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South Carolina
Judicial Department
Court of Appeals Published Opinions - August 2011

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.

8-3-2011 - Opinions

4858 - Pittman v. Pittman

In this divorce action, Jetter Pittman contends the family court erred in its award of alimony and attorney's fees to Gloria Pittman and in its identification and division of the marital property.

8-10-2011 - Opinions

4768 - State v. Bixby

Rita G. Bixby appeals her convictions of two counts of accessory before the fact and two counts of criminal conspiracy in connection with the murders of Abbeville County Sheriff's Deputy Danny Wilson and South Carolina Magistrate's Constable Donnie Ouzts. She argues the trial court erroneously admitted certain evidence. We affirm.

4859 - State v. Garris

Brian Garris appeals his convictions of armed robbery, assault and battery with intent to kill (ABWIK), and possession of a firearm during the commission of a violent crime. Garris argues the trial court erred in denying: (1) his motion to dismiss the case or declare a mistrial pursuant to Rule 5, SCRCrimP, or Brady v. Maryland; (2) his motion to suppress a gun found in the jail after his arrest on an unrelated charge; (3) his request to call an expert to rebut the State's expert's opinion testimony when the opinion was not contained in the expert's report; and (4) his Batson v. Kentucky motion and refusing to set aside the jury because the State's peremptory challenges were racially motivated and eliminated all African-American males from the jury.

4860 - VE Amick v. Palmetto Environmental

In this breach of contract action, Palmetto Environmental Group, Inc. (Palmetto) argues (1) the trial court erred in denying Palmetto's motion for a directed verdict because Palmetto's performance was excused due to V.E. Amick & Associates, LLC's (Amick's) failure to hire a DHEC qualified engineer to certify Palmetto's work; and (2) the trial court erred in denying Palmetto's motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial nisi remittitur because Amick will receive $137,650 in future contract payments from DHEC and this amount should have been offset from the jury's verdict. We affirm on both points.

4861 - Moeller v. Moeller

Appellant Anna Brooke Moeller (Mother) seeks review of the family court's award of child custody to Respondent Marcus Moeller (Father). Mother argues the family court placed an improper emphasis on her extra-marital affair when there was no evidence this relationship had any detrimental effect on the parties' children. Mother also argues the family court abused its discretion in separating Mother's oldest child from the parties' two younger children because the separation was against the children's best interests. We reverse and remand this matter to the family court for a custody exchange.

4862 - 5 Star v. Ford Motor Company

5 Star, Inc. filed this product liability action against Ford Motor Company alleging that negligence in the design of a speed control deactivation switch caused a fire that burned a 1996 Ford F-250 pickup truck. However, 5 Star presented no expert witness to testify that Ford was negligent in designing the switch, nor any other evidence that Ford breached its duty of care at the time the switch was designed and manufactured. We hold the trial court erred in denying Ford's motion for a directed verdict. We reverse.

4863 - White Oak Manor v. Lexington Insurance Co.

The respondent, White Oak Manor Inc., (White Oak) owns and operates a nursing home in York County. In 2003 White Oak filed a declaratory judgment action against its insurer, the appellant, Lexington Insurance Co. (Lexington), to have the contractual obligations between the two adjudicated. Lexington did not file an answer to the suit, and entry of default was granted. Lexington moved to have entry of default set aside; the trial court denied the motion and Lexington appeals.

4864 - Beverly S. v. Kayla R.

Following a traffic accident that totaled her car, Beverly S. sued for damages and received a jury verdict in her favor. She now appeals the verdict, arguing the trial court erred in declining to instruct the jury on damages for the loss of use of a destroyed vehicle. We affirm.

4865 - Shatto v. McLeod Regional Medical Center

On appeal, McLeod Regional Medical Center (McLeod) argues the Appellate Panel of the Workers' Compensation Commission (Appellate Panel) erred in concluding (1) Mildred H. Shatto (Shatto) was an employee of McLeod and (2) Shatto's fall was compensable and not idiopathic in nature. We reverse and remand.

4866 - State v. Lindsey

Eddie Lindsey (Lindsey) was indicted for and convicted of armed robbery and assault and battery with intent to kill (ABWIK). The trial court sentenced Lindsey to concurrent sentences of thirty years' imprisonment for armed robbery and twenty years' imprisonment for the ABWIK charge. Lindsey appeals, arguing the trial court erred in admitting (1) hearsay that improperly bolstered the officer's testimony and (2) Lindsey's written statement into evidence. We affirm.

4867 - State v. Hill

Pursuant to Anders v. California [1] , Jonathan K. Hill (Hill) appeals his convictions for two counts of armed robbery, two counts of conspiracy to commit armed robbery, and one count of resisting arrest. [2] After review, this court ordered the parties to brief the issue of whether the circuit court erred in denying Hill's motion for a new trial after the jury mistakenly received two statements made by Hill during deliberations that were not admitted into evidence during trial. We find the circuit court erred and accordingly reverse.

4868 - Keefer v. Keefer

In this action for divorce, Linda Keefer appeals from the family court's order directing that the qualified domestic relations order be prepared using the shared plan method, arguing the court should have directed that the order be prepared using the separate plan method to determine her portion of Rodney Keefer's pension plan.

8-11-2011 - Opinions

4848 - Wannamaker v. Wannamaker

In this domestic action, Preston D. Wannamaker (Husband) appeals the family court's award of alimony to Katherine Thomas Wannamaker (Wife) and the court's valuation of the parties' retirement accounts. We affirm in part and reverse in part.

8-17-2011 - Opinions

4869 - Hollis v. Stonington Development

The primary issue in this appeal is whether the trial court erred in imposing punitive damages of $3.5 million against Stonington Development, LLC. We find the amount of punitive damages is excessive and therefore that due process requires the amount of the