THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Unpublished Opinion No. 2004-UP-496
Submitted September 15, 2004 – Filed September 30, 2004

PER CURIAM: This is an appeal from an order granting respondents, Trident Medical Center, L.L.C. and Cheryl Aloway, a new trial absolute following a jury verdict for Dr. Bruce Skinner on claims of defamation, negligent supervision, and conversion. We affirm. [1]

This action arose out of certain events Dr. Skinner alleged occurred in connection with his employment as an internist with Trident Medical Center, L.L.C. Dr. Skinner began his employment with Trident on January 5, 1998 in an office in St. Stephen, South Carolina. Originally, Trident planned to keep Dr. Skinner at the St. Stephen office only a short time, and thereafter relocate him to a new office in the Crowfield area. According to Trident, due to market factors and structural problems with the facility, Trident decided to close the St. Stephen office. Because of several changes in circumstances, Trident needed the doctor at the Crowfield location to have hospital admitting privileges. Dr. Skinner did not have those privileges, and Trident decided to terminate Dr. Skinner’s employment per its standard contract allowing sixty days notice for termination without cause. Dr. Skinner was provided with notice in April 1998 and his position was terminated in June 1998.

During the time Dr. Skinner worked in the St. Stephen office he had conflicts with the area office manager, Cheryl Aloway, over office issues such as billing and the condition of the office. Following his termination, Dr. Skinner was unsuccessful in finding employment as a physician. Thereafter, Dr. Skinner instituted this action against Trident and Aloway alleging, among other things, that (1) Aloway made false, slanderous statements about Dr. Skinner, (2) Trident negligently supervised Aloway, and (3) Trident had converted a patient list Dr. Skinner had supplied to Trident to its own use and refused to return the list to Dr. Skinner. Dr. Skinner maintained his difficulty in obtaining employment as a physician was due to malicious slander by Aloway, Trident’s negligent supervision of Aloway, and conversion of a computer patient list of Dr. Skinner’s. Trident and Aloway asserted that Dr. Skinner’s inability to find physician related employment was due to a number of factors including his lack of admitting privileges and board certification, the fact that he was out of work for a year and a half prior to his employment with Trident and had not built up a network of relations with other doctors and hospitals, and the fact that Dr. Skinner’s application letters gave indications to prospective employers that he was unemployable.

Dr. Skinner’s slander claim stems from statements made by Aloway, who was an area manager for Trident overseeing eight separate offices, including the St. Stephen office where Dr. Skinner worked. Aloway admittedly made statements to three other Trident employees that Dr. Skinner was believed to have taken some equipment from the office that he was not supposed to take, and that he had sabotaged the office by leaving water running in a stopped-up sink overnight.

Aloway testified as to what prompted her statements that Dr. Skinner had sabotaged the office. She stated Dr. Skinner was supposed to fill in at the St. Stephen office while Trident awaited the arrival of a doctor from Canada to take over that office. At that time, the plan was then to move Dr. Skinner to the Crowfield office. However, the Canadian doctor had trouble with his visa, possibly postponing his arrival by six months. Dr. Skinner had been complaining about the condition of the St. Stephen office, and expressed concern that he would have to stay there and would never get to the Crowfield office. One of Aloway’s superiors, Ian Watson, was scheduled to visit the St. Stephen office to evaluate the condition of the building. Around that time, Dr. Skinner made a comment to Aloway concerning whether he should make the office look worse than it actually was, in anticipation of Watson’s visit. The night before Watson was scheduled to come to the St. Stephan location, there was a leak in the kitchen that flooded out into the hallway and onto the carpet. When the plumber arrived, he could find nothing to have caused the leak, but indicated he believed someone had intentionally stopped up the sink, let the water runoff, and then unstopped it. When Aloway talked to Dr. Skinner about the leak, he indicated he felt the housekeeper had done it. The housekeeper denied having caused the leak, and told Aloway that when she left the building that night, Dr. Skinner was still there. Aloway theorized that if the St. Stephen office were to close, Dr. Skinner would be able to get to the Crowfield location sooner. She thus came to the conclusion that, if anyone had caused the damage, it was Dr. Skinner.

As to the missing equipment, Aloway testified, while Dr. Skinner had been authorized to take some equipment home with him, she suspected he had taken some other equipment from the office for which he had not received permission. When she expressed these concerns to her superior, she was told to simply call Dr. Skinner and ask him to bring the equipment back. She was not to make a specific list of the items, but was to leave it up to Dr. Skinner’s discretion as to what he would return. Aloway arranged to have the items returned to Trident’s Crowfield office. When she went there to pick up the equipment, she was surprised and frustrated to find only one small box that did not contain all the items she had expected, and questioned the staff as to whether that was all that was left there. When the staff indicated that was the extent of the returned items and then questioned Aloway, she expressed to the three co-workers that Dr. Skinner had taken some things. She further admitted that she may have “blurted out” that Dr. Skinner had also sabotaged his office.

