# The Supreme Court of South Carolina

Leisel Paradis, Petitioner,

v.

Charleston County School District, James Island Charter High School, Robert Bohnsteng el and Stephanie Spann, in their individual capacities, Respondents.

Appellate Case No. 2018-002025

ORDER

After careful consideration of the petition for rehearing, the Court is unable to discover that any material fact or princi ple of law has been either overlooked or disregarded, and hence, there is no basis for granting a rehearing. Consequently, the petition for rehearing is denied. Howe ver, for clarification, a new footnote 9 has been added in the attached opinion, which is substituted for the previous opinion, and the previous opinion is withdrawn.

s/ Donald W. Beatty C.J.

s/ John W. Kittredge J.

s/ Kaye G. Hearn J.

s/ George C. James, Jr. J.I stand by my original writing, but I do not believe my differences with the majority warrant the granting of rehearing. I vote with the majo rity, therefore, to substitute the revised majo rity opinion and refile.

s/ John Cannon Few J.

Columbia, South Carolina

August 18, 2021THE STATE OF SOUTH CAROLINA In The Supreme Court

Leisel Paradis, Petitioner,

v.

Charleston County School District, James Island Charter High School, and Robert B ohnstengel and Stephanie Spann, in their individua l capacities, Respondents.

Appellate Case No. 2018-002025

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Charleston County J.C. Nicholson Jr., Circuit Court Judge

Opinion No. 28030
Heard Decem ber 12, 2019 – Filed May 19, 2021 Refiled August 18, 2021

REVERSED AND REMANDED

J. Lewis Cromer and J. Paul Porter, both of Cromer Babb Porter & Hicks, LLC, of Columbia, for Petitioner.

Rene Stuhr Dukes, of Rosen Rosen & Hagood, LLC, of Charleston, for Respondent Robert Bohnstengel; and Caroline Cleveland, Bob J. Conley, and Emmanuel Joseph Ferguson, all of Cleveland & Conley, LLC, of Charleston, for Respondent Stephanie Spann.CHIEF JUSTICE BEATTY: A civil conspiracy cl aim brought by Leisel Paradis ("Petitioner") was dismissed by the ci rcuit court for failing to plead special damages, and the dismissal was upheld by the court of appeals. We granted a petition for a writ of certiorari to c onsider the narrow question whether South Carolina's requirement of pleading special damages should be abolished. We conclude that it should. South Carolina is the only state with this unique requirement as an element, and we find it resulted from a misinterpretation of law. We overrule precedent that requires the pleading of speci al damages and return to the traditional definition of civil conspiracy in this state. Consequently, we re verse the decision of the court of appeals and remand the matte r to the circuit court for proceedings consistent with this opinion.

I. FACTS

Petitioner, a teacher, f iled a complaint asserting a defamation claim against the Charleston County School District and James Island Charter High School (respectively, "the District" and "the High School"). In addition, Petitioner asserted a civil conspiracy claim against the High Sc hool's principal and assistant principal, Robert Bohnstengel and Ste phanie Spann ("Respondents"), 1 in their individual capacities. Petitioner allege d Respondents targeted her for an unwarranted and invasive performance evaluation because they were unhappy with her desire to report a student's misconduct to the poli ce, causing her to be blacklisted and ostracized and, ultimately, termin ated from her teaching position.

The circuit court dismissed both th e defamation and the civil conspiracy claims. The circuit court ruled, inter alia , that Petitioner failed to plead special damages as required to advance her civil c onspiracy claim. Th e court of appeals
affirmed. Paradis v. Charleston Cty. Sch. Dist. , 424 S.C. 603, 819 S.E.2d 147 (Ct. App. 2018). Petitioner sought a writ of certiorari, raising several issues regarding the civil conspiracy claim. This Court granted the petition for a writ of certiorari as to Petitioner's first question, which asks the Court to abolish the rule imposing a special pleading requirement for civil cons piracy claims—i.e., requiring a plaintiff to plead special damages—which evol ved after the Court's decision in Todd v. South

1 The District and the High School particip ated in the appeal below and filed a response to the petition for a writ of certiorari. However, they did not file briefs with this Court, presumably because they were not parties to the civil conspiracy action that is the subject of the a ppeal to this Court. As a result, "Respondents" shall be used to refer to the individual parties w ho submitted briefs, Bohns tengel and Spann.Carolina Farm Bureau Mutual Insurance Co. , 276 S.C. 284, 278 S.E.2d 607 (1981). This pleading requirement has been informally referred to as the Todd rule.

II. DISCUSSION

Petitioner contends this Court shou ld overrule precedent requiring the pleading of special damages for civil c onspiracy claims, which arose after the
issuance of the Todd decision in 1981. We agree.

Civil conspiracy has long given rise to uncertainty as to its elements and proper application. See 4 James Lockhart, Cause of Action for Civil Conspiracy

, Causes of Action § 4, at 530 (2d ed. 1994) ("The elem ents of civil conspiracy are not always defined in exactly the same wa y."). Over 100 years ago, a law professor analyzed the emerging action, noting its varying definitions and the distinction
between civil and criminal c onspiracy, and he distilled the following core principles:

A combination between tw o or more persons to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful by criminal or unlawful means, subjects the confederates to criminal prosecution; and, if injury ensues to an individual therefrom, it subjects them to a civil action by their victim.

Francis M. Burdick, Conspiracy as a Crime, and as a Tort , 7 Colum. L. Rev. 229, 246 (1907).

