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The Supreme Court of South Carolina

Re Expansion of Electronic Filing Pilot Program - Court of Common Pleas Appellate Case No 2015-002439

ORDER

Pursuant to the provisions of Article V Section 4 of the South Carolina Constitution IT IS ORDERED that the Pilot Program for the Electronic Filing (E-Filing) of documents in the Court of Common Pleas which was established in Clarendon County by Order dated December 1 2015 is expanded to include Sumter County and Lee County beginning January 19 2016 Beginning January 19 2016 all filings in all common pleas cases commenced or pending in Sumter County and Lee County must be E-Filed if the party is represented by an attorney unless the type of case or the type of filing is excluded from the Pilot Program Attorneys should refer to the South Carolina Electronic Filing Policies and Guidelines which were adopted by the Supreme Court on October 28 2015 and the training materials available at httpwwwsccourtsorgefiling to determine whether any specific filings are exempted from the requirement that they be E-Filed Attorneys who have cases pending in Pilot Counties are strongly encouraged to review and to instruct their staff to review the training materials available on the E-Filing Portal

s Costa M Pleicones Costa M Pleicones Chief Justice of South Carolina

Columbia South Carolina January 8 2016

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The Supreme Court of South Carolina In the Matter of Brian DeQuincey Newman Respondent Appellate Case No 2016-000026 Appellate Case No 2016-000027

ORDER

The Office of Disciplinary Counsel petitions this Court to place respondent on interim suspension pursuant to Rule 17 of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR) The petition also seeks appointment of the Receiver pursuant to Rule 31 RLDE Rule 413 SCACR Respondent consents to his interimsuspension and the appointment of the Receiver

IT IS ORDERED that respondents license to practice law in this state is suspended until further order of this Court

Respondent is hereby enjoined from taking any action regarding any trust escrow operating and any other law office account(s) respondent may maintain at any bank or other financial institution including but not limited to making any withdrawal or transfer or writing any check or other instrument on the account(s)

IT IS FURTHER ORDERED that the Receiver Peyre T Lumpkin Esquire is hereby appointed to assume responsibility for respondents client files trust account(s) escrow account(s) operating account(s) and any other law office accounts respondent may maintain Mr Lumpkin shall take action as required by Rule 31 RLDE Rule 413 SCACR to protect the interests of respondents clients Mr Lumpkin may make disbursements from respondents trust account(s) escrow account(s) operating account(s) and any other law office accounts respondent may maintain that are necessary to effectuate this appointment Respondent shall promptly respond to Mr Lumpkins requests for information andor documentation and shall fully cooperate with Mr Lumpkin in all other respects

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Further this Order when served on any bank or other financial institution maintaining trust escrow andor operating account(s) of respondent shall serve as an injunction to prevent respondent from making withdrawals from the account(s) and shall further serve as notice to the bank or other financial institution that Mr Lumpkin has been duly appointed by this Court This Order when served on any office of the United States Postal Service shall serve as notice that Peyre T Lumpkin Esquire has been duly appointed by this Court and has the authority to receive respondents mail and the authority to direct that respondents mail be delivered to Mr Lumpkins office Mr Lumpkins appointment shall be for a period of no longer than nine months unless an extension of the period of appointment is requested Finally within fifteen (15) days of the date of this order respondent shall serve and file the affidavit required by Rule 30 RLDE Should respondent fail to timely file the required affidavit respondent may be held in civil andor criminal contempt of this Court as provided by Rule 30 RLDE s Costa M Pleicones CJ Columbia South Carolina January 8 2016

3

OPINIONS OF

THE SUPREME COURT AND

COURT OF APPEALS OF

SOUTH CAROLINA

ADVANCE SHEET NO 2January 13 2016

Daniel E Shearouse Clerk Columbia South Carolina

wwwsccourtsorg

4

5

CONTENTS THE SUPREME COURT OF SOUTH CAROLINA

PUBLISHED OPINIONS AND ORDERS None

UNPUBLISHED OPINIONS

None EXTENSION TO FILE PETITION - UNITED STATES SUPREME COURT 2015-MO-027 - Kamell D Evans v The State Granted until 132016 2015-MO-028 - Jonathan Kyle Binney v The State Granted until 132016 2015-MO-029 - John Kennedy Hughey v The State Granted until 132016

PETITIONS - UNITED STATES SUPREME COURT

27502 - The State v Ortho-McNeil-Janssen Pending 27569 - The State v Shawn Reaves Pending 2014-000324 - Cynthia E Collie v South Carolina Commission on Pending

Lawyer Conduct et al 2015-MO-033 - The State v Christopher Ryan Whitehead Pending

PETITIONS FOR REHEARING 27572 - Stokes-Craven Holding Corporation v Scott L Robinson Pending 27587 - Willie Homer Stephens v CSX Transportation Pending

