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South Carolina
Judicial Department
Court of Appeals Published Opinions - July 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.

7-1-2009 - Opinions

4575 - Santoro v. Schulthess

Appellant Warren Schulthess seeks review of an order requiring him to pay damages to Respondents Peter Santoro and Mary Santoro for trespass and for intentional interference with prospective contractual relations. Schulthess also appeals the requirements that he lower the level of his pond and remove a motor home from his property. We reverse.

4576 - Bass v. Gopal, Inc.

Appellant Gerald Bass filed this negligence action after he was shot at a motel owned and operated by Respondent Gopal, Inc. The circuit court granted summary judgment to Gopal, Inc. and Respondent Super 8 Motels, Inc. on the grounds that (1) they owed no duty of care to protect Bass; (2) the negligence of Bass exceeded any negligence on the part of Gopal and Super 8; and (3) Bass presented no evidence that Super 8 operated the motel in question. Bass challenges the circuit court's order on all three grounds. We affirm.

4578 - Cole Vision v. Hobbs

Dr. Steven C. Hobbs argues the trial court erred in granting Cole Vision Corporation's (Cole) Rule 12(b)(6), SCRCP, motion to dismiss. Specifically, Hobbs maintains he pled facts sufficient to constitute a negligence cause of action, while the trial court found spoliation of evidence an evidentiary matter which cannot serve as the basis for an independent cause of action under South Carolina law. We reverse.

4579 - State v. Howard

Stacy Howard appeals his conviction for assault and battery of a high and aggravated nature (ABHAN). Howard argues the trial court erred in: 1) declining to grant his motion for a mistrial; 2) refusing to recuse himself and interfering with Howard's presentation of a defense by wrongfully removing relevant testimony; 3) admitting irrelevant evidence; 4) admitting Howard's prior convictions into evidence; and 5) holding a probation revocation hearing and revoking Howard's probation without a warrant. We affirm in part, reverse in part, and remand.

4580 - Lanier Construction v. Bailey & Yobs

Lanier Construction Company, Inc., a subcontractor, sued its general contractor Bailey & Yobs, Inc. and the homeowners, Mike and Tami Cupp, after its cement truck fell into the Cupps' septic tank while making a cement delivery ordered by B&Y. Lanier and B&Y appeal the circuit court's grant of the Cupps' summary judgment motion. The Appellants argue summary judgment was improper because: (1) the court improperly determined the Cupps did not owe Lanier a duty of care; and (2) evidence supports a finding that the Cupps voluntarily assumed the duty to make the premises safe by marking the septic tank location. Additionally, the Appellants argue the trial court failed to address whether the Cupps assumed a duty of care by agreeing to mark the septic tank location, even after Lanier's Rule 59 motion to alter or amend the judgment.

4581 - Trowell v. SC Department of Public Safety

Scott Trowell appeals the circuit court's order affirming the decision of the State Human Resources Director that his appeal of an internal grievance matter was untimely. Trowell asserts the circuit court erred in finding service was perfected upon the Department of Public Safety's facsimile of its final agency decision, thereby initiating the time frame in which Trowell had to appeal. We reverse and remand.

4582 - Stecker v. TALX Corporation

7-7-2009 - Opinions

4583 - Jones v. SCDHEC

This case involves an appeal fro the granting of an amended dock permit to respondent Moore by DHEC's Bureau of Ocean and Coastal resource management (OCRM). The Administrative Law Court affirmed the issuance of the permit. This decision was affirmed by the Coastal Zone Management Appellate Panel, which was thereafter affirmed by the circuit court. On appeal, appellants Evan and Leslie Jones assert the granting of the dock amendment violates various code Regulations. They further take issue with procedural aspects of the case, contending an initial letter denying the amendment was a final decision and that their due process rights were violated.

4584 - State v. Oglesby

In this criminal case, Marion Wayne Oglesby argues the trial court erred in refusing to suppress evidence. We affirm.

7-9-2009 - Opinions

4585 - Spence v. Wingate

Deborah Spence (Wife) appeals from the circuit court's grant of partial summary judgment in favor of Kenneth Wingate, finding he did not breach his fiduciary duty to Wife regarding her husband's life insurance policy. We reverse.

7-13-2009 - Opinions

4586 - Marichris, LLC v. Derrick

In this cross-appeal in a partition case George Rodney Derrick challenges the master-in-equity's division of proceeds, allowance of credit for interest paid, and award of attorney's fees for both parties from the common fund. Marichris, LLC. appeals the award of attorney's fees to Derrick from the common fund.

4587 - Brookshire v. Blackwell

In this appeal from the family court, Daniel and Debi Brookshire assert the family court erred in dismissing their adoption action for lack of personal jurisdiction based upon a lack of minimum contacts. We affirm as modified.

4588 - Springs and Davenport, Inc. v. AAG, Inc.

AAG, Inc. appeals from the master-in-equity's order awarding Springs & Davenport, Inc., d/b/a H.B. Springs, Co., (Springs) $75,000 in commissions for the sale of property, arguing the master erred in: (1) finding the commission agreement was not a modification of the original listing contract; (2) finding the commission agreement did not create a condition precedent to payment of the commission; (3) finding Springs's interest in the property did not terminate with the foreclosure sale; and (4) finding the sale of the property to Clark Homes was not the result of intervening events or any of Springs's actions.

4589 - Mortgage Electronic Systems, Inc. v. White

This case involves the issues of whether the special referee erred in (1) denying the appellants' motion for a jury trial, (2) failing to recuse himself from the case, and (3) awarding judgment to the respondent despite evidence that allegedly indicated fraud during the mortgage process.