Aloway also admitted she may have expressed her beliefs regarding Dr. Skinner to another person after she was no longer employed by Trident. After leaving Trident in August 1998, Aloway went to work for an association of independent physicians (IPA). Dr. Bounds, who served on the board of directors of IPA, received a call from Dr. Skinner, asking if Dr. Bounds had heard Aloway say anything negative about him. At that time, Aloway had never mentioned Dr. Skinner to Dr. Bounds and Dr. Bounds informed Dr. Skinner of this. Thereafter, Dr. Bounds saw Aloway at an IPA meeting and asked her what had occurred with Dr. Skinner. Aloway then responded that Dr. Skinner had stolen an EKG machine and had sabotaged the St. Stephen office. Aloway testified she only made this statement as a direct answer to an inquiry from a board member who was her boss, and she would not have said anything about it if it had not been raised in a question from her boss. Aloway testified that she still believed the statements she made about Dr. Skinner were true.

Dr. Skinner’s conversion claim involves a list containing potential patient contact information. Dr. Skinner obtained this list of potential patients in the summer of 1996, while he was employed at the Naval Hospital in Charleston. After he began his employment with Trident, Dr. Skinner gave the list to Aloway so that announcements of his employment could be sent out. Aloway testified she passed the list on to a secretary at Trident. She further stated that Trident had not requested the list, but Dr. Skinner had suggested they use the list for the announcement and Trident agreed. However, the list ultimately was not used due to Dr. Skinner’s termination. Dr. Skinner requested return of the list when he was terminated, but the list was lost and Trident was never able to locate it. Trident and Aloway presented evidence that, because the list was around two years old by the time Dr. Skinner left Trident and included military personnel who likely had moved on, it was of little to no value. They further presented evidence that Dr. Skinner was not the rightful owner of the list and that Trident had not used the list for its own benefit.

The case was submitted to the jury under the causes of action of slander, conversion, and negligent supervision. Without objection, the jury received instruction on the law of defamation which included statements made under a qualified privilege [2] and/or statements invited or procured by a plaintiff such that the publication was insufficient to support an action for defamation. [3] The jury further received instruction on the law of conversion. [4]

On December 19, 2002, the jury returned its verdict. Originally, the jury’s verdict was as follows: (a) for Dr. Skinner on the conversion claim in the amount of $250,000.00 actual damages, (b) for Dr. Skinner against Aloway individually on the defamation claim for $25,000.00 actual and $25,000.00 punitive damages, (c) for Dr. Skinner against both Aloway and Trident on the defamation claim for $1 million actual and $10 million punitive damages, and (d) for Dr. Skinner against Trident on the negligent supervision claim in the amount of $10 million actual damages. The court and the parties agreed that actual damages could not differ for the defamation claim against Aloway and the defamation claim against Trident, which was only vicariously liable. In addition, the court and the parties agreed it was illogical to award greater damages for the defamation claim than the negligent supervision claim. Accordingly, the court instructed the jury to clarify its verdict on the defamation and negligent supervision claims, but did not resubmit the conversion action to the jury. When the jury returned after further instructions, it found for Dr. Skinner in the amount of $10 million for negligent supervision against Trident, and against both Trident and Aloway in the amount of $10 million actual damages and $10 million punitive damages for slander. Dr. Skinner subsequently elected to recover the slander award rather than the negligent supervision award.

In an order filed on June 23, 2003, the trial judge exercised his discretion as the thirteenth juror and granted Trident and Aloway a new trial. He found the evidence did not support the verdicts and justice had not prevailed. In the alternative, the trial judge concluded a new trial was warranted because the verdicts were so excessive as to indicate they were the result of passion, prejudice, caprice, or some other influence outside the evidence presented. Dr. Skinner appeals the order granting a new trial.

Dr. Skinner argues the trial court erred in finding the evidence did not justify the verdicts on the conversion and defamation awards and therefore the order granting a new trial under the thirteenth juror doctrine should be reversed. We disagree.

The thirteenth juror doctrine is a vehicle by which the trial judge may grant a new trial absolute when he finds that the evidence does not justify the verdict. Folkens v. Hunt, 300 S.C. 251, 254, 387 S.E.2d 265, 267 (1990). Such a ruling has also been termed a granting of a new trial upon the facts. Id. The trial judge has the authority to grant a new trial outright when, sitting as the thirteenth juror charged with the duty of seeing that justice is done, he is convinced that a new trial is necessitated on the basis of the facts in the case. Graham v. Whitaker, 282 S.C. 393, 401, 321 S.E.2d 40, 45 (1984). This doctrine is so named because it entitles the trial judge to sit, in essence, as the thirteenth juror when he finds the evidence does not justify the verdict, and then to grant a new trial based solely upon the facts. Norton v. Norfolk S. Ry. Co., 350 S.C. 473, 478, 567 S.E.2d 851, 854 (2002). “[T]he trial judge is the thirteenth juror, possessing the veto power to the Nth degree, and, it must be presumed, recognizes and appreciates his responsibility, and exercises the discretion vested in him with fairness and impartiality.” Worrell v. South Carolina Power Co., 186 S.C. 306, 313-14, 195 S.E. 638, 641 (1938). As the thirteenth juror, the trial judge can hang the jury by refusing to agree to a jury verdict that is otherwise unanimous. Id. The effect is the same as if the jury failed to reach a verdict, resulting in a new trial. Folkens, 300 S.C. at 254, 387 S.E.2d at 267. Neither judge nor jury is required to give reasons for the outcome. Id. Further, a trial judge’s order granting or denying a new trial upon the facts will not be disturbed unless his decision is wholly unsupported by the evidence, or the conclusion reached was controlled by an error of law. Id.

