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Court of Appeals Published Opinions - September 2010

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.

9-1-2010 - Opinions

4732 - Fletcher v. MUSC

Fletcher appeals the circuit court's granting of a directed verdict in favor of the Medical University of South Carolina on her claims for medical malpractice. We affirm in part and reverse in part.

4733 - SCDSS v. Randy S.

The Department of Social Services (DSS) filed an intervention action against Randy S. (Father) and Dawn S. (Mother). Subsequently, Mother consented to a finding that she neglected her two minor children (Children). Following a merits hearing, the family court issued an order (1) finding Father neglected or abused Children; (2) awarding custody of Children to his sister, Sandra B. (Aunt); (3) only allowing Father supervised visitation with Children; and (4) permitting DSS to close its case.

4734 - Marchant v. Marchant

Jill Marchant (Wife) appeals the family court's failure to impute income to Leslie Marchant (Husband) in this divorce action based on theories of voluntary underemployment and the receipt of loans from his employer. Wife also contends the provision of a vehicle and residence to Husband by his employer constituted income. Additionally, Wife appeals the family court's imputation of income to her and the resulting impact of these decisions on the family court's award of alimony and child support. She also appeals the amount of the family court's attorney's fees award. We affirm as modified.

4735 - Crews v. Liberty Mutual

The court of appeals upholds a circuit court decision invalidating the cancellation by Appellant Liberty Mutual of an assigned risk policy it had issued to W.R. Crews, Inc.

9-8-2010 - Opinions

4736 - Holst v. KCI

Jean Holst argues the circuit court erred in granting KCI Konecranes International Corporation a/k/a Konecranes, Inc. and KCI Special Cranes Corporation f/k/a KCI Konecranes VLC's (collectively, KCI) motion for summary judgment. Specifically, she maintains the circuit court erred in (1) improperly weighing evidence, (2) applying the improper legal standard regarding the role of industry custom, (3) applying legal standards from Sexton By & Through Sexton v. Bell Helmets, Inc., 926 F.2d 331 (4th Cir. 1991), Marchant v. Mitchell Distributing Co., 270 S.C. 29, 240 S.E.2d 511 (1997), and Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 464 S.E.2d 321 (Ct. App. 1995), and (4) granting summary judgment on her strict liability, negligence, and failure to warn causes of action.

4737 - Hutson v. SC State Ports Authority

In this workers' compensation case, the claimant, Franklin Hutson, appeals an award following his attainment of maximum medical improvement that was limited to a thirty-percent loss of use to his back. Hutson contends (1) the decision to limit his recovery was not supported by substantial evidence, (2) the limitation was based on an error of law, and (3) the matter should have been remanded to the workers' compensation commission for further findings of fact concerning Hutson's current earning capacity or the extent of his injuries.

9-15-2010 - Opinions

4738 - SC Farm Bureau v. Kennedy

South Carolina Farm Bureau Mutual Insurance Company (Farm Bureau) appeals from the trial court's order finding Henry Kennedy was entitled to underinsured motorist (UIM) coverage, arguing the court erred in finding Kennedy was occupying the manure truck when he was hit by the pickup truck because he was not "upon" the insured vehicle at the time of the accident.

4739 - O'Shea v. SLED

The issues presented in this appeal are (1) whether an individual needs a private investigator's license in order to work as a court-appointed death penalty mitigation specialist and (2) whether the files in the possession of a death penalty mitigation specialist are protected by the work product doctrine.

4740 - McNair v. United Energy Distributors

This is an appeal of an order dismissing a landlord's application for an ejectment. The central question before this court is whether the tenant timely exercised its option to renew the parties' lease for a second term.

9-22-2010 - Opinions

4741 - Prince v. Liberty Life Insurance Company

In this dispute over the termination of a life insurance policy, Donald M. Prince, the beneficiary and owner of the policy, appeals the trial court's grant of summary judgment to Liberty Life Insurance Company, finding the statute of limitations barred the action. Prince argues his cause of action as beneficiary could not have accrued until the insured died and the fact that he is also the owner of the policy does not change that. We affirm.