27594 - Scott Lawing v Univar USA Pending

27596 - Clarence Kendall Cook v The State Pending

2015-MO-061 - Kennedy Funding v Pawleys Island North Pending

2015-MO-072 - Rest Assured v SCDEW Pending

6

The South Carolina Court of Appeals

PUBLISHED OPINION 5375-Mark Kelley v David Wren and Sun Publishing Co Inc 15

UNPUBLISHED OPINION 2016-UP-002-SCDSS v Kiah Nicole Poulos (Filed January 6 2016) 2016-UP-003-State v Michael Anthony Butler Jr 2016-UP-004-In the matter of the care and treatment of Glenn David Jones 2016-UP-005-State v Terry L McCarrell 2016-UP-006-Michael Goins v SCDC 2016-UP-007-Odis Dwayne Simonds v State 2016-UP-008-State v Molina Armstrong 2016-UP-009-Spring Champion v SC Department of Motor Vehicles 2016-UP-010-State v James Clyde Dill Jr 2016-UP-011-James Clayton Helms v State 2016-UP-012-Whelthy McKune v State 2016-UP-013-Cathy J Swicegood v Polly A Thompson 2016-UP-014-Stow Away Storage LLC v George W Sisson 2016-UP-015-Onrae Williams v State 2016-UP-016-SCDSS v Kimberly Bolin

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PETITIONS FOR REHEARING 5359-Bobby Joe Reeves v State Pending 5360-Claude McAlhany v Kenneth A Carter Pending 5361-Michael Bolin v SCDC Pending 5362-The SPUR v Sunil Lalla Pending 5365-Thomas Lyons v Fidelity National Pending 5366-David Gooldy v The Storage Center Pending 5368-SCDOT v David Powell Pending 5369-Boisha Wofford v City of Spartanburg Pending 5370-Ricky Rhame v Charleston Cty Schools Pending 5371-Betty Fisher v Bessie Huckabee Pending 2015-UP-328-Billy Lisenby v SCDC (7) Pending 2015-UP-473-Mevers Kitchens v Maryann Wagner Pending 2015-UP-505-Charles Carter v SCDC (3) Pending 2015-UP-517-Kevin Fowler v SCDC Pending 2015-UP-523-State v Gary Lane Prewitt Pending 2015-UP-524-State v Gary R Thompson Pending 2015-UP-536-Vondell Sanders v State Pending 2015-UP-540-State v Michael McCraw Pending 2015-UP-542-Frazier T Williams v State Pending 2015-UP-547-Evalena Catoe v City of Columbia Pending

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2015-UP-548-Thaddess Starks v State Pending

2015-UP-554-State v David J Benjamin Pending

2015-UP-555-Moore Taylor amp Thomas v Marsha Banks Pending

2015-UP-556-State v Nathaniel Witherspoon Pending

2015-UP-557-State v Andrew Antonio Clemmons Pending

2015-UP-559-West Webb Mitchum v State Pending

2015-UP-564-State v Tonya McAlhaney Pending

2015-UP-568-State v Damian Anderson Pending

PETITIONS-SOUTH CAROLINA SUPREME COURT

5209-State v Tyrone Whatley Pending

5247-State v Henry Haygood Pending

5250-Precision Walls v Liberty Mutual Fire Ins Pending

5253-Sierra Club v Chem-Nuclear Pending

5254-State v Leslie Parvin Pending

5294-State v Darryl L Drayton Granted in part (12-23-15)

5295-Edward Freiburger v State Pending

5301-State v Andrew T Looper Pending

5307-George Ferguson v AmercoU-Haul Pending

5308-Henton Clemmons v Lowes Home Centers Pending

5312-R C Frederick Hanold III v Watsons Orchard POA Pending

5313-State v Raheem D King Pending

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5314-State v Walter M Bash Pending 5317-Michael Gonzales v State Pending 5322-State v Daniel D Griffin Pending 5324-State v Charles A Cain Pending 5326-Denise Wright v PRG Pending 5328-Matthew McAlhaney v Richard McElveen Pending 5331-State v Thomas Stewart Pending 5332-State v Kareem Harry Pending 5333-Yancey Roof v Kenneth A Steele Pending 5335-Norman J Hayes v State Pending 5336-Phillip Flexon v PHC-Jasper Inc Pending 5337-Ruben Ramirez v State Pending 5338-Bobby Lee Tucker v John Doe Pending 5341-State v Alphonso Thompson Pending 5344-Stoneledge v IMK Development (Southern Concrete) Pending 5345-Jacklyn Donevant v Town of Surfside Beach Pending 5346-State v Lamont A Samuel Pending 5347-George Glassmeyer v City of Columbia Pending 5348-Gretchen A Rogers v Kenneth E Lee Pending 5351-State v Sarah D Cardwell Pending 5352-Ken Lucero v State Pending

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5355-State v Lamar Sequan Brown Pending 2014-UP-446-State v Ubaldo Garcia Jr Pending 2014-UP-470-State v Jon Wynn Jarrard Sr Pending 2015-UP-010-Latonya Footman v Johnson Food Services Pending 2015-UP-031-Blue Ridge Electric v Kathleen Gresham Pending 2015-UP-041-Nathalie Davaut v USC Pending 2015-UP-065-Glenda Couram v Lula Davis Pending 2015-UP-069-Amie Gitter v Morris Gitter Pending 2015-UP-091-US Bank v Kelley Burr Pending 2015-UP-111-Ronald Jarmuth v International Club Pending 2015-UP-126-First National Bank v James T Callihan Pending 2015-UP-155-Ashlie Outing v Velmetria Weeks Pending 2015-UP-167-Cynthia Griffis v Cherry Hill Estates Pending 2015-UP-174-Tommy S Adams v State Pending 2015-UP-176-Charles Ray Dean v State Pending 2015-UP-201-James W Trexler v The Associated Press Pending 2015-UP-203-The Callawassie Island v Arthur Applegate Pending 2015-UP-205-Tri-County Dev Inc v Pierce Denied 121815 2015-UP-208-Bank of New York Mellon v Rachel R Lindsay Pending 2015-UP-209-Elizabeth Hope Rainey v Charlotte-Mecklenburg Pending 2015-UP-215-Ex Parte Tara Dawn Shurling (In re State vHarley) Pending