South Carolina employed similar language in defining civil conspiracy. In an early case involving motions to strike and to make the pleadings for civil conspiracy more definite and certain, this Court stated:

[A] definition of conspiracy has been given as the conspiring together to do an unlawful act to the detriment of another or the doing of a lawful act in an unlawful way
to the detriment of another.

Charles v. Texas Co. , 192 S.C. 82, 101, 5 S. E.2d 464, 472 (1939) ( Charles I ).

The Court reiterated this de scription in the appeal from the verdict in the same case, finding no error in a jury charge defining a civil conspiracy in these terms. See
Charles v. Texas Co. , 199 S.C. 156, 176, 18 S.E. 2d 719, 727 (1942) ( Charles II )("Ordinarily a conspiracy is where two or more persons combin e or agree to do something to the detriment or hurt of anot her. If they agree to do an unlawful thing
for the detriment or hurt of another or if th ey agree to do a lawful thing but agree to
do it in an unlawful manner that would be a conspiracy."); cf. Hosp. Care Corp. v.
Commercial Cas. Ins. Co. , 194 S.C. 370, 387, 9 S. E.2d 796, 803–04 (1940) (observing "the second cause of action [fa iled to] allege the required elements of a conspiracy to accomplish an unlawful purpose or a lawful purpose unlawfully").

In Charles II , the Court pointed out the "well known principle" that resulting damages are the gist of any civil conspi racy action and an unexecuted conspiracy does not give rise to a civil cause of acti on. 199 S.C. at 177, 18 S.E.2d at 727. Thus, the Court emphasized that proof of an ov ert act and resulting damages were also
fundamental elements to sustain a civ il claim, and it found these points were adequately conveyed in the tr ial judge's instructions. Th e Court further explained, "Each conspirator is liable for all damages naturally resulting fr om any wrongful act of a co-conspirator in exercising the joint enterprise," and "[w]hether the damages proximately resulted from the wrongful act of the conspirators is ordinarily a question for the jury." Id. at 174, 18 S.E.2d at 726 (citation omitted).

Appeals involving civil conspiracy we re somewhat infrequent immediately following Charles I and Charles II , but the two decisions were recognized as authoritative, even when later cases did not fully articulate all of the requisite
elements. See, e.g.

, Lakewood Water Co. v. Garden Water Co. , 222 S.C. 450, 453, 73 S.E.2d 720, 721 (1952) (" The two decisions of Charles v. Texas Company , 192
S.C. 82, 5 S.E.2d 464, and Id. , 199 S.C. 156, 18 S.E.2d 719, rather fully enunciate the principles which govern civil actions for conspiracy and they need not be repeated here.").

The definition of civil conspiracy approved in Charles I and Charles II is also fairly universal in contemporary tort law. 2 See generally 16 Am. Jur. 2d Conspiracy § 53 (2020) ("Although stated variously fro m jurisdiction to jurisdiction, the basic elements of a civil conspiracy are (1) an agreement between two or more individuals,

2 Most states provide by common law for th e claim, and a few states have also enacted statutes in this regard. See 54 James L. Buchwalter, Cause of Action for Civil Conspiracy , Causes of Action § 2, at 603 (2d ed. 2012) ("Civil conspiracy is a claim recognized under the common law of most states. A civil conspiracy may also be actionable under state statutes specifica lly forbidding various types of concerted action for certain purposes." (citation omitted)).(2) to do an unlawful act or to do a lawful act in an unlawful way, (3) resulting in injury to [the] plaintiff inflicted by one or more of the conspirators, and (4) pursuant to a common scheme."); 15A C.J.S. Conspiracy § 4 (2012) ("The requisite elements [for civil conspiracy] are: (1 ) a combination between two or more persons; (2) to do a criminal or an unlawful act, or a lawful act by criminal or unlawful means; (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object; (4) which act results in damage to the plaintiff.").

In 1981, however, the Court issued the Todd decision, which has been interpreted as creating a new element for ci vil conspiracy claims in South Carolina— a requirement that a plaintiff plead special damages. In Todd , the plaintiff alleged five causes of action stemming from the te rmination of his employment, and each cause of action incorporated all of the prio r allegations: "(1) intentional interference with contractual relations, (2) extreme and outrageous conduc t, (3) bad faith termination of the employment contract, (4 ) invasion of privacy, and (5) conspiracy to so damage the plaintiff." Todd v. S.C. Farm Bureau Mut. Ins. Co. , 276 S.C. 284, 287, 278 S.E.2d 607, 608 (1981). One of the issues considered by the Court was
whether Todd's fifth cause of action st ated a claim for civil conspiracy. Id. at 292,
278 S.E.2d at 610.

The Todd Court began by citing, inter alia

, Charles I , and stating: "Conspiracy is the conspiring or combining together to do an unlawful act to the detriment of another or the doing of a lawf ul act in an unlawful way to the detriment
of another." Id. at 292, 278 S.E.2d at 611. The Court generally observed the
difference between a criminal conspiracy and a civil conspi racy is that the agreement is the gravamen of the offense of criminal conspiracy, whereas "t he gravamen of the tort [of civil conspiracy is] the damage re sulting to [the] plaintiff from an overt act done pursuant to the common design." Id. (citing a former version of Corpus Juris
Secundum ). 3 The Court reiterated that a civ il conspiracy becomes actionable only once overt acts occur that proximately caus e damage to the plaintiff; therefore, "conspiracy in and of itself is not a civil wrong." Id. (citation omitted).

