Marion R. McMILLAN, M.D. and Blue Ridge Medical Specialties, P.A., Respondents/Appellants, v. OCONEE MEMORIAL HOSPITAL, INC., Appellant/Respondent, and Anesthesiology Consultants of the Upstate, P.A.,

This case arose out of the events surrounding Oconee Memorial
Hospital's (Oconee) decision to offer anesthesiology and internal
medical services on an exclusive basis. A jury returned a verdict
against Oconee. The trial court reduced the verdict pursuant to
the charitable immunity statute. This appeal followed. After
certifying this case for review pursuant to Rule 204(b), SCACR,
we reverse the trial court's denial of Oconee's motion for
judgment notwithstanding the verdict.

FACTUAL/PROCEDURAL BACKGROUND

Oconee is a private eleemosynary (charitable) hospital. Dr.
McMillan has been a member of the medical staff at Oconee for
almost 13 years and specializes in anesthesiology and
internal medicine. Additionally, Dr. McMillan is the sole
shareholder of Blue Ridge Medical Specialties, P.A. (collectively
referred to as McMillan).

For several years prior to this litigation, McMillan performed
anesthesiology services at Oconee alongside the doctors of
Anesthesiology Consultants of the Upstate, P.A. (Upstate). But
after McMillan formed his own practice group, the two became
competitors. During this period, the anesthesiology services at
the hospital operated on an open-staff basis, therefore, all
physicians with the appropriate privileges were permitted to
practice anesthesiology and pain management. The development of
two competing practice groups at Oconee, however, was
problematic. As a result, the board at Oconee decided to pursue
exclusive contracts for its anesthesiology services.

Oconee sought proposals for the award of an exclusive agreement
to provide staff and anesthesiology services. Both Upstate and
McMillan submitted proposals providing four physicians and six
staff nurses to perform services at Oconee. However, at the time
of the proposal, only two of Upstate's anesthesiologists and four
of the nurses were available to start immediately at Oconee. In
contrast, all of McMillan's personnel were available to start
immediately.

Prior to the board at Oconee awarding an exclusive contract,
several communications about the new exclusive contract took
place between board members and officers at Oconee. Eventually
the board awarded the contract to Upstate. McMillan was informed
that his privileges at Oconee would end before January of 2002.

As a result of the actions of Oconee and Upstate, McMillan
filed suit alleging civil conspiracy, breach of contract,
violations of the South Carolina Unfair Trade Practices Act,
breach of fiduciary duty, tortious interference with existing
contractual relations, tortious interference with prospective
contractual relations, denial of due process, wrongful taking,
and inverse condemnation. In addition, McMillan sought injunctive
relief. The trial court granted summary judgment in favor of
Oconee and Upstate as to the claims for breach of fiduciary duty,
tortious interference with existing contractual relation,
tortious interference with prospective contractual relations,
denial
of due process, wrongful taking, and inverse condemnation.
Further, the trial court granted Oconee and Upstate's directed
verdict motions for the claims for breach of contract and
violations of the South Carolina Unfair Trade Practices Act. The
parties went to trial on the issues of injunctive relief and
civil conspiracy. McMillan claimed that Oconee and Upstate
conspired to oust him from his privileges at Oconee.

The jury returned a verdict in favor of McMillan for $1,275,000
against Oconee only. As a result, McMillan made a motion to
conform the pleadings to the evidence to allege civil conspiracy
against Oconee. Oconee filed post trial motions including a
motion to reduce the verdict and a motion for judgment
notwithstanding the verdict. The trial court granted the motion
to reduce the verdict and the verdict was reduced to $300,000
pursuant to the charitable immunity statute. The trial court
denied the motion for judgment notwithstanding the verdict. In
addition, the trial court granted permanent injunctive relief in
favor of McMillan allowing him to perform certain limited
services at Oconee. However, the trial court granted Oconee's
application for supersedeas of the injunctive relief pending
appeal.

Both parties appealed. As a result, the following issues are
before the Court for review:

I. Did the trial court err in denying Oconee's
motions for directed verdict and judgment
notwithstanding the verdict as to the civil
conspiracy claims?

II. Did the trial court err in reducing the amount of
the judgment?

III. Are the charitable immunity liability limits
inapplicable to a claim for civil conspiracy, and as
a result, is Oconee not entitled to the statutory
protection therein?

