November 17, 2016
From Richland County Alison Renee Lee, Circuit Court Judge.
Kathryn Long Mahoney and Thomas Kennedy Barlow, both of
Halligan Mahoney & Williams, of Columbia, for Appellants.
Jefferson Goodwyn, Jr. and Rachel Gottlieb Peavy, both of
Goodwyn Law Firm, LLC, of Columbia, for Respondent.
civil matter, Richland County School District Two (the
District), Eric Barnes, and Chuck Earles (collectively,
Appellants) appeal the circuit court's award of actual
and punitive damages to Jeffrey Kennedy in his defamation
claim against them. Upon our initial consideration of this
appeal, we reversed, finding Appellants acted within their
qualified privilege. See Kennedy v. Richland Cty. Sch.
Dist. Two, Op. No. 2017-UP-040 (S.C. Ct. App. filed Jan.
25, 2017). Respondent petitioned for a writ of certiorari.
Our supreme court granted the writ, reversed our decision,
and remanded the case to this court for consideration of
Appellants' remaining issues on appeal. As to their
remaining issues, Appellants contend the circuit court erred
in (1) denying their motions for directed verdict and
judgment notwithstanding the verdict (JNOV) regarding the
defamation claim; (2) denying their motion for JNOV regarding
individual capacity claims under the South Carolina Tort
Claims Act (SCTCA); (3) denying their motion for JNOV
regarding punitive damages, or alternatively, for a new trial
absolute or nisi remittitur, and in affirming the
constitutionality of the punitive damages award; (4)
excluding evidence of Kennedy's alleged theft and
termination from a subsequent employer that occurred during
the pendency of the trial; and (5) failing to instruct the
jury that no defamatory communication was made as a result of
Kennedy's termination from the District and that
Kennedy's termination was not part of his defamation
claim. On remand, we affirm.
started working for the District in May 2008 as a security
guard. Kennedy worked the third shift from 11:00 P.M. to 7:00
A.M., and he provided security for several schools, including
Spring Valley High School (Spring Valley), his base of
operation. Specifically, Kennedy's security job required
him to patrol the grounds of each school in his rotation,
check all of the windows, secure doors, activate and reset
alarms, and respond to alarm calls in the District. Although
the third shift provided Kennedy with a normal hourly rate,
Kennedy obtained a greater amount of pay by working overtime
hours during events at Spring Valley.
Valley gave Kennedy a set of keys, which provided him access
to the various buildings and offices on campus and allowed
him to properly perform his security duties. Unfortunately,
security at Spring Valley was difficult to maintain because
of the numerous keys issued to various groups of people
including parents, students, teachers, coaches,
administration, student groups, and custodial staff.
2010, the District named Earles as the Emergency Services
Manager- essentially, the District's head of security-and
Earles hired Barnes as his Assistant Security Manager. After
perceiving the department's reputation of spreading
gossip and rumors, Earles issued a "Change of
Culture" memorandum to the entire department imploring
the staff to not repeat rumors and to "MIND YOUR OWN
BUSINESS." In February 2011, Earles recommended Kennedy
for a promotion to lieutenant after Kennedy applied for the
position. Kennedy was scheduled to start his new position
within the department on March 7, 2011.
on March 4, 2011, Tim Hunter, Spring Valley's athletic
director, reported a theft of $1, 000 from his office in
Bates Hall. Several people had keys to Hunter's office,
including Kennedy, the custodial staff, and the athletic
coaches. Kennedy was on duty the night of the alleged theft,
and as a result, he set the alarm in Bates Hall that night,
and he turned the alarm off the next morning. Sometime
between when Kennedy initially set the alarm and when he
turned it off the next morning, the baseball team returned
from a game and set off the alarm in Bates Hall. Kennedy was
called to respond, but he did not enter the building because
he observed the baseball team inside as well as the baseball
coach disarming and resetting the alarm.
the reported theft, Appellants reviewed the videotape footage
from the time Kennedy set the alarm to when he turned it off.
