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South Carolina
Judicial Department
Court of Appeals Published Opinions - May 2009

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.

5-5-2009 - Opinions

4539 - State v. Bryant

Jennifer Bryant appeals the trial court's revocation of her probation based on her failure to pay restitution. We affirm, finding the trial court obtained a valid waiver of her right to counsel and finding Bryant's willful failure to pay restitution argument not preserved for review.

4540 - Clardy v. Bodolosky

In this breach of contract action, Jack Bodolosky and United Land-Magnolia, LLC (collectively Bodolosky) appeal the trial court's judgment in favor of C. Steve Clardy and Michael S. Clardy. Specifically, Bodolosky argues the trial court erred by ordering him to carry out the terms of his real estate contract with the Clardys and deliver title of real property to them. Bodolosky maintains there was no "meeting of the minds" between the parties to warrant enforcement of the contract. Finally, Bodolosky contends the trial court erred in awarding attorney's fees to the Clardys. We affirm in part and reverse in part.

5-6-2009 - Opinions

4541 - State v. Singley

Ferris Geiger Singley appeals his first-degree burglary conviction and sentence of life without parole, arguing the trial court erred in denying his directed verdict motion because one cannot commit the offense of burglary by breaking into one's own dwelling.

4542 - Padgett v. Colleton County

This is an appeal of a directed verdict in a premises liability case. The issues are (1) whether the trial judge improperly weighed the evidence presented by the plaintiff during his case-in-chief; and (2) whether the defendant should have anticipated the harm from the condition causing the plaintiff's injury notwithstanding evidence that the condition was open and obvious; and (3) whether the trial judge was correct to rely on the the fact that the individual who created the condition was an independent contractor.

5-7-2009 - Opinions

4543 - Guinan v. Tenet Healthsystems

In this medical malpractice action, Robert Guinan appeals the master-in-equity's grant of defendants' summary judgment motion, arguing substantial issues of discovery remained unresolved and Dr. Avinash Gupta's testimony implicated the defendants in deviations from the standard of care.

5-14-2009 - Opinions

4544 - State v. Corley

Corley appeals his conviction for possession of crack cocaine asserting the trial court erred in denying his motion to suppress evidence. We affirm.

5-18-2009 - Opinions

4545 - State v. Tennant

Roy Otis Tennant appeals his convictions of first-degree criminal sexual conduct, kidnapping, and assault and battery of a high and aggravated nature (ABHAN), arguing the trial court erred in: (1) refusing to allow Doctor Donna Schwartz-Watts (Schwartz-Watts) to testify about his mental illness because the testimony pertained to his state of mind and the issue of consent, as well as impeached the alleged victim's testimony; (2) excluding his suicide note because the note was probative to his state of mind and relevant to his defense of consent; (3) excluding his suicide note because the note was admissible under Rule 106, SCRE, the victim was allowed to read a letter from Tennant, and he was entitled to show the context of his writings under the rule of completeness; and (4) refusing to allow him to question the victim and introduce evidence of their sexual relationship because the couple's unusual sexual history included "rough sex," and the infliction of pain was necessary for the jury to understand his defense of consent and to corroborate Schwartz-Watts's testimony.

4546 - State v. Russell

Russell appeals his conviction for criminal sexual conduct with a minor arguing the trial court erred in admitting a videotaped interview of Victim under S.C. Code Ann. § 17-23-175. Russell contends the admission of the evidence violates his Sixth Amendment right to confrontation and improperly bolstered Victim's testimony. Russell further maintains the videotape was more prejudicial than probative in violation of Rule 403 of the South Carolina Rules of Evidence. We affirm.

4547 - Kelly v. Logan, Jolley, & Smith

The Court of Appeals affirmed the circuit court's grant of summary judgment in favor of a law firm and its attorneys for legal malpractice claims arising out of the firm's representation of Gladys Kelly in her medical malpractice action. The Court held that Ms. Kelly failed to timely file her action against the firm within the three-year statute of limitations when she was put on constructive notice, if not actual notice, on several occasions prior to the statute's expiration that the firm was not representing Ms. Kelly in her individual capacity in the medical malpractice action.