The Court found Todd did not plead ove rt acts in furtherance of the conspiracy, so the complaint failed to state a claim for civil cons piracy as a matter
of law:

3 Similar language is in the updated version. See 15A C.J.S. Conspiracy § 104 (2012) (distinguishing civil and criminal conspiracy).As noted, the fifth cause of action does no more than incorporate the prior allega tions and then allege the existence of a civil conspiracy and pray for damages resulting from the conspiracy. No additional acts in furtherance of the conspiracy are plead . The only alleged wrongful acts plead are thos e for which damages have already been sought. . . .

The trial judge erred by overruling the demurrer to the conspiracy cause of acti on in the complaint, since
Todd can recover no additiona l damages for the alleged
fifth cause of action. The rule applicable to these pleadings is stated at 15A C. J.S. Conspiracy § 33, at 718.

"Where the particular acts charged as a conspiracy are the same as those relied on as the tortious act or actionable wrong, plaintiff cannot recover damages for such act or wrong, and recover likewise on the conspiracy to do the act or wrong."

Todd seeks damages in his first four causes of action for the same acts incorporated by the fifth cause. He is therefore precluded from seeking damages for the same

acts yet again . As such, the fifth cau se fails to state an
action.

Id. at 293, 278 S.E.2d at 611 (em phasis added). Although Todd ostensibly spoke in terms of the failure to plead additional acts to support the civil conspiracy claim and not allowing duplicative recoveries for the same acts, cases after Todd began enumerating three required elements to a ssert an allegation of civil conspiracy, including the element of pl eading "special damage":

A civil conspiracy . . . consis ts of three elements: (1) a combination of two or more persons, (2) for the purpose of injuring the plaintiff, (3) which causes him special damage.

Lee v. Chesterfield Gen. Hosp., Inc. , 289 S.C. 6, 10, 344 S.E. 2d 379, 382 (Ct. App. 1986); accord Island Car Wash, Inc. v. Norris , 292 S.C. 595, 600, 358 S.E.2d 150,152 (Ct. App. 1987) (citing Lee and its three-part defin ition of civil conspiracy); Yaeger v. Murphy , 291 S.C. 485, 487, 354 S.E.2d 393, 394 (Ct. App. 1987) (citing
the definition in Lee ).

While the requirement of pleading special damages became known as the
Todd rule, notably none of the foregoing cases ( Lee

, Island Car Wash , and Yaeger ) specifically cited Todd for the three-part definition of civil conspiracy incorporating
this element. Island Car Wash and Yaeger relied solely on the definition in Lee and
did not cite Todd for any legal proposition. Lee did cite Todd , but it was in the context of distinguishing civil and criminal conspiracy and reiterating the need to show an overt act and resulting damage for a civil claim.

In Lee , the court of appeals indicated th e parties had confused civil and criminal conspiracy. 289 S.C. at 10, 344 S.E.2d at 381. The court stated the definition involving an agreement to underta ke "an unlawful act or a lawful act by unlawful means" defined only a criminal conspiracy, and instead enumerated a three-part test for a civil action—"(1) a co mbination of two or more persons, (2) for the purpose of injuring the plaintiff, (3 ) which causes him special damage." Id. at 10, 344 S.E.2d at 382. In doing so, it cited this Court's decision in Charles I , along
with a 1915 Tennessee decision a nd several United Kingdom cases. 4 Id.

We note this Court's pr ecedent demonstrates the defi nitional elements of civil conspiracy actually pa rallel the elements of criminal conspiracy. 5 See Bradley v. Kelley Bros. Contractors , 117 So. 3d 331, 339 (Miss. Ct . App. 2013) (observing the elements of criminal conspiracy and civil conspiracy "are quite similar" and noting

4 While the United Kingdom cases have some efficacy, we do not find them
determinative of South Carolina law. In particular, we note so me of the decisions
consist of a collection of individual determ inations, with each individual expressing his own, singular opinion. Although such decisions reach one ultimate result, they are not all in agreement in their reasoning.

5 See S.C. Code Ann. § 16- 17-410 (2015) ("The comm on law crime known as 'conspiracy' is defined as a combination be tween two or more pe rsons for the purpose of accomplishing an unlawful object or lawful object by unlawful means."); see also
State v. Davis , 88 S.C. 229, 232, 70 S.E. 811, 812–13 (1911) ("[T]he description which seems to have the widest recognitio n and approval by the authorities declare a criminal conspiracy to c onsist of a combination betwee n two or more persons for the purpose of accomplishing a criminal or unlawful object, or an object neither criminal nor unlawful by criminal or unlawful means." (citation omitted)).civil conspiracy turns on the existence of da mages). The similarity is logical because the major difference between civil and crimin al conspiracy is a plaintiff's need to additionally prove an overt act and resulti ng damages to obtain a civil recovery. See
16 Am. Jur. 2d Conspiracy § 53 (2020) ("The elements of civil conspiracy are quite similar to those required of a criminal conspiracy, with the distinguishing factor being that an agreement is the essence of a criminal conspir acy, while damages are the essence of a civil conspiracy."); id. § 55 ("The gist of a civil conspiracy is not the unlawful agreement or combination but the damage caused by the acts committed in pursuance of the formed conspiracy." (emphasis added)); see also 15A C.J.S. Conspiracy § 7 (2012) ("Although criminal and civil conspiracy have similar elements, the distinguishing factor between the two is that damages are the essence of a civil conspiracy, and the agreement is the essence of a criminal conspiracy."). 6

