South Carolina Court of Appeals

October 9-11, 2002


DISCLAIMER:  These summaries have been prepared in the Clerkís 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, October 9, 2002

9:30 a.m.

10670 Philadelphia Church of God of Edmond, Oklahoma, v. John Keister Floyd and Linda F. Godwin

Malcolm Floyd died and left a will that gave the majority of his estate to The Philadelphia Church of God of Edmond, Oklahoma.  Floydís children contested the will stating that Floyd did not have the requisite mental capacity to execute the will.  Additionally, the children argued that the gift to The Church was procured through undue influence (i.e. coercion).  The probate court agreed with the children and did not probate the will; thus, Floydís children inherited all of Floydís estate.  The Church appealed to the circuit court, and the circuit court agreed.  The Church now appeals to this Court on two grounds.  First, The Church argues that the probate court applied the incorrect standard in determining whether Floyd possessed the requisite mental capacity to execute the will.  The Church argues that to execute a valid will, a testators must know what they own, who their family and close friends are, and to whom they wish to give their property.  Second, The Church argues that there was not sufficient evidence available to the probate court for the court to determine that the will was the result of undue influence (i.e. coercion).

10:15 a.m.

10740   Debra Henfield v. John Taylor and Adlerian Enterprises d/b/a Parkside Mobile Homes

This case involves procedural questions.  The first question is whether one defendant who was sued in a lawsuit has the right to file a written motion asking the judge to dismiss another defendant from the lawsuit based on something the plaintiff said in her deposition, even though the second defendant did not himself file a motion asking to be dismissed from the suit.  If not, then a second question presented is whether the second defendantís oral request to be dismissed made at the hearing on the first defendantís motion comes too late. 

In September 1995, Debra Henfield claims she fell down the stairs of a mobile home rented by John Taylor and located in a mobile home park owned by Adlerian.  Henfield sued Adlerian and Taylor to recover her damages resulting from the injuries she sustained in the fall.  During her deposition, Henfield said under oath that she did not want to sue Taylor, because he was her friend, whom she was visiting at the time she fell.  Adlerian then filed a written motion with the trial court to dismiss Taylor as a defendant because of Henfieldís statement, arguing that it would hurt their case for Taylor to still be in the lawsuit.  Taylor, who was not represented by a lawyer, did not file a written motion asking to be dismissed. 

At the hearing on Adlerianís motion, Taylor informed the judge that he wished to join Adlerianís motion to dismiss him from the case.  In February 2001, the trial judge issued an order granting Adlerianís motion to dismiss Taylor from the case.  On appeal, Henfield argues that Adlerian could not make a motion to dismiss another defendant from the suit under these circumstances.  Henfield also argues that the rules require ten days notice before this type of motion can be heard, and Taylorís oral motion at the hearing did not comply with that rule.  Henfield also argues that her statement in the deposition is misinterpreted, and not consistent with the fact that she did sue Taylor.  She argues that she has not withdrawn her suit against him, as she has a right to do, and therefore, her statement in the deposition is not a basis for dismissing Taylor from the suit.


10665  Spiers v. Ballou

This domestic cross-appeal concerns the family courtís award of equitable distribution and attorney fees and costs. 

Linda Spiers (the wife) appeals from the family courtís order that she pay $50,000 for attorney fees incurred by Paul H. Spiers (the husband) in connection with this action.  She also appeals the courtís valuation of her equity in certain property, as well as the courtís award of fifty percent of the increased value of certain property to the husband. 

The husband died after the family court entered the divorce decree.  Fredrick Ballou, Jeanne Spiers, and William Perkins, in their capacity as personal representatives of his estate, appeal the family courtís award of attorney fees and the award of equitable distribution.  They contend the attorney fees award is inadequate in that it covered less than one half of the husbandís total fees and costs.  They also assert the family court did not adequately consider the husbandís contributions when it divided the marital property.

2:00 p.m.

