Paradis v. Charleston County School District

The Supreme Court of South Carolina
Leisel Paradis, Petitioner,
v.
Charleston County School District, James Island Charter
High School, Robert Bohnstengel and Stephanie Spann,
in their individual capacities, Respondents.
Appellate Case No. 2018-002025
ORDER
After careful consideration of the petition for rehearing, the Court is unable to
discover that any material fact or principle of law has been either overlooked or
disregarded, and hence, there is no basis for granting a rehearing. Consequently,
the petition for rehearing is denied. However, for clarification, a new footnote 9
has been added in the attached opinion, which is substituted for the previous
opinion, and the previous opinion is withdrawn.
s/ Donald W. Beatty C.J.
s/ John W. Kittredge J.
s/ Kaye G. Hearn J.
s/ George C. James, Jr. J.
I stand by my original writing, but I do not believe my differences with the
majority warrant the granting of rehearing. I vote with the majority, therefore, to
substitute the revised majority opinion and refile.
s/ John Cannon Few J.
Columbia, South Carolina
August 18, 2021
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Leisel Paradis, Petitioner,
v.
Charleston County School District, James Island Charter
High School, and Robert Bohnstengel and Stephanie
Spann, in their individual capacities, Respondents.
Appellate Case No. 2018-002025
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Charleston County
J.C. Nicholson Jr., Circuit Court Judge
Opinion No. 28030
Heard December 12, 2019 – Filed May 19, 2021
Refiled August 18, 2021
REVERSED AND REMANDED
J. Lewis Cromer and J. Paul Porter, both of Cromer Babb
Porter & Hicks, LLC, of Columbia, for Petitioner.
Rene Stuhr Dukes, of Rosen Rosen & Hagood, LLC, of
Charleston, for Respondent Robert Bohnstengel; and
Caroline Cleveland, Bob J. Conley, and Emmanuel Joseph
Ferguson, all of Cleveland & Conley, LLC, of Charleston,
for Respondent Stephanie Spann.
CHIEF JUSTICE BEATTY: A civil conspiracy claim brought by Leisel
Paradis ("Petitioner") was dismissed by the circuit court for failing to plead special
damages, and the dismissal was upheld by the court of appeals. We granted a
petition for a writ of certiorari to consider the narrow question whether South
Carolina's requirement of pleading special damages should be abolished. We
conclude that it should. South Carolina is the only state with this unique requirement
as an element, and we find it resulted from a misinterpretation of law. We overrule
precedent that requires the pleading of special damages and return to the traditional
definition of civil conspiracy in this state. Consequently, we reverse the decision of
the court of appeals and remand the matter to the circuit court for proceedings
consistent with this opinion.
I. FACTS
Petitioner, a teacher, filed a complaint asserting a defamation claim against
the Charleston County School District and James Island Charter High School
(respectively, "the District" and "the High School"). In addition, Petitioner asserted
a civil conspiracy claim against the High School's principal and assistant principal,
Robert Bohnstengel and Stephanie Spann ("Respondents"), 1 in their individual
capacities. Petitioner alleged Respondents targeted her for an unwarranted and
invasive performance evaluation because they were unhappy with her desire to
report a student's misconduct to the police, causing her to be blacklisted and
ostracized and, ultimately, terminated from her teaching position.
The circuit court dismissed both the defamation and the civil conspiracy
claims. The circuit court ruled, inter alia, that Petitioner failed to plead special
damages as required to advance her civil conspiracy claim. The court of appeals
affirmed. Paradis v. Charleston Cty. Sch. Dist., 424 S.C. 603, 819 S.E.2d 147 (Ct.
App. 2018). Petitioner sought a writ of certiorari, raising several issues regarding
the civil conspiracy claim. This Court granted the petition for a writ of certiorari as
to Petitioner's first question, which asks the Court to abolish the rule imposing a
special pleading requirement for civil conspiracy claims—i.e., requiring a plaintiff
to plead special damages—which evolved after the Court's decision in Todd v. South
1
The District and the High School participated in the appeal below and filed a
response to the petition for a writ of certiorari. However, they did not file briefs with
this Court, presumably because they were not parties to the civil conspiracy action
that is the subject of the appeal to this Court. As a result, "Respondents" shall be
used to refer to the individual parties who submitted briefs, Bohnstengel and Spann.
Carolina Farm Bureau Mutual Insurance Co., 276 S.C. 284, 278 S.E.2d 607 (1981).
This pleading requirement has been informally referred to as the Todd rule.
II. DISCUSSION
Petitioner contends this Court should overrule precedent requiring the
pleading of special damages for civil conspiracy claims, which arose after the
issuance of the Todd decision in 1981. We agree.
Civil conspiracy has long given rise to uncertainty as to its elements and
proper application. See 4 James Lockhart, Cause of Action for Civil Conspiracy,
Causes of Action § 4, at 530 (2d ed. 1994) ("The elements of civil conspiracy are
not always defined in exactly the same way."). Over 100 years ago, a law professor
analyzed the emerging action, noting its varying definitions and the distinction
between civil and criminal conspiracy, and he distilled the following core principles:
A combination between two or more persons to
accomplish a criminal or unlawful purpose, or some
purpose not in itself criminal or unlawful by criminal or
unlawful means, subjects the confederates to criminal
prosecution; and, if injury ensues to an individual
therefrom, it subjects them to a civil action by their victim.
