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Court of Appeals Published Opinions - June 2004

Note: Beginning in June 2012, opinions will be posted as Adobe PDFs. You can download a free copy of Adobe Reader here.

The summary following each opinion is prepared to offer lawyers and the public a general overview of what a particular opinion decides. The summary is not necessarily a full description of the issues discussed in an opinion.

6-1-2004 - Opinions

3804 - State v. Smith

In this criminal matter, Smith appeals from his convictions for homicide by child abuse and aiding and abetting homicide by child abuse in the death of Jordyn Durant, the daughter of Smigh's co-defendant, Celeste Durant. He asserts the trial judge erred in denying his motion for directed verdict and in denying his motion to sever his trial from that of his co-defendant.

3805 - WDI Meredith & Company v. American Telesis, Inc.

Determines that although fifty percent shareholder would not have authority to enter into a contract to sell corporation, he did have authority to bind corporation to a consulting contract for the purpose of seeking a purchaser for the corporation.

3806 - State v. Mathis

In this criminal case, the Court analyzes the defense of double jeopardy based on the grant of a prior mistrial to the State. Additionally, the appellant alleges error in the admission of prior allegations of sexual advances by appellant against the victim.

3807 - RoTec Services, Inc. v. Encompass Services, Inc.

Rotec Services brought this action against Encompass Services, asserting causes of action for breach of contract as well as tortious interference with existing and prospective contracts. Encompass counterclaimed, alleging breach of contract, breach of contract accompanied by a fradulent act, and breach of the implied covenant of good faith and fair dealing. On Rotec's motion for partial summary judgment, the trial court dismissed Encompass's claims for breach of contract accompanied by a fraudulent act and breach of implied covenant of good faith and fair dealing. The court also dismissed Encompass's defense of privilege. Encompass appeals.

3808 - Wynn v. Wynn

Husband appeals the family court's equitable division award and its decision to award attorney's fee to Wife.

3809 - State v. Belviso

We are asked to determine whether the circuit court, in its appellate capacity, has jurisdiction to hear an appeal from a magistrate court’s pre-trial ruling that precludes or significantly impairs the prosecution of a criminal case. We hold the circuit court has jurisdiction over such an appeal. The contrary decision of the circuit court is reversed, and the matter is remanded.

3810 - Jones v. SCDOT

These actions arise from an automobile accident involving Viola Bryan Byson and the minor daughter of Larry and Charlotte Jones. The Joneses and Byson settled their property damage and personal injury actions and each executed a release of all other claims arising from the accident. Each later raised separate claims against the South Carolina Department of Transportation (SCDOT), asserting the department’s negligence contributed to the accident. In both cases, the circuit court granted summary judgment in favor of SCDOT on the grounds the action was barred by the releases. We consolidate these appeals pursuant to Rule 214, SCACR, and affirm.

3811 - Estate of Sherman v. Estate of Sherman

This appeal arises from a declaratory judgment regarding a deed executed by the decedent to herself and her husband. The trial court found the deed effectively created a right of survivorship, and therefore, the subject property belonged in fee simple to Husband's estate.

3812 - State v. Galbreath

After a jury convicted Galbreath of ABHAN, defense counsel filed a motion for a new trial alleging three instances of juror misconduct. The trial judge held a hearing and considered affidavits, but refused to reconvene the jury for questioning and denied the new trial motion. We affirm.

3813 - Bursey v. S.C. Department of Health and Environmental Control and S.C. Electric and Gas Company

In this civil action, the Court analyzes the proper standard of review in an appeal from a Mining Council decision and analyzes the statutory definition of "mining" as juxtaposed to an "excavation and construction project."

3814 - Beckmann Concrete Contractors, Inc. v. United Fire and Casualty Co. and Golf Construction of America

In this civil action, the overriding issue is whether the claim pled in the complaint was for a liquidated amount and governed by Rule 55(b)(1), SCRCP, rather than Rule 55(b)(2), SCRCP. Additionally, the Court analyzes the request for relief from a default judgment under the "good cause" standard or the "excusable neglect" standard.

3815 - Edens v. Milliken & Company

In this Workers' Compensation case, the Court analyzes the exclusivity provisions of the Workers' Compensation Act in the "statutory employer" setting. Additionally, the Court reviews the intentional tort exception under the Workers' Compensation Act. Finally, the Court addresses the statute of limitations as a defense in a common law action proceeding.

