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South Carolina Court of Appeals 

March 12-13, 2003 



DISCLAIMER:  These summaries have been prepared in the Clerk’s office of the Court of Appeals from the filed briefs and records.  These summaries are for educational purposes only.  They are under no circumstances to be taken as representing the views of the Court of Appeals or any of its Judges on any issues of fact or law in the cases.

Wednesday, March 12, 2003

9:30 a.m.

11035  Georgia Carolina Bail Bonds, Inc. v. County of Aiken

In this action, appellant contends the circuit judge erred in determining that Section 38-53-100(D) authorized the Clerk of Court for Aiken County to collect $150.00 annually for each license held by a bondsman rather than $150.00 annually for each individual bondsman.

A bail bondsman is subject to oversight by the South Carolina Department of Insurance in certain activities.  Additionally, a bail bondsman is required to obtain a license from a Clerk of Court in each county that the bail bondsman desires the right to issue a bail bond for a defendant charged with a crime.  A divergence developed among the clerks of court in South Carolina as to whether the authorized statutory fee of $150 was applicable to a bondsman or to each license held by a bondsman.

10:15 a.m.

11229 State v. Christopher M. Chisolm

The York County Multi-Jurisdictional Drug Enforcement Unit, a division of the Rock Hill Police Department, arranged for a confidential informant to purchase crack cocaine from Chisolm.  The confidential informant contacted Chisolm from the Rock Hill Police Department to set up the drug buy.  Chisolm agreed to meet the confidential informant in a motel parking lot that was located within a half mile of the York County Adult Education Center.  On May 9, 2000, the confidential informant, who was monitored by nearby officers, met Chisolm and purchased crack cocaine.  After the transaction, the confidential informant returned to the Rock Hill Police Department to turn over the crack cocaine.

Officer Dalton, the officer who received the crack cocaine, placed it in a York County tamper-proof evidence bag, filled out the necessary information, sealed the bag, and signed and dated the bag across the seal.  He then placed the bag in a locked drop box in the police station.  On May 10, 2000, Gary Rollins, an evidence technician with the York County Sheriff’s Department, retrieved the evidence from the drop box.   Notes on the evidence bag then indicate that Renee Sealy, another employee in the evidence division of the York County Sheriff's Department, handled the bag.  On June 15, 2000, Sealy presented the bag to Cynthia Taylor, a drug analyst for the York County Sheriff’s Department.  On July 25, 2000, Taylor examined the bag for tampering, analyzed the contents of the bag, and then signed and dated the bag the same day.  Taylor determined the evidence was crack cocaine.  

On appeal of his convictions for distribution of crack cocaine and distribution of crack cocaine within proximity of a school, Chisolm raises two issues.  First, Chisolm argues the judge erred in failing to suppress the drugs on the ground the State had not properly established the chain of custody under Rule 6(b) of the South Carolina Rules of Criminal Procedure.  Because Rollins and Sealy did not testify at trial, Chisolm asserted Rule 6(b) required the State to submit a certified or sworn statement from these individuals verifying their possession of the evidence.  In his second issue, Chisolm contends the judge erred in failing to grant him a directed verdict of not guilty or a new trial for the charge of distribution of crack cocaine within one-half mile radius of a school.  Chisolm argues the State failed to establish that the York County Adult Education Center fit within the protected categories of “schools” under the statute for the offense of distribution of crack cocaine within proximity of a school.

11:00 a.m.

11078  Vergie Fields v. F. Simons Hane

Vergie Fields brought an action individually and on behalf of her husband’s estate against Orangeburg Regional Medical Center (“hospital”) and Dr. Simons Hane for wrongful death and medical malpractice. Fields claimed the hospital and Hane were negligent and committed medical malpractice leading to her husband’s death.  During the trial, the circuit court excluded the testimony of one of Fields’s experts regarding his credentials.  Additionally, the circuit court refused to allow Fields to use a treatise to cross-examine Hane.  Fields argues these are reversible errors which entitle her to a new trial.  