Later cases began reciting Lee 's three-part test for civil conspiracy that developed post- Todd and which included the requirement of pleading special damages. See LaMotte v. Punch Line of Columbia, Inc. , 296 S.C. 66, 370 S.E.2d 711 (1988); see also Pye v. Estate of Fox , 369 S.C. 555, 633 S.E.2d 505 (2006); McMillan v. Oconee Mem'l Hosp., Inc. , 367 S.C. 559, 626 S.E.2d 884 (2006); Lawson v. S.C. Dep't of Corr., 340 S.C. 346, 532 S.E.2d 259 (2000); Future Group
II v. NationsBank , 324 S.C. 89, 478 S.E.2d 45 (1996); Hackworth v. Greywood at Hammett, LLC , 385 S.C. 110, 682 S.E.2d 871 (Ct. App. 2009). Inexplicably, this new requirement for special damages was labeled the Todd rule.

Although the Court did not me ntion "special damages" in Todd , several years
after Todd a few cases, such as Lee , 289 S.C. at 10, 344 S.E. 2d at 382, recited the three-part test for civil conspiracy that appeared to contain the pleading requirement
as an element of the claim. This definition, in tu rn, was then quoted repeatedly by our appellate courts. This pleadi ng requirement became known as the Todd rule.

6 In a case discussing criminal conspiracy , this Court has observed that "unlawful" merely means "contrary to law" and is not limited to criminal conduct. State v.
Davis , 88 S.C. 229, 233, 70 S.E. 811, 813 (1911) ("It is enough if the acts agreed to be done, although not criminal , are wrongful; that is am ount to a civil wrong." (citations omitted)). As for civil conspiracy, early Englis h law has noted that, "[i]n
view of the infinite variations of oppressive misconduct[ ,] no definition [of "unlawful means"] can be given which is at once satisfactory and exhaustive." Pratt

v. Brit. Med. Ass'n , [1919] 1 K.B. 244, 260 (1918). However, Pratt stated precedent recognized that violence or threats of physical violence, threats not involving physical harm, nuisance, and fraud, are re adily encompassed, although they are not the only examples. See id. at 260–61.See, e.g.

, Vaught , 300 S.C. at 209, 387 S.E.2d at 95 ("hold[ing] the conspiracy action
is barred under Todd " where special damages were no t properly allege d). However, the pleading requirement's relationship to Todd is rendered somewhat tenuous because, as previously not ed, the earliest cases did not specifically cite Todd for this requirement. See, e.g.

, Island Car Wash , 292 S.C. at 600, 358 S.E.2d at 152; Yaeger

, 291 S.C. at 487, 354 S.E.2d at 394.

This test resulted in the dismissal of civil conspiracy actions that did not expressly plead special damages on the basis th ey failed to adequa tely allege a cause
of action. South Carolina courts held th at, because special damages are a required element of a civil conspiracy claim, a plaintiff must plead special damages that go beyond the damages allege d in other claims to state a cause of action. Those cases further stated that, if a plaintiff merely repeated the damage s from another claim without specifically listing special damages as part of the civil conspiracy allegation, then the civil conspiracy ac tion must be dismissed. See, e.g.

, Hackworth , 385 S.C. at 117, 682 S.E.2d at 875 ("If a plaintiff me rely repeats the damages from another
claim instead of specifically listing special damages as part of their civil conspiracy claim, their conspiracy claim should be dismissed." (emphasis added)); Vaught v.

Waites , 300 S.C. 201, 209, 387 S.E.2d 91, 95 (C t. App. 1989) ("The damages sought in the conspiracy cause of action are the same as those sought in the breach of contract cause of action. Because no sp ecial damages are alleged aside from the breach of contract damages, we hold the conspiracy action is barred under Todd ."). 7

We granted Petitioner's motion to argue against the Todd rule in the current case, where her civil conspiracy claim was dismissed at the pleadings stage for the failure to plead special damages. 8 Petitioner contends the requirement of pleading special damages for civil conspiracy s hould be abandoned beca use it resulted from,

7 The law requiring the dismissal of a civ il conspiracy claim for failing to plead special damages has also been cited in fe deral courts applying South Carolina law. See, e.g.

, Callum v. CVS Health Corp. , 137 F. Supp. 3d 817 (D.S.C. 2015); Alonso

v. McAllister Towing of Charleston, Inc. , 595 F. Supp. 2d 645 (D.S.C. 2009)

.

8 The Todd rule requiring the pleading of special damages was previously called into question in another case before this Court, but we declined to abandon the rule at
that time because a trial had been held some twelve years prior in that matter, and
there was concern that it would be unfair to change the requirements for pleadings and proof upon remand, given the age of the case. See Allegro, Inc. v. Scully , 418
S.C. 24, 34 n.3, 791 S. E.2d 140, 145 n.3 (2016).inter alia , a misreading of Corpus Juris Secundum . We agree the Todd rule should
be abolished.