There were only two cameras with recorded images. One showed
traffic going by outside, and one showed the entrance and
exit of Bates Hall. Neither of these camera covered the
athletic director's office--the location of the reported
missing funds. The videotape of the entrance to the building
showed Kennedy turning off the alarm around 5:50 A.M. and
leaving the camera's viewing range for about five minutes
before exiting the building.
reviewing the inconclusive video footage, Appellants believed
Kennedy was the thief, and they questioned him about the
incident twice in the presence of human resources (HR) staff.
Appellants performed no further investigation and,
specifically, did not interview others who were present in
the building that night with access to the athletic
director's office, including coaches, players, and
custodial staff. Instead, Appellants placed Kennedy on paid
administrative leave and turned over the investigation to the
Richland County Sheriff's Office. Barnes acted as
"liaison" between the District and the
sheriff's office. The investigation focused mainly on
Kennedy, although testimony indicated that various other
people were around the area of the theft on the night of
March 3, 2011. The sheriff's office never criminally
charged Kennedy, or anyone else, with the theft of $1, 000,
but Appellants testified they believed Kennedy was the thief,
and stated Kennedy could not be trusted as a security officer
because he was a "common denominator" in the
various other thefts that occurred at Spring Valley around
the same time.
the theft accusations and subsequent investigations, the
District's HR office informed Kennedy that he would no
longer be considered for the promotion to lieutenant, but
they permitted him to return to work. The District scheduled
Kennedy to return to work on June 16, 2011. Prior to his
return, however, Earles decided Kennedy would not be allowed
to have keys or patrol buildings. Instead, Earles assigned
Kennedy to the security watch room in what amounted to a
reduced, desk-duty role. Due to the twenty-four-hour nature
of the security department and the rare interaction with
second and third shift personnel, instead of holding a
mandatory meeting, Earles elected to send a confidential
email on June 15, 2011, informing personnel of his decision
regarding Kennedy. Earles addressed the email to security
supervisors and an HR director. 
June 15, 2011 email, addressed with the subject line
"CONFIDENTIAL," read as follows:
THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND
WILL ONLY BE SHARED WITH OTHER DISTRICT SECURITY SUPERVISORS,
AS NEEDED, WHEN THEY WILL BE SUPERVISING MR. KENNEDY.
Mr. Kennedy will be reporting to work tomorrow night
(Thursday, June 16) to work on 3rd shift, weekdays. This will
be his permanent assignment.
I have told him that he will be assigned to work the watch
room answering phones and performing whatever other duties
are necessary in the watch room. [sic]
His [sic] is NOT to be given any assignment that involves
having keys to any District facility.
admit the email contained sensitive information that could
harm Kennedy if it was released beyond its intended
recipients. The email managed, however, to reach personnel
beyond those intended recipients. While Appellants claim they
did not print and place the email within the confines of the
District, Kennedy and other witnesses testified they
saw and read the printed email while it was located in
unsecured District security vehicles and on a desk in an
unsecured office where every security employee filled out
their time cards.
stated Appellants' distrust in him and their belief that
he was a thief negatively impacted his life outside of the
District. Prior to the theft accusations, Kennedy was
actively involved in his church as a youth mentor and as
security for his church's pastor during the collection of
the offering plate. After the accusations, however, the
church no longer scheduled Kennedy or asked for his
continued to work at the District until October 2012, when he
was terminated from his position. At trial, Kennedy presented
evidence of his difficult home life following his
termination, which included his eviction from his home,
divorce from his long-term wife, repossession of his car, and
cashing out of his retirement fund. Kennedy was able to
secure work with Allied Barton Security, but he resigned in
February 2014 after allegations surfaced that he stole a
five-dollar pair of safety goggles and ten dollars in
cash. At the time of trial, Kennedy was working
for GEO Care as a security officer.