Thomas Fields died on September 18, 1994.  From 1976 to 1994, Thomas Fields suffered from a variety of physical and psychiatric ailments and made numerous trips to the emergency room of a hospital.  The medical history of Thomas Fields reveals medical treatment and/or medical procedures in regard to chest pains and possible heart problems.  From September 14, 1994 to September 18, 1994, Thomas Fields received medical treatment and medical procedure.

In this medical malpractice case, the appellant alleges error in the trial judge’s exclusion of relevant testimony regarding the qualifications of appellant’s expert witness and in refusing to allow appellant to cross-examine respondent using a treatise which respondent recognized as an authority on emergency medicine.

1:30 p.m.

10616 Long v. Long

This is a domestic action.  William Tracy Long (the husband) filed an action for divorce against Barbara G. Long (the wife) on a fault-based ground.  The wife counterclaimed for a divorce on a fault-based ground and sought permanent, periodic alimony.  Both parties requested an equitable division of the couple’s marital property.  Before the final hearing, the wife moved to amend her pleadings to request a divorce on the ground of one year’s continuous separation. 

The family court granted the wife a divorce on the ground of one year’s continuous separation and equitably apportioned the marital property.  In addition, the court awarded the wife rehabilitative alimony of $1,000 per month for thirty-six months, and $10,000 in attorney’s fees.  The wife filed a motion to alter or amend the judgment, as a result of which, among other things, the family court issued an order increasing the wife’s alimony award to $1,250 per month for forty-eight months.

The husband filed a motion to compel the sale of certain real property that had been awarded to the wife.  The family court issued an order denying this request, but allowing the husband to deduct the maintenance costs of the property from the wife’s alimony until the property was deeded to the wife. 

The wife has now appealed, arguing the family court erred (1) in awarding her rehabilitative alimony for a limited time instead of permanent, periodic alimony, and (2) in making its equitable distribution of the marital property.  As to the property distribution, the wife asserts the court erred in (1) awarding her less than fifty percent of the marital assets, (2) apportioning certain assets, and (3) allowing the husband to deduct expenses related to property that had been awarded to the wife.

2:15 p.m.

10993  Campbell v. Marion County Hospital District

Section 30-4-30(a) of the South Carolina Freedom of Information Act (FOIA) provides that any person has the right to inspect or copy any public record of a public body.  Section 30-4-40 of the FOIA articulates certain exceptions.  An identifiable exception relates to “trade secrets.”  The information requested by the Appellant is a “trade secret” according to the position taken by the Hospital.  In essence, the case involves an analysis as to whether the requested information is protected as a “trade secret.”

In this action brought pursuant to the FOIA, the Appellant contends the trial court erred in holding that the Appellant’s request for disclosures constituted “trade secrets” requiring a protective order.

3:00 p.m.

11063  O’Neal v. Intermedical Hospital of S.C.

This case involves an action by an employee, Betty O’Neal, against her employer, Intermedical Hospital (hospital).  Employee O’Neal brought causes of action against Employer Hospital claiming (1) wrongful discharge of O’Neal;  (2) failure of hospital to pay wages due O’Neal for work during her employment;  and (3) failure of hospital to pay O’Neal wages due for her accrued time off after her discharge.  The trial court found hospital was entitled to judgment as a matter of law on the wrongful discharge action, and only the two actions for failure to pay wages were tried before the jury.

O’Neal was terminated by hospital on April 28, 1999 following a dispute over O’Neal’s work schedule and her failure to report to work as ordered.  O’Neal claimed she was entitled to wages of $681.61 earned during her employment but not paid by the hospital.  Hospital asserted the evidence showed O’Neal received all wages due during her employment.  O’Neal also claimed the hospital owed her for 138 hours of accrued time off (vacation time), for a total of approximately $2,500.00.  Hospital did not dispute O’Neal had 138 hours of accrued time off, but asserted O’Neal was not entitled to payment for this accrued time off pursuant to its policy that employees discharged for misconduct are not eligible for such accrued benefits.

The jury returned a verdict for hospital on O’Neal’s claim for wages due during her employment.  The jury returned a verdict for O’Neal in the amount of $1,350.00 on her claim for wages due for accrued time off after her discharge.

