THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Glenda Couram,        Appellant,

v.

The South Carolina Department of Social Services,        Respondent.

Appeal From Lexington County
Gary E. Clary, Circuit Court Judge

Unpublished Opinion No. 2003-UP-034
Submitted June 3, 2002 - Filed January 14, 2003

AFFIRMED IN PART AND
REVERSED IN PART

Gloria Y. Leevy, of Columbia, for appellant.

Patrick J. Frawley, of Lexington, for respondent.

PER CURIAM: Glenda Couram appeals the grant of summary judgment to defendant Lexington County Department of Social Services on her claims of wrongful termination, intentional infliction of emotional distress/ outrage, ⁽¹⁾ defamation, and malicious prosecution. We affirm in part and reverse in part.

FACTS/PROCEDURAL HISTORY

In 1997 Glenda Couram was an at-will employee of the Lexington County Department of Social Services (DSS). In early June, as part of her employment, Couram was required to take a child under DSS supervision to the Lexington County Department of Mental Health (DMH). Believing Couram had administered corporal punishment to the child, DMH employees reported their observations to DSS. Although Couram denied the allegations, DSS terminated her employment and initiated criminal proceedings for simple assault. Couram was tried on the charge and acquitted on April 23, 1998.

On September 29, 1998, Couram wrote a letter to DSS Director William Walker notifying him of her intent to file an administrative claim against the agency for violating her civil rights and requesting information on the appropriate process. However, by her own admission Couram did not serve the underlying complaint until November 24, 1999. DSS answered on December 21, 1999, pleading, inter alia, a statute of limitations defense.

On April 27, 2000, DSS filed a motion for summary judgment. The trial court held a hearing on June 9, 2000 and on June 22 issued an order granting summary judgment to DSS based on the applicable statute of limitations. Couram subsequently filed a motion to reconsider, which the court denied. On September 18, 2000, the trial court entered its final judgment on all causes of action. This appeal followed.

LAW/ANALYSIS

Standard of Review

"The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder." George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). Summary judgment, therefore, is appropriate when the information before the court shows no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. See Rule 56 (c), SCRCP. "In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party." Osborne ex rel. Osborne v. Adams, 346 S.C. 4, 7, 550 S.E.2d 319, 321 (2001).

Discussion

Couram argues the trial court erred in granting summary judgment to DSS on her causes of action for wrongful termination, intentional infliction of emotional distress/outrage, defamation, and malicious prosecution. With the exception of the latter claim, we disagree.

As an action filed against a state agency, in this case DSS, Couram's case is governed by the South Carolina Tort Claims Act. See S.C. Code Ann. � 15-78-20(b) (Supp. 2001) ("The remedy provided by this chapter is the exclusive civil remedy available for any tort committed by a governmental entity, its employees, or its agents . . . ."). Thus, in the absence of a properly submitted verified claim pursuant to � 15-78-80 extending the filing time by one year, the statute of limitations applicable to such actions is two years. Id. at � 15-78-110.

The trial court found Couram's letter to William Walker did not meet the statutory requirements of a verified claim and Couram does not dispute this finding. Instead, she argues the trial court should have extended the statute of limitations to three years because she "substantially complied" with the verified claim procedure. However, our courts repeatedly have held that such claims must comply strictly with the verification procedure outlined in the Tort Claims Act, and that "[s]ubstantial compliance is not sufficient." Vines v. Self Mem'l Hosp., 314 S.C. 305, 307, 443 S.E.2d 909, 910 (1994); see Joubert v. S.C. Dep't of Soc. Servs., 341 S.C. 176, 534 S.E.2d 1 (Ct. App. 2000). Accordingly, we hold the trial court did not err in employing the Act's two-year statute of limitations to each cause of action.

Couram, however, further contends the trial court erred in concluding her actions were time-barred, arguing the court erroneously used June 1997 as the triggering date for limitations purposes rather than April 23, 1998, the date she was acquitted of simple assault. According to Couram, the causes of action alleged did not accrue until after her acquittal on the criminal charge. Again, with the exception noted above, we disagree.