4590 - Williams v. Watkins

The Court of Appeals reversed and remanded the circuit court's order affirming the magistrate court's denial of Bucky Watkins' request for relief from judgment. The Court found the evidence in the record supported a finding that Watkins made a good faith mistake of fact, timely made a motion for relief, and made a prima facie showing of a meritorious defense. The Court also found the opposing party would not suffer a high degree of prejudice if the relief was granted.

4591 - McCreaCity of Georgetown

In this civil case, we must determine whether the trial court erred by failing to affirm the decision of the Appellate Panel of the South Carolina Workers' Compensation Commission (the Commission) and remanding the case to the Commission. We dismiss the appeal.

7-15-2009 - Opinions

4592 - Weston v. Kim's Dollar Store

Monica Weston appeals the circuit court's grant of summary judgment and dismissal of Counts II, V, and VI of her tort action against CIBA Vision (CIBA). On appeal, she argues the circuit court erred in granting summary judgment because (1) the circuit court lacked jurisdiction to determine whether the contact lenses at issue were federally regulated medical devices, (2) a genuine issue of material fact existed, and (3) there was neither a showing nor a finding that any South Carolina law conflicted with federal law. In addition, Weston argues the circuit court erred in refusing to amend or clarify certain provisions of its summary judgment order. We affirm.

4593 - Canteen v. McLeod Regional Medical Center

Jennette Canteen appeals from the circuit court's order dismissing her appeal and remanding the case to the jurisdictional commissioner of the Workers' Compensation Commission, arguing the court erred by: (1) failing to find the Workers' Compensation Commission's Appellate Panel's decision and order is immediately appealable; (2) failing to find Canteen suffered from asymptomatic Chiari I Malformation prior to July 2, 2001; (3) failing to find Canteen's injury aggravated her previously asymptomatic Chiari I Malformation; (4) finding no medical doctor provided evidence Canteen suffered a physical brain injury and disregarding the medical doctors' evidence; (5) disregarding evidence of Canteen's physical brain damage from herself and three neuropsychologists; (6) finding Dr. Kenneth Kammer's testimony concerning brain damage was equivocal; (7) failing to affirm the Single Commissioner's finding that evidence proved physical brain damage was causally related to Canteen's work injury; and (8) failing to affirm the Single Commissioner's award of lifetime compensation and lifetime medical care.

7-21-2009 - Opinions

4594 - Hynes Family Trust v. Spitz

The Hynes Family Trust and Richard W. Hynes (Hynes) allege the trial court erred in finding there was no express easement or easement by prior use permitting Hynes to maintain a storm water drainage pipe across Heide Spitz's (Spitz) property. We affirm in result.

4595 - Judy v. Judy

In this case, we determine whether the trial court erred in admitting evidence of a prior civil judgment obtained against Ronnie Judy by a third party not involved in the present case.

7-22-2009 - Opinions

4596 - Hieronymus v. Hamrick

In this workers' compensation case, Clarendon National Insurance company argues the circuit court erred in affirming the Commission's findings that 1) Hieronymus sustained an injury by accident to her neck; 2) Clarendon is liable for the alleged neck injury; 3) Hieronymus's claim against Clarendon was timely; and 4) the ganglion cyst in Hieronymus's right hand was caused by or related to the right hand injury and subsequent surgery.

4597 - Lexington County Health Services v. SCDOR

The South Carolina Department of Revenue (the Department) appeals the Administrative Law Court's (ALC) determination that Lexington County Medical Center (Lexington Medical) was entitled to a refund of sales and use taxes under section 44-7-2120 of the South Carolina Code (2002). We reverse.

4598 - State v. Rivera

The State appeals: (1) the trial court's finding William Javier Rivera and Jose M. Medero (collectively "Respondents") were unlawfully detained following a traffic stop, and (2) the trial court's holding that evidence seized during the detention was inadmissible. We affirm.

7-28-2009 - Opinions

4599 - Fredrick v. Wellman, Inc.

In this workers’ compensation case, Appellant Joann Fredrick seeks review of the termination of her temporary total disability benefits. A single commissioner of the Workers’ Compensation Commission terminated benefits based on an alleged misrepresentation in Fredrick’s employment application. Both the Appellate Panel and the circuit court affirmed the single commissioner’s order. Fredrick argues that the issue of the misrepresentation in her employment application was not properly before the Commission. Fredrick also argues that even if the misrepresentation issue was properly before the Commission, the facts of the case do not support her employer’s assertion of that defense. We affirm.

4600 - Divine v. Robbins

Josette Robbins appeals the family court's decision to award John Divine sole custody of their minor child. Ms. Robbins claims that the family court's ruling was erroneous because (1) the court placed undue weight on Mr. Divine's expert witness' testimony; (2) the court improperly exercised its discretion on several evidentiary rulings; (3) the court improperly determined credibility issues regarding the parties and their witnesses; and (4) her trial counsel's ineffective representation prevented her from having a meaningful hearing in violation of her due process rights. We affirm.

7-29-2009 - Opinions

4601 - Singh v. City of Greenville

The City of Greenville appeals an order from the circuit court granting Amrik Singh and SPBS, Inc., (collectively Singh), a second set of business license revocation hearings. We reverse and remand.

4602 - Spreeuw v. Barker

This is a protracted custody suit where an order issued in 2002 is only just now being reviewed on appeal. We affirm in part, reverse in part, and remand.