Following the verdict, O’Neal moved the court to treble (or triple) the $1,350.00 verdict, as well as moved for hospital to pay her attorney’s fees pursuant to statute which allows for the payment of three times the amount of unpaid wages and the payment of attorney’s fees by the court.  The court, noting the law provides it is unjust to award treble damages where a bona fide dispute exists, determined the jury, by awarding a verdict for O’Neal on her claim for accrued time off, found hospital did not terminate O’Neal for good cause and thus no good faith refusal to pay benefits was established.  The court therefore trebled the verdict to $4,050.00.  The court also ordered hospital to pay $8,100.00 of O’Neal’s $9,112.50 owed to her attorney.

The hospital appeals arguing the lower court committed error in trebling the damages and awarding O’Neal attorney’s fees because the jury only awarded O’Neal $1,350.00 for accrued time off, instead of the approximately $2,500.00 she sought.  Hospital argues this shows the jury determined there was a good faith dispute as to the wages due O’Neal.  Hospital further argues, even if O’Neal was entitled to collect some attorney’s fees, the lower court awarded her an excessive amount based on the facts that (1) O’Neal’s wrongful discharge claim was thrown out by the court, (2) O’Neal lost on her wages during employment claim, and (3) O’Neal only recovered 53% of the amount she was claiming due on her wages after termination claim.  Hospital finally argues that the lower court committed error in failing to instruct the jury that the jury was obligated to enforce the hospital’s policies, rather than judge them on the jurors’ own personal preference or opinion.               

Thursday, March 13, 2003

9:30 a.m.

11191  James Nelson, Jr. v. QHG of South Carolina, Inc.

I.  Appellant’s Contentions

 Ty’Quain Nelson, at the time of his birth, sustained severe and permanent nerve injuries to his brachial plexus nerves, involving significant disability and disfigurement of his right arm, shoulder, elbow, wrist, hand and fingers.  The nerve damage is not only to the upper portion of the brachial plexus, commonly referred to as “Erb’s palsy,” involving primarily the shoulder, elbow and related muscles, but also to the lower portion of the brachial plexus, commonly referred to as “Klumpke’s palsy,” involving primarily a paralysis of the hand and fingers which are grossly deformed, misshapen, twisted and contorted.

This case was filed in Williamsburg County on February 26, 2001, by James Nelson, Jr., as Guardian ad Litem for Ty’Quain S. Nelson, a minor child.  Mr. Nelson is the maternal grandfather of Ty’Quain.

Appellant alleges that Ty’Quain Nelson’s brachial plexus nerve injuries were directly and proximately caused by negligence of Dr. Thomas W. Phillips, the obstetrician who attended at this birth.  Ty’Quain’s vaginal delivery was complicated by a condition known as shoulder dystocia, in which the baby’s shoulder gets lodged behind the mother’s pubic bone.  Dr. Phillips mismanaged the resolution of shoulder dystocia by applying excessive lateral traction to Ty’Quain’s head and neck in a misguided attempt to try to forcibly pull the impacted shoulder underneath his mother’s pubic bone.

II.  Respondents’ Contentions

Ty’Quain S. Nelson was born on March 3, 1993.  Dr. Phillips was the attending obstetrician.  During the delivery, a complication developed when the baby’s shoulder became lodged behind the mother’s pubic bone, a condition known as shoulder dystocia.  As the result of this complication, Ty’Quain suffered injury to his brachial plexus nerves.

In 1996, Ty’Quain, through his mother, acting as his guardian ad litem, brought an action against Dr. Phillips and Carolina Women’s Center, alleging that Dr. Phillips was negligent in managing the shoulder dystocia.  During the litigation of the 1996 action, Dr. Phillips moved to compel the guardian ad litem of Ty’Quain to answer interrogatories and respond to requests for production.  The guardian ad litem consented to an order compelling discovery responses within fifteen days.

When the guardian ad litem failed to comply, Dr. Phillips filed a motion to dismiss based on the guardian ad litem’s failure to comply with the discovery order.  He also submitted an affidavit that the medical care rendered by Dr. Phillips to Ty’Quain met the generally accepted standards of care.  And, in the alternative, Dr. Phillips moved for summary judgment on the ground that the guardian ad litem had not submitted any evidence in the form of an expert opinion to establish a prima facie case of violation of the standard of care or proximate cause.

