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Court of Appeals Published Opinions - November 2011

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.

11-2-2011 - Opinions

4900 - Sheila R. v. David R.

After the parties' divorce, the family court entered an order awarding custody of the parties' minor child, S.R., to Father but provisionally placing her with Mother. The family court later awarded Father physical as well as legal custody. Mother appeals, arguing the family court erred in (1) using its own standard to determine who should receive custody of S.R. and failing to conduct a best-interests analysis when it subsequently granted Father full custody and (2) failing to appoint a guardian ad litem or consider S.R.'s wishes when determining custody. We affirm.

4901 - Lee v. State

In this post-conviction relief (PCR) action, Kareen Donyell Lee contends the PCR court erred in not finding plea counsel ineffective for failing to have him evaluated for competency before his guilty plea when a competency evaluation conducted approximately six months after his plea revealed he had an intelligence quotient (IQ) of 61 and was not competent to stand trial. We affirm.

4902 - Kimmer v. Wright

Philip Wright appeals the trial court's order granting partial summary judgment to Carol M. Kimmer in which the court held the statute of limitations had not run on Kimmer's legal malpractice action.

4903 - State v. Gilmore

Willie Albert Gilmore appeals his conviction for first-degree criminal sexual conduct. The central issue in the appeal is whether the trial court erred in declining to charge the jury on assault and battery of a high and aggravated nature as a lesser-included offense. We hold the facts do not support an ABHAN charge. We also hold the trial court acted within its discretion in allowing the victim to testify regarding two statements Gilmore allegedly made during the sexual assault. We find two other issues raised by Gilmore to be unpreserved for appellate review. We affirm.

4904 - Burris v. Propst Lumber

Appellant Propst Lumber and Logging, Inc. ("Employer") challenges a decision of the Appellate Panel of the South Carolina Workers' Compensation Commission ("Appellate Panel") concluding Employer's workers' compensation policy did not provide coverage on the date Respondent Everett Burris ("Claimant") sustained injuries while working for Employer. We affirm.

11-9-2011 - Opinions

4905 - Landry v. Carolina Healthcare System

In this workers' compensation case, Julie Landry appeals the circuit court's affirmation of the Appellate Panel of the South Carolina Workers' Compensation Commission's (Appellate Panel) finding that she did not suffer an injury by accident arising out of and in the course of her employment because the worsening of her pre-existing foot condition was not an unexpected occurrence.

4906 - Roesler v. Roesler

In this action for divorce, Sara A. Roesler argues the family court erred in finding it had jurisdiction over her marriage to Scott G. Roesler, proceeding with trial when she was not represented by an attorney, failing to make an inquiry or award of alimony, and waiving mandatory mediation.

4907 - Newton v. Beaufort County Zoning Board

After the Zoning Board of Appeals for Beaufort County (Board) issued a special use permit for additional construction on the site of an existing convenience center (the DOC) on Daufuskie Island, Donald Newton and Jean Flagg-Newton (collectively the Newtons) appealed the Board's decision to the circuit court. The matter was referred to a master-in-equity, who affirmed the Board's decision. The Newtons appeal, arguing the master erred in affirming the Board's decision not to require a Community Impact Statement (CIS). They contend the master erred in finding: (1) a CIS was not required; (2) the Beaufort County ordinance governing convenience centers (section 106-1362) does not apply to uses within the Daufuskie Community Preservation District; (3) the Board knew the impact of the existing DOC and, therefore, did not need to consider a CIS; and (4) section 106-552 of the Beaufort County Code of Ordinances (Code) controlled the consideration for approval of the special use permit in this case. We affirm as modified.

4908 - Brunson v. American Koyo Bearing

In this workers' compensation case, the Court of Appeals affirms the circuit court's decision to deny benefits to Sharon Brunson, finding that although conflicting evidence was presented as to whether Brunson's asthma and breathing problems were work-related, this court's limited standard of review required deference to the findings of the Appellate Panel.

4909 - North American Rescue Products v. Richardson

In this cross-appeal, North American Rescue Products, Inc. (NARP) argues the circuit court erred in denying its motion for a directed verdict because no evidence existed that P.J. Richardson (Richardson) had an ownership interest in NARP or had a contractual right to purchase an ownership interest in NARP. Richardson cross-appeals, contending the circuit court erred in upholding the jury verdict ordering specific performance of the contract with a fair market valuation of the stock. We affirm.

4910 - Wilder v. Blue Ribbon Taxicab Corp

Blue Ribbon Taxicab Corp. (Blue Ribbon) appeals the trial court's award of damages in this negligence action filed by Glenda Wilder. Blue Ribbon alleges the trial court erred in denying its motion to set aside entry of default and in calculating damages. We affirm.

11-23-2011 - Opinions

4911 - The Nutt Corporation v. Howell Road, LLC

This appeal arises out of an order awarding an equitable lien to Respondent The Nutt Corporation d/b/a TNC Engineering following a bench trial. We reverse and find the Nutt Corporation had an adequate remedy at law and therefore, the trial court erred in granting an equitable lien.

4912 - State v. Elwell

The State appeals the dismissal of the charge against Justin Elwell for driving under the influence of alcohol (DUI), second offense. The State argues the trial court erred in holding the State failed to comply with subsection 56-5-2953(A)(2)(d) of the South Carolina Code (Supp. 2007) by turning off a breath test video recorder after Elwell refused to take the test and before the expiration of twenty minutes. We reverse and remand for trial.

4913 - In the Interest of Jamal G.

In this appeal from the family court involving a juvenile criminal matter, Jamal G. contends the family court erred in failing to reduce the charge of murder to the lesser charge of voluntary manslaughter. We find this issue is not preserved for our review.

11-30-2011 - Opinions

4914 - Stevens & Wilkinson v. City of Columbia

The City of Columbia entered into a Memorandum of Understanding (MOU) with members of a development team in preparation for the construction of a hotel near the Columbia Metropolitan Convention Center. When the City gave the project to another team approximately one year later, some members of the original development team filed suit against the City for breach of the MOU and other causes of action. The City made a motion for summary judgment contending the MOU is not a contract, and the circuit court granted the motion. We find the circuit court erred in ruling as a matter of law that the MOU is not a contract. We reverse and remand for trial. We also reverse summary judgment on a quantum meruit claim. We affirm summary judgment on a promissory estoppel claim.