As to the conversion claim, Dr. Skinner contends the information contained in the patient list would have enabled him to establish his own practice and the $250,000 award therefore was not excessive. He further argues that, because the defamation was per se, general damages are presumed, and that, along with evidence presented regarding malicious actions by Trident and Aloway as well as Dr. Skinner’s resulting unemployment and the intangible injuries suffered by him, justified the award.

In reviewing the trial court’s decision to grant a new trial under the thirteenth juror doctrine, this court does not, however, look to whether the evidence presented below could support the jury’s verdict. The granting of a new trial upon the facts is not the equivalent of granting a directed verdict. McEntire v. Mooregard Exterminating Servs., Inc., 353 S.C. 629, 632, 578 S.E.2d 746, 748 (Ct. App. 2003). Unlike a directed verdict motion, in considering whether to grant a new trial under the thirteenth juror doctrine, the trial judge weighs the evidence, and he need not view it in a light most favorable to the opposing party. Id. Though the trial judge may be compelled to submit the issues to the jury, it does not follow that he cannot subsequently grant a new trial absolute under the thirteenth juror doctrine. Worrell, 186 S.C. at 313-14, 195 S.E. at 641. Rather, our review is limited to consideration of whether evidence exists to support the trial court’s order. Folkens, 300 S.C. at 255, 387 S.E.2d at 267. Unless the decision to grant a new trial on the facts is wholly unsupported by the evidence or the trial judge’s conclusion was controlled by an error of law, the order will not be disturbed on appeal. Id. Where conflicting evidence exists on the contested issues, “the trial court’s ruling is not wholly unsupported by the evidence,” and its decision will not be overturned. Id. at 255, 387 S.E.2d at 267.

Under our limited scope of review, we cannot say the court’s ruling is “wholly unsupported by the evidence.” Conflicting evidence was presented by the parties as to whether the statements made by Aloway were privileged and/or invited. Further, the evidence was in conflict as to whether Trident was properly excused from returning the patient list to Dr. Skinner because the list was simply lost rather than intentionally withheld, whether Dr. Sinner had title to or the right to possession of the list, or whether the list had any value such that the failure to return it resulted in any damage to Dr. Skinner. Further, there is no indication, and appellant does not argue, that the trial judge was controlled by an error of law, such as the application of an incorrect standard. Accordingly, we find no error in the trial judge’s decision to grant a new trial pursuant to the thirteenth juror doctrine [5] and the order below is

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] “A communication made in good faith on any subject matter in which the person communicating has an interest or duty is qualifiedly privileged if made to a person with a corresponding interest or duty even though it contains matter which, without this privilege, would be actionable.” Murray v. Holnam, Inc., 344 S.C. 129, 140-41, 542 S.E.2d 743, 749 (Ct. App. 2001). “Communications between officers and employees of a corporation are qualifiedly privileged if made in good faith and in the usual course of business.” Id.

[3] “It is a sound principle of law that a person cannot invite or provoke another to make a slanderous charge against him, and then sue such person for damages on account of such charge.” Boling v. Clinton Cotton Mills, 163 S.C. 13, 24, 161 S.E. 195, 199 (1931).

[4] “Conversion is the unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of the condition or the exclusion of the owner’s rights.” Crane v. Citicorp Nat’l Servs., Inc., 313 S.C. 70, 73, 437 S.E.2d 50, 52 (1993). It is a wrongful act which emanates by either a wrongful taking or wrongful detention. Regions Bank v. Schmauch, 354 S.C. 648, 667, 582 S.E.2d 432, 442 (Ct. App. 2003). “To establish the tort of conversion, it is essential that the plaintiff establish either title to or right to the possession of the personal property.” Crane, 313 S.C. at 73, 437 S.E.2d at 52.

[5] Because we affirm the trial judge’s order granting a new trial pursuant to the thirteenth juror doctrine, we need not address Dr. Skinner’s assertion that the trial judge also erred in his alternative ruling that a new trial was warranted because the verdicts were so excessive as to indicate they were the result of passion, prejudice, caprice, or some other influence outside the evidence presented.