March 11, 2013, Kennedy filed a lawsuit in the circuit court
alleging multiple causes of action against numerous
defendants, including Earles and Barnes. Prior to trial,
Kennedy dismissed certain named defendants, leaving only the
District, Appellants, and Kim Jones as named defendants. On
the first day of trial, Kennedy filed a motion in limine
seeking exclusion of any evidence or cross-examination
related to specific instances of petty theft he was accused
of while working as a security guard for Allied Barton in
February 2014. The circuit court granted the motion to
exclude the proffered witness' testimony as inadmissible
character evidence under Rules 403 and 404, SCRE. At the
close of Kennedy's case, the circuit court granted the
defendants' directed verdict motion as to Kennedy's
claim for intentional infliction of emotional distress. The
court additionally granted Jones's directed verdict
motion as to Kennedy's defamation claim. After the
defense rested, the circuit court granted the District's
directed verdict motion as to Kennedy's claim for
negligent supervision. Consequently, the only causes of
action before the jury were Kennedy's claims of
defamation against Earles and Barnes.
October 3, 2014, the jury returned a verdict against Barnes
for $100, 000 in actual damages and $150, 000 in punitive
damages and against Earles for $100, 000 in actual damages
and $200, 000 in punitive damages. Appellants filed
post-trial motions, which the circuit court denied in its
February 24, 2015 order. This appeal followed.
the circuit court err in denying Appellants' motions for
directed verdict and JNOV regarding the defamation claim?
the circuit court err in denying Appellants' motion for
JNOV regarding individual capacity claims under the SCTCA?
Did the circuit court err in denying Appellants' motion
for JNOV regarding punitive damages or, alternatively, for a
new trial absolute or nisi remittitur and in
affirming the constitutionality of the punitive damages
the circuit court err in excluding evidence of Kennedy's
alleged theft and termination from a subsequent employer that
occurred during the pendency of the trial?
the circuit court err in failing to instruct the jury that no
defamatory communication was made as a result of
Kennedy's termination from the District and that
Kennedy's termination was not part of his defamation
actions at law, when a case tried by a jury is appealed,
"the jurisdiction of the appellate court extends merely
to the correction of errors of law, and a factual finding by
the jury will not be disturbed unless a review of the record
discloses there is no evidence which reasonably supports the
jury's findings." Wright v. Craft, 372 S.C.
1, 18, 640 S.E.2d 486, 495 (Ct. App. 2006).
circuit court's ruling on a motion for directed verdict
or JNOV is appealed, an appellate court must apply the same
standard as the circuit court. RFT Mgmt. v. Tinsley &
Adams L.L.P., 399 S.C. 322, 331, 732 S.E.2d 166, 171
(2012). In determining these motions, the circuit court must
view the evidence and all reasonable inferences drawn from
the evidence in the light most favorable to the nonmoving
party. McBride v. Sch. Dist. of Greenville Cty., 389
S.C. 546, 558, 698 S.E.2d 845, 851 (Ct. App. 2010). If the
evidence at trial yields more than one reasonable inference
or its inference is in doubt, the circuit court must deny the
motion for directed verdict or JNOV. RFT Mgmt., 399
S.C. at 332, 732 S.E.2d at 171. "When the evidence
yields only one inference, a directed verdict in favor of the
moving party is proper." Parrish v. Allison,
376 S.C. 308, 319, 656 S.E.2d 382, 388 (Ct. App. 2007).
"However, if the evidence as a whole is susceptible of
more than one reasonable inference, a jury issue is created
and the motion should be denied." Id.
appellate court will reverse the [circuit] court's ruling
only if no evidence supports the ruling below." RFT
Mgmt., 399 S.C. at 332, 732 S.E.2d at 171. "When
considering [such] motions, neither the [circuit] court nor
the appellate court has the authority to decide credibility
issues or to resolve conflicts in the testimony or
evidence." Parrish, 376 S.C. at 319, 656 S.E.2d