In Todd the Court cited 15A C.J.S Conspiracy § 33 and held a plaintiff in a civil conspiracy action must allege acts in furtherance of the conspiracy. The Court noted the only wrongful acts alleged were those for which damages had already been sought, so the claim failed as a matter of law. This was ta ken in cases after Todd as imposing a requirement of pleading (and proving) special damages for a civil conspiracy claim. We find this section of Corpus Juris Secundum simply addressed a prohibition on duplicative recoveries; it did not establish a requirement of pleading special damages for civil conspir acy claims. The plaintiff in Todd failed to plead any overt acts in furtherance of the conspiracy. Thus, th e Court correctly concluded the civil conspiracy claim failed as a matter of law. In th at situation, the Court noted, the plaintiff's repetition of the same acts as the prior claims was insufficient to salvage the claim.

We note that, in addition to perhap s resulting from a misinterpretation of Corpus Juris Secundum and Todd , the pleading requirement for civil conspiracy also perhaps resulted, at least in part, from diffe ring interpretations of the term "special damages." Traditionally, general damages are implied by law a nd can be alleged without particularity because they are th e proximate and forese eable consequences of the defendant's conduct. Special damages, in contrast, are those that might be the natural result of an injury, but not the necessary or usual consequences of the defendant's conduct, and th ey typically are unique to a particular case. See 5A Charles Alan Wright, Arthur R. Miller & A. Benjamin Spencer, Federal Practice
and Procedure § 1310 (4th ed. 2018) (distinguishi ng general and special damages).
Under the South Carolina Rules of Civil Procedure ("SCRCP") a nd under the federal procedural rules, special da mages must be specifically pled to avoid surprise and give notice to the opposing party. See, e.g. , Rule 9(g), SCRCP.

In this context, however, it seems Sout h Carolina precedent has varied in what it considers "special damages." See generally Michael G. Sullivan, Elements of Civil Causes of Action 89–90 (5th ed. 2015, Douglas MacGregor, ed.) ("The requirement that the plaintiff plead speci al damages means essentially this - that the complaint must describe damages that occurred as a result of the conspiracy in addition to any alleged as a result of other claims."). But see Hackworth , 385 S.C. at 116–17, 682 S.E.2d at 875 ("Special damages are those elem ents of damages that are the natural, but not the necessary or usua l, consequence of the defenda nt's conduct. . . . Special damages . . . are not implie d at law because they do not necessarily result from the wrong. Special damages must, therefore, be specifically alleged in the complaint toavoid surprise to the other party." (inter nal citation omitted)). We further note the SCRCP, which require that sp ecial damages be specifically pled, were not in effect
at the time Todd was decided.

The essential principle Todd intended to address was the need to plead an overt act in furtherance of the agreement, not special damages. As a result, we
overrule Todd and cases relying on Todd or other precedent, such as Lee , to the extent they impose or appear to impose a requirement of pleading (and proving) special damages. South Carolina's position in this regard was an outlier, as our
research indicates South Carolina was the onl y state to require the pleading of special damages.

In light of our decision today, we ar e returning to our long-standing precedent

pre- Todd and for clarification specifically state a plaintiff asserting a civil conspiracy claim must establish (1) the combination or agreement of two or more persons, (2) to commit an unlawful act or a lawful act by unlawful means, (3) together with the
commission of an overt act in furthera nce of the agreement, and (4) damages proximately resulting to the plaintiff. 9 See Charles II , 199 S.C. at 176, 18 S.E.2d at 727; Charles I , 192 S.C. at 101, 5 S.E.2d at 472; see also 16 Am. Jur. 2d Conspiracy § 53 (2020) (enumerating the prevailing elem ents of a claim for civil conspiracy recognized in most jurisdictions); 15A C.J.S. Conspiracy § 4 (2012) (same). By doing so, we are returning not only to our hi storical roots, but also to the traditional elements of a civil conspir acy claim as they have b een similarly defined by the majority of jurisdictions. 10

9 Since civil conspiracy is an intentional to rt, an intent to harm, which has also been discussed in our conspiracy law, remain s an inherent part of the analysis. See 16 Am. Jur. 2d Conspiracy § 53 (2020) ("Since one cannot agree, expressly or tacitly, to commit a wrong about which they ha ve no knowledge, in order for civil conspiracy to arise, the parties must be aw are of the harm or wrongful conduct at the beginning of the combination or agreement. Thus, civil c onspiracy is an intentional tort requiring a specific intent to acco mplish the contemplated wrong." (footnotes omitted)).

10 Most states incorporate th e elements of an agreement to do an unlawful act or a lawful act by unlawful means (or the common variation of an unlawful purpose or a lawful purpose by unlawful means). See, e.g.

, Harp v. King , 835 A.2d 953, 972 (Conn. 2003); Mustaqeem-Graydon v. SunTrust Bank , 573 S.E.2d 455, 461 (Ga. Ct. App. 2002); Yoneji v. Yoneji , 354 P.3d 1160, 1168 (Haw. Ct. App. 2015); Hall v.
Shaw , 147 N.E.3d 394, 407–08 (I nd. Ct. App. 2020); Coghlan v. Beck , 984 N.E.2dWe disagree with the concurring/disse nting opinion to the extent it goes beyond the sole question accepted by this Court—which asks, "Should the Court reverse the special damages pleading requir ement on civil conspiracy claims arising
from Todd v. S.C. Farm Bureau Mut. Ins. Co. ?"— and appears to consider a point raised by Respondents in their brief. Name ly, whether civil conspiracy itself should be "abolished" as an independent claim in this state and should, instead, always be dependent on an underlying actionable wrong or tort. Respondents have not crossappealed in this matter, and we reject Res pondents' attempt to advance this issue for the first time on appeal. Any further arguments potentially affecting the viability of Petitioner's claim, whether they arise from this Court's decision or otherwise, are properly raised upon remand to the circuit cour t, in the first instance, particularly
where the case was halted at the pleadings stage.