Francis M. Burdick, Conspiracy as a Crime, and as a Tort, 7 Colum. L. Rev. 229,
246 (1907).
South Carolina employed similar language in defining civil conspiracy. In an
early case involving motions to strike and to make the pleadings for civil conspiracy
more definite and certain, this Court stated:
[A] definition of conspiracy has been given as the
conspiring together to do an unlawful act to the detriment
of another or the doing of a lawful act in an unlawful way
to the detriment of another.
Charles v. Texas Co., 192 S.C. 82, 101, 5 S.E.2d 464, 472 (1939) (Charles I).
The Court reiterated this description in the appeal from the verdict in the same
case, finding no error in a jury charge defining a civil conspiracy in these terms. See
Charles v. Texas Co., 199 S.C. 156, 176, 18 S.E.2d 719, 727 (1942) (Charles II)
("Ordinarily a conspiracy is where two or more persons combine or agree to do
something to the detriment or hurt of another. If they agree to do an unlawful thing
for the detriment or hurt of another or if they agree to do a lawful thing but agree to
do it in an unlawful manner that would be a conspiracy."); cf. Hosp. Care Corp. v.
Commercial Cas. Ins. Co., 194 S.C. 370, 387, 9 S.E.2d 796, 803–04 (1940)
(observing "the second cause of action [failed to] allege the required elements of a
conspiracy to accomplish an unlawful purpose or a lawful purpose unlawfully").
In Charles II, the Court pointed out the "well known principle" that resulting
damages are the gist of any civil conspiracy action and an unexecuted conspiracy
does not give rise to a civil cause of action. 199 S.C. at 177, 18 S.E.2d at 727. Thus,
the Court emphasized that proof of an overt act and resulting damages were also
fundamental elements to sustain a civil claim, and it found these points were
adequately conveyed in the trial judge's instructions. The Court further explained,
"Each conspirator is liable for all damages naturally resulting from any wrongful act
of a co-conspirator in exercising the joint enterprise," and "[w]hether the damages
proximately resulted from the wrongful act of the conspirators is ordinarily a
question for the jury." Id. at 174, 18 S.E.2d at 726 (citation omitted).
Appeals involving civil conspiracy were somewhat infrequent immediately
following Charles I and Charles II, but the two decisions were recognized as
authoritative, even when later cases did not fully articulate all of the requisite
elements. See, e.g., Lakewood Water Co. v. Garden Water Co., 222 S.C. 450, 453,
73 S.E.2d 720, 721 (1952) ("The two decisions of Charles v. Texas Company, 192
S.C. 82, 5 S.E.2d 464, and Id., 199 S.C. 156, 18 S.E.2d 719, rather fully enunciate
the principles which govern civil actions for conspiracy and they need not be
repeated here.").
The definition of civil conspiracy approved in Charles I and Charles II is also
fairly universal in contemporary tort law.2 See generally 16 Am. Jur. 2d Conspiracy
§ 53 (2020) ("Although stated variously from jurisdiction to jurisdiction, the basic
elements of a civil conspiracy are (1) an agreement between two or more individuals,
2
Most states provide by common law for the claim, and a few states have also
enacted statutes in this regard. See 54 James L. Buchwalter, Cause of Action for
Civil Conspiracy, Causes of Action § 2, at 603 (2d ed. 2012) ("Civil conspiracy is a
claim recognized under the common law of most states. A civil conspiracy may also
be actionable under state statutes specifically forbidding various types of concerted
action for certain purposes." (citation omitted)).
(2) to do an unlawful act or to do a lawful act in an unlawful way, (3) resulting in
injury to [the] plaintiff inflicted by one or more of the conspirators, and (4) pursuant
to a common scheme."); 15A C.J.S. Conspiracy § 4 (2012) ("The requisite elements
[for civil conspiracy] are: (1) a combination between two or more persons; (2) to do
a criminal or an unlawful act, or a lawful act by criminal or unlawful means; (3) an
act done by one or more of the conspirators pursuant to the scheme and in furtherance
of the object; (4) which act results in damage to the plaintiff.").
In 1981, however, the Court issued the Todd decision, which has been
interpreted as creating a new element for civil conspiracy claims in South Carolina—
a requirement that a plaintiff plead special damages. In Todd, the plaintiff alleged
five causes of action stemming from the termination of his employment, and each
cause of action incorporated all of the prior allegations: "(1) intentional interference
with contractual relations, (2) extreme and outrageous conduct, (3) bad faith
termination of the employment contract, (4) invasion of privacy, and (5) conspiracy
to so damage the plaintiff." Todd v. S.C. Farm Bureau Mut. Ins. Co., 276 S.C. 284,
287, 278 S.E.2d 607, 608 (1981). One of the issues considered by the Court was
whether Todd's fifth cause of action stated a claim for civil conspiracy. Id. at 292,
278 S.E.2d at 610.
The Todd Court began by citing, inter alia, Charles I, and stating:
"Conspiracy is the conspiring or combining together to do an unlawful act to the
detriment of another or the doing of a lawful act in an unlawful way to the detriment
of another." Id. at 292, 278 S.E.2d at 611. The Court generally observed the
difference between a criminal conspiracy and a civil conspiracy is that the agreement
is the gravamen of the offense of criminal conspiracy, whereas "the gravamen of the
tort [of civil conspiracy is] the damage resulting to [the] plaintiff from an overt act
done pursuant to the common design." Id. (citing a former version of Corpus Juris
Secundum).3 The Court reiterated that a civil conspiracy becomes actionable only
once overt acts occur that proximately cause damage to the plaintiff; therefore,
"conspiracy in and of itself is not a civil wrong." Id. (citation omitted).