10547 Fred T. Hopkins, Appellant, v. Robert F. Harrell, Jr. and Miles Heating and Air Conditioning, Defendants, of whom, Robert F. Harrell, Jr. is the Respondent

This action arises out of Fred T. Hopkinsís purchase of a home in the Vintage Place Development (Phase II) in Florence County.  The home was constructed by Robert F. Harrell, Jr., the general contractor, and a subcontractor, Miles Heating and Air Conditioning.  Hopkins brought this action against the general contractor and the subcontractor, alleging the home was improperly constructed.  Hopkins settled with Miles, the subcontractor.  The trial court subsequently dismissed Hopkinsís action against Harrell, the general contractor, based on Hopkinsís alleged failure to mediate this matter as required by a prior court order.  Hopkins appeals, arguing the trial courtís dismissal was an abuse of discretion because (1) this action was filed prior to the effective date of the rules for mediation and arbitration established by the South Carolina Supreme Court, and (2) he was not given proper notice and service of the motion to dismiss.

2:45 p.m.

10666  Boyle v. Low Country Womenís Specialists, Inc.

Shellene Boyle sued Low Country Womenís Specialists, Inc., alleging she was wrongfully discharged from her employment.  In her complaint, Boyle alleged causes of action for breach of contract and breach of covenant of good faith and fair dealing.

Boyle worked as a receptionist for Low Country Womenís Specialists.  She was discharged after a patient complained that Boyle had been deficient in matter of hygiene concerning blood.

The trial court granted summary judgment to Low Country Womenís Specialists, holding (1) the employment handbook on which Boyleís action is premised did not alter her status as an at-will employee and (2) Boyle violated the Bloodborne Pathogen Standard, giving Low Country just cause to terminate her employment.  Boyle appeals this ruling.

3:30 p.m.

10548 Hemmo v. Hemmo

The wife filed for divorce in September 1998, which was finalized in February 1999.  The husband and wife were equal partners in two corporations.  One corporation operated a beachwear business; the other owned the building and land.  The business was to be operated until October 1999, at which time the business was to be sold.

In May 1999, the wife claimed that the husband failed to pay child support and alimony.  The court found a lack of evidence to support this claim, but ordered the husband to fully disclose his financial records to his wife so she could receive her half of the business profits.

In November 2000, the wife again petitioned the court, claiming the husband had failed to disclose his financial records and pay her half of the business profits.  The parties agreed that the wife would pay the husband for his share of the business and the husband would disclose his business records.  The wife petitioned the court twice more, asking the court to require her husband to disclose his financial records, which he claimed were destroyed in Hurricane Floyd.  The husband also petitioned the court, asking that his wife pay him the full amount she owes him for his share of the business. 

The court denied the wifeís request and held her in contempt for not paying the husband.  The wife appeals, claiming the husband is in contempt of court for not giving her access to his financial statements.  The wife also appeals the contempt of court charge.

Thursday, October 10, 2002


10695 Gregg M. Gallagher, As Personal Representative of the Estate of Eleanor L. Evert v. Robert C. Evert, As Personal Representative of the Estate of George C. Evert

This is an appeal from a probate court decision, which determined that the estate of a surviving spouse is not entitled an undelivered elective share.

George Evert died in January 1998.  He was survived by his second wife, Eleanor, and his son from his first marriage, Robert.  Mr. Evertís will left everything to his son, Robert.  In South Carolina, however, a surviving spouse is entitled to 1/3 of the deceased spouseís estate, even if he or she has not been provided for in the will.  A condition to receiving that share, is timely filing of a proper claim for this ďelective share.Ē  Eleanor timely filed for her elective share within the proper time frame.  She died in May 1999 before she actually received her elective share of Mr. Evertís estate.  Her son from a previous marriage, Greg, took his motherís place in the claim for the elective share arguing that even though she was now deceased, because she made a timely filing, her estate was entitled to the 1/3 share of Mr. Evertís estate.  Robert opposed this claim.  Among other things, the probate court judge found Eleanorís estate was not entitled to the 1/3 elective share of Mr. Evertís estate.  Greg appealed this finding to the circuit court, which also found that Eleanorís children were not entitled to the 1/3 elective share of Mr. Evertís estate, affirming the probate court.  Greg has again appealed to this court, and the primary question is whether Eleanorís children are entitled to her elective share from Mr. Evertís estate.


