of a summary judgment motion, this court applies the same standard that governs the trial court under Rule 56(c), SCRCP; summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). In determining whether a genuine issue of fact exists, the evidence and all reasonable inferences drawn from it must be viewed in the light most favorable to the nonmoving party. Sauner v. Pub. Serv. Auth. of S.C., 354 S.C. 397, 404, 581 S.E.2d 161, 165 (2003). "Once the moving party carries its initial burden, the opposing party must come forward with specific facts that show there is a genuine issue of fact remaining for trial." Sides v. Greenville Hosp. Sys., 362 S.C. 250, 255, 607 S.E.2d 362, 364 (Ct.App.2004).
The tort of defamation allows plaintiffs to recover for injuries to their reputation as the result of defendants' communications to others of a falsity regarding the plaintiffs. Boone v. Sunbelt Newspapers, Inc., 347 S.C. 571, 580, 556 S.E.2d 732, 737 (Ct.App.2001). Defamation does not focus on the hurt to the defamed parties' feelings, but on the injury to their reputations. Murray v. Holnam, Inc., 344 S.C. 129, 138, 542 S.E.2d 743, 748 (Ct.App.2001). "In order to prove defamation, the plaintiff must show (1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication."
David argues the circuit court erred in granting summary judgment because evidence was presented that the statements he made to the County were true. We disagree.
Relying on Ross v. Columbia Newspapers, Inc., 266 S.C. 75, 221 S.E.2d 770 (1976), David maintains the defense of truth does not require proof that the statements were completely true, but only that the statements were substantially true. In Ross, the supreme court held, in the context of a newspaper article, that (1) "both the headline and the article following it must be considered as one document in determining whether it is defamatory," and (2) "a sufficient defense is made out where the evidence establishes that the statement was substantially true." 266 S.C. at 80-81, 221 S.E.2d at 772-73. Here, although the first holding in Ross is not applicable because the present case does not involve a newspaper article, the second holding still applies.
In this case, David admitted that at least one statement he made, the accusation of improper credit card use, was not true. On appeal, David contends that because most of the statements he made are true, then both letters he sent to the County are substantially true. We find David is not entitled to the truth defense, as a matter of law, because he admitted the statement he made about Frances's improper credit card use was false. Substantial truth must be proven as to each individual statement David made, not as to the contents of the letters he sent as a whole. In that respect, we find Ross distinguishable from this case. Accordingly, we affirm the circuit court's ruling as to the falsity of David's statement regarding Frances's credit card use because there is no evidence that statement is true. Whether the other statements were false is a matter for the jury.
David argues the circuit court erred in granting summary judgment because the statements he made to the County were privileged. We disagree.
David contends that as a taxpayer and citizen of the County, the statements he made to County officials about the suitability of Frances for employment as a county employee are privileged. "In a defamation action, the defendant may assert the affirmative defense of conditional or qualified privilege." Swinton Creek Nursery v. Edisto Farm Credit, ACA, 334 S.C. 469, 484, 514 S.E.2d 126, 134 (1999). "Under this defense, 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 conditionally privileged, and (2) the privilege is not abused." Id. (citing Restatement (Second) of Torts, § 593 (1977); see Bell v. Bank of Abbeville, 208 S.C. 490, 38 S.E.2d 641 (1946)). In Bell, our supreme court held:
Bell, 208 S.C. at 493-94, 38 S.E.2d at 643.
"In general, the question whether an occasion gives rise to a qualified or conditional privilege is one of law for the court." Id. Here, in light of David's admission of his intent to harm Frances and get her fired, we find the circuit court did not err in finding privilege did not exist. Because privilege is not applicable to the specific facts of this case, we affirm the circuit court.
David argues the circuit court erred in finding he acted with malice as a matter of law. We disagree.
Under the common law, a defamatory statement may be actionable per se, in which case the court presumes a defendant acted with common law malice
Slander is actionable per se "only when it charges the plaintiff with one of five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession." Erickson, 368 S.C. at 465-66 n. 7, 629 S.E.2d at 664 n. 7. However, "[l]ibel is actionable per se if it involves written or printed words which tend to degrade a person, that is, to reduce his character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous." Holtzscheiter, 332 S.C. at 510-11, 506 S.E.2d at 502 (citation omitted).
David's statements to the County are actionable per se. Thus, the law presumes David acted with common law malice. This presumption does not imply that David acted
None of this discussion applies to common law actual malice. Therefore, to the extent the existence of common law actual malice becomes an issue, its existence is a question of fact that must be proven at trial. See Murray, 344 S.C. at 144, 542 S.E.2d at 751 (stating the existence of common law actual malice "is ordinarily for the jury to decide"); Jones, 250 S.C. at 488, 158 S.E.2d at 914 ("While [common law] malice will support an award of actual damages, punitive damages cannot be recovered in the absence of proof of [common law] actual malice.").
Accordingly, the findings of the circuit court are
FEW, C.J., concurs.
SHORT, J., concurs in result only.