The Court found Todd did not plead overt acts in furtherance of the
conspiracy, so the complaint failed to state a claim for civil conspiracy as a matter
of law:
3
Similar language is in the updated version. See 15A C.J.S. Conspiracy § 104
(2012) (distinguishing civil and criminal conspiracy).
As noted, the fifth cause of action does no more than
incorporate the prior allegations and then allege the
existence of a civil conspiracy and pray for damages
resulting from the conspiracy. No additional acts in
furtherance of the conspiracy are plead. The only alleged
wrongful acts plead are those for which damages have
already been sought. . . .
The trial judge erred by overruling the demurrer to
the conspiracy cause of action in the complaint, since
Todd can recover no additional damages for the alleged
fifth cause of action. The rule applicable to these
pleadings is stated at 15A C.J.S. Conspiracy § 33, at 718.
"Where the particular acts charged as a
conspiracy are the same as those relied on as
the tortious act or actionable wrong, plaintiff
cannot recover damages for such act or
wrong, and recover likewise on the
conspiracy to do the act or wrong."
Todd seeks damages in his first four causes of action
for the same acts incorporated by the fifth cause. He is
therefore precluded from seeking damages for the same
acts yet again. As such, the fifth cause fails to state an
action.
Id. at 293, 278 S.E.2d at 611 (emphasis added). Although Todd ostensibly spoke in
terms of the failure to plead additional acts to support the civil conspiracy claim and
not allowing duplicative recoveries for the same acts, cases after Todd began
enumerating three required elements to assert an allegation of civil conspiracy,
including the element of pleading "special damage":
A civil conspiracy . . . consists of three elements: (1) a
combination of two or more persons, (2) for the purpose
of injuring the plaintiff, (3) which causes him special
damage.
Lee v. Chesterfield Gen. Hosp., Inc., 289 S.C. 6, 10, 344 S.E.2d 379, 382 (Ct. App.
1986); accord Island Car Wash, Inc. v. Norris, 292 S.C. 595, 600, 358 S.E.2d 150,
152 (Ct. App. 1987) (citing Lee and its three-part definition of civil conspiracy);
Yaeger v. Murphy, 291 S.C. 485, 487, 354 S.E.2d 393, 394 (Ct. App. 1987) (citing
the definition in Lee).
While the requirement of pleading special damages became known as the
Todd rule, notably none of the foregoing cases (Lee, Island Car Wash, and Yaeger)
specifically cited Todd for the three-part definition of civil conspiracy incorporating
this element. Island Car Wash and Yaeger relied solely on the definition in Lee and
did not cite Todd for any legal proposition. Lee did cite Todd, but it was in the
context of distinguishing civil and criminal conspiracy and reiterating the need to
show an overt act and resulting damage for a civil claim.
In Lee, the court of appeals indicated the parties had confused civil and
criminal conspiracy. 289 S.C. at 10, 344 S.E.2d at 381. The court stated the
definition involving an agreement to undertake "an unlawful act or a lawful act by
unlawful means" defined only a criminal conspiracy, and instead enumerated a
three-part test for a civil action—"(1) a combination of two or more persons, (2) for
the purpose of injuring the plaintiff, (3) which causes him special damage." Id. at
10, 344 S.E.2d at 382. In doing so, it cited this Court's decision in Charles I, along
with a 1915 Tennessee decision and several United Kingdom cases.4 Id.
We note this Court's precedent demonstrates the definitional elements of civil
conspiracy actually parallel the elements of criminal conspiracy.5 See Bradley v.
Kelley Bros. Contractors, 117 So. 3d 331, 339 (Miss. Ct. App. 2013) (observing the
elements of criminal conspiracy and civil conspiracy "are quite similar" and noting
4
While the United Kingdom cases have some efficacy, we do not find them
determinative of South Carolina law. In particular, we note some of the decisions
consist of a collection of individual determinations, with each individual expressing
his own, singular opinion. Although such decisions reach one ultimate result, they
are not all in agreement in their reasoning.
5
See S.C. Code Ann. § 16-17-410 (2015) ("The common law crime known as
'conspiracy' is defined as a combination between two or more persons for the purpose
of accomplishing an unlawful object or lawful object by unlawful means."); see also
State v. Davis, 88 S.C. 229, 232, 70 S.E. 811, 812–13 (1911) ("[T]he description
which seems to have the widest recognition and approval by the authorities declare
a criminal conspiracy to consist of a combination between two or more persons for
the purpose of accomplishing a criminal or unlawful object, or an object neither
criminal nor unlawful by criminal or unlawful means." (citation omitted)).
civil conspiracy turns on the existence of damages). The similarity is logical because
the major difference between civil and criminal conspiracy is a plaintiff's need to
additionally prove an overt act and resulting damages to obtain a civil recovery. See
16 Am. Jur. 2d Conspiracy § 53 (2020) ("The elements of civil conspiracy are quite
similar to those required of a criminal conspiracy, with the distinguishing factor
being that an agreement is the essence of a criminal conspiracy, while damages are
the essence of a civil conspiracy."); id. § 55 ("The gist of a civil conspiracy is not
the unlawful agreement or combination but the damage caused by the acts committed
in pursuance of the formed conspiracy." (emphasis added)); see also 15A C.J.S.
