Noorai v. School District of Pickens County

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
Mariam R. Noorai, Appellant,
v.
School District of Pickens County, School District of
Oconee County, and Gray Culler, Donald Boggs, Richard
Hudak, Earnestine Williams, Marilyn Raines and Dr.
Kelly Pew in their individual capacities, Respondents.
Appellate Case No. 2014-001282
Appeal From Oconee County
J. Cordell Maddox, Jr., Circuit Court Judge
Unpublished Opinion No. 2016-UP-160
Heard March 7, 2016 – Filed April 6, 2016
AFFIRMED
R. Mills Ariail, Jr., of Law Office of R. Mills Ariail, Jr.,
of Greenville, for Appellant.
David T. Duff and Laura Callaway Hart, both of Duff,
White & Turner, LLC, of Columbia, for Respondents
School District of Pickens County, Gary Culler, Donald
Boggs, Richard Hudak, Marilyn Raines, and Dr. Kelly
Pew.
Thomas Kennedy Barlow and Mary Allison Caudell,
both of Childs & Halligan, P.A., of Columbia, for
Respondents School District of Oconee County and
Ernestine Williams.
PER CURIAM: Appellant Mariam R. Noorai appeals the circuit court's order
granting Respondents' motions for summary judgment. Appellant argues the
circuit court erred by granting summary judgment on her claims for negligent
misrepresentation, breach of contract, breach of contract accompanied by
fraudulent acts, and intentional infliction of emotional distress. Appellant further
claims the circuit court failed to conduct a full and proper summary judgment
hearing.1 We affirm.
1. We find the circuit court properly granted summary judgment to Respondents
School District of Pickens County (SDPC) and Gary Culler on Appellant's claim
for negligent misrepresentation because Appellant failed to produce evidence
showing a genuine issue of material fact existed with regard to whether she
suffered a pecuniary loss as a proximate result of SDPC and Culler's alleged
misrepresentations. See Carolina Chloride, Inc. v. Richland Cty., 394 S.C. 154,
164, 714 S.E.2d 869, 873 (2011) (requiring a plaintiff to show she suffered a
pecuniary loss as a proximate result of her reliance on the misrepresentation to
recover on a claim of negligent misrepresentation); Hansson v. Scalise Builders of
S.C., 374 S.C. 352, 358, 650 S.E.2d 68, 71 (2007) (explaining for a plaintiff to
defeat a motion for summary judgment a court must determine "a genuine issue of
material fact exists for each essential element of the plaintiff's claim"). In
Appellant's affidavit and deposition,2 Appellant attributed her employment
1
Appellant appeals the grant of summary judgment only on the causes of action
naming Respondents School District of Pickens County and Gary Culler as
defendants. Thus, the grant of summary judgment on Appellant's other causes of
action, which included the actions against the other respondents, is conclusive. See
In re Morrison, 321 S.C. 370, 372 n.2, 468 S.E.2d 651, 652 n.2 (1996) (noting that
an unappealed ruling precludes consideration of the issue on appeal).
2
We considered only the portions of Appellant's deposition that were actually
presented to the circuit court. See Rule 210(c), SCACR ("The Record shall not,
however, include matter which was not presented to the lower court or tribunal.").
difficulties to "comments" and "negative information" provided to prospective
employers by employees of SDPC and claimed she was unable to obtain new
employment because of the "references going out" from SDPC's district office.
Thus, the only evidence of a pecuniary loss showed the loss was due to negative
employer references, rather than the alleged misrepresentations regarding a letter
of resignation and her teaching certificate. Appellant failed to offer any evidence
showing her inability to obtain new employment was due to the alleged
misrepresentations.
To the extent Appellant argues she suffered a pecuniary loss because SDPC used
the letter of resignation to deny her unemployment benefits, Appellant failed to
argue this issue to the circuit court, and we found no evidence contained in the
materials provided to the circuit court to support this assertion. See Wilder Corp.
v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an
issue cannot be raised for the first time on appeal, but must have been raised to and
ruled upon by the trial judge to be preserved for appellate review.").