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2015-UP-248-South Carolina Electric amp Gas v Anson Pending 2015-UP-256-State v John F Kennedy Pending 2015-UP-259-Danny Abrams v City of Newberry Pending 2015-UP-262-State v Erick Arroyo Pending 2015-UP-266-State v Gary Eugene Lott Pending 2015-UP-269-Grand Bees Development v SCDHEC Pending 2015-UP-273-State v Bryan M Holder Pending 2015-UP-275-State v David E Rosier Pending 2015-UP-280-State v Calvin Pompey Pending 2015-UP-281-SCDSS v Trilicia White Pending 2015-UP-300-Peter T Phillips v Omega Flex Inc Pending 2015-UP-303-Charleston County Assessor v LMP Properties Pending 2015-UP-304-Robert K Marshall Jr v City of Rock Hill Pending 2015-UP-307-Allcare Medical v Ahava Hospice Pending 2015-UP-320-American Community Bank v Michael R Brown Pending 2015-UP-327-State v Shawn Justin Burris Pending 2015-UP-330-Bigford Enterprises v D C Development Pending 2015-UP-331-Johnny Eades v Palmetto Cardiovascular Pending 2015-UP-333-Jennifer Bowzard v Sheriff Wayne Dewitt Pending 2015-UP-339-LeAndra Lewis v L B Dynasty Inc Pending 2015-UP-344-Robert Duncan McCall v State Pending

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2015-UP-345-State v Steve Young Pending 2015-UP-350-Ebony Bethea v Derrick Jones Pending 2015-UP-351-Elite Construction v Doris Tummillo Pending 2015-UP-353-Wilmington Savings Fund v Furmanchik Pending 2015-UP-357-Linda Rodarte v USC Pending 2015-UP-359-In the matter of the estate of Alice Shaw Baker Pending

(Fisher v Huckabee) 2015-UP-361-JP Morgan Chase Bank v Leah Sample Pending 2015-UP-362-State v Martin D Floyd Pending 2015-UP-364-Andrew Ballard v Tim Roberson Pending 2015-UP-365-State v Ahmad Jamal Wilkins Pending 2015-UP-367-Angela Patton v Dr Gregory A Miller Pending 2015-UP-372-State v Sheldon L Kelly Pending 2015-UP-376-Ron Orlosky v Law Office of Jay Mullinax Pending 2015-UP-377-Long Grove at Seaside v Long Grove Property Pending

Owners ( James Harwick amp Partners) 2015-UP-381-State v Stepheno J Alston Pending 2015-UP-382-State v Nathaniel B Beeks Pending 2015-UP-384-Robert C Schivera v C Russell Keep III Pending 2015-UP-388-Joann Wright v William Enos Pending 2015-UP-391-Cambridge Lakes v Johnson Koola Pending 2015-UP-395-Brandon Hodge v Sumter County Pending

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2015-UP-402-Fritz Timmons v Browns AS RV and Campers Pending 2015-UP-403-Angela Parsons v Jane Smith Pending 2015-UP-414-Christopher A Wellborn v City of Rock Hill Pending 2015-UP-417-State v Raheem Jamar Bonham Pending 2015-UP-423-North Pleasant LLC v SC Coastal Conservation Pending 2015-UP-427-William McFarland v Sofia Mazell Pending 2015-UP-428-Harold Threlkeld v Lyman Warehouse LLC Pending 2015-UP-429-State v Leonard E Jenkins Pending 2015-UP-432-Barbara Gaines v Joyce Ann Campbell Pending 2015-UP-439-Branch Banking and Trust Co v Sarah L Gray Pending 2015-UP-444-Bank of America v Duce Staley Pending 2015-UP-446-State v Tiphani Marie Parkhurst Pending 2015-UP-455-State v Michael L Cardwell Pending 2015-UP-476-State v Jon Roseboro Pending 2015-UP-478-State v Michael Camp Pending 2015-UP-485-State v Alfonzo Alexander Pending

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THE STATE OF SOUTH CAROLINA In The Court of Appeals

Mark Kelley Respondent

v

David Wren and Sun Publishing Company Inc dba The Sun News Appellants

Appellate Case No 2014-001249

Appeal From Horry County Larry B Hyman Jr Circuit Court Judge

Opinion No 5375 Heard December 9 2015 ndash Filed January 13 2016

AFFIRMED

Jerry Jay Bender Baker Ravenel amp Bender LLP of Columbia for Appellants

James P Stevens Jr and Natalie Shawn Stevens-Graziani Stevens Law Firm PC of Loris for Respondent

FEW CJ David Wren and Sun Publishing Company Inc appeal from a jury verdict awarding $400000 in actual damages and $250000 in punitive damages to Mark Kelley on Kelleys claims he was libeled by a series of articles Wren wrote for The Sun News of Myrtle Beach We affirm

