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Court of Appeals Published Opinions - February 2008

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.

2-1-2008 - Opinions

4339 - Thompson v. Cisson Construction Co.

In this workers’ compensation case, Appellant contends: (1) there was substantial evidence to support the Appellate Panel’s findings of fact; (2) the suicide was a natural consequence of the injury sustained; and (3) the Respondent did not carry its burden of proving willful intent under § 42-9-60.

2-8-2008 - Opinions

4340 - Simpson v. Simpson

The Court of Appeals affirmed the family court's order denying the husband's request for the family court's recusal. The husband argued the family court was incorrect to not recuse itself after making its own sua sponte motion for recusal. The Court of Appeals disagreed, finding the family court's oral motion was not binding and the husband failed to present any evidence of prejudice or bias on the family court's behalf which would require recusal, thus making the family court's refusal to recuse itself proper.

4341 - Simpson v. Simpson

In this domestic action, the husband appealed on several grounds, including several aspects of the family court’s equitable distribution award, the inclusion of the husband’s business in the award, the valuation of certain marital property, and the award of attorney’s fees to the wife. The Court of Appeals affirmed, finding the family court considered both parties’ direct and indirect contributions in its 60/40 split of the marital estate in favor of the husband. The Court also found the husband’s fifty percent share in the business was not a gift from his father, rather it was payment for labor expended during the marriage. While the land on which the marital home existed was a gift from the husband’s father, the house was built using the parties’ marital funds, such that it was not error to conclude the land had been transmuted into marital property. Last, the Court determined it was not an abuse to award attorney’s fees to the wife when she secured favorable results, the husband had greater means to pay the fees, and his lack of candor and cooperation prolonged litigation and increased both parties’ fees.

2-20-2008 - Opinions

4342 - State v. Ferguson

Nathaniel Ferguson, Jr., appeals his convictions for murder and possession of a firearm during the commission of a violent crime, alleging the trial court erred by denying his motion for a mistrial. We affirm.

4343 - State v. Franks

The issue in this appeal of a conviction for distribution of marijuana is whether the trial court should have issued a charge on the lesser-included offense of simple possession.

4344 - Green Tree Servicing v. Williams

This case involves the issue of whether Lueveania Green's interest in property was subject to mortgages placed on the property by her granddaughter, who had held a fee simple determinable, after the property had reverted to Green. it also involves Green's claim for trespass.

2-21-2008 - Opinions

4345 - Atkins v. Horace Mann Insurance

Clifford Atkins appeals the circuit court’s order finding Horace Mann Insurance Company (Horace Mann) made him a commercially reasonable offer of underinsured motorist (UIM) coverage, and that the underlying policy should not be reformed to include UIM coverage up to liability limits. Atkins contends Horace Mann failed to meet its burden of proving that a meaningful offer of UIM coverage was made. We affirm.

2-25-2008 - Opinions

4346 - Singleton v. Sherer

In this premises liability action, the appellate court evaluates the liability of an owner of a raccoon. The Appellant sued his sister and former brother-in-law, the Respondents. The Appellant’s sister had received the pet raccoon from the Appellant. The raccoon was extricated from the wild and allegedly domesticated, living in the house of the Respondents. The issues to be decided on appeal are:(1) the status of the Appellant, i.e. social guest or licensee; (2) the existence or non-existence of a duty of care owed by the Respondents; (3) whether the record reveals any negligence on the part of the Respondents; (4) proximate cause in regard to Appellant’s injuries suffered from the raccoon bite; (5) the applicability of the assumption of risk doctrine pursuant to Davenport v. Cotton Hope Plantation Horizontal Property Regime; and (6) the status of the raccoon, i.e. a domesticated animal or a creature of the wild.

4347 - Watters v. Terminix Service

A home purchaser sued the seller and Terminix for not fully informing the purchaser of damage to the house. This claim is barred by the statute of limitations. Therefore, this court affirms the grant of summary judgment.

4348 - McKinney v. Kimberly Clark Corporation

Joan McKinney appeals the circuit court’s determination that she is not entitled to chose her treating physician. We affirm.