Conspiracy § 7 (2012) ("Although criminal and civil conspiracy have similar
elements, the distinguishing factor between the two is that damages are the essence
of a civil conspiracy, and the agreement is the essence of a criminal conspiracy.").6
Later cases began reciting Lee's three-part test for civil conspiracy that
developed post-Todd and which included the requirement of pleading special
damages. See LaMotte v. Punch Line of Columbia, Inc., 296 S.C. 66, 370 S.E.2d
711 (1988); see also Pye v. Estate of Fox, 369 S.C. 555, 633 S.E.2d 505 (2006);
McMillan v. Oconee Mem'l Hosp., Inc., 367 S.C. 559, 626 S.E.2d 884 (2006);
Lawson v. S.C. Dep't of Corr., 340 S.C. 346, 532 S.E.2d 259 (2000); Future Group
II v. NationsBank, 324 S.C. 89, 478 S.E.2d 45 (1996); Hackworth v. Greywood at
Hammett, LLC, 385 S.C. 110, 682 S.E.2d 871 (Ct. App. 2009). Inexplicably, this
new requirement for special damages was labeled the Todd rule.
Although the Court did not mention "special damages" in Todd, several years
after Todd a few cases, such as Lee, 289 S.C. at 10, 344 S.E.2d at 382, recited the
three-part test for civil conspiracy that appeared to contain the pleading requirement
as an element of the claim. This definition, in turn, was then quoted repeatedly by
our appellate courts. This pleading requirement became known as the Todd rule.
6
In a case discussing criminal conspiracy, this Court has observed that "unlawful"
merely means "contrary to law" and is not limited to criminal conduct. State v.
Davis, 88 S.C. 229, 233, 70 S.E. 811, 813 (1911) ("It is enough if the acts agreed to
be done, although not criminal, are wrongful; that is amount to a civil wrong."
(citations omitted)). As for civil conspiracy, early English law has noted that, "[i]n
view of the infinite variations of oppressive misconduct[,] no definition [of
"unlawful means"] can be given which is at once satisfactory and exhaustive." Pratt
v. Brit. Med. Ass'n, [1919] 1 K.B. 244, 260 (1918). However, Pratt stated precedent
recognized that violence or threats of physical violence, threats not involving
physical harm, nuisance, and fraud, are readily encompassed, although they are not
the only examples. See id. at 260–61.
See, e.g., Vaught, 300 S.C. at 209, 387 S.E.2d at 95 ("hold[ing] the conspiracy action
is barred under Todd" where special damages were not properly alleged). However,
the pleading requirement's relationship to Todd is rendered somewhat tenuous
because, as previously noted, the earliest cases did not specifically cite Todd for this
requirement. See, e.g., Island Car Wash, 292 S.C. at 600, 358 S.E.2d at 152; Yaeger,
291 S.C. at 487, 354 S.E.2d at 394.
This test resulted in the dismissal of civil conspiracy actions that did not
expressly plead special damages on the basis they failed to adequately allege a cause
of action. South Carolina courts held that, because special damages are a required
element of a civil conspiracy claim, a plaintiff must plead special damages that go
beyond the damages alleged in other claims to state a cause of action. Those cases
further stated that, if a plaintiff merely repeated the damages from another claim
without specifically listing special damages as part of the civil conspiracy allegation,
then the civil conspiracy action must be dismissed. See, e.g., Hackworth, 385 S.C.
at 117, 682 S.E.2d at 875 ("If a plaintiff merely repeats the damages from another
claim instead of specifically listing special damages as part of their civil conspiracy
claim, their conspiracy claim should be dismissed." (emphasis added)); Vaught v.
Waites, 300 S.C. 201, 209, 387 S.E.2d 91, 95 (Ct. App. 1989) ("The damages sought
in the conspiracy cause of action are the same as those sought in the breach of
contract cause of action. Because no special damages are alleged aside from the
breach of contract damages, we hold the conspiracy action is barred under Todd.").7
We granted Petitioner's motion to argue against the Todd rule in the current
case, where her civil conspiracy claim was dismissed at the pleadings stage for the
failure to plead special damages.8 Petitioner contends the requirement of pleading
special damages for civil conspiracy should be abandoned because it resulted from,
7
The law requiring the dismissal of a civil conspiracy claim for failing to plead
special damages has also been cited in federal courts applying South Carolina law.
See, e.g., Callum v. CVS Health Corp., 137 F. Supp. 3d 817 (D.S.C. 2015); Alonso
v. McAllister Towing of Charleston, Inc., 595 F. Supp. 2d 645 (D.S.C. 2009).
8
The Todd rule requiring the pleading of special damages was previously called into
question in another case before this Court, but we declined to abandon the rule at
that time because a trial had been held some twelve years prior in that matter, and
there was concern that it would be unfair to change the requirements for pleadings
and proof upon remand, given the age of the case. See Allegro, Inc. v. Scully, 418
S.C. 24, 34 n.3, 791 S.E.2d 140, 145 n.3 (2016).
inter alia, a misreading of Corpus Juris Secundum. We agree the Todd rule should
be abolished.