We note a few jurisdictions recognize two forms of civil conspiracy. The first, which is the general rule, requires an underlying actionable wrong or tort, and liability is imposed on an individual for the tort of another. A second form, also described as an exception to the general rule, exists when the conduct complained of would not be actionable if done by one person, but where by force of numbers or other exceptional circumstances, the defendants possess a peculiar power of coercion that gives rise to an independent to rt of civil conspiracy (often referred to
as the "force of numbers" or "economic boycott" exception). See Am. Diversified Ins. Servs., Inc. v. Un ion Fid. Life Ins. Co. , 439 So. 2d 904 (Fla. Dist. Ct. App. 1983); Baker v. Wilmer Cutler Pickering Hale & Dorr LLP , 81 N.E.3d 782 (Mass. App. Ct. 2017); see also Schmitt v. MeritCare Health Sys. , 834 N.W.2d 627, 635 (N.D. 2013)

132, 151 (Ill. App. Ct. 2013); Peoples Bank of N. Ky., Inc. v. Crowe Chizek & Co.

, 277 S.W.3d 255, 260–61 (Ky. Ct. App. 2008); Franklin v. Erickson , 146 A. 437, 438 (Me. 1929); Shenker v. Laureate Educ., Inc. , 983 A.2d 408, 428 (Md. 2009);
Swain v. Morse , No. 346850, 2020 WL 3107696, at *7 (Mich. Ct. App. June 11, 2020); Bradley v. Kelley Bros. Contractors , 117 So. 3d 331, 339 (Miss. Ct. App. 2013); Envirotech, Inc. v. Thomas , 259 S.W.3d 577, 586 (Mo. Ct. App. 2008); George Clift Enters., Inc. v. Oshkosh Feedyard Corp. , 947 N.W.2d 510, 537 (Neb. 2020); Jay Edwards, Inc. v. Baker , 534 A.2d 706, 709 (N.H. 1987); Banco Popular

N. Am. v. Gandi , 876 A.2d 253, 263 (N.J. 2005); In re Fifth Third Bank, N.A. , 719 S.E.2d 171, 181 (N.C. Ct. App. 2011); Schmitt v. MeritCare Health Sys. , 834 N.W.2d 627, 635 (N.D. 2013); Phillips v. Selig , 959 A.2d 420, 437 (Pa. Super. Ct. 2008); Trau-Med of Am., Inc. v. Allstate Ins. Co. , 71 S.W.3d 691, 703 (Tenn. 2002); Pohl, Inc. of Am. v. Webelhuth , 201 P.3d 944, 954–55 (Utah 2008); Wilson v. State

, 929 P.2d 448, 459 (Wash. Ct. App. 1996); N. Highland Inc. v. Jefferson Mach. & Tool, Inc. , 898 N.W.2d 741, 747 (Wis. 2017).(observing "[s]ome courts ha ve applied an 'economic boyc ott' or 'force of numbers' exception to the general rule that the ba sis for a civil conspiracy must be an independent wrong or tort," but not decidi ng whether to adopt the exception in that state because it would not be applicable, in any event). Early South Carolina law

pre- Todd appeared to reference similar concepts. See, e.g.

, Howle v. Mountain Ice
Co. , 167 S.C. 41, 58, 165 S.E. 724, 729 (1932); Charles II , 199 S.C. at 170, 18 S.E.2d at 724. However, to rule on whether this Court has or ever w ill recognize an exception to the general rule would require the Court to issue an advisory opinion on a distinct subject that has not yet been disputed in this case.

III. CONCLUSION

Because the court of appeals upheld the dismissal of Petitioner's civil conspiracy claim based on the failure to plead special damage s, we reverse and
remand the matter to the circuit court for further proceedings on Petitioner's claim for civil conspiracy. Our decision in Pet itioner's case is base d solely on the narrow question before the Court rega rding the abolishment of the Todd rule, and we do not reach any other issue concerning the viability or merits of Petitioner's claim. Any other cases on appeal that have already been tried under the Todd framework shall be decided using the Todd analysis.

REVERSED AND REMANDED.

HEARN and JAMES, JJ., concur. KITTREDG E, J., concurring in result in a separate opinion. FEW, J. , concurring in part and dissenting in part in a separate opinion.I JUSTICE KITTREDGE: I concur in result. In ov erruling the so-called "special damages" requirement of Todd v. South Carolina Farm Bureau Mutual Insurance

Co.

, 11 the Court must necessarily examine th e elements of civil conspiracy. commend Chief Justice Beatty for his exce llent opinion, which tracks this Court's meandering civil conspiracy jurisprudence and properly restores the elements of a civil conspiracy claim to its original under standing. As a result of today's opinion, it is again settled that a civil conspiracy claim requires proof of (1) the combination or agreement of two or more persons, (2) to commit an unlawful act or a lawful act by unlawful means, (3) together with the co mmission of an overt act in furtherance of the agreement, and (4) da mages proximately resulting to the plaintiff. Stated differently, we have abandoned the standardless formula tion that required only (1) a combination of two or more persons, (2) fo r the purpose of injuring the plaintiff, and (3) which caused the plaintiff sp ecial damage. I write separa tely to address the effect

of Todd on the election of remedies and not e my support for the concurrence of

Justice Few.

