THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Leroy Canzater,        Appellant,

v.

City of Columbia,        Respondent.

Appeal From Richland County
James R. Barber, Circuit Court Judge

Unpublished Opinion No. 2004-UP-054
Submitted January 12, 2004 � Filed January 22, 2004

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

Dwight Christopher Moore, of Sumter, for Appellant.

W. Allen Nickles, III, and Carl L. Solomon, both of Columbia, for Respondent.

PER CURIAM: In this action for malicious prosecution, false imprisonment, and bad faith termination, Leroy Canzater asserts the trial court erred in dismissing the false imprisonment and bad faith termination causes of action as barred by the statute of limitations and in ruling that an arrest warrant conclusively barred an action for malicious prosecution.� We affirm in part and reverse in part.�

FACTS

The City of Columbia (�the City�) employed Canzater in the Wastewater Maintenance Division.� Believing that Canzater had for more than a year knowingly received overtime payments from the City in excess of the hours actually worked, the City terminated his employment and sought warrants for his arrest.� On December 2, 1998, a grand jury indicted Canzater for grand larceny.� The court issued a warrant for his arrest.� Canzater was arrested the following day.� On May 4, 1999, Canzater was again arrested and indicted, this time on charges of conspiracy to commit embezzlement in connection with the overtime payments.

The circuit court dismissed all charges against Canzater on September 22, 2000.� Thereafter, on November 5, 2001, Canzater initiated the instant action against the City.� He asserted claims for false imprisonment, malicious prosecution, and bad faith termination.� In his complaint, Canzater alleges the City pursued the prosecution against him without probable cause and without conducting a proper investigation to determine whether he engaged in the alleged criminal conduct.

The trial court granted the City�s motion to dismiss all three counts pursuant to Rule 12(b)(6), SCRCP.� Specifically, the court ruled that Canzater�s claims for false imprisonment and bad faith termination were barred by the statute of limitations and the malicious prosecution claim failed as a matter of law because the existence of probable cause was established by the issuance of arrest warrants.� This appeal followed.

LAW/ANALYSIS

I.� False Imprisonment

Canzater contends the trial court erred in holding his false imprisonment action was barred by the statute of limitations because the two-year statutory period did not begin to run until the charges against him were dismissed.� We disagree.

S.C. Code Ann. � 15-3-550 (Supp. 2002) �provides that the statute of limitations for a false imprisonment claim is two years.�

We embrace the rule adopted by other jurisdictions that the statute of limitations for false imprisonment begins to run when the plaintiff is released following an arrest.� Campbell v. Hyatt Regency, 388 S.E.2d 341, 342 (Ga. Ct. App. 1989)  (�An action for false imprisonment �must be brought within two years of its accrual . . . which is from the release from imprisonment.� �); Stafford v. Muster, 582 S.W.2d 670, 680 (Mo. 1979) �(�[F]or false imprisonment in particular, the authorities overwhelmingly hold that a cause of action for false imprisonment accrues on the discharge from imprisonment.�); M.C. Dransfield, When Statute of Limitations Begins to Run Against Action for False Imprisonment or False Arrest, 49 A.L.R.2d 922 (1956) �(stating the general rule is that the statute of limitations for false imprisonment �begins to run from the termination of the imprisonment and not from the time when the proceedings under which the plaintiff�s arrest occurred ended . . . .�); see Miller v. Dickert, 259 S.C. 1, 3, 190 S.E.2d 459, 460 (1972) �(noting that both parties conceded the cause of action in a false imprisonment case accrued from the time of the arrest); 8 S.C. Juris. False Imprisonment � 17 (1991).

Following the return of indictments charging Canzater with larceny and conspiracy to commit embezzlement, two different circuit judges issued warrants for his arrest on December 3, 1998, and May 12, 1999, respectively.� According to the complaint, Canzater was released from custody on his own recognizance after each arrest.� Using these two dates as the dates of his discharge from imprisonment, it is clear that an action brought on November 5, 2001 fails to satisfy the two-year statute of limitations.

II.  Bad Faith Termination

Canzater also asserts the trial court erred in barring his cause of action for bad faith termination under the statute of limitations.� Specifically, Canzater argues his claim of bad faith termination is a contract claim rather than a tort claim and therefore beyond the scope of the South Carolina Torts Claims Act�s two-year statute of limitations.�

Canzater did not raise this issue to the trial court and the trial court did not rule upon it.� We therefore decline to address it.� See Holy Loch Distribs., Inc. v. Hitchcock, 340 S.C. 20, 24, 531 S.E.2d 282, 284 (2000) �(�In order to preserve an issue for appellate review, the issue must have been raised to and ruled upon by the trial court.�) .�

III.  Malicious Prosecution

Canzater contends the trial court erred in granting the City�s motion to dismiss and determining the existence of an arrest warrant conclusively establishes probable cause for prosecution.� We agree.

�A ruling on a 12(b)(6) motion to dismiss must be based solely upon the allegations set forth on the face of the complaint and the motion cannot be sustained if facts alleged and inferences reasonably deducible therefrom would entitle the plaintiff to any relief on any theory of the case.�� Toussaint v. Ham, 292 S.C. 415, 416, 357 S.E.2d 8, 9 (1987).

Although �South Carolina has long embraced the rule that a true bill of indictment is prima facie evidence of probable cause in an action for malicious prosecution,� Kinton v. Mobile Home Indus., Inc., 274 S.C. 179, 182, 262 S.E.2d 727, 728 (1980) , it is only prima facie evidence and not conclusive.� See 54 C.J.S. Malicious Prosecution � 34 at 555 (1987) (stating that �where the result of the preliminary examination before a magistrate or other judicial officer is unfavorable to the accused, and he is held, or committed . . . this is prima facie evidence of probable cause, but not conclusive.�).�

In Melton v. Williams, 281 S.C. 182, 314 S.E.2d 612 (Ct. App. 1984) , we concluded that, even though an arrest warrant was issued, �[u]nder the circumstances it was for the jury to say whether or not there was probable cause for the swearing out of the warrant by Williams.� Id. at 187 , 314 S.E.2d at 615 ; see also Parrott v. Plowden Motor Co., 246 S.C. 318, 323, 143 S.E.2d 607, 609 (1965) ; Millhouse v. Food Lion, Inc., 289 S.C. 203, 203, 345 S.E.2d 739, 739 (Ct. App. 1986) ; cf. Gist v. Berkley County Sheriff�s Dep�t, 336 S.C. 611, 616, 521 S.E.2d 163, 165 (Ct. App. 1999) �(finding error in a trial court�s grant of summary judgment in an action for false imprisonment because the arrest warrant was insufficient and did not establish probable cause).

The trial court, therefore, erred in dismissing Canzater�s claim for malicious prosecution because the existence of an arrest warrant does not conclusively establish probable cause for prosecution.�

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

GOOLSBY and ANDERSON, JJ., and CURETON, A.J., concur.