10773  FOC Lawshe Limited Partnership v. International Paper Co.

In this case, which involves an action for nuisance and request for temporary injunction, both sides appeal the lower courtís decision.  International Paper appeals the determination that FOC Lawshe can go forward in its nuisance action, and FOC Lawshe appeals the denial of its request for a temporary injunction.

This case arises from a dispute between two landowners who both use their property for hunt clubs.  The hunt club on the FOC Lawshe tract hunt deer from fixed stands from which the hunters await deer to pass by.  The hunt clubs who lease the International Paper lands, however, use dogs to ďdriveĒ deer towards hunters waiting at designated locations near the property lines and along roads bordering the property.  Both parties hunt their respective lands on the same days, Wednesday and Saturday.  The members of FOC Lawshe filed suit against International Paper after dogs belonging to the hunt clubs that lease their lands continued to cross over onto FOC Lawshe lands, disrupting their hunting activities and causing damage.  The complaint alleges that these dogs are a nuisance because they continuously chase away deer from FOC Lawshe lands that otherwise could be hunted by FOC Lawshe members.  FOC Lawshe asked the trial court to issue a temporary injunction forcing International Paper to prevent the hunt clubs that lease its lands from using dogs until the case was finally resolved.  In response, International Paper asked the court to deny the injunction and dismiss the case.  The trial court ruled that FOC Lawshe had stated a cause of action against International Paper and therefore denied International Paperís motion to dismiss the case.  However, the trial court also ruled that FOC Lawshe was not entitled to the temporary injunction preventing use of the dogs during the remainder of the trial.  Both parties have appealed the trial courtís rulings to this court.


10761 In the Interest of Jeremiah W.,

Two off-duty police officers were working security at an apartment complex.  One of the officers called Jeremiah W. (the juvenile) over because he thought that the juvenile had a trespassing warning against him.  The juvenile responded by yelling profanity at the officer and continuing to walk on.  When the officer intercepted him, the juvenile hitched up his pants, bowed out his chest, and went, ďWhat?Ē in the officerís face.  The officer placed the juvenile under arrest for breach of the peace (being loud, boisterous, and using profanity in public).

On the way to the detention center, the officer asked the juvenile his name and how to get in touch with a relative.  The juvenile refused to give any information and became very irate and began yelling profane remarks.  The juvenile tried to stick his head through the open plexi-glass panel separating the front and back seats and puckered his lips as if he was going to spit on the officer.  The officer tried to subdue the juvenile by spraying him with a chemical agent.  The juvenile responded by yelling that he had a gun and would ďblow [the officerís] ----ing head off.Ē  This led to a charge of threatening a public official.

At trial, the juvenile was found guilty of both charges and was committed to an evaluation center.  The juvenile appeals his convictions on several grounds.


10852 The State v. Dilando D. Maybank

The police stopped Anthony Davis because he was driving a car without permanent tags.  Under South Carolina law at the time of the stop, a police officer could not stop a car merely because the car did not have permanent tags.  Anthony Davis is a fourteen Ė year Ė old without a valid driverís license.  The police officer asked Davis to take him to the owner of the vehicle, Dilando D. Maybank, who was renting a room from a local hotel.  The police officers claim that they knocked on the door and were given consent to enter by Maybank.  When the officers entered the hotel room, they saw marijuana on the nightstand.  Additionally, Maybank was holding a plastic bag containing a substance that appeared to be crack cocaine.  At Maybankís trial for possession of crack cocaine, Maybank moved to suppress the drugs.  The trial judge allowed the drugs to be admitted.  Maybank appeals arguing that the police acquired the drugs through a search that violated the Fourth Amendment to the United States Constitution because the police never would have seen the drugs in the hotel room had they not unlawfully stopped Davis on the highway.  The Fourth Amendment protects all citizens against unreasonable searches of their persons and property.


