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South Carolina
Judicial Department
Court of Appeals Published Opinions - January 2005

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.

1-4-2005 - Opinions

3914 - Knox v. Greenville Hospital System

Robert and Beatrice Knox appealed the circuit court order granting summary judgment to defendant Greenville Hospital System (Hospital) on his medical negligence claim and her loss of consortium claim, arguing the circuit court erred in finding the applicable two-year statute of limitations barred the claims. Viewing the facts and circumstances in the light most favorable to Knox, the court of appeals found that under the discovery rule he should have reasonably been aware of a potential claim on the date of his injury, May 2, 2000, regardless of the fact that he did not know the extent of his injury until later diagnosed by an orthopedic surgeon. Because the two-year statute of limitations commenced on May 2, 2000, and Knox did not file the present action until May 8, 2002, the court found the statute of limitations barred the present action. Accordingly, the court affirmed the grant of summary judgment to the Hospital.

3915 - Parker v. Spartanburg Sanitary Sewer District

In this civil case, the Court analyzes whether the trial court erred: 1) In not reducing the jury’s verdict to comply with the limitations of recovery set forth in the Tort Claims Act; (2) In not allowing Appellant to amend its answer; (3) In not allowing Appellant to introduce evidence concerning amounts actually paid by Medicare towards the Respondent’s total medical bills.

1-10-2005 - Opinions

3916 - State v. Smith

Reverses a conviction of voluntary manslaughter upon finding that the facts of the case justify neither the jury charge nor the verdict. As a result, the conviction for possession of a firearm during the commission of a violent crime is also reversed.

3917 - State v. Hubner

In this criminal case, appellant appeals his conviction for six counts of lewd act upon a child, asserting the trial judge erred in (1) admitting evidence of a 1981 conviction under the common scheme or plan exception to the rule which generally disallows prior bad act evidence and (2) denying his motion for continuance.

3918 - State v. Mitchell

In this criminal case, a novel and intriguing issue is presented in regard to whether involuntary manslaughter is a lesser included offense of homicide by child abuse.

3919 - Mulherin-Howell v. Cobb

In this civil case, the Court decides whether the Circuit Judge erred in: (1) Concluding that the Respondent had standing; (2) Failing to conclude that the Respondent’s case was barred by the Statute of Limitations; and (3) Granting Respondent summary judgment.

3920 - Lacke v. Lacke

In this domestic relations case, the Appellate Court reviews the Family Court Judge in regard to the following issues: (1) Did the Family Court err by modifying or failing to enforce the Illinois Order? (2) Did the Family Court err by changing the obligations and duties of the parties in regard to the child’s college education expenses? (3) Did the Family Court err in equating the term “grants and scholarships” with student loans? (4) Did the Family Court err by ordering that the child’s income reduce the financial responsibility of the parents? (5) Did the Family Court err by excluding transportation costs from college expenses for the child? (6) Did the Family Court err by failing to award attorney’s fees to Appellant?

3921 - BPS v. Worthy

In this civil action, the Appellant, BPS, Inc., appeals the granting of summary judgment to Respondent, William M. Worthy, II, as to his individual liability. BPS is a company processing insurance claims as a third party administrator for corporations. Carolina Benefit Administrators of SC, Inc. (CBA) processes insurance claims as a third party administrator for self-funded ERISA plans. Worthy is president of CBA. The gravamen of this action relates to an alleged agreement by CBA to purchase BPS, Inc. On appeal, the appellate court must decide whether genuine issues of material fact exist as to the personal and individual liability of the Respondent. Additionally, this case involves the authority of a circuit judge to review an order of a retired circuit judge.

3922 - Donahue v. Multimedia, Inc.

In this contract case applying New York law, Donahue appeals, arguing the trial court erred in (1) failure to render a contract non-assignable due to its status as a personal services contract, (2) concluding a stock sale was not a contract assignment, and (3) interpreting the contract's right of first refusal.

1-18-2005 - Opinions

3923 - White’s Mill Colony, Inc. v. Williams

This appeal concerns multiple issues arising from competing claims of various land owners to access an abutting man-made body of water.

1-24-2005 - Opinions

3924 - Tallent v. SCDOT

The South Carolina Department of Transportation (SCDOT) appealed the circuit court's determination that its actions constituted an actionable taking of Elisha Tallent's property. SCDOT argued the enactment of section 57-5-1050 of the South Carolina Code (1991) alleviates SCDOT's necessity to compensate Tallent for an actionable taking of her property. The appellate court found this argument not preserved for review. Additionally, SCDOT alleged its actions did not constitute an actionable taking because Tallent's property does not abut any street to which access was affected by SCDOT construction project. The appellate court disagreed, finding Tallent demonstrated a special injury sufficient to entitle her to compensation regardless of whether her property abutted any section of affected street.

3925 - State v. Michael Governor

Determines that a violation of the Department of Public Safety's guidelines concerning the handling of evidence does not, in and of itself, require suppression of the evidence at trial.

3926 - Brenco v. SCDOT

Affirms the trial court's denial of the request to rescind a deed, but remands for receipt of evidence of damages on an inverse condemnation claim.

3927 - Carolina Marine Handling v. Lasch

In this breach of contract action, the court of appeals affirmed the circuit court’s dismissal of Appellant’s counterclaim and third-party claim on the basis that it was barred by the three-year statute of limitations. The court found that the contract had not been made one “under seal” within the meaning of S.C. Code Ann. § 15-3-520(b) – and thus subject to a twenty-year statute of limitations – based on Appellant’s sole reliance on the general contract language stating, “IN WITNESS WHEREOF, the parties have hereunto set their hands and seals.”

