Thomas v. Evening Post Publishing Co. ( 2016 )


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  • 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
    Clark D. Thomas, Appellant,
    v.
    Evening Post Publishing Co., d/b/a The Post and Courier
    and Glenn Smith, officially and individually,
    Respondents.
    Appellate Case No. 2014-002725
    Appeal From Charleston County
    R. Markley Dennis, Jr., Circuit Court Judge
    Unpublished Opinion No. 2016-UP-490
    Submitted November 1, 2016 – Filed November 23, 2016
    AFFIRMED
    Clark D. Thomas, pro se.
    Jerry Jay Bender, of Baker Ravenel & Bender, LLP, of
    Columbia, for Respondents.
    PER CURIAM: Clark D. Thomas appeals the circuit court's order granting
    summary judgment to Evening Post Publishing Co., d/b/a The Post and Courier
    and Glenn Smith (collectively, Respondents). Thomas argues the circuit court
    erred in (1) denying his motion for a continuance or for dismissal without prejudice
    and to toll the statute of limitations, (2) granting Respondents' motion for summary
    judgment, and (3) failing to remand for review of the novel issue of being libel-
    proof. We affirm.1
    1. The circuit court did not err in denying Thomas's motion for a continuance or for
    dismissal without prejudice and to toll the statute of limitations. See State v.
    Motley, 
    251 S.C. 568
    , 571-72, 
    164 S.E.2d 569
    , 570 (1968) ("It is well settled in
    this jurisdiction that a motion for a continuance is addressed to the sound discretion
    of the court, and the decision of the trial court thereabout will not be disturbed on
    appeal in the absence of an abuse of discretion amounting to an error of law.");
    State v. Lytchfield, 
    230 S.C. 405
    , 409, 
    95 S.E.2d 857
    , 859 (1957) ("[R]eversals of
    refusal of continuance are about as rare as the proverbial hens' teeth."); see also
    Hooper v. Ebenezer Senior Servs. & Rehab. Ctr., 
    386 S.C. 108
    , 115, 
    687 S.E.2d 29
    ,
    32 (2009) ("The party claiming the statute of limitations should be tolled bears the
    burden of establishing sufficient facts to justify its use.").
    2. The circuit court did not err in granting Respondents' motion for summary
    judgment because Thomas failed to file an affidavit to counter Respondents'
    contention that the statements in the article at issue were true or protected by the
    fair report privilege. See Rule 56(e), SCRCP ("When a motion for summary
    judgment is made and supported as provided in this rule, an adverse party may not
    rest upon the mere allegations or denials of his pleading, but his response, by
    affidavits or as otherwise provided in this rule, must set forth specific facts
    showing that there is a genuine issue for trial. If he does not so respond, summary
    judgment, if appropriate, shall be entered against him."); Lord v. D & J Enters.,
    Inc., 
    407 S.C. 544
    , 553, 
    757 S.E.2d 695
    , 699 (2014) ("Once the moving party
    carries its initial burden, the opposing party must do more than rest upon the mere
    allegations or denials of his pleadings, but must, by affidavit or otherwise, set forth
    specific facts to show that there is a genuine issue for trial." (citing Baughman v.
    Am. Tel. & Tel. Co., 
    306 S.C. 101
    , 115, 
    410 S.E.2d 537
    , 545 (1991))); Hall v.
    Fedor, 
    349 S.C. 169
    , 175, 
    561 S.E.2d 654
    , 657 (Ct. App. 2002) ("Our appellate
    courts have interpreted Rule 56(e) to mean materials used to support or refute a
    motion for summary judgment must be those which would be admissible in
    evidence.").
    Although Thomas contends he complied with the affidavit requirement in other
    ways, we disagree. First, Thomas's statements under oath during the divorce
    proceedings occurred before the September 2012 Article was published; thus,
    1
    We decide this case without oral argument pursuant to Rule 215, SCACR.
    Thomas did not specifically address any false statements in the September 2012
    Article. Furthermore, his statements did not raise a genuine issue of material fact
    regarding whether Respondents complied with the fair report privilege.
    Second, the circuit court did not err in only permitting argument on the summary
    judgment motion during the hearing. See Rule 56(c), SCRCP (stating summary
    judgment "shall be rendered forthwith if the pleadings, depositions, answers to
    interrogatories, and admissions on file, together with the affidavits, if any, show
    that there is no genuine issue as to any material fact and . . . the moving party is
    entitled to a judgment as a matter of law"). There is no requirement that the circuit
    court take testimony from the parties before ruling on a summary judgment
    motion.
    Third, although Respondents admitted certain portions of Thomas's complaint were
    true, they did not admit any portion of the September 2012 Article was false or that
    it was not protected by the fair report privilege. Furthermore, Thomas did not
    actually verify the statements in his complaint were true. See Dawkins v. Fields,
    