When the motion to dismiss was heard on November 1, 1996, the Circuit Court judge held the motion in abeyance and allowed the guardian ad litem another forty-five days to comply with the request for production and produce an expert.  However, the guardian ad litem had not produced an expert witness by the time the matter came back before the court on December 27, 1996.  In the absence of any expert witness to create a genuine issue of material fact, the trial court granted summary judgment to Dr. Phillips and dismissed the case with prejudice.  However, despite the guardian ad litem’s failure to meet the earlier deadlines, the trial court generously gave the guardian ad litem an additional thirty days to file a motion to reconsider with an expert affidavit to establish a prima facie case.  The guardian ad litem did not take advantage of that opportunity and never submitted an expert affidavit until now—over four years later.

III.  Issues

In this medical malpractice case, the Appellant, James Nelson, Jr., as guardian ad litem for Ty’Quain, alleges error in the trial judge’s granting of a motion to dismiss Dr. Thomas W. Phillips and Drs. Coker, Phillips and Haswell, P.A.  The issues involved in the case are: (1) the applicability of res judicata and collateral estoppel based on identity of the parties in a prior action and a contention that the issues in the prior action were not adjudicated on the merits; (2) contentions by the Appellant that the trial judge erred in granting the motion to dismiss because the prior action was dismissed with the consent of counsel and the minor plaintiff, Ty’Quain, did not receive adequate and fair representation of his interests.

10:30 a.m.

11084  Redwend Limited Partnership v. Edwards

I.  Appellants’ Contentions

This case is based upon the withdrawal of Ralph Edwards from a partnership and the misdeeds associated with that withdrawal.  The partnership was formed on December 16, 1996.  Edwards signed a withdrawal memorandum on August 5, 1998.  A further, more formalized document was signed on October 6, 1998, in connection with the distribution of some partnership assets to Edwards.  This matter centers around the Dr. Eddy Farm, a partnership opportunity which was secretly appropriated by Edwards for his own use.  Edwards acquired title to the Eddy Farm while knowing the Eddy Farm purchase was considered a partnership opportunity by the Appellants.

The partnership was formed in late 1996.  Both Edwards and Ron McDaniel were active in the partnership’s business.  Edwards acted as the broker and the agent for the partnership in acquiring land for resale and development.  The agreement provided that Edwards, using his realty company, would identify and acquire property for the partnership; McDaniel would develop the property by constructing the infrastructure, clearing the land, and building the roads.  Profits from property sales were divided according to the respective partnership interests.

Edwards presented real estate contracts to landowners and negotiated purchases of property on behalf of the partnership and acted as agent for the partnership in sale of the developed lots.  On occasion, the partnership utilized John W. Patrick as a “straw man” to act as the name purchaser as both Edwards and McDaniel were known in the market as developers.  This was done in order to defray market interest in land that was to be the object of future development.  The partnership proved successful.  Edwards received more than $750,000 in the eighteen months that the partners were together.

At the formation of the partnership, both McDaniel and another partner, Wendswept, contributed properties to the partnership.  Edwards had no property to contribute.  He agreed, as his contribution, to acquire for the partnership two specific tracts of land, the “Boone Tract” and the “Dr. Eddy Farm,” based on his prior relationship with the properties’ owners.  The Boone Tract was acquired, developed and sold.  Edwards informed McDaniel that he would acquire the Eddy Farm for the partnership.

Edwards did not acquire the Eddy Farm.  Rather, Edwards secretly purchased the Eddy Farm for Long Point Farms, which was Edwards’ and his father’s limited liability company.  Long Point Farms was created on August 4, 1997, while Edwards was a partner of Redwend.  The Eddy Farm is a valuable property, encompassing approximately 111.96 acres of high ground and 38.3 acres of marsh access on deep water.