3816 - SCDSS/ChildSupport Enforcement v. Carswell

In this family court case, the Court reviews the priority of a South Carolina family court order as juxtaposed to a State of Washington family court order in regard to child support. Additionally, the Court discusses with specificity the Full Faith and Credit for Child Support Orders Act (FFCCSOA).

3817 - Wimberly v. Barr

Landowner brought an action against an adjoining landowner and logging companies for cutting timber on his property without permission. The jury awarded actual and punitive damages. After post-trial motions, the trial judge decreased the amount of actual damages to equal three times the value of the timber pursuant to S.C. Code Ann. section 16-11-615 (2003) (the timber statute). The punitive damages were not altered. Landowner appeals the reduction of the actual damages, and the logging companies appeal the failure to reduce the punitive damages. We affirm in part and reverse in part.

6-7-2004 - Opinions

3818 - Hawkins v. Mullins

William Mark Mullins appeals the decision of the family court, asserting the trial judge erred in failing to find Julie C. Hawkins in contempt of court for various violations of previous court orders relating to visitation with the parties’ minor child. The court found Hawkins should be held in contempt for noncompliance with a court order and remanded the matter to the trial court for consideration of sanctions and attorney’s fees if the trial court deems them appropriate.

3819 - Knight v. Waggoner

James E. Knight, Jr., and Fredrick Zeigler appeal a ruling by the trial court at the close of evidence allowing Jene Marie Waggoner to voluntarily withdraw counterclaims for trespass and conversion upon a motion by Knight and Zeigler for a directed verdict on those claims. Knight and Zeigler contend that dismissing these counterclaims without prejudice was an abuse of the trial judge’s discretion The court held Knight and Zeigler failed to meet their burden of showing legal prejudice at trial and the issue is predominantly moot and affirmed the trial court’s ruling.

3820 - Camden v. Hilton

In this civil action, two jury verdicts were rendered: (1) a verdict for the defendant on a Section 1983 cause of action; and (2) a verdict for the plaintiff for actual and punitive damages on state law claims. The trial judge "conformed" or "reformed" the Section 1983 verdict form after the jury was released by awarding the plaintiff a jury verdict on this claim.

3821 - Venture Engineering, Inc. v. Tishman

Venture Engineering, Inc. brought a mechanic’s lien foreclosure action against Tishman Construction of South Carolina, Timberland Properties, Inc., and the South Carolina Public Service Authority. Venture appeals the master-in-equity’s order finding that Venture’s mechanic’s lien did not encumber property owned by Santee Cooper. The Court of Appeals affirmed the master’s ruling finding Venture’s mechanic’s lien could not be enforced because the bankruptcy court approved the sale of the property, and res judicata, waiver and equitable estoppel barred Venture’s claim.

3822 - Rowell v. Whisnant

Affirms propriety of awarding attorney's fees in a foreclosure action even though right to foreclose mortgage is denied.

6-14-2004 - Opinions

3823 - Richey v. Dickinson

Richey filed a workers' compensation claim arising from an accident that occurred in 1987. The single commissioner dissmissed his claim based on the doctrine of laches. The appellate panel and circuit court affirmed. We also affirm.

3824 - SCDSS v. Sims

In this TPR action, Sims argues the order terminating her parental rights was not supported by clear and convincing evidence. We affirm.

3825 - Messer v. Messer

This domestic case involves the interpretation and enforcement of alimony provisions in a separation agreement incorporated into a divorce decree.

6-21-2004 - Opinions

3826 - State v. Hill

Reverses conviction because prosecution questions were determined to be an inappropriate comment upon Hill's post-arrest silence.

3827 - Brown v. Brown

Affirms the trial court's grant of summary judgment in favor of the Town of Harleyville in a suit against the town and at-fault driver.

3828 - State v. Flowers

Flowers appeals his multiple drug convictions, arguing the circuit court erred by admitting evidence obtained pursuant to a warrantless search of his girlfriend's residence after Flowers had previously denied officers' request to enter the residence.

3829 - State v. Perry

The defendant appeals her conviction for homicide by child abuse, arguing the trial court improperly admitted evidence of her apparent lack of remorse about her son's death.