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I Facts and Procedural History

In 2010 David Wren an investigative reporter for The Sun News obtained information that South Carolina Republican gubernatorial candidate GreshamBarrett1 four Myrtle Beach City Council incumbents and seven state legislators received significant campaign contributions from multiple limited liability companies (LLCs) many of which had few assets and no revenue In the process of investigating the contributions Wren learned about a 2009 lunch meeting involving Barrett lobbyist Mark Kelley and Myrtle Beach Area Chamber of Commerce president Brad Dean At the meeting Dean delivered to Barrett approximately $84000 in campaign contributions

Wren wrote three articles for The Sun News discussing various aspects of Myrtle Beach-area campaign contributions that he believed appeared unethical Primarily Wrens articles suggested the LLCs contributions to Barrett and other local politicians were actually donations from the chamber of commerce which passed the funds through the LLCs Wren also discussed the lunch meeting involving Barrett Dean and Kelley in the articles In the first articlemdashpublished May 21 2010mdashWren wrote

Mark Kelley a lobbyist for the chamber of commerce also attended that meeting according to Barrett

There are strict rules that forbid lobbyists fromfacilitating campaign donations for statewide candidates however a spokeswoman for the SC Ethics Commission said it does not appear any laws were violated in this case

Just being in the same room is not a violation it happens all the time said the commissions general counsel He [Kelley] is not supposed to touch the envelope or hand over the envelope

1 Barrett was one of four candidates in the 2010 Republican primary for Governor The other candidates were Henry McMaster Andre Bauer and the eventual winner Nikki Haley

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In a second articlemdashpublished May 23 2010mdashWren again mentioned the meeting and wrote Dean along with chamber lobbyist Mark Kelley delivered about $84000 of those contributions to Barrett in June On May 25 2010 the newspaper published a third article authored by Wren that included a quote fromthe president of a Myrtle Beach-area interest group In the past the chamber has denied any involvement in this scandal but now Brad Dean admits he set up the lunch with [chamber] lobbyist Mark Kelley and he handed Mr Barrett the envelope full of checks said Robert Kelley who is not related to the lobbyist Each of the articles contains at least one statement that the contributions weremdashor appear to have beenmdashlegal

On May 30 2010 the newspaper published an editorial in which it admitted it had little evidence to support its allegations that the chamber of commerce made illegal campaign contributions However it defended itself by arguing the contributions had an appearance of impropriety

The darkest accusation in this affair is that the money in question came directly from the Myrtle Beach Area Chamber of Commerce as a kickback for passing the 1 percent sales tax for tourism advertising passed out to City Council members and state representatives who helped make it happen ndash and inexplicably Gresham Barrett in his bid for governor

There is virtually no evidence to prove this allegation but theres a host of circumstance to make it plausible As we now know based on David Wrens reporting it was Myrtle Beach Area Chamber of Commerce President Brad Dean who personally handed the $84000 in checks to Barrett with lobbyist Mark Kelley sitting by his side (If Kelley handed the money over the transaction would have been explicitly illegal ndash effectively forcing Barrett to say Kelley had no involvement and pinioning the donations on Dean no matter what the unprovable truth is)

The chambers defense all along has been that the checks came not from the chamber but from the companies

17

under whose name the donations were made Dean says now that he simply collected and delivered them Again there is no evidence disproving this statement but the circumstances make it difficult to believe

Approximately two years after the newspaper published the articles and editorial Kelley filed a lawsuit asserting libel claims against Wren and Sun Publishingmdashthe publisher of The Sun News Kelley claimed Wren and Sun Publishing falsely accused him in the articles and editorial of violating state ethics laws by delivering campaign contributions to Barrett The trial court found Kelleymdasha former member of the State House of Representativesmdashto be a public figure2 and a jury awarded Kelley $400000 in actual damages and $250000 in punitive damages3

II Law and Analysis

Wren and Sun Publishing raise five arguments on appeal (1) the trial court erred in denying their motions for a directed verdict and judgment notwithstanding the verdict (JNOV) because Kelley presented no evidence Wren or Sun Publishing made a false and defamatory statement of fact (2) the trial court erred in denying their motions for a directed verdict and JNOV because Kelley failed to present clear and convincing evidence Wren wrote the articles with actual malice (3) the trial court erred in admitting expert testimony about the standards of professional journalism (4) the trial court erred in ruling the damages awards were not so grossly excessive as to warrant a new trial absolute and (5) the punitive damages award violates the free press guarantees of the First and Fourteenth Amendments

A Falsity

Wren and Sun Publishing argue the trial court erred in denying their motions for a directed verdict and JNOV because Kelley presented no evidence they made a

2 See Elder v Gaffney Ledger 341 SC 108 113 533 SE2d 899 901 (2000) (citing New York Times Co v Sullivan 376 US 254 279-80 84 S Ct 710 726 11 L Ed 2d 686 706 (1964)) (stating a public figure plaintiff in a defamation action must prove actual malice to recover damages)

3 The jury found Sun Publishing did not make a defamatory statement in the editorial and thus imposed liability based only on the articles