II.  Respondents’ Contentions

This action arises out of a common business scenario: two co-partners separating and moving on.  The case involves the winding up of a limited partner’s involvement in the Redwend Limited Partnership.  W. Ralph Edwards withdrew in 1998 from the Redwend Limited Partnership by assigning to Ron W. McDaniel his interest in the partnership and its general partner.  As a key fact common to all causes of action, Appellants contend that this case is based on the withdrawal of Edwards from the partnership, and the alleged misdeeds associated therewith.

Redwend was created by an agreement made and executed on February 6, 1997.  The limited partners were Edwards, who held a 49.5% interest, and Wendswept, Inc., a corporation solely owned by McDaniel’s wife, who also held a 49.5% interest in the partnership.  Redwend, Inc., a corporate general partner, held the remaining one percent interest.  Both Edwards and McDaniels were shareholders, directors and officers of the corporate general partner.

Edwards withdrew from Redwend and involvement with its corporate general partner in 1998.  The parties first executed a handwritten withdrawal document dated August 5, 1998.  According to that document, on withdrawing, the partnership continued to have rights to what the parties called the “Folly Beach Tract,” which was styled a “Partnership opportunity,” but not to any opportunity concerning the “Eddy Tract” on John’s Island.

The root wrongdoing alleged is that Edwards acted improperly by deceiving McDaniel about the availability of the Dr. Eddy Tract as a partnership opportunity.  Appellants contend that, as a result of Edwards’ allegedly misleading them about and seizing the Dr. Eddy Tract opportunity, the Appellants suffered actual, special and consequential damages.  In short, Appellants claim misconduct in connection with Edwards’ withdrawal from Redwend.

The Appellants’ contentions rest solely on the handwritten contract.  The handwritten contract, according to Appellants and their lawyer, needed to the “typed and formalized” by McDaniel’s lawyer, Drayton Hastie.  Subsequently, Hastie, the attorney for McDaniel and the partnership, prepared the formal, detailed withdrawal contract.

This formal successor contract covering Edwards’ withdrawal and his right to compete with Redwend was executed by the partieso n October 6, 1998.  Importantly, Appellants’ complaint alleges, and thus admits, that it was not until October 6, 1998, that Edwards withdrew from the general partner and the partnership.

III.  Issues

Appellants allege the trial court erred in granting summary judgment to Respondents, where a partnership withdrawal document contained no merger clause and the issue of the withdrawing partner’s fraud and negligent misrepresentation was supported by sworn testimony.  Additionally, appellants allege the trial court erred in granting summary judgment to respondents in this partnership withdrawal case, by relying on a later drafted merger clause, disregarding parol evidence of fraud and negligent misrepresentation by the withdrawing partner.

11:30 a.m.

11131  Walker v. Tiller

This is a products liability action.  Terry Tiller was towing a Hide-A-Bed trailer loaded with three cars when he was involved in an accident with a car in which Deborah Walker and her grandsons, Sinclair and Marcquis, were passengers.  Marcquis was killed in the accident and Walker and Sinclair were injured.  Walker, individually, as guardian for Sinclair, and as special administrator of the estate of Marcquis, brought causes of action against Hide-A-Bed for strict liability, negligence, and breach of implied warranties.  She asserted the trailer was made unreasonably dangerous by Hide-A-Bed’s failure to provide sufficient oral or written instructions, information, training, or warnings about the safe use an operation of the trailer including:

i. use, operation, and limitations of the trailer’s electric braking systems;
ii. braking distances;
iii. safe operating procedures and potential hazards of towing the trailer on rain-slickened highways;
iv. safe operating speeds and potential hazards of excessive speed;
v. potential hazards relating to swaying of the trailer and “jack-knifing,” and methods of limiting or avoiding such problems;
vi. the impact of greater or lesser weight on the trailer upon the maneuverability of the trailer and the truck towing it. 

The trial court found there was no evidence in the record that the trailer played any role in the tragic accident.  It held Tiller was actually aware of the dangers associated with the trailer and that even if he had not known about the dangers, he should have known them.  The court also found the dangers associated with the trailer were obvious to the world.  The court concluded Hide-A-Bed was not required by law and had no duty to warn of any dangers associated with the trailer.  Accordingly, the court granted Hide-A-Bed summary judgment.  Walker appeals.