First, in my judgment, Todd is more properly viewed as an election of remedies case, not a pleading case. Todd created a fiction that special damages caused by the civil conspiracy were somehow different than the damages caused by the underlying unlawful conduct. That misunderstanding, in turn, led to a misapplication of our

election of remedies law. Because a ci vil conspiracy claim was purportedly supported by special damages, some trial c ourts would avoid an election of remedies and permit a double recovery. Today's rej ection of a special damages requirement should restore a proper approach to electi on of remedies. For one wrong, there is

one recovery.

Next, I view Justice Few's concurrence as well within the question accepted by this Court for review. The misguided pleading rule that grew out of Todd spawned a

series of cases that furthe r separated civil conspiracy from its original moorings. Justice Few compellingly frames the amorphous nature of the civil conspiracy cause

of action that resulted from Todd and its progeny. It is the second element—to

commit an unlawful act or a lawful act by unlawful means —that restores an objective legal standard to this cause of action. When th e appellate courts of this state approved of an analytical framework that allowed one's personal sense of fairness and right and wrong to be sufficient for a civil conspiracy claim, we created

a rudderless cause of action. Justi ce Few correctly observes that the post- Todd

11 276 S.C. 284, 278 S.E.2d 607 (1981).sanctioned civil conspiracy claim "permit[te d] the court and jury to impose liability for lawful, non-tortious conduct based on a court or juror's sense of fairness or responsibility." I do not construe Justi ce Few's concurrence as "abolishing" civil conspiracy. Rather, by restoring the traditi onal elements of a civil conspiracy claim and overruling Todd 's so-called special damages pl eading requirement, this Court returns civil conspiracy to its historical roots. Because the Court has reset the elements of civil conspiracy and restor ed an objective standard, I would apply today's decision prospectively with one ex ception: for those cases that were tried

under the Todd rubric and are on appeal now, I wo uld evaluate the merits of the appeal under the Todd framework.JUSTICE FEW: I agree with the majo rity that the requirement of pleading and proving special damages in a civil conspir acy action is based on a misunderstanding of law, and the requirement must be elimin ated. To that exte nt, I concur in the majority opinion. However, the special damages requirement we now hold legally invalid previously served the valid practi cal purpose of restraining the use of the undefined civil conspiracy cause of action. In almost all legitimate civil actions, there are no "special damages" as that term was used in civil conspiracy. In other words, it was hardly ever possible to a llege or prove "damages that go beyond the damages alleged in other cause s of action." As a practi cal matter, therefore, the requirement of special damages prevented civil conspiracy from being a significant cause of action in civil litigation. Now, a ny plaintiff may bring a civil conspiracy action against any defendant—even for la wful, non-tortious conduct—and the law imposes no meaningful standards on courts and juries by which they must judge the defendant's conduct. I disagree with the majority that we should unleash this stillundefined and now-unrestrained menace on the public as an independent tort. To that extent, I respectfully dissent.

Certainly, civil conspiracy is a proper cause of action in its derivative form. If two people conspire to commit fraud, for example, but the actual fraudulent conduct is carried out by only one of them, the injured plaintiff should be able to sue both of them. The law imposes specific requirement s a plaintiff must meet for a fraud cause of action, and those requireme nts provide standards by which courts and juries must judge the conduct of both defendants. The same is true for defamation, one of the plaintiff's theories of recovery in this case. If one defendant who did not personally commit defamatory acts conspired with anot her who did defame the plaintiff, the legal elements the plaintiff must establish in a defamation case—along with the legal requirements for conspiracy—guide the court and the jury in deciding whether the conspirator should also be liable for defamation.

As an independent tort, however, the undefi ned theory of civil conspiracy leaves courts and juries free to determine civil liability—both of the alleged tortfeasor and the supposed conspirator—not based on the law, but by using the individual judge or juror's sense of fairness or responsibility . Imagine in a fraud case that the dispute arose out of business competition betwee n the plaintiff and the defendant. The defendant intentionally made a false statement to the plaintiff for the purpose of gaining competitive advantage. Imagine furt her the plaintiff's fraud cause of action fails because the court or the jury finds —applying the law—the plaintiff had no right to rely on the false statements. The de fendant's conduct might have been unfair orirresponsible, but the plaintiff loses on the fraud claim—rightfully—because the law does not support the claim.

If, however, the plaintiff's lawyer thought to add a cause of action for civil conspiracy, the plaintiff might nevertheless prevail because the independent tort of civil conspiracy has no specific requirement s, elements, or standards to guide the court and jury. Civil conspi racy—as the majority "return[s] . . . to our historical roots"—permits the court and jury to impose liability for la wful, non-tortious

conduct.

We need not imagine how a defamation claim could unfold; we can turn to the plaintiff's allegations in this case. The pl aintiff alleged in her complaint the principal of the school where she taught became angry when she as ked him to report a student to the police for disruptive behavior in her classroom. She claimed the principal retaliated against her by placing her into a formal job evaluation process she did not

deserve and her conduct did no t warrant. By the time th e evaluation results were reported, the principal was no longer involv ed, both because he did not participate in the evaluations and because he was no longer employed at the school. She

claimed statements made about her du ring the evaluation process—not by the principal—defamed her as being a bad teacher. On a derivative claim for conspiracy to commit defamation, the principal would ha ve the defenses of truth, fair reporting privilege, the two-year statute of limitations for defamation, 12 and perhaps others. If the statements made by those conducting the ev aluation were true or fair, or if the claim was brought outside the limitations period, the principal—like those who made the defamatory remarks—would rightfu lly benefit from those legally defined

defenses.