18

false and defamatory statement of fact See Erickson v Jones St Publishers LLC 368 SC 444 465 629 SE2d 653 664 (2006) (stating a plaintiff in a defamation case must prove the defendant made a false and defamatory statement) In ruling on motions for a directed verdict and JNOV on the question of falsity the trial court must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party See 368 SC at 463 629 SE2d at 663 (reciting the standard for a directed verdict) see also RFT Mgmt Co v Tinsley amp Adams LLP 399 SC 322 331 732 SE2d 166 171 (2012) (A motion for a JNOV is merely a renewal of the directed verdict motion) The trial court should deny the motions where the evidence is susceptible to more than one reasonable inference Erickson 368 SC at 463 629 SE2d at 663 When considering directed verdict motions neither the trial court nor the appellate court has authority to decide credibility issues or to resolve conflicts in the testimony or evidence Id

We find the trial court properly submitted the question of falsity to the jury First there is ample unrefuted evidence in the record Kelley did not deliver campaign contributions to Barrett At trial Kelley testified he believed Wren and Sun Publishing accused him of delivering campaign contributions to a gubernatorial candidate which is a crime under subsection 2-17-80(A) of the South Carolina Code (2005)4 Kelley insisted he did not deliver the contributions and Barrett testified Kelley never gave him campaign contributions or organized a campaign contribution meeting Drea ByarsmdashBarretts aide who also attended the lunch meetingmdashtestified Kelley did not deliver or touch the money Barrett received Byars also stated Kelley did not know prior to the meeting that Dean planned to deliver the contributions Moreover Wren admitted at trial he had [n]o evidence that [the money] came from Mark Kelley Accordingly any statement accusing Kelley of delivering contributions to Barrett is false

Second reading the articles in the light most favorable to Kelley a reasonable jury could determine the articlesmdashparticularly the statement in the May 23 article that Dean along with chamber lobbyist Mark Kelley delivered about $84000 of those contributions to Barrettmdashaccused Kelley of delivering campaign contributions and thus accused him of committing a crime Kelley testified he believed the

4 Subsection 2-17-80(A) provides A lobbyist shall not offer solicit facilitate or provide to or on behalf of any member of the General Assembly the Governor the Lieutenant Governor [or] any other statewide constitutional officer any of the following (5) contributions as defined in Section 8-13-1300(7)

19

statement meant both he and Dean delivered contributions to Barrett Kelley also presented several witnessesmdashincluding Barrett and State House of Representatives members Alan Clemmons Nelson Hardwick and George Hearnmdashwho testified they believed Wren accused Kelley of committing a crime by delivering campaign contributions Although Wren argues the phrase along with merely meant Kelley was present when Dean delivered the contributions we find the statement in the May 23 article can reasonably be interpreted to mean Dean and Kelley delivered campaign contributions to Barrett In fact we believe a person reading the May 23 article would be far more likely to interpret the statement as an allegation of illegal conduct by Kelley than a mere statement he was present Therefore the issue of whether Wren accused Kelley of committing a crime by delivering contributions was a question of fact for the jury and the trial court did not err in denying Wrensand Sun Publishings motions for a directed verdict and JNOV

B Actual Malice

Wren and Sun Publishing also argue the trial court erred in denying their motions for a directed verdict and JNOV because Kelley did not present clear and convincing evidence Wren wrote the articles with actual malice

A public figure seeking damages for defamation must prove by clear and convincing evidence the defendant made the statement with actual malice which means with the knowledge of its falsity or with reckless disregard for its truth Elder 341 SC at 114 533 SE2d at 902 (citing New York Times Co 376 US at279-80 84 S Ct at 726 11 L Ed 2d at 706)

A reckless disregard for the truth requires more than a departure from reasonably prudent conduct There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication St Amant v Thompson 390 US 727 731 88 S Ct 1323 1325 20 L Ed 2d 262 267 (1968) There must be evidence the defendant had a high degree of awareness of probable falsity Garrison v Louisiana 379 US 64 74 85 S Ct 209 216 13 L Ed 2d 125 133 (1964)

20

Elder 341 SC at 114 533 SE2d at 902 (second alteration in original) (emphasis omitted)

Whether the evidence is sufficient to support a finding of actual malice is a question of law 341 SC at 113 533 SE2d at 901-02 An appellate court in a public figure defamation case must conduct an independent review of the record to determine whether the evidence supports a jury finding by clear and convincing evidence the defendant made the statements with actual malice 341 SC at 113-14 533 SE2d at 901-02 see also Bose Corp v Consumers Union of US Inc 466 US 485 511 104 S Ct 1949 1965 80 L Ed 2d 502 523 (1984) (Judges as expositors of the Constitution must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of actual malice)

In determining whether the constitutional standard has been satisfied the reviewing court must consider the factual record in full Although credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the opportunity to observe the demeanor of the witnesses Bose Corp 466 US at 499-500 104 S Ct at 1959 80 L Ed 2d at 516 the reviewing court must examine for [itself] the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment protect New York Times Co 376 US at 285 84 S Ct at 728-29 11 L Ed 2d at 709

Harte-Hanks Commcns Inc v Connaughton 491 US 657 688 109 S Ct 2678 2696 105 L Ed 2d 562 589 (1989) (alterations in original)

Mindful that we must consider the entire factual record we begin our analysis of the sufficiency of the evidence of actual malice by considering the statement in the May 23 article Dean along with chamber lobbyist Mark Kelley delivered about $84000 of those contributions to Barrett As discussed above in the section on falsity this statement can be interpreted to have two different meanings When examining the sufficiency of the evidence as to falsity we considered the objective