In Todd the Court cited 15A C.J.S Conspiracy § 33 and held a plaintiff in a
civil conspiracy action must allege acts in furtherance of the conspiracy. The Court
noted the only wrongful acts alleged were those for which damages had already been
sought, so the claim failed as a matter of law. This was taken in cases after Todd as
imposing a requirement of pleading (and proving) special damages for a civil
conspiracy claim. We find this section of Corpus Juris Secundum simply addressed
a prohibition on duplicative recoveries; it did not establish a requirement of pleading
special damages for civil conspiracy claims. The plaintiff in Todd failed to plead
any overt acts in furtherance of the conspiracy. Thus, the Court correctly concluded
the civil conspiracy claim failed as a matter of law. In that situation, the Court noted,
the plaintiff's repetition of the same acts as the prior claims was insufficient to
salvage the claim.
We note that, in addition to perhaps resulting from a misinterpretation of
Corpus Juris Secundum and Todd, the pleading requirement for civil conspiracy also
perhaps resulted, at least in part, from differing interpretations of the term "special
damages." Traditionally, general damages are implied by law and can be alleged
without particularity because they are the proximate and foreseeable consequences
of the defendant's conduct. Special damages, in contrast, are those that might be the
natural result of an injury, but not the necessary or usual consequences of the
defendant's conduct, and they typically are unique to a particular case. See 5A
Charles Alan Wright, Arthur R. Miller & A. Benjamin Spencer, Federal Practice
and Procedure § 1310 (4th ed. 2018) (distinguishing general and special damages).
Under the South Carolina Rules of Civil Procedure ("SCRCP") and under the federal
procedural rules, special damages must be specifically pled to avoid surprise and
give notice to the opposing party. See, e.g., Rule 9(g), SCRCP.
In this context, however, it seems South Carolina precedent has varied in what
it considers "special damages." See generally Michael G. Sullivan, Elements of Civil
Causes of Action 89–90 (5th ed. 2015, Douglas MacGregor, ed.) ("The requirement
that the plaintiff plead special damages means essentially this - that the complaint
must describe damages that occurred as a result of the conspiracy in addition to any
alleged as a result of other claims."). But see Hackworth, 385 S.C. at 116–17, 682
S.E.2d at 875 ("Special damages are those elements of damages that are the natural,
but not the necessary or usual, consequence of the defendant's conduct. . . . Special
damages . . . are not implied at law because they do not necessarily result from the
wrong. Special damages must, therefore, be specifically alleged in the complaint to
avoid surprise to the other party." (internal citation omitted)). We further note the
SCRCP, which require that special damages be specifically pled, were not in effect
at the time Todd was decided.
The essential principle Todd intended to address was the need to plead an
overt act in furtherance of the agreement, not special damages. As a result, we
overrule Todd and cases relying on Todd or other precedent, such as Lee, to the
extent they impose or appear to impose a requirement of pleading (and proving)
special damages. South Carolina's position in this regard was an outlier, as our
research indicates South Carolina was the only state to require the pleading of special
damages.
In light of our decision today, we are returning to our long-standing precedent
pre-Todd and for clarification specifically state a plaintiff asserting a civil conspiracy
claim must establish (1) the combination or agreement of two or more persons, (2) to
commit an unlawful act or a lawful act by unlawful means, (3) together with the
commission of an overt act in furtherance of the agreement, and (4) damages
proximately resulting to the plaintiff.9 See Charles II, 199 S.C. at 176, 18 S.E.2d at
727; Charles I, 192 S.C. at 101, 5 S.E.2d at 472; see also 16 Am. Jur. 2d Conspiracy
§ 53 (2020) (enumerating the prevailing elements of a claim for civil conspiracy
recognized in most jurisdictions); 15A C.J.S. Conspiracy § 4 (2012) (same). By
doing so, we are returning not only to our historical roots, but also to the traditional
elements of a civil conspiracy claim as they have been similarly defined by the
majority of jurisdictions.10
9
Since civil conspiracy is an intentional tort, an intent to harm, which has also been
discussed in our conspiracy law, remains an inherent part of the analysis. See 16
Am. Jur. 2d Conspiracy § 53 (2020) ("Since one cannot agree, expressly or tacitly,
to commit a wrong about which they have no knowledge, in order for civil
conspiracy to arise, the parties must be aware of the harm or wrongful conduct at the
beginning of the combination or agreement. Thus, civil conspiracy is an intentional
tort requiring a specific intent to accomplish the contemplated wrong." (footnotes
omitted)).
10
Most states incorporate the elements of an agreement to do an unlawful act or a
lawful act by unlawful means (or the common variation of an unlawful purpose or a
lawful purpose by unlawful means). See, e.g., Harp v. King, 835 A.2d 953, 972
(Conn. 2003); Mustaqeem-Graydon v. SunTrust Bank, 573 S.E.2d 455, 461 (Ga. Ct.
App. 2002); Yoneji v. Yoneji, 354 P.3d 1160, 1168 (Haw. Ct. App. 2015); Hall v.
Shaw, 147 N.E.3d 394, 407–08 (Ind. Ct. App. 2020); Coghlan v. Beck, 984 N.E.2d
We disagree with the concurring/dissenting opinion to the extent it goes
beyond the sole question accepted by this Court—which asks, "Should the Court
reverse the special damages pleading requirement on civil conspiracy claims arising
from Todd v. S.C. Farm Bureau Mut. Ins. Co.?"— and appears to consider a point
raised by Respondents in their brief. Namely, whether civil conspiracy itself should
be "abolished" as an independent claim in this state and should, instead, always be
dependent on an underlying actionable wrong or tort. Respondents have not cross-
appealed in this matter, and we reject Respondents' attempt to advance this issue for
the first time on appeal. Any further arguments potentially affecting the viability of
Petitioner's claim, whether they arise from this Court's decision or otherwise, are
properly raised upon remand to the circuit court, in the first instance, particularly
where the case was halted at the pleadings stage.