2. We find the circuit court properly granted summary judgment to SDPC and
Culler on Appellant's claim for breach of contract accompanied by fraudulent acts
because Appellant failed to produce evidence showing a genuine issue of material
fact existed with regard to whether SDPC or Culler breached the contract between
SDPC and Appellant. First, the circuit court properly granted summary judgment
to Culler on this issue because he and Appellant were never in a contractual
relationship. See Armstrong v. Collins, 366 S.C. 204, 223, 621 S.E.2d 368, 377
(Ct. App. 2005) ("Having a contract is a prerequisite to proving breach of contract
accompanied by a fraudulent act."). Second, the circuit court properly granted
summary judgment to SDPC on this issue because Appellant failed to offer any
evidence tending to show SDPC breached its contract with Appellant. The
contract between SDPC and Appellant required SDPC to employ Appellant for the
2008-2009 school year and compensate her pursuant to a district salary schedule,
and it is undisputed SDPC complied with these obligations. Thus, there is no
genuine issue of material fact regarding whether SDPC breached its contract with
Appellant. See id. (explaining a plaintiff must show a breach of contract to
succeed on a cause of action for breach of contract accompanied by fraudulent
acts).
To the extent Appellant argues covenants of good faith and fair dealing and
statutory provisions were "implied into" her contract with SDPC, Appellant failed
to raise these issues to the circuit court, and thus, they are unpreserved. See Wilder
Corp., 330 S.C. at 76, 497 S.E.2d at 733 ("It is axiomatic that an issue cannot be
raised for the first time on appeal, but must have been raised to and ruled upon by
the trial judge to be preserved for appellate review.").
3. We find the circuit court properly granted summary judgment to Culler on
Appellant's claim for intentional infliction of emotional distress (IIED) because
Appellant failed to produce evidence showing a genuine issue of material fact
existed with regard to whether Culler's conduct was sufficiently extreme and
outrageous. See Gattison v. S.C. State Coll., 318 S.C. 148, 151, 456 S.E.2d 414,
416 (Ct. App. 1995) (explaining that to prevail on a claim for IIED a plaintiff must
show "the defendant's conduct was so extreme and outrageous that it exceeded all
possible bounds of decency and was furthermore atrocious, and utterly intolerable
in a civilized community"); Hansson, 374 S.C. at 358, 650 S.E.2d at 72 (noting the
circuit court "plays a significant gatekeeping role in analyzing a defendant's motion
for summary judgment" on a claim for IIED); Gattison, 318 S.C. at 151-52, 456
S.E.2d at 416 (explaining the circuit court must submit this issue to the jury only
after it makes an initial determination the defendant's conduct was extreme and
outrageous enough to permit recovery). In the light most favorable to Appellant,
Culler's actions were not so extreme and outrageous so as to exceed all bounds of
decency.
Furthermore, the circuit court properly granted summary judgment to Culler on
this issue because Appellant failed to produce evidence showing a genuine issue of
material fact existed with regard to whether Appellant's emotional distress was
sufficiently severe. See Hansson, 374 S.C. at 358, 650 S.E.2d at 72 (explaining if
the conduct was extreme and outrageous enough to permit recovery, the circuit
court should next proceed "with a similar inquiry into whether [the plaintiff]'s
resulting emotional distress was sufficiently 'severe'"). Appellant claimed she
suffered from post-traumatic stress disorder and anxiety and Culler's actions made
her feel uncomfortable, intimidated, and depressed. Appellant asserted several
instances of crying and grinding her teeth at night due to these events. We find
Appellant's allegations regarding her emotional distress were insufficient to
proceed on a claim for IIED because they were "mere bald assertions"
uncorroborated by any other evidence. See id. ("[A] party cannot establish a prima
facie claim for damages resulting from a defendant's tortious conduct with mere
bald assertions."); id. at 358-59, 650 S.E.2d at 72 ("[T]he court must look for
something 'more'—in the form of third party witness testimony and other
corroborating evidence—in order to make a prima facie showing of 'severe'
emotional distress.").
4. We deny Appellant's request to remand this case to the circuit court for a more
complete hearing because Appellant expressly waived any objection to the circuit
court's abbreviated hearing. See Wilder Corp., 330 S.C. at 76, 497 S.E.2d at 733("It is axiomatic that an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial judge to be preserved for appellate
review."); State v. Carlson, 363 S.C. 586, 595, 611 S.E.2d 283, 287 (Ct. App.
2005) ("A plethora of cases from the appellate entities of this state recognize that
constitutional rights may be waived.").
AFFIRMED.
SHORT, THOMAS, and KONDUROS, JJ., concur.