21

question of whether the evidence supports an interpretation of the statement to be an accusation that Kelley participated in the delivery of the contributions When examining the sufficiency of the evidence of actual malice however we must consider the subjective question of whether the evidence clearly and convincingly supports a finding that Wren intended to accuse Kelley of delivering the contributions or that he wrote the articles with reckless disregard of the likelihood readers would interpret the statementmdashand the articles in generalmdashto be such an accusation

If Wren meant only that Kelley was present when Dean delivered the contributions and Wren did not recklessly disregard the likelihood the statements could be otherwise interpreted then our standard of review would require a finding that Wren did not have actual malice However if Wren intended to accuse Kelley of delivering the contributions or if he recklessly disregarded the likelihood the articles could be interpreted to accuse Kelley of delivering the contributions he may have had actual malice In answering this question of what Wren meant we have considered the entire recordmdashincluding the statements in the articles that the contributions were legal We also consider emails Wren sent to several people during his investigation into the campaign contributions While we are careful not to find actual malice based on Wrens other actions see Elder 341 SC at 114 533 SE2d at 902 (warning the actual malice standard is not satisfied merely through a showing of ill will and [i]t is insufficient to show the defendant made an editorial choice or simply failed to investigate or verify information) Wrens emails help us understand what Wren intended in his articles particularly the May 23 article

Wren first learned about the lunch meeting involving Kelley Dean and Barrett from state representative Tracy Edge On May 3 2010 Wren exchanged several emails with Edge with the following subject line I called [T]rey [W]alker5 and he denied knowing anything about it In one of the emails Wren stated

I told him that we were talking about the checks earlier today and you had told me that Walker had some e-mails from the Barrett campaign that would show Mark Kelley distributed donations to [Barrett] Walker flat out denied knowing anything about anything Basically

5 Trey Walker worked for McMasters campaign

22

called you a liar Now Im really confused I know campaign managers have little or no ethics but to flat out lie about something that eventually will be shown to be true isnt going to help him

On May 23 2010 Wren sent an email to Justin Stokes and Tim Pearson6 In the email Wren stated

[E]veryone seems to be bending over backward to protect Mark Kelley regarding his involvement in setting up the meeting with Barrett and handing him the money I asked BJ [Boling]7 if Kelley had arranged the meeting and he quickly said No that would have been illegal Then he said he had to check and see who did arrange the meeting A little while later he called back and said it was Brad Dean

Wren also wrote in the May 23 email

Im trying to piece together who raised all the money and why the chamber picked Barrett as the candidate they were going to endorse (could it be anything besides the fact that Kelley is the chamber lobbyist and a big supporter of Barrett) Also if there are any e-mails or documents that show Kelleys role in setting up the Barrett meeting [sic] would be a great help

On May 27 2010 Wren sent an email to Pearson stating

I wanted to check back with you and see if there is any way we can use the e-mails from Barretts campaign that seem to show the involvement of Brad Dean and Mark Kelley in raising money for Barrett and others

6 Stokes was Barretts former deputy campaign manager and Pearson was Haleys campaign manager

7 Boling was the communications director for the Barrett campaign

23

Recent events have overshadowed the campaign funding issue and Im looking for ways to move that story forward

At trial Wren admitted Dean and Barrett both told him Dean delivered the contributions He also admitted he had no evidence Kelley delivered campaign contributions or set up a meeting at which Barrett received contributions He testified I have no evidence that Mark Kelley knew what was in the envelope or where it came from and I never said he knows whats in the envelope or where it came from Furthermore he testified his only indication that Kelley was involved with the campaign contributions is a 2009 email from Stokes to Boling in which Stokes stated Kelley would be familiar with the contributions from the LLCs and where they came from

The record in this case contains no evidence Kelley participated in delivering the money to Barrett Wren testified on cross-examination he was aware of no evidence that [the money] came from Mark Kelley The question before us on the sufficiency of the evidence of actual malice therefore is not whether Wren knew that an accusation against Kelley was falsemdashWren clearly knew that The question rather is whether Wren knew or recklessly disregarded that he was making the accusation In light of the fact that Wren so diligently pursued a story about Kelley making illegal campaign contributionsmdashand found no evidence to support such a claimmdashwe find it difficult to believe Wren did not recognize that including the clause along with chamber lobbyist Mark Kelley in the second article would be read as an accusation against Kelley

Other evidence in the record supports our conclusion In the first article Wren focused the reader on Kelleys involvement by citing the strict rules against it and quoting the ethics commissions general counsel that a lobbyist can be in the same room but cannot touch the envelope The first article therefore set the contextmdashwhether Kelley violated state lawmdashfor the statement in the second article In the third article Wren included a quote stating Brad Dean admits he set up the lunch with [chamber] lobbyist Mark Kelley and he handed Mr Barrett the envelope full of checks The quote suggests Dean meant the he who handed the checks to Barrett was Kelley but Wren clearly knew Dean did not say Kelley delivered the checks