12 See S.C. Code § 15-3-550(1) (2005) (requiring "an action fo r libel [or] slander" be brought "[w]ithin two years"). The Gene ral Assembly, in enacting subsection 15-3

- 550(1), made a policy judgment that defamati on actions must be brought in a shorter time than the general limitations period of three years set forth in section 15-3-530 of the South Carolina Code (2005). In th is case, the defendants prevailed on the
statute of limitations defense as to th e plaintiff's defamation claims. By now permitting the plaintiff to sue for the ve ry same conduct—defa mation—outside the limitations period for defamation cases—sim ply because the defamation claim is labeled as civil conspiracy—the majority fru strates the General Assembly's intent to require defamation cases be brought within two years.The plaintiff's lawyer in this case did think to add a cause of action for civil conspiracy. Thus, on the majority's remand for trial, the plaintiff might nevertheless prevail because the independent tort of ci vil conspiracy has no specific requirements, elements, or standards to guide the court and jury. Defamation defenses do not apply to civil conspiracy, which—as confirmed by the majority to be an independent tort— permits the court and jury to impose liab ility for lawful, non-tortious conduct based on a court or juror's sense of fairness or responsibility. In other words, the civil conspiracy claim we remand for trial permits a court and jury to impose liability for defamation despite the fact the law provide s valid defenses that prevent liability.

My point is illustrated by a case I tried year s ago when I was a ci rcuit judge. I have modified the facts slightly for simplicity. In an aging twenty-four unit condominium building in a beachfront city here in S outh Carolina, owners could sell individual units for an average of $250,000. A real estate developer believed he could renovate the building and sharply increase the value of each unit. The developer offered to purchase each unit for $400,000 on the condition that each of the twenty-four owners

must sell. The owners realized their units were undervalued; they predicted that even this offer was less than full value; and they decided to seek competing offers from other developers. Afte r receiving a superior offe r from a second developer,

and a counter offer from the first, the owners voted to accept the offer from the second developer. Twenty-three of them en tered contracts to sell their units to the second developer.

The first developer—understandably—did not gi ve up. He had figured out a way to bring a combined financial benefit of $3 .6 million ($150,000 each) to the twentyfour unit owners, to renovate an aging bu ilding in the city, to employ quite a few people in the renovation and re sale process, and to make a considerable profit for himself. He knew the condominium owners' association by-laws did not permit a

sale or renovation of the en tire building on less than a unanimous vote. Thus, he knew the second developer could not comp lete the deal without successfully purchasing all twenty-four units. So, the fi rst developer approached one of the unit owners and purchased that individual un it for $600,000. By doing so, he placed

himself back in control of th e deal he had conceived.

Everybody was furious with the first developer, and they all sued him on every

conceivable cause of action. The breac h of contract claim failed because the developer had no contract with anyone excep t the one owner who sold to him. The breach of fiduciary duty claim failed because the developer owed no such duty. Thefraud and slander of title claims failed because the developer made no false

statement. The intentional interference w ith a contract claim failed because the developer was justified in purchasing real estate to further his own financial interests. The interference with prospec tive contractual rights claim failed because

the unit owners had a contract to sell to the second developer, not prospective contractual rights. I dismissed each of those claims because—applying the law— the plaintiffs had no right to recover from the developer. Nothing was left, except civil conspiracy.

In a hearing on the developer's motion fo r a directed verdict, the plaintiffs acknowledged the developer's actions were lawful. Quoting, however, from this Court's opinion in LaMotte v. Punch Line of Columbia, Inc. , 296 S.C. 66, 70, 370 S.E.2d 711, 713 (1988), the plaintiffs argued "lawful acts may b ecome actionable as a civil conspiracy when the 'object is to ruin or damage the business of another,'" and, "An action for civil conspiracy ma y exist even though respondents committed

no unlawful act and no unlawfu l means were used."

The plaintiffs' arguments were facially co rrect. The first developer intentionallyconspired with the owner of one unit for the purpose of preventing the other twentythree owners from realizing the extra valu e in their units, and for the purpose of preventing the second developer from pr ofiting from renovation of the building and resale of the renovated units. Yet, I granted a directed verdict on the civil conspiracy

claim. I did so because the law should neve r permit a court or a jury to impose civil liability for lawful, non-torti ous conduct. Without specifi c requirements, elements, or standards, the decision maker is left with nothing but its own sense of what is fair or responsible. That is ne ither fair nor responsible.

In our free-enterprise economy, we encourag e entrepreneurs to us e aggressive tactics to seize competitive advantag e, create jobs for our people, and build value for our communities. For these efforts, entrepre neurs rightfully expect to earn handsome profits. Participants in this healthy co mpetition use every lawful tactic at their disposal. Those who lose out are understa ndably envious, and often angry. But,

actions that conform to the law—even wh en motivated by anger or an intent to harm—must not be the basis of civil liability. As the Supreme Court of the United States admonished 160 years ago,

An act legal in itself, and violating no right, cannot be

made actionable on account of the motive which superinduced it. It is the provi nce of ethics to consider ofactions in their relation to mo tives, but jurisprudence deals

with actions in their relation to law . . . .

Adler v. Fenton , 65 U.S. 407, 410, 16 L. Ed. 696, 698 (1860).