December 6, 2018
From Horry County Benjamin H. Culbertson, Circuit Court Judge
McCain Connell, Jr., of Kelaher Connell & Connor, PC, of
Surfside Beach, and Roger Dale Johnson, of Law Office of
Roger Johnson, of Conway, both for Appellant.
Attorney General Alan McCrory Wilson, Solicitor General
Robert D. Cook, Deputy Solicitor General J. Emory Smith, Jr.,
and Andrew F. Lindemann, of Lindemann, Davis & Hughes,
PA, all of Columbia; Lisa Arlene Thomas, of Thompson &
Henry, PA, of Conway, for Respondent.
Palmer appeals the circuit court's dismissal of his
complaint under Rule 12(b)(6), SCRCP. He contends the circuit
court erred in finding no constitutional or civil remedy
exists for a previous wrongful conviction. We affirm.
and Julia Gorman-his girlfriend-were caring for Gorman's
seventeen-month-old grandson (Victim) while Gorman's
daughter traveled across the country. After suffering from
ant bites and allergies on July 1, 2008, Victim was
prescribed a liquid antihistamine (Xyzal), which has a
sedative effect. The prescribed dosage of Xyzal was half a
teaspoon per day. Victim was regularly given more than the
prescribed dosage, up to 2.5 teaspoons per day-five times the
prescribed amount. On July 14, Palmer was alone with Victim
while Gorman was at work. Gorman returned home at 4 p.m. that
day and observed Victim sleeping and breathing normally.
Gorman checked on victim again at 6 p.m. and found him
"slack," making "really strange noises,"
and with saliva at his mouth. Victim was treated at multiple
hospitals before finally being removed from life support by
his parents on July 16. Doctors that examined Victim before
death and during the autopsy found evidence indicating he
received hits to the head as well as atypical bruises on
various portions of his body.
and Gorman were tried jointly for the death of Victim. At the
conclusion of trial, both were convicted of homicide by child
abuse, aiding and abetting homicide by child abuse, and
unlawful conduct towards a child. On appeal, this court
reversed both Palmer's and Gorman's aiding and
abetting convictions but affirmed their homicide and unlawful
29, 2015, the South Carolina Supreme Court affirmed the
reversal of both Palmer's and Gorman's aiding and
abetting convictions but overturned Palmer's convictions
for homicide and unlawful conduct towards a child. State
v. Palmer, 413 S.C. 410, 776 S.E.2d 558 (2015). Palmer
initiated a civil action against the State, alleging
malicious prosecution, false arrest, negligence, and
violation of 42 U.S.C. § 1983. Palmer also sought a
declaratory judgment, requesting the circuit court declare a
remedy existed for wrongful conviction in South Carolina
under both the United States and South Carolina
Constitutions. The State moved to dismiss under Rule
12(b)(6), SCRCP. The circuit court granted the State's
motion on November 17, 2016, with prejudice. Palmer moved the
court to reconsider, which the court denied. This appeal
Rule 12(b)(6), SCRCP, a defendant may move to dismiss a
complaint based on a failure to state facts sufficient to
constitute a cause of action. In considering such a motion,
the trial court must base its ruling solely on allegations
set forth in the complaint." Spence v. Spence,
368 S.C. 106, 116, 628 S.E.2d 869, 874 (2006). "On
appeal from the dismissal of a case pursuant to Rule
12(b)(6), [SCRCP, ] an appellate court applies the same
standard of review as the trial court." Rydde v.
Morris, 381 S.C. 643, 646, 675 S.E.2d 431, 433 (2009).
"That standard requires the [c]ourt to construe the
complaint in a light most favorable to the nonmovant and
determine if the 'facts alleged and the inferences
reasonably deducible from the pleadings would entitle the
plaintiff to relief on any theory of the case.'"
Id. (quoting Williams v. Condon, 347 S.C.
227, 233, 553 S.E.2d 496, 499 (Ct. App. 2001)). "If the
facts and inferences drawn from the facts alleged in the
complaint, viewed in the light most favorable to the
plaintiff, would entitle the plaintiff to relief on any
theory, then the grant of a motion to dismiss for failure to
state a claim is improper." Spence, 368 S.C. at
116, 628 S.E.2d at 874.
Consideration of Novel Issue under Rule ...