As Couram correctly notes, the discovery rule applies to actions brought pursuant to the Tort Claims Act. See � 15-78-110(a) ("Except as provided for in Section 15-3-40, an action for damages under this chapter may be instituted at any time within two years after the loss was or should have been discovered . . . ."). Under this rule, the statute of limitations begins to run when a cause of action "reasonably ought to have been discovered." Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 123, 542 S.E.2d 736, 740 (Ct. App. 2001). In other words, the beginning date is when an injured party "either knows or should have known [through] the exercise of reasonable diligence" that he has or may have a claim against a governmental entity. Id. Although Couram asserts that "the issue of when the statute [of limitations] started to run is a disputed fact in this case," the issue is not a subjective one amenable to resolution by a jury. To the contrary, it is our courts that must decide whether the circumstances of a particular case would put a person of common knowledge and experience on notice that a claim for damages might exist. Id.; see Joubert, 341 S.C. at 191, 534 S.E.2d at 8.

As discussed, since Couram failed to file a timely, properly verified claim pursuant to the Tort Claims Act, the applicable statute of limitations to all causes of action is two years. Moreover, it is undisputed Couram served DSS with the underlying complaint on November 24, 1999. Thus, in order to survive DSS' limitations defense, Couram was required to demonstrate to the trial court that she did not know, nor should she have known, that her causes of action existed prior to November 24, 1997. The trial court, however, found the triggering date for all causes of actions occurred more than two years prior to Couram's service of the complaint, i.e., either on the date of her termination by DSS or the date DSS initiated a criminal complaint against her. With the exception of the cause of action for malicious prosecution, as noted above, we agree.

According to the complaint, Couram's causes of action for wrongful termination, intentional infliction of emotional distress/outrage, and defamation are all based on the same set of facts--that in June 1997 DSS, upon being informed Couram had inflicted corporal punishment upon a child in her care, thereafter terminated Couram's employment and initiated criminal proceedings against her. Without question, at this time Couram was aware of the allegations against her which led to her dismissal from DSS and arrest for simple assault.

Given her vehement denial of the allegations, and her statement in the complaint that "there was no reason she should have been terminated at the time," we agree with the trial court that Couram either knew or should have known a cause of action might exist. Accordingly, we affirm the grant of summary judgment on the causes of action for wrongful termination, intentional infliction of emotion distress/outrage, and defamation, as they were not timely filed.

Couram's cause of action for malicious prosecution, however, is not time-barred. To sustain an action for malicious prosecution, a plaintiff must prove a defendant, without probable cause, maliciously instituted or continued or caused to have instituted or continued civil or criminal judicial proceedings terminating in the plaintiff's favor and resulting in injury or damage. Jordan v. Deese, 317 S.C. 260, 452 S.E.2d 838 (1995). Thus, a plaintiff cannot maintain an action for malicious prosecution until after the original proceeding has terminated in his favor. See id., 52 Am. Jur. 2d Malicious Prosecution � 28 (2000). Because the cause of action does not accrue until proceedings terminate, the statute of limitations for malicious prosecution does not begin to run until such time. See McCammon v. Oldaker, 516 S.E.2d 38 (W. Va. 1999) (holding the statute of limitations on an action for malicious prosecution does not begin to run until after the termination of the prosecution in favor of the plaintiff); Christian v. Lapidus, 833 S.W.2d 71 (Tenn. 1992) (stating an action for malicious prosecution accrues when all elements of the tort are present).

Accordingly, despite her personal conviction she was being unfairly prosecuted, Couram could not have known of the existence of a cause of action for malicious prosecution until a jury acquitted her, thereby establishing an essential element of the claim. It is undisputed the criminal action against Couram terminated in her favor on April 23, 1998. As a result, the statute of limitations for malicious prosecution began to run on that date. Because the parties agree Couram served the underlying complaint on November 24, 1999, well within the two-year limitations period required by the Tort Claims Act, her claim for malicious prosecution is timely. We therefore reverse the grant of summary judgment on this cause of action.

Finally, Couram argues DSS should be estopped from asserting a statute of limitations defense because the agency's own actions caused her complaint to be filed outside the limitations period. Because Couram first raises this issue on appeal, it is not preserved for review. See Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) ("It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.").

AFFIRMED IN PART and REVERSED IN PART.

CURETON, STILWELL, and SHULER, JJ., concur.

1. Although Couram's complaint sets forth "intentional infliction of emotional distress" and "outrage" as separate causes of action, they are in fact one and the same tort. See, e.g., Holtzscheiter v. Thomson Newspapers, Inc., 306 S.C. 297, 411 S.E.2d 664 (1991); Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981).