4548 - Jones v. Enterprise Leasing

Robin Jones, by and though her father and guardian ad litem (GAL), Douglas Jones, appeals the circuit court's grant of summary judgment in favor of Enterprise Rent-A-Car (ERAC). Jones asserts ERAC negligently, carelessly, and recklessly entrusted and/or supplied a vehicle to an incompetent, habitually reckless, and otherwise unfit driver. Alternatively, Jones maintains ERAC is the alter ego of its wholly owned subsidiary, Enterprise Leasing Company Southeast (Southeast), and should be secondarily and financially liable for any tort of Southeast. We affirm.

5-20-2009 - Opinions

4549 - Fesmire v. Digh

Larry and Teresa Fesmire brought this action for specific performance of an alleged oral contract with George Digh and his deceased wife, Shelley Digh, for the Fesmires’ purchase of the Dighs’ interest in a condominium. The master-in-equity granted specific performance, and George Digh appealed. Digh argued that the action was barred by the Statute of Frauds, S.C. Code Ann. § 32-3-10(4) (2007), and that the admission of redacted settlement letters into evidence violated Rule 408, SCRE. Digh also argued that the master erred in failing to grant the parties' requests for a partition and an accounting. The Court of Appeals agreed and held that the Fesmires did not present clear evidence of an oral agreement such that they could satisfy the part performance exception to the Statute of Frauds. The Court also held that the admission of certain redacted settlement letters violated Rule 408, SCRE, because they contained statements made in compromise negotiations. The Court reversed the order granting specific performance and remanded the case to the master for an accounting and partition by sale.

5-27-2009 - Opinions

4550 - Mungo v. Rental Uniform Service of Florence, Inc.

The Court of Appeals affirmed the circuit court's finding that substantial evidence in the record supported a finding that Gail Mungo proved she was entitled to workers' compensation benefits for a change of condition to her spine. The Court of Appeals also agreed with the circuit court that evidence of a change in Mungo's psychological condition could be considered; however, the Court did not agree that the circuit court could make those findings of fact. The Court of Appeals, therefore, reversed the circuit court's holding that Mungo had proven her entitlement to psychological benefits and remanded the issue to the Workers' Compensation Commission.

4551 - Jones v. Leagan

In this civil case, we must determine whether the Special Referee erred in holding (1) James and Helen Owens (collectively the Owens) acquired title to a piece of property owned by W. Harold Jones (Jones) by adverse possession, and (2) Jones' claim of ownership was barred under the doctrine of laches.

4552 - State v. Fonseca

On appeal from McCormick County, the Appellant was convicted of committing a lewd act against a minor. The original indictment, charged a single count of a lewd act against a minor, but alleged two distinct incidents, one in 2001 and another in 2003. The trial court ordered the indictment amended at which time the State elected to proceed only on the 2003 incident. Appellant claims it was error to allow the State to proceed under the amended indictment, alleging it was devoid of proper notice. Appellant also appeals the admission of the Victim's testimony regarding a previous encounter with the Appellant as a violation of rules 404(b) and 403, SCRE. Finally Appellant argues the trial court erred in allowing the Victim to testify as to her out of court statements made to a friend's mother regarding her alleged attack, arguing the statements are hearsay and impermissible bolstering.

5-28-2009 - Opinions

4553 - Barron v. Labor Finders of South Carolina

Appellant filed suit alleging four causes of action, including a claim for wrongful discharge. Initially, the Appellant allegedly agreed to dismiss all claims except the wrongful termination claim. Accordingly, an Order was entered granting summary judgment on all issues except the wrongful termination claim. Later, Respondent's Motion for Summary Judgment was renewed as to the wrongful termination claim, and was verbally granted, on the grounds that the consent to dismiss the other three claims barred the wrongful termination claim. Appellant immediately filed a Rule 54(b) motion to amend the previous Summary Judgment Order to reflect the intent of the parties to be able to maintain the wrongful termination claim. The Rule 54(b) motion to revise the first Summary Judgment Order was denied. Respondent then filed yet another summary judgment motion to dismiss the wrongful termination claim, which was granted. Appellant alleges (1) that it was error to grant Summary Judgment in favor of Respondent on the wrongful termination claim; (2) it was error to deny the rule 54(b) motion to revise the first summary judgment order; and (3) the initial Order granting summary judgment on three of the Appellant's claims did not bar Appellant's wrongful termination claim.