We note a few jurisdictions recognize two forms of civil conspiracy. The first,
which is the general rule, requires an underlying actionable wrong or tort, and
liability is imposed on an individual for the tort of another. A second form, also
described as an exception to the general rule, exists when the conduct complained
of would not be actionable if done by one person, but where by force of numbers or
other exceptional circumstances, the defendants possess a peculiar power of
coercion that gives rise to an independent tort of civil conspiracy (often referred to
as the "force of numbers" or "economic boycott" exception). See Am. Diversified
Ins. Servs., Inc. v. Union Fid. Life Ins. Co., 439 So. 2d 904 (Fla. Dist. Ct. App. 1983);
Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 81 N.E.3d 782 (Mass. App. Ct.
2017); see also Schmitt v. MeritCare Health Sys., 834 N.W.2d 627, 635 (N.D. 2013)
132, 151 (Ill. App. Ct. 2013); Peoples Bank of N. Ky., Inc. v. Crowe Chizek & Co.,
277 S.W.3d 255, 260–61 (Ky. Ct. App. 2008); Franklin v. Erickson, 146 A. 437,
438 (Me. 1929); Shenker v. Laureate Educ., Inc., 983 A.2d 408, 428 (Md. 2009);
Swain v. Morse, No. 346850, 2020 WL 3107696, at *7 (Mich. Ct. App. June 11,
2020); Bradley v. Kelley Bros. Contractors, 117 So. 3d 331, 339 (Miss. Ct. App.
2013); Envirotech, Inc. v. Thomas, 259 S.W.3d 577, 586 (Mo. Ct. App. 2008);
George Clift Enters., Inc. v. Oshkosh Feedyard Corp., 947 N.W.2d 510, 537 (Neb.
2020); Jay Edwards, Inc. v. Baker, 534 A.2d 706, 709 (N.H. 1987); Banco Popular
N. Am. v. Gandi, 876 A.2d 253, 263 (N.J. 2005); In re Fifth Third Bank, N.A., 719
S.E.2d 171, 181 (N.C. Ct. App. 2011); Schmitt v. MeritCare Health Sys., 834
N.W.2d 627, 635 (N.D. 2013); Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct.
2008); Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 703 (Tenn. 2002);
Pohl, Inc. of Am. v. Webelhuth, 201 P.3d 944, 954–55 (Utah 2008); Wilson v. State,
929 P.2d 448, 459 (Wash. Ct. App. 1996); N. Highland Inc. v. Jefferson Mach. &
Tool, Inc., 898 N.W.2d 741, 747 (Wis. 2017).
(observing "[s]ome courts have applied an 'economic boycott' or 'force of numbers'
exception to the general rule that the basis for a civil conspiracy must be an
independent wrong or tort," but not deciding whether to adopt the exception in that
state because it would not be applicable, in any event). Early South Carolina law
pre-Todd appeared to reference similar concepts. See, e.g., Howle v. Mountain Ice
Co., 167 S.C. 41, 58, 165 S.E. 724, 729 (1932); Charles II, 199 S.C. at 170, 18
S.E.2d at 724. However, to rule on whether this Court has or ever will recognize an
exception to the general rule would require the Court to issue an advisory opinion
on a distinct subject that has not yet been disputed in this case.
III. CONCLUSION
Because the court of appeals upheld the dismissal of Petitioner's civil
conspiracy claim based on the failure to plead special damages, we reverse and
remand the matter to the circuit court for further proceedings on Petitioner's claim
for civil conspiracy. Our decision in Petitioner's case is based solely on the narrow
question before the Court regarding the abolishment of the Todd rule, and we do not
reach any other issue concerning the viability or merits of Petitioner's claim. Any
other cases on appeal that have already been tried under the Todd framework shall
be decided using the Todd analysis.
REVERSED AND REMANDED.
HEARN and JAMES, JJ., concur. KITTREDGE, J., concurring in result in a
separate opinion. FEW, J., concurring in part and dissenting in part in a
separate opinion.
JUSTICE KITTREDGE: I concur in result. In overruling the so-called "special
damages" requirement of Todd v. South Carolina Farm Bureau Mutual Insurance
Co., 11 the Court must necessarily examine the elements of civil conspiracy. I
commend Chief Justice Beatty for his excellent opinion, which tracks this Court's
meandering civil conspiracy jurisprudence and properly restores the elements of a
civil conspiracy claim to its original understanding. As a result of today's opinion,
it is again settled that a civil conspiracy claim requires proof of (1) the combination
or agreement of two or more persons, (2) to commit an unlawful act or a lawful act
by unlawful means, (3) together with the commission of an overt act in furtherance
of the agreement, and (4) damages proximately resulting to the plaintiff. Stated
differently, we have abandoned the standardless formulation that required only (1) a
combination of two or more persons, (2) for the purpose of injuring the plaintiff, and
(3) which caused the plaintiff special damage. I write separately to address the effect
of Todd on the election of remedies and note my support for the concurrence of
Justice Few.