10955 State of South Carolina, Respondent, v. Anthony T. Higgs, Appellant

On February 9, 1998, an employee at an International House of Pancakes (IHOP) business in Myrtle Beach, South Carolina was robbed while making a deposit at the Anchor Bank.  The IHOP employee was followed into the bank by a gunman who demanded that the IHOP employee turn over a deposit bag containing the storeís weekend sales receipts.  During an investigation of the incident, a witness identified Anthony T. Higgs from a photographic lineup as one of the perpetrators.  According to the witness, Higgs was armed and waiting in the bushes outside the bank; he subsequently ran off with another man who came out of the bank.  Higgs was charged with armed robbery, grand larceny, and possession of a firearm during the commission of a felony. 

On appeal, Higgs first argues the trial court erred in failing to suppress (exclude) the witnessís identification of him at trial because the photographic lineup was unduly suggestive.  Higgs asserts the witness, who testified through an interpreter, had stated at one point during the suppression hearing that the police had told her that the person she saw at the bank was in the photographic lineup.  Higgs further asserts the witnessís identification was unreliable because of perceived discrepancies in her identification and her inability to observe the person outside the bank for any appreciable length of time.  In his second issue on appeal, Higgs contends the trial court erred in refusing to grant him a directed verdict of not guilty on all charges.  In support of this argument, Higgs alleges there was no evidence presented at trial that the person who accosted the IHOP employee inside the bank ever obtained the deposit bag or its contents.  Therefore, there was no question of fact to be decided by the jury and he was entitled to a directed verdict of not guilty as a matter of law.


10576 Harbour Towne Homeowners Association, Inc., v. Edward J. Edelen, III, Harbour Town, Inc., of Myrtle Beach and Harbour Towne, Inc., and Jurgen Zimmer, M. Linda Zimmer and Autohause, Inc.

This appeal arises from an action in equity court dealing with the sale of real property.  Appellants claim the respondent committed fraud and negligent misrepresentation when he sold them a parcel of land in Horry county.

Jurgen Zimmer and his wife, Linda Zimmer, own Autohause, Inc., a car repair shop near Conway.  In 1996, the Zimmers needed to relocate their shop, so they talked with Price, a local realtor, to help them find a new location.  Zimmer told Price the new location had to be zoned highway commercial. 

Price talked with Ed Edelen, an agent from Harbour Towne, Inc, about buying four lots on Highway 17 Bypass.  Price claims he told Edelen that he needed commercial property and once Edelen indicated that the property was highway-commercial, Price did not further investigate its zoning classification.  Edelen admits that he and Zimmer discussed the land being appropriate for commercial property, but says they also discussed a residential easement that runs across the rear 50-foot portion of the property. 

Before closing on the property, Zimmer asked Edelen if he would be able to use the rear 50 feet for parking, and Edelen told him that a parking lot would be okay, so long as it was not used as a road.  Prior to closing, flags were on the land because it was being examined for wetlands.  Zimmer asked Edelen about the wetlands, and Zimmer says Edelen told him that the land was ďhigh and dry.Ē  Edelen, on the other hand, claims he only told Zimmer that the expertís opinion was that wetlands would not be a problem.

At closing, Zimmer was represented by Jay Haar, a real estate attorney.  Haar conducted a title search on the land, but because Mr. Zimmer did not request him to check its zoning, Haar never independently verified the land was zoned highway commercial. 

Actually, the property is split-zoned: the front portion is zoned highway-commercial, and the back 50 feet are residential.  Edelen knew of the split-zoning because he personally negotiated with the Homeowners Association  (HOA) to have the property zoned that way.  Basically, in order to get the lots to be zoned highway-commercial, Edelen gave the HOA an easement and restrictive covenant on the rear 50 feet of the property in order to get the front portionís zoning changed to highway-commercial.  The back 50 feet remained residential as a buffer zone between any business that might go up on the front of the land and the neighborhood that is directly behind the land.

When Zimmer closed on the land, he received a deed describing the residential easements, covenants, and restrictions.  However, the deed also stated that Zimmer could use the rear portion of his property for parking. 