3928 - Cowden Enterprises v. East Coast Millwork Distributors

In this appeal of a contribtution award, the court analyzes whether a national class action settlement shields a joint tortfeasor from claims for contribution under the South Carolina Contribution Among Tortfeasors Act.

3929 - Coakley v. Horace Mann Insurance Co.

In this appeal from a declaratory judgment action, Horace Mann Insurance Co. argues the trial court erred in finding coverage under three different automobile policies.

3930 - Lenz v. Walsh

James L. Walsh and Martha L. Walsh appeal from an order denying them recovery on their counterclaims against William A. Lenz, an unlicensed residential builder. On appeal, they argue the master-in-equity's order effectively violates the South Carolina statute that prohibits an unlicensed residential builder from enforcing a construction contract.

3931 - State v. Hackett

In this probation revocation case, the court addresses the novel question of whether a probationer's probationary period may be tolled when he absconds from supervision.

1-25-2005 - Opinions

3878 - State v. Frey

Timothy Scott Frey appeals his conviction for driving under the influence, arguing the circuit court improperly admitted evidence of the results of a blood-alcohol test. We reverse in part and remand.

1-31-2005 - Opinions

3932 - Nasser-Moghaddassi v. Moghaddassi

In this domestic relations case, appellant contends that the Guardian ad Litem’s recommendation was not the product of an independent, balanced, and impartial investigation pursuant to Patel v. Patel. Appellant appeals the decision by the Family Court Judge awarding Guardian ad Litem fees and failing to award attorney’s fees and costs. Appellant contends the Family Court Judge erred in awarding the husband possession of the marital home when it is the only liquid asset in the marital estate. Finally, appellant contends the Family Court Judge erred in failing to make a fair and equitable distribution of the marital estate and failing to award appellant separate personal property.

3933 - State v. Crawford

In this criminal case, appellant contends that the trial testimony was not sufficient to withstand a directed verdict on the charge of criminal conspiracy.

3934 - Dixon v. Ford

In this civil action, the appellant contends the Circuit Judge erred: (1) in charging the jury that a purchaser of an infested home has no right to rely on favorable answers on the wood infestation report given to the purchaser at the closing; and (2) in admitting the testimony of a witness in regard to prior sale conversations and activities.

3935 - Collins Entertainment v. White

In this contract action, Appellants assert the trial court erred by granting summary judgment in favor of Respondents.

3936 - Rife v. Hitachi Construction

In this products liability case, three causes of action are pled: (1) negligence; (2) strict liability – manufacturing defect; and (3) strict liability- failure to warn. The appellant was injured while operating a Hitachi EX100 excavator. The excavator was designed, manufactured, and sold by Hitachi Construction Machinery Co., Ltd. in Japan for the Japanese market and sold originally to a Japanese customer. The excavator was sold by American Equipment Company to the employer of the appellant in the United States. The trial judge granted summary judgment: (1) to Hitachi on the ground that it was not foreseeable that the EX100 would arrive in the United States and injure an American worker; and (2) to American Equipment Company on the ground that the failure to have a seat belt was not sufficient to establish that the excavator was either defective or unreasonably dangerous. The issues posited on appeal: (1) whether it was foreseeable that the failure of Hitachi to equip the excavator with a seat belt would lead to an ejection injury to someone OR whether the injuries sustained by appellant were the foreseeable consequence of any alleged negligence of Hitachi because the excavator was manufactured according to Japanese standards, sold in the Japanese market, and there was no proof as to its introduction into the American market; and (2) whether the omission of the optional safety equipment – seat belt – caused the excavator to be in a defective condition and unreasonably dangerous to the user at the time it was sold by American Equipment Company.

3937 - State v. Thompson

Nepolean Thompson appeals his convictions for drug related offenses, arguing evidence was seized under an invalid search warrant. This court affirms the trial court’s denial of Thompson’s motion to suppress certain evidence obtained under the warrant.

3938 - State v. Yarborough

Ernest Yarborough was convicted of obstruction of justice. He appeals the trial court's denial of his motion for a new trial based on alleged premature jury deliberations. We affirm.

3939 - State v. Johnson

After a jury convicted him of murder, Rorey Jamar Johnson was granted a new trial based on an improper reference by a State's witness to a polygraph exam. The State appeals arguing the curative instruction issued by the trial judge following the reference cured any possible prejudice. We affirm finding the trial judge did not abuse his discretion in granting a new trial when the polygraph testimony was critical in assessing the witness's credibility, which was vital to the State's case.

3940 - State v. Fletcher

In this prosecution for homicide by child abuse, appellant presents a plethora of appellate issues: (1) did the trial court err by admitting evidence of prior bad acts, i.e., that the victim had been handcuffed to a bedpost and left in the attic in the weeks before his death? The admissibility of this evidence is analyzed under res gestae, Rule 404(b), SCRE, and State v. Lyle; (2) did the trial court err in admitting evidence obtained in accordance with a search warrant? (3) did the trial court err in the redaction of a statement of appellant’s co-defendant in violation of various constitutional provisions and Bruton v. United States; and (4) did the trial court err by admitting photographs of the victim?

3941 - State v. Green

In this criminal appeal, appellant was convicted of criminal sexual conduct (CSC) first degree and CSC second degree. He contends the trial court lacked subject matter jurisdiction over both offenses. The Court concludes that subject matter jurisdiction was lacking because of defects in the amendment procedure approved by the circuit judge.