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Court of Appeals Published Opinions - May 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.

5-2-2008 - Opinions

4382 - Zurich American Insurance Company v. Tolbert

Tony Fitzgerald Tolbert (Tolbert) and Tonesha Tolbert (collectively Appellants) appeal the circuit court’s grant of summary judgment to Zurich American Insurance Company in this declaratory judgment action to determine Appellants’ entitlement to Underinsured Motorist (UIM) Coverage. We affirm in part, reverse in part, and remand.

4383 - Camp v. Camp

In this domestic action, James Scott Camp appeals the family court’s order requiring him to pay a portion of his son's college expenses. We find the appellant's Rule 59(e) motion was insufficient and failed to stay the time for appeal. Consequently, this appeal is untimely, and we dismiss.

4384 - Murrells Inlet Corporation v. Ward

Does a plat recorded when property is subdivided confer an easement to the subsequent grantees of the property to the extent the easement is delineated in the plat?

5-6-2008 - Opinions

4385 - Collins v. Frasier

The jury entered a defense verdict for Mark Frasier in this motor vehicle accident case and specifically found Frasier experienced a sudden, unforeseeable incapacity to operate his vehicle. The record, which included medical testimony, supported this finding. Therefore, we affirm.

4386 - State v. Anderson

Anderson appeals his criminal conviction for first-degree burglary, asserting the trial court erroneously admitted evidence of an unauthenticated fingerprint card. We find the fingerprint card was properly authenticated and affirm.

4387 - Blanding v. Long Beach Mortgage Company

This case involves the issue of insurance proceeds. Sandra Blanding (mortgagor) appeals the Master-in-Equity's determination that an insurance policy obtained by mortgagee provided excess coverage only and was not available to reduce Blanding's debt, and that the mortgagee is entitled to $49,495.14 due on Blanding's debt, prejudgment interest in the amount of $6,736.48, and $6,768.38 in attorneys' fees, for a total judgment of $63,000, the amount of insurance proceeds available from a policy obtained by Blanding.

5-12-2008 - Opinions

4388 - Horry County v. Parbel

In this litigation, Appellants contend the Circuit Court erred: (1) in ruling on the merits of the County’s appeal because this was an appeal from a judgment of acquittal, and the only issue the Circuit Court should have addressed was the motion to dismiss the appeal pursuant to the doctrine of Double Jeopardy; (2) in making a finding on appeal that “the Horry County Police Department acted reasonably, appropriately and in accordance with the Horry County Code of Ordinances in their activities at Thee Doll House on August 17, 2004,” because that issue was not properly before the Circuit Court for it to make such a finding and conclusion; (3) in finding “there is a legal justification for the County’s appeal and that, but for the timing of the Magistrate’s Ruling, the County may have prevailed,” because that issue was not properly before the Circuit Court for it to make such a finding and conclusion; and (4) as a matter of law in denying Appellants’ motion for payment of attorney’s fees and costs pursuant to the South Carolina Frivolous Civil Proceedings Sanctions Act (the Act), S.C. Code Ann. § 15-36-10, because the appeal in this matter was reviewed as a civil proceeding before the Court of Common Pleas, the appeal was frivolous since it was an appeal from a directed verdict of acquittal, and the Act applied in this matter. The County of Horry articulates the issues on appeal: (1) may a Circuit Court sit to correct an error of law by a Magistrate Judge, when that error results in an acquittal on misdemeanor charges, the error is otherwise capable of repetition while evading review, and the County agrees it will not seek a retrial?; (2) whether the Circuit Court abused its discretion in declining to award sanctions against the prevailing party.

4389 - Ward v. West Oil Company, Inc.

In this civil case, Appellants posit the Special Referee committed an error of law by misconstruing a single sentence of the contract so as to: (1) render meaningless the primary contractual rights and duties of the parties; and (2) permit West Oil Company to repudiate at will its contractual duty to allow R&B’s game machines in West Oil’s convenience stores for a period of one year.