After purchasing the property, Zimmer began to clear the back portion of the land to put in a parking lot.  The HOA brought Zimmer to equity court for violating the restrictive covenant and residential easement described in the deed.  The master-in-equity ruled that Zimmer could use the rear portion of his property for a coqueena parking lot.

Because of the HOA lawsuit, the Zimmers brought a cross-claim against Edelen and Harbour Towne Inc., claiming fraud, negligent misrepresentation, breach of contract, breach of contract with fraudulent intent, breach of good faith and fair dealing, and promissory estoppel.  Basically, all of these claims stem from Zimmerís argument that Edelen lied to him about both the zoning classification of the property and the existence of wetlands on the property.  The master-in-equity ruled against him on all counts.   The master found that Edelen did not make any misrepresentations to Zimmer, and even if he had, the master found that Zimmer did not rely on nor have the right to rely on those representations. 

On appeal, Zimmer argues that the master was wrong not to have found that Edelen made false statements regarding the zoning of the land.  Further, Zimmer argues the master should have found that Zimmer relied on and had the right to rely on Edelenís representations.

Friday, October 11, 2002

9:30 a.m.

10597 Catawba Insurance Co. v. Hyatt

Catawba issued an automobile insurance policy to Hyatt with effective dates from June 13, 1997 to December 13, 1997.  The policy provided basic limits liability coverage and underinsured motorist benefits of the same limits. Catawba alleged that, on October 2, 1997, Hyatt either signed or had a friend, Mary Clark, sign on his behalf a form to delete underinsured motorist coverage.  Thereafter, Catawba offered to renew the policy, without the underinsured coverage, for the period from December 13, 1997, to June 13, 1998.  Hyatt paid the premium for the renewal policy.  Hyatt was injured in an automobile accident on December 18, 1997, when he was a passenger in the automobile insured under Catawbaís policy.  He filed a claim for underinsured motorist benefits and alleged that neither he, nor anyone on his behalf, directed the deletion of underinsured motorist coverage from the policy.

Catawba Insurance Company filed this action seeking a declaratory judgment that it had properly deleted underinsured motorist coverage to Hyatt at the time of the accident.  The trial court, however, concluded the attempted deletion of underinsured motorist coverage on October 2, 1997, was not effective and, therefore, such coverage existed in the renewed policy on the date of the accident.  Catawba appeals.

10:15 a.m.

10613  Burroughs & Chapin Co., Inc., v. South Carolina Department of Transportation

In this case, the Department of Transportation appeals from the jury verdict awarding landowners $87,510.63 for a parcel of property that became landlocked after the state condemned acres of land surrounding it.

The South Carolina Department of Transportation condemned 10.8 acres of land owned by Burroughs & Chapin Company for construction purposes.  This left another portion of Burroughs & Chapinís land, approximately 6.9 acres, landlocked.  The Department of Transportation is required to compensate the landowner whenever it takes property in this manner.  The Department of Transportationís offer of compensation was rejected by Burroughs & Chapin and a lawsuit followed regarding the value of the condemned land.  Both parties presented expert witnesses to testify as to the proper value of the land.  The property was heavily timbered, and Burroughs & Chapinís witnesses testified as to the value of the land itself and the value of the timber separately.  The jury awarded Burroughs & Chapin $87,510.63 as fair compensation for the condemned land.  This amount was much greater than the amount the Department of Transportationís witnesses testified that the land was worth, but it was still less than the amount testified to by Burroughs & Chapinís witnesses.

The Department of Transportation appeals the verdict and makes several arguments on appeal why the trial court erred, however, their arguments can be stated as two main issues:

1.      Whether it was improper to allow Burroughs & Chapinís witnesses to testify as to the separate value of the land and the timber on the land because it violates the ďunit ruleĒ method of valuation.  The ďunit ruleĒ prevents assigning separate values to the component parts of property to determine the fair market value; and

2.      Whether the trial court erred in instructing the jury that they could separately add the values for each component part of the land to reach the fair market value of the property.