24

Our supreme court has defined clear and convincing evidence as that degree of proof which will produce in the mind of the trier of facts a firm belief as to the allegations sought to be established Peeler v Spartan Radiocasting Inc 324 SC 261 265 n4 478 SE2d 282 284 n4 (1996) Based on the entire record in this case including the testimony and emails described above we find the evidence is sufficient to support a firm belief on the part of the jury that Wren knew the statement in the May 23 article was an accusation that Kelley committed a crime Wren knew Kelley did not commit Considering the entire record and considering this statement in context and not in isolation we find the evidence supporting the jurys determination that Wren acted with actual malice is clear and convincing evidence Therefore we affirm the trial courts denial of the motions for a directed verdict and JNOV

C Expert Testimony

Wren and Sun Publishing argue the trial court erred in admitting expert testimony about the standards of professional journalism because the evidence allowed Kelley to prevail on a negligence standard of proof rather than the constitutional actual malice standard8

The qualification of an expert witness and admissibility of his testimony is within the discretion of the trial court Fields v Regl Med Ctr Orangeburg 363 SC 19 25 609 SE2d 506 509 (2005) We find the record supports a determination that Dr William Leemdasha University of Georgia journalism professor qualified by the trial court as an expert witnessmdashwas qualified his testimony assisted the trier of fact and his testimony met the requirement of reliability See Watson v Ford Motor Co 389 SC 434 446 699 SE2d 169 175 (2010) (requiring as a foundation for the admission of expert testimony (1) the witness is qualified (2) the testimony will assist the trier of fact and (3) the method by which the witness reached the opinion is reliable) Therefore the trial court did not abuse its discretion in admitting Dr Lees testimony

Wren and Sun Publishing also argue Dr Lees testimony was not relevant Specifically they contend the testimony did not assist the trier of fact because it

8 Kelley argues this issue is unpreserved because Wren and Sun Publishing did not contemporaneously object to the experts testimony We find the issue is preserved

25

applied an incorrect standard of proofmdashnegligence instead of actual malice Wehold the trial court did not err in admitting Dr Lees testimony Although some of Dr Lees testimony concerned professional standards and whether Wren and Sun Publishing conformed to those standards he focused primarily on whether the evidence indicated Wren had substantial doubt as to the truth of the statements he published in the articles or had a reckless disregard for their truth or falsity Thus the crux of Dr Lees testimony was that Wren knowingly published a false statement with actual malicemdashthe central issue in the casemdashnot that he should be held liable for deviating from professional standards Therefore the testimony was relevant because it assisted the jury in determining the central issue in the case

Finally Wrens and Sun Publishings argument as to the standard of proof relates to the jury charge not the admission of evidence The trial court correctly charged the jury Kelley could not recover unless he proved actual malice by clear and convincing evidence and Wren and Sun Publishing did not object to that portion of the charge

Accordingly we find the trial court did not abuse its discretion in admitting Dr Lees testimony

D New Trial Absolute

Wren and Sun Publishing argue the trial court erred in denying their motion for a new trial absolute

A trial court may grant a new trial absolute only when the verdict is shockingly disproportionate to the injuries suffered and thus indicates that passion caprice prejudice or other considerations not reflected by the evidence affected the amount awarded Burke v AnMed Health 393 SC 48 56 710 SE2d 84 88 (Ct App 2011) (quoting Becker v Wal-Mart Stores Inc 339 SC 629 635 529 SE2d 758 761 (Ct App 2000)) The trial court and this court must give substantial deference to the jurys determination of damages Id (quoting Todd v Joyner 385 SC 509 517 685 SE2d 613 618 (Ct App 2008) affd 385 SC 421 685 SE2d 595 (2009)) Whether the verdict is so excessive as to require a new trial is within the discretion of the trial court Id

In denying the motion for a new trial absolute as to the actual damages award the trial court considered testimony indicating the articles damaged Kelleys

26

reputationmdashparticularly testimony that legislators believed Kelley was toxic after Wren published the articles The trial court ruled the evidence that was presented in this case does support a verdict of $400000 As to punitive damages the trial court found the jury made specific findings of malice clear and convincing proof of malice on the part of the reporter and the paper in this case and th[e] award of $250000 as punitive damages is justified

We find the trial court acted within its discretion in denying the motion Clemmons testified that before Wren published the articles Kelleys reputation was excellent and his firm had a good reputation among state legislators However he testified the articles damaged Kelleys personal and professional reputation When asked whether he would want to be seen in public with Kelley after the articles Clemmons stated Absolutely not Moreover Clemmons testified he told an organization looking for lobbyists that in his opinion as a lobbyist Mark Kelley was toxic at that time because of everything that had been in The Sun News Hardwick and Barrett also testified the articles damaged Kelleys reputation Additionally Kelley testified the articles caused him significant embarrassment and stress Therefore we hold the trial court did not abuse its discretion in denying the motion for a new trial absolute

E Punitive Damages Against a Media Defendant

Wren and Sun Publishing argue awarding punitive damages against a media defendant violates the free press guarantees of the First and Fourteenth Amendments