    354 S.C. 58
    , 67, 
    580 S.E.2d 433
    , 438 (2003) ("[A] verified complaint is an
    acceptable substitute for an affidavit at the summary judgment phase as long as the
    pleading satisfies Rule 56(e)."); id. at 68, 580 S.E.2d at 438 ("Rule 56(e) requires
    that affidavits: '[1] shall be made on personal knowledge, [2] shall set forth such
    facts as would be admissible in evidence, and [3] shall show affirmatively that the
    affiant is competent to testify to the matters stated therein.'" (alterations in original)
    (quoting Rule 56(e), SCRCP)); id. ("Few pleadings will satisfy these requirements,
    even when verified." (quoting 10B Charles Alan Wright, Arthur R. Miller & Mary
    Kay Kane, Federal Practice and Procedure: Civil 3d § 2738 (1998))).
    Finally, Thomas points to an affidavit he submitted with his motion for judicial
    notice, as well as fourteen character affidavits in opposition to Respondents'
    argument in their motion for summary judgment that Thomas was libel-proof.
    However, Thomas's affidavit only attests to the validity of the statements he made
    in his motion for judicial notice, in which he asked for judicial notice that
    Respondents' motion for judgment on the pleadings was moot. Additionally, the
    character affidavits only state Thomas was a non-violent person. These affidavits
    do not counter Smith's statements in his affidavit that he believed "everything in
    the [September 2012 Article] complained of by [Thomas] was true or substantially
    true, or was based on a fair and accurate report of public proceedings and the
    contents of public records." Accordingly, we find the circuit court properly
    granted summary judgment to Respondents because nothing Thomas provided
    supports a finding that a genuine issue of material fact exists regarding falsity or an
    abuse of the fair report privilege. See Lord, 407 S.C. at 553, 757 S.E.2d at 699
    ("Once the moving party carries its initial burden, the opposing party must do more
    than rest upon the mere allegations or denials of his pleadings, but must, by
    affidavit or otherwise, set forth specific facts to show that there is a genuine issue
    for trial." (citing Baughman, 
    306 S.C. at 115
    , 
    410 S.E.2d at 545
    )); see also White v.
    Wilkerson, 
    328 S.C. 179
    , 186, 
    493 S.E.2d 345
    , 348 (1997) ("The 'fair report'
    privilege protects fair and accurate reports of 'judicial records and proceedings and
    other official acts, reports, and records.'" (quoting S.C. Jur. Libel and Slander § 61
    (1993))); West v. Morehead, 
    396 S.C. 1
    , 8 n.3, 
    720 S.E.2d 495
    , 499 n.3 (Ct. App.
    2011) ("While abuse of [the conditional] privilege is ordinarily an issue [reserved]
    for the jury, . . . in the absence of a controversy as to the facts, . . . it is for the court
    to say in a given instance whether or not the privilege has been abused or
    exceeded." (alterations in original) (quoting Swinton Creek Nursery v. Edisto Farm
    Credit, ACA, 
    334 S.C. 469
    , 485, 
    514 S.E.2d 126
    , 134 (1999))).
    3. The libel-proof plaintiff doctrine was merely one of three alternative grounds for
    summary judgment raised by Respondents. In granting Respondents' motion for
    summary judgment, the circuit court focused on Thomas's failure to file an
    affidavit opposing Respondents' motion for summary judgment and the fact that
    the September 2012 Article was substantially true and protected by the fair report
    privilege. The circuit court never addressed Respondents' contention that Thomas
    was libel-proof. In light of the fact that this was merely an alternative ground for
    summary judgment raised by Respondents and the circuit court properly granted
    summary judgment to Respondents on other grounds, there is no need to remand to
    determine whether Thomas was a libel-proof plaintiff. Accordingly, we decline to
    address this issue. See Futch v. McAllister Towing of Georgetown, Inc., 
    335 S.C. 598
    , 613, 
    518 S.E.2d 591
    , 598 (1999) (holding appellate courts need not address
    remaining issues when the resolution of a prior issue is dispositive).2
    AFFIRMED.
    HUFF and SHORT, JJ., and MOORE, A.J., concur.
    2
    The circuit court also granted summary judgment to Respondents on Thomas's
    intentional infliction of emotional distress claim, finding Thomas "failed to
    establish that any facts exist[ed] [that] would [have] provide[d] a basis for recovery
    on this claim independent of his libel claim." Thomas did not discuss this ruling in
    his brief; thus, the circuit court's ruling is the law of the case. See Shirley's Iron
    Works, Inc. v. City of Union, 
    403 S.C. 560
    , 573, 
    743 S.E.2d 778
    , 785 (2013) ("An
    unappealed ruling is the law of the case and requires affirmance.").
    

Document Info

Docket Number: 2016-UP-490

Filed Date: 11/23/2016

Precedential Status: Non-Precedential

Modified Date: 10/22/2024