3830 - State v. Robinson

Quinzell Robinson was convicted in a retrial of armed robbery and sentenced to sixteen years imprisonment. He appealed, arguing a violation of his Constitutional protection from double jeopardy and reversible error in the admission of purportedly irrelevant evidence concerning his flight from police custody. The Court of Appeals affirmed, finding (1) the S.C. Constitution’s Double Jeopardy Clause was not a bar to his retrial following a mistrial; and (2) evidence of his flight from police custody was properly admitted because it was relevant where a sufficient nexus existed between Robinson’s flight and the armed robbery charge.

3831 - Charleston Registry v. Young, Clement Rivers & Tisdale

Charleston, S.C. Registry for Golf and Tourism along with Calvin Stone and Martin James Barrier brought suit against the law firm of Young, Clement, Rivers & Tisdale alleging causes of action for negligence, breach of fiduciary duty, and negligent supervision related to the firm's affiliation with attorney Douglas A. Barker. The trial court granted summary judgment in favor of Yong, Clement, Rivers & Tisdale. The Court of Appeals affirmed the trial court's ruling.

3832 - Carter v. USC

Appellant maintains that he was no longer a student at the University of South Carolina after being dismissed for academic reasons but while appealing the decision. We affirm the grant of summary judgment in favor of the university.

6-24-2004 - Opinions

3837 - State v. Taylor

This case involves a chain of custody issue regarding the admissability of drug evidence where a police evidence custodian did not testify at trial.

6-25-2004 - Opinions

3838 - Lazer Construction v. Valentine

Arnold H. Valentine, individually and d/b/a Financial Benefits, Inc. appeals a jury verdict for actual and punitive damages in favor of Lazer Construction Company in this negligence action arising from the procurement of a company health insurance policy.

6-28-2004 - Opinions

3784 - State v. Miller

Appellant, Robert Earl Miller, was indicted for and convicted of unlawful possession of a handgun, failure to stop for police vehicle, and armed robbery. Miller appeals the denial of a suppression hearing concerning the show-up identification of his alleged co-participant.

3833 - Ellison v. Frigidaire

In this workers' compensation case, Employer argues the circuit court erred in affirming the commission's award of total and permanent disability benefits to an employee who injured his leg. Employer argues that recovery should be limited to the scheduled member benefits. We reverse.

3834 - Myrtle Beach v. Davis

In this civil appeal, a condemnation action was filed by the City of North Myrtle Beach condemning property owned by the Respondents. The Respondents contested the amount tendered by Appellant and demanded just compensation for the property taken. At a later time, Respondents moved to amend their answer in the condemnation proceeding to allege additional damages for trespass by the City. This motion was granted by Judge J. Michael Baxley. Appellant moved to dismiss the trespass action, asserting a trespass claim cannot be pled in a condemnation action, but must be brought by way of a separate lawsuit. Judge Steven H. John issued an order granting Appellant's motion, but holding that Respondents could file a trespass action without the statute of limitations operating as a bar. The issues on appeal are: (1) the efficacy of the orders issued by Judge Baxley and Judge John in regard to the applicability of the statute of limiations; (2) waiver of the right to assert the statute of limiations as a defense; and (3) a negligence action and its viability.

3835 - State v. Bowie

In this criminal appeal, the appellant contends the trial court erred in refusing to suppress cocaine seized from a motel room because the search warrant affidavit was defective. Appellant argues: (1) no probable cause existed for the search of the motel room; (2) the search warrant affidavit was defective due to mere conclusory statements and the oral supplementary testimony presented to the magistrate was not curative; and (3) Appellant did have standing to assert no probable cause to search the room.

3836 - State v. Gillian

In this criminal appeal, the Court analyzes the efficacy of State v. Lyle, State v. Adams, and Rules 403 and 404(b), SCRE, as they relate to evidence of other burglaries. Further, the Court considers the denial of cross-examination in regard to a key State's witness as to the possible sentence he was facing while testifying for the State. Finally, the Court decides the admissibility of evidence of a police ruse while attempting to obtain a confession from Appellant.

3839 - QHG v. McCutcheon

McCutcheon appeals the special referee's order awarding judgment and prejudgment interest to QHG based on its claim of quantum meruit.

3840 - Moore v. Moore

In this breach of fiduciary duty action, the court discusses with specificity the law of