First, in my judgment, Todd is more properly viewed as an election of remedies case,
not a pleading case. Todd created a fiction that special damages caused by the civil
conspiracy were somehow different than the damages caused by the underlying
unlawful conduct. That misunderstanding, in turn, led to a misapplication of our
election of remedies law. Because a civil conspiracy claim was purportedly
supported by special damages, some trial courts would avoid an election of remedies
and permit a double recovery. Today's rejection of a special damages requirement
should restore a proper approach to election of remedies. For one wrong, there is
one recovery.
Next, I view Justice Few's concurrence as well within the question accepted by this
Court for review. The misguided pleading rule that grew out of Todd spawned a
series of cases that further separated civil conspiracy from its original moorings.
Justice Few compellingly frames the amorphous nature of the civil conspiracy cause
of action that resulted from Todd and its progeny. It is the second element—to
commit an unlawful act or a lawful act by unlawful means—that restores an
objective legal standard to this cause of action. When the appellate courts of this
state approved of an analytical framework that allowed one's personal sense of
fairness and right and wrong to be sufficient for a civil conspiracy claim, we created
a rudderless cause of action. Justice Few correctly observes that the post-Todd
11
276 S.C. 284, 278 S.E.2d 607 (1981).
sanctioned civil conspiracy claim "permit[ted] the court and jury to impose liability
for lawful, non-tortious conduct based on a court or juror's sense of fairness or
responsibility." I do not construe Justice Few's concurrence as "abolishing" civil
conspiracy. Rather, by restoring the traditional elements of a civil conspiracy claim
and overruling Todd's so-called special damages pleading requirement, this Court
returns civil conspiracy to its historical roots. Because the Court has reset the
elements of civil conspiracy and restored an objective standard, I would apply
today's decision prospectively with one exception: for those cases that were tried
under the Todd rubric and are on appeal now, I would evaluate the merits of the
appeal under the Todd framework.
JUSTICE FEW: I agree with the majority that the requirement of pleading and
proving special damages in a civil conspiracy action is based on a misunderstanding
of law, and the requirement must be eliminated. To that extent, I concur in the
majority opinion. However, the special damages requirement we now hold legally
invalid previously served the valid practical purpose of restraining the use of the
undefined civil conspiracy cause of action. In almost all legitimate civil actions,
there are no "special damages" as that term was used in civil conspiracy. In other
words, it was hardly ever possible to allege or prove "damages that go beyond the
damages alleged in other causes of action." As a practical matter, therefore, the
requirement of special damages prevented civil conspiracy from being a significant
cause of action in civil litigation. Now, any plaintiff may bring a civil conspiracy
action against any defendant—even for lawful, non-tortious conduct—and the law
imposes no meaningful standards on courts and juries by which they must judge the
defendant's conduct. I disagree with the majority that we should unleash this still-
undefined and now-unrestrained menace on the public as an independent tort. To
that extent, I respectfully dissent.
Certainly, civil conspiracy is a proper cause of action in its derivative form. If two
people conspire to commit fraud, for example, but the actual fraudulent conduct is
carried out by only one of them, the injured plaintiff should be able to sue both of
them. The law imposes specific requirements a plaintiff must meet for a fraud cause
of action, and those requirements provide standards by which courts and juries must
judge the conduct of both defendants. The same is true for defamation, one of the
plaintiff's theories of recovery in this case. If one defendant who did not personally
commit defamatory acts conspired with another who did defame the plaintiff, the
legal elements the plaintiff must establish in a defamation case—along with the legal
requirements for conspiracy—guide the court and the jury in deciding whether the
conspirator should also be liable for defamation.
As an independent tort, however, the undefined theory of civil conspiracy leaves
courts and juries free to determine civil liability—both of the alleged tortfeasor and
the supposed conspirator—not based on the law, but by using the individual judge
or juror's sense of fairness or responsibility. Imagine in a fraud case that the dispute
arose out of business competition between the plaintiff and the defendant. The
defendant intentionally made a false statement to the plaintiff for the purpose of
gaining competitive advantage. Imagine further the plaintiff's fraud cause of action
fails because the court or the jury finds—applying the law—the plaintiff had no right
to rely on the false statements. The defendant's conduct might have been unfair or
irresponsible, but the plaintiff loses on the fraud claim—rightfully—because the law
does not support the claim.
If, however, the plaintiff's lawyer thought to add a cause of action for civil
conspiracy, the plaintiff might nevertheless prevail because the independent tort of
civil conspiracy has no specific requirements, elements, or standards to guide the
court and jury. Civil conspiracy—as the majority "return[s] . . . to our historical
roots"—permits the court and jury to impose liability for lawful, non-tortious
conduct.
We need not imagine how a defamation claim could unfold; we can turn to the
plaintiff's allegations in this case. The plaintiff alleged in her complaint the principal
of the school where she taught became angry when she asked him to report a student
to the police for disruptive behavior in her classroom. She claimed the principal
retaliated against her by placing her into a formal job evaluation process she did not
deserve and her conduct did not warrant. By the time the evaluation results were
reported, the principal was no longer involved, both because he did not participate
in the evaluations and because he was no longer employed at the school. She
claimed statements made about her during the evaluation process—not by the
principal—defamed her as being a bad teacher. On a derivative claim for conspiracy
to commit defamation, the principal would have the defenses of truth, fair reporting
privilege, the two-year statute of limitations for defamation,12 and perhaps others. If
the statements made by those conducting the evaluation were true or fair, or if the
claim was brought outside the limitations period, the principal—like those who made
the defamatory remarks—would rightfully benefit from those legally defined
defenses.