There is ample authority under both South Carolina and federal law that a jury can award punitive damages against a media defendant when the plaintiff meets the appropriate standard of proof See Holtzscheiter v Thomson Newspapers Inc 332 SC 502 512 506 SE2d 497 503 (1998) (holding a private plaintiff may recover punitive damages from a media defendant if he proves by clear and convincing evidence the defendant acted with actual malice) Philadelphia Newspapers Inc v Hepps 475 US 767 774 106 S Ct 1558 1562 89 L Ed 2d 783 791 (1986) (citing Gertz v Robert Welch Inc 418 US 323 348-50 94 S Ct 2997 3011-12 41 L Ed 2d 789 810-11 (1974)) (stating a private plaintiff must show actual malice to recover punitive damages against a media defendant) Here the jury found Wren and Sun Publishing published the accusations against Kelley with actual malice and we find there is clear and convincing evidence to

27

support the finding Therefore an award of punitive damages in this case does not violate the constitutional rights of Wren and Sun Publishing

III Conclusion

The verdicts against Wren and Sun Publishing are AFFIRMED

KONDUROS J and CURETON AJ concur

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The Supreme Court of South Carolina In the Matter of Brian DeQuincey Newman Respondent Appellate Case No 2016-000026 Appellate Case No 2016-000027

ORDER

The Office of Disciplinary Counsel petitions this Court to place respondent on interim suspension pursuant to Rule 17 of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR) The petition also seeks appointment of the Receiver pursuant to Rule 31 RLDE Rule 413 SCACR Respondent consents to his interimsuspension and the appointment of the Receiver

IT IS ORDERED that respondents license to practice law in this state is suspended until further order of this Court

Respondent is hereby enjoined from taking any action regarding any trust escrow operating and any other law office account(s) respondent may maintain at any bank or other financial institution including but not limited to making any withdrawal or transfer or writing any check or other instrument on the account(s)

IT IS FURTHER ORDERED that the Receiver Peyre T Lumpkin Esquire is hereby appointed to assume responsibility for respondents client files trust account(s) escrow account(s) operating account(s) and any other law office accounts respondent may maintain Mr Lumpkin shall take action as required by Rule 31 RLDE Rule 413 SCACR to protect the interests of respondents clients Mr Lumpkin may make disbursements from respondents trust account(s) escrow account(s) operating account(s) and any other law office accounts respondent may maintain that are necessary to effectuate this appointment Respondent shall promptly respond to Mr Lumpkins requests for information andor documentation and shall fully cooperate with Mr Lumpkin in all other respects

2


3

OPINIONS OF


COURT OF APPEALS OF

SOUTH CAROLINA



wwwsccourtsorg

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AFFIRMED




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II Law and Analysis


A Falsity




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C Expert Testimony





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III Conclusion



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OPINIONS OF


COURT OF APPEALS OF

SOUTH CAROLINA



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v





AFFIRMED




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II Law and Analysis


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III Conclusion



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OPINIONS OF


COURT OF APPEALS OF

SOUTH CAROLINA



wwwsccourtsorg

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v





AFFIRMED




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II Law and Analysis


A Falsity




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C Expert Testimony





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III Conclusion



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v





AFFIRMED




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II Law and Analysis


A Falsity




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III Conclusion



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v





AFFIRMED




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II Law and Analysis


A Falsity




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C Expert Testimony





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III Conclusion



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7


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v





AFFIRMED




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II Law and Analysis


A Falsity




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C Expert Testimony





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III Conclusion



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v





AFFIRMED




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II Law and Analysis


A Falsity




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B Actual Malice




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C Expert Testimony





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III Conclusion



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v





AFFIRMED




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II Law and Analysis


A Falsity




18





19


B Actual Malice




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C Expert Testimony





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III Conclusion



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10


11


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v





AFFIRMED




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II Law and Analysis


A Falsity




18





19


B Actual Malice




20






21






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C Expert Testimony





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III Conclusion



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11


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13


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v





AFFIRMED




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II Law and Analysis


A Falsity




18





19


B Actual Malice




20






21






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23





24


C Expert Testimony





25








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III Conclusion



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12




13


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v





AFFIRMED




15








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II Law and Analysis


A Falsity




18





19


B Actual Malice




20






21






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24


C Expert Testimony





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III Conclusion



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13


14



v





AFFIRMED




15








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II Law and Analysis


A Falsity




18





19


B Actual Malice




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21






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24


C Expert Testimony





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III Conclusion



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14



v





AFFIRMED




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II Law and Analysis


A Falsity




18





19


B Actual Malice




20






21






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24


C Expert Testimony





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III Conclusion



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v





AFFIRMED




15








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II Law and Analysis


A Falsity




18





19


B Actual Malice




20






21






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C Expert Testimony





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III Conclusion



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II Law and Analysis


A Falsity




18





19


B Actual Malice




20






21






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C Expert Testimony





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III Conclusion



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17



II Law and Analysis


A Falsity




18





19


B Actual Malice




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24


C Expert Testimony





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III Conclusion



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II Law and Analysis


A Falsity




18





19


B Actual Malice




20






21






22










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24


C Expert Testimony





25








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III Conclusion



28





19


B Actual Malice




20






21






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C Expert Testimony





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III Conclusion



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B Actual Malice




20






21






22










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C Expert Testimony





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26






27


III Conclusion



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21






22










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C Expert Testimony





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III Conclusion



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22










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C Expert Testimony





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III Conclusion



28










23





24


C Expert Testimony





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III Conclusion



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24


C Expert Testimony





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III Conclusion



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C Expert Testimony





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III Conclusion



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26






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III Conclusion



28






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III Conclusion



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III Conclusion



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