4742 - State v. Willis

Theodore David Wills, Jr., appeals his murder conviction and forty-year imprisonment sentence, arguing the admission of his proffered statement violated Rule 410, SCRE, because it was procured during plea negotiations with the State. The proffer agreement included a veracity clause whereby Wills agreed his statement may be used against him for any legal purpose if the State determined he was deceitful. Upon the advice of his counsel, evidenced by counsel's co-signature, Wills entered into the agreement. Later, Wills failed a State-administered polygraph examination. Therefore, the State used his proffered statement against him at trial. While South Carolina courts have applied general contract principles to immunity and plea agreements, the issue of whether an agreement can waive the application of the Rules of Evidence is novel. Accordingly, this court adopted and applied the principles of United States v. Mezzanatto, 513 U.S. 196 (1995), and held the protections of Rule 410, SCRE, can be waived by a proffer agreement entered into knowingly and voluntarily. Because Wills entered into the agreement with the advice of counsel, this court found the agreement was knowingly and voluntarily, and the trial court properly admitted Wills's statement into evidence.

4743 - State v. Garrard

The Department of Probation, Parole and Pardon Services appeals the trial judge's decision not to revoke Ronald Garrard's participation in the Community Supervision Program. In its opinion affirming the trial judge, the court of appeals defines "willfulness" under the program, and discusses the scope of a trial judge's discretion, both in terms of her decision not to revoke, and in deciding whether to hold a hearing under the Victim's Rights Act.

4744 - SC Department of Social Services v. M. R. C. L.

M. R. C. L. appeals the termination of her parental rights to her minor child pursuant to sections 20-7-1572 (3) and (4) of the South Carolina Code (2007) (current version at 63-7-2570(3) & (4) (2010)) (willful failure to visit and willful failure to support, respectively). We reverse and remand to the family court for a permanency planning hearing.

4745 - Moore v. Benson

James Moore filed this action against Jeannette M. Benson and Thomas Lee Benson seeking damages and equitable relief based on allegations of inter alia, fraud, conversion, and breach of fiduciary duty arising from the sale of real property from Moore to the Bensons. The master ordered the Bensons to reconvey the property to Moore, and awarded Moore actual and punitive damages. This appeal followed.

9-29-2010 - Opinions

4746 - Crisp v. SouthCo. Inc.

In this workers' compensation case, SouthCo. Inc. (SouthCo.) argues the circuit court erred in its capacity as an appellate court by reversing the Workers' Compensation Commission's (Commission) finding that Michael Crisp (Crisp) did not sustain a physical brain injury.

4747 - State v. Gibson

During an altercation in a parking lot, Dennis Irby was shot and killed by a single 9mm gunshot. Adams Gibson and his brother Jacques Gibson were each indicted and convicted for the murder. Adams appeals, arguing the trial court erred in failing to grant a directed verdict and in failing to instruct the jury on involuntary manslaughter. We affirm.

4748 - Nakatsu v. Encompass Indemnity

Meagan Nakatsu had an automobile accident while she resided with her sister. Nakatsu brought a declaratory judgment action against Encompass Indemnity Company seeking to stack underinsured (UIM) coverage from her sister's Encompass insurance policy with her own UIM coverage from a different insurer. The trial court granted summary judgment to Encompass finding the policy excluded UIM coverage for resident relatives not operating covered vehicles. Nakatsu appeals. We reverse.

4749 - SC Department of Consumer Affairs v. Foreclosure Specialists, Inc.

The South Carolina Department of Consumer Affairs appeals the Administrative Law Court’s refusal to order a refund of fees collected for credit counseling services conducted in violation of the licensing requirements of the Consumer Credit Counseling Act. In its opinion affirming the ALC, the court of appeals explains that the ALC does not have the power to grant the relief requested by the Department.