12
See S.C. Code § 15-3-550(1) (2005) (requiring "an action for libel [or] slander" be
brought "[w]ithin two years"). The General Assembly, in enacting subsection 15-3-
550(1), made a policy judgment that defamation actions must be brought in a shorter
time than the general limitations period of three years set forth in section 15-3-530
of the South Carolina Code (2005). In this case, the defendants prevailed on the
statute of limitations defense as to the plaintiff's defamation claims. By now
permitting the plaintiff to sue for the very same conduct—defamation—outside the
limitations period for defamation cases—simply because the defamation claim is
labeled as civil conspiracy—the majority frustrates the General Assembly's intent to
require defamation cases be brought within two years.
The plaintiff's lawyer in this case did think to add a cause of action for civil
conspiracy. Thus, on the majority's remand for trial, the plaintiff might nevertheless
prevail because the independent tort of civil conspiracy has no specific requirements,
elements, or standards to guide the court and jury. Defamation defenses do not apply
to civil conspiracy, which—as confirmed by the majority to be an independent tort—
permits the court and jury to impose liability for lawful, non-tortious conduct based
on a court or juror's sense of fairness or responsibility. In other words, the civil
conspiracy claim we remand for trial permits a court and jury to impose liability for
defamation despite the fact the law provides valid defenses that prevent liability.
My point is illustrated by a case I tried years ago when I was a circuit judge. I have
modified the facts slightly for simplicity. In an aging twenty-four unit condominium
building in a beachfront city here in South Carolina, owners could sell individual
units for an average of $250,000. A real estate developer believed he could renovate
the building and sharply increase the value of each unit. The developer offered to
purchase each unit for $400,000 on the condition that each of the twenty-four owners
must sell. The owners realized their units were undervalued; they predicted that
even this offer was less than full value; and they decided to seek competing offers
from other developers. After receiving a superior offer from a second developer,
and a counter offer from the first, the owners voted to accept the offer from the
second developer. Twenty-three of them entered contracts to sell their units to the
second developer.
The first developer—understandably—did not give up. He had figured out a way to
bring a combined financial benefit of $3.6 million ($150,000 each) to the twenty-
four unit owners, to renovate an aging building in the city, to employ quite a few
people in the renovation and resale process, and to make a considerable profit for
himself. He knew the condominium owners' association by-laws did not permit a
sale or renovation of the entire building on less than a unanimous vote. Thus, he
knew the second developer could not complete the deal without successfully
purchasing all twenty-four units. So, the first developer approached one of the unit
owners and purchased that individual unit for $600,000. By doing so, he placed
himself back in control of the deal he had conceived.
Everybody was furious with the first developer, and they all sued him on every
conceivable cause of action. The breach of contract claim failed because the
developer had no contract with anyone except the one owner who sold to him. The
breach of fiduciary duty claim failed because the developer owed no such duty. The
fraud and slander of title claims failed because the developer made no false
statement. The intentional interference with a contract claim failed because the
developer was justified in purchasing real estate to further his own financial
interests. The interference with prospective contractual rights claim failed because
the unit owners had a contract to sell to the second developer, not prospective
contractual rights. I dismissed each of those claims because—applying the law—
the plaintiffs had no right to recover from the developer. Nothing was left, except
civil conspiracy.
In a hearing on the developer's motion for a directed verdict, the plaintiffs
acknowledged the developer's actions were lawful. Quoting, however, from this
Court's opinion in LaMotte v. Punch Line of Columbia, Inc., 296 S.C. 66, 70, 370
S.E.2d 711, 713 (1988), the plaintiffs argued "lawful acts may become actionable as
a civil conspiracy when the 'object is to ruin or damage the business of another,'"
and, "An action for civil conspiracy may exist even though respondents committed
no unlawful act and no unlawful means were used."
The plaintiffs' arguments were facially correct. The first developer intentionally
conspired with the owner of one unit for the purpose of preventing the other twenty-
three owners from realizing the extra value in their units, and for the purpose of
preventing the second developer from profiting from renovation of the building and
resale of the renovated units. Yet, I granted a directed verdict on the civil conspiracy
claim. I did so because the law should never permit a court or a jury to impose civil
liability for lawful, non-tortious conduct. Without specific requirements, elements,
or standards, the decision maker is left with nothing but its own sense of what is fair
or responsible. That is neither fair nor responsible.
In our free-enterprise economy, we encourage entrepreneurs to use aggressive tactics
to seize competitive advantage, create jobs for our people, and build value for our
communities. For these efforts, entrepreneurs rightfully expect to earn handsome
profits. Participants in this healthy competition use every lawful tactic at their
disposal. Those who lose out are understandably envious, and often angry. But,
actions that conform to the law—even when motivated by anger or an intent to
harm—must not be the basis of civil liability. As the Supreme Court of the United
States admonished 160 years ago,
An act legal in itself, and violating no right, cannot be
made actionable on account of the motive which
superinduced it. It is the province of ethics to consider of
actions in their relation to motives, but jurisprudence deals
with actions in their relation to law . . . .
Adler v. Fenton, 65 U.S. 407, 410, 16 L. Ed. 696, 698 (1860).