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Court of Appeals Published Opinions - February 2013

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.

2-6-2013 - Opinions

5080 - Bevivino v. Town of Mount Pleasant

This is an appeal of a decision of the Town of Mount Pleasant Board of Zoning Appeals to allow a telecommunications tower on property owned by Respondent SCANA Communications, Inc. Appellants, all of whom are residents of the Town of Mount Pleasant, argue (1) they either have standing to challenge the decision or qualify for the public interest exception to the standing requirement and (2) the Board committed procedural and substantive errors of law in its findings regarding the impact of the proposed tower on the neighborhood and the feasibility of using existing structures for the proposed project. In addition, Respondent SCANA Communications argues notice provisions of the applicable Town ordinances are against public policy and cannot be upheld.

5081 - The Spriggs Group v. Slivka

In this action for foreclosure of a mechanic's lien and breach of contract, Gene Slivka argues the circuit court erred in (1) submitting a question involving the interpretation of a statute to the jury; (2) failing to direct a verdict; and (3) awarding The Spriggs Group attorneys' fees and costs.

2-13-2013 - Opinions

5083 - Cohen v. Progressive Northern Insurance

Greg and Stacy Cohen filed an action requesting reformation of a motorcycle insurance policy issued by Progressive Northern Insurance Company to include underinsured motorists (UIM) coverage. The trial court refused to reform the policy, finding Progressive made a meaningful offer of UIM coverage. We affirm.

2-20-2013 - Opinions

5085 - Curry v. Curry

Husband appeals the family court's order granting the parties a divorce and equitably dividing marital property. He argues the family court erred in (1) giving him an insufficient credit for contributing nonmarital property and (2) finding his use of alcohol constituted habitual intoxication. We affirm but modify the family court's order.

5087 - Simmons v. SC STRONG

Willie Lee Simmons argues the Appellate Panel of the South Carolina Workers' Compensation Commission (Appellate Panel) erred in failing to find he was an employee of SC STRONG.

5088 - Williams v. David Stafford Drywall

Charlotte Williams appeals from the order of the Appellate Panel of the South Carolina Workers' Compensation Commission (Appellate Panel) finding her totally and permanently disabled and awarding her lifetime medical treatment for the injuries to her back, left leg, and pelvis. She argues the Appellate Panel erred in: (1) basing her average weekly wage on Workers' Compensation Commission (Commission) Form 20; (2) failing to find her neurogenic bladder related to her back injury; and (3) denying her claim for partial paraplegia. We affirm.

5089 - Sapp v. Wheeler

In this action brought by J. Mars Sapp (Sapp) to collect rent obligations, Will Wheeler (Wheeler) appeals from a $252,798 verdict against him, arguing the trial court erred in denying his: (1) motion for a directed verdict on the claim for future damages; (2) motion for a directed verdict based on the statute of limitations; (3) request for a jury charge on the three year statute of limitations for a breach of contract action; (4) motion for a new trial; and (5) motion for a new trial under the thirteenth juror doctrine. We affirm.

5090 - Independence National Bank v. Buncombe Professional Park

Buncombe Professional Park, LLC (Buncombe) and David DeCarlis (collectively Appellants) appeal the Master-In-Equity's (Master) reformation of Independence National Bank's (Independence) mortgage, which placed it in a superior position to DeCarlis's mortgage. Appellants also appeal the Master's additional finding that pursuant to the doctrine of equitable subrogation, Independence was entitled to a first and superior mortgage. We reverse.

5091 - Burgess v. State

In this post-conviction relief (PCR) case, this court granted the State's petition for writ of certiorari to review the PCR court's order granting Tommy Burgess a new trial. The State argues the PCR court erred in failing to determine whether Burgess was prejudiced by his counsel's failure to request a jury charge regarding Burgess's failure to appear at his criminal trial.

5092 - Vail v. State

In this civil appeal from the denial of his post-conviction relief (PCR) application, Mark E. Vail argues the PCR court erred in finding trial counsel was not ineffective for failing to object to alleged hearsay testimony. We reverse and grant Vail a new trial.

2-27-2013 - Opinions

5072 - Cunningham v. Anderson County

In this breach of contract case, Appellant Michael Cunningham seeks review of the circuit court's order granting summary judgment to Respondent Anderson County (the County) on all of Cunningham's causes of action. Cunningham challenges the circuit court's conclusion that his employment contract with the County was void. Cunningham also challenges the circuit court's conclusions that (1) he could not avail himself of the public policy exception to the at-will employment doctrine, and (2) his accrued sick leave did not constitute "wages" under the South Carolina Payment of Wages Act. We affirm in part, reverse in part, and remand.

5086 - Charleston County Assessor v. LMP Properties

The Charleston County Assessor (Assessor) appeals the administrative law court's (ALC) order valuing a piece of property containing one hundred twenty-one individual units and owned by LMP Properties, Inc. (LMP) at $8,565,000. The Assessor argues the ALC erred in determining the units' highest and best use on the valuation date of December 31, 2003, the operative date for the last countywide reassessment in Charleston County, instead of December 31, 2007, for the tax year 2008.

5093 - Bass v. SCDSS

In this tort case, the South Carolina Department of Social Services (DSS) appeals the denial of its motion for JNOV, arguing the trial court erred in finding jury questions existed as to whether (1) DSS was grossly negligent in investigating the Basses; (2) the Basses voluntarily participated in the children's relative placement; and (3) DSS was liable under an intentional infliction of emotional distress theory. We reverse.

5094 - Neeltec Enterprises v. Long

Neeltec Enterprises, Inc., d/b/a Fireworks Supermarket, filed a complaint alleging violation of the South Carolina Unfair Trade Practices Act (SCUTPA) against Willard Long, d/b/a Foxy's Fireworks and d/b/a Fireworks Superstore. After hearing Long's motion for summary judgment or, in the alternative, a substitution of parties, the special referee filed an order directing two corporations be substituted as defendants instead of Long. Neeltec appeals arguing the special referee erred in substituting the corporations because Long was responsible for his employees' actions. We reverse and remand.