IV. Do the statutory caps applicable to charitable
organizations violate equal protection?

V. Did the trial court err in granting McMillan
injunctive relief?

LAW/ANALYSIS

I. Post Trial Motions

Oconee argues that the trial court erred in denying its motion
for judgment notwithstanding the verdict as to the civil
conspiracy claim. We agree.

In ruling on motions for directed verdict and JNOV, the trial
court is required to view the evidence and the inferences that
reasonably can be drawn therefrom in the light most favorable to
the party opposing the motions. Strange v. South Carolina Dep't
of Highways and Pub. Transp., 314 S.C. 427, 429-30,
445 S.E.2d 439, 440 (1994). The motions should be denied where either the
evidence yields more than one inference or its inference is in
doubt. Id. The trial court can only be reversed by this Court
when there is no evidence to support the ruling below. Id.

An action for civil conspiracy is an action at law, and the
trial court's findings will be upheld on appeal unless they are
without evidentiary support. Gynecology Clinic, Inc. v. Cloer,
334 S.C. 555, 556, 514 S.E.2d 592, 592-93 (1999). A civil
conspiracy is a combination of two or more persons joining for
the purpose of injuring and causing special damage to the
plaintiff. Lawson v. S.C. Dept. of Corrections, 340 S.C. 346,
352, 532 S.E.2d 259, 261 (2000). Civil conspiracy involves acts
that are by their very nature covert and clandestine and usually
not susceptible of proof by direct evidence. Robertson v. First
Union Nat'l Bank, 350 S.C. 339, 349, 565 S.E.2d 309, 314
(Ct.App. 2002). However, a civil conspiracy cannot exist when the
alleged acts arise in the context of a principal-agent
relationship because by virtue of the relationship such acts do
not involve separate entities. Perk v. Vector Resources Group,
Ltd., 253 Va. 310, 485 S.E.2d 140, 144 (1997).

While this Court has not addressed the issue directly, this
Court has held that agents for a corporation acting in the scope
of their duties cannot conspire with the corporation absent the
guilty knowledge of a third party. Goble v. Am. Ry. Express Co.,
et. al., 124 S.C. 19, 26-27, 115 S.E. 900, 903 (1923). In
support of our Court's prior opinion, we believe that it is well
settled that a corporation cannot conspire with itself. See
16 Am.Jur.2d Conspiracy § 56 (2005) (stating that
a corporation cannot be a party to a conspiracy consisting of the
corporation and the persons engaged in the management, direction,
and control of the corporate affairs, where the individuals are
acting only for the corporation and not for any personal purpose
of their own).

In the present case, the jury returned a verdict against Oconee
for civil conspiracy. McMillan then made a motion to conform the
pleadings to the evidence to allege an Oconee only conspiracy. As
a result, McMillan has failed to allege or prove a conspiracy. A
civil conspiracy cannot be found to exist when the acts alleged
are those of employees or directors, in their official capacity,
conspiring with the corporation. As a result, we hold that no
conspiracy can exist if the conduct challenged is a single act by
a single corporation acting exclusively through its own
directors, officers, and employees, each acting within the scope
of his employment.

Therefore, we reverse the denial of the motion for judgment
notwithstanding the verdict.

II. Reduction of the Judgment

McMillan argues that the trial court erred in reducing the
judgment. Because we find that no conspiracy took place and a
judgment against Oconee was improper, we do not address the issue
of whether the judgment was properly reduced.

III. Applicability of Charitable Immunity Provisions

McMillan argues that the charitable immunity provisions are
inapplicable to a claim for civil conspiracy, and as a result,
damages may not be capped. Because we hold that no civil
conspiracy took place, the issue of the applicability of the
charitable immunity statute is moot.

IV. Constitutionality of Charitable Immunity Provisions

McMillan argues that the statutory caps for judgments against
charitable organizations violate the equal protection clause of
the Constitution. As a result of our holding that no civil
conspiracy existed, we do not address this issue.
Page 566

V. Injunctive relief

Oconee argues that the trial court erred in granting McMillan
injunctive relief. We agree. Because McMillan failed to prove a
civil conspiracy, the trial judge erred in granting injunctive
relief.

CONCLUSION

Based on the above reasoning, we reverse the trial court.
McMillan did not properly allege an action for civil conspiracy.
As a result, the trial court erred in denying Oconee's motion for
judgment notwithstanding the verdict.