5-15-2008 - Opinions

4390 - SGM-Moonglo v. SC Department of Revenue

This is an appeal from an order of the Administrative Law Court (ALC) granting SGM-Moonglo, Inc. (Moonglo) an off-premises beer and wine permit. Marjorie Smith argues the ALC should have considered the existence of a restrictive covenant as a factor in determining whether to grant Moonglo’s petition for the permit. We affirm.

4391 - State v. Evans

Larry D. Evans appeals his criminal conviction for possession of a stolen vehicle. On appeal, Evans maintains the trial court erred in overruling defense counsel’s objection to hearsay testimony.

4392 - State v. Caldwell

In this criminal matter, the appellant appeals his convictions for three counts of violating the peeping tom statute in regard to his actions involving three minor victims at a youth swim meet. Appellant asserts error in the trial courts (1) refusal to sever his trials, (2) denial of his motion to suppresss the in-court indentifications by one of the victims and a witness, (3) admission of alleged statements made by appellant, (4) admission of testimony regarding how appellant's actions made the victims feel, and (5) denial of his motion for directed verdict.

5-20-2008 - Opinions

4393 - Stradford v. Wilson

Bettina Wilson (Mother) appeals the family court’s order changing her child’s surname from Wilson to Stradford, the surname of the child’s father, Ryan Stradford (Father). Finding Father failed to carry his burden of proving the name change was in child’s best interest, we reverse.

4394 - Platt v. SCDOT

In this civil litigation, the Appellant states the issues: (1) the South Carolina Department of Transportation (SCDOT) had a duty to protect the public from the dangerous condition created by the malfunctioning warning device at Red Bank Road; (2) the trial court improperly held that SCDOT satisfied its duty by informing CSX Transportation of the malfunctioning signals; and (3) SCDOT’s negligence in failing to maintain the traffic signals in compliance with the signal plans was a proximate cause of the collision. The Respondent, South Carolina Department of Transportation, identifies the issues on appeal: (1) did Respondent SCDOT owe an individual duty to Asia Platt and her family rather than a general duty to the public at large?; (2) did the trial court err in holding that Respondent SCDOT properly fulfilled its duty to the public at large by informing CSX Railroad of the malfunctioning signals maintained by CSX railroad in accordance with the Code of Federal Regulations?; and (3) did the trial court err in granting summary judgment to respondent SCDOT where Appellant’s expert testified that the accident would not have occurred but for a malfunction in the railroad crossing arms maintained by CSX railroad?

5-22-2008 - Opinions

4395 - State v. Mitchell

Mitchell appeals his convictions for murder, attempted armed robbery, and possession of the weapon during the commission of a violent crime, arguing (1) the trial judge should not have admitted a statement of alleged accomplice who refuse to testify when called as a witness for the State, and (2) Mitchell should have been allowed to present certain evidence concerning third-party guilt.

5-28-2008 - Opinions

4396 - Jones v. Lott

Chad Jones was killed when he was shot in the head as he attempted to escape after being taken into custody by Richland County Sheriff’s deputies. His estate appeals the circuit court’s grant of directed verdict in favor of Sheriff Leon Lott in his official capacity. We affirm.

4397 - Brown v. Brown

In this appeal from family court, the husband claimed the family court erred by not finding the wife committed adultery and in turn by awarding the wife alimony. Additionally, the husband claimed the family court erred in its disposition of certain assets and in requiring the husband to pay the wife's attorney fees. The Court of Appeals affirmed in part, reversed in part, and remanded, finding the husband presented direct and overwhelming circumstantial evidence to sustain his burden of proof for adultery, such that an award of alimony to the wife was improper. The Court of Appeals also found the value of the parties' timeshare condominium should be awarded against each party equally, rather than solely against the husband, as both parties allowed it to enter into default, yet neither attempted to prevent this from occurring. The Court also held the wife failed to show that the husband's gun collection was marital property as her testimony on its value, the date of its acquisition, and the amount of guns within the collection was speculative at best. Lastly, the Court of Appeals remanded the award of attorney's fees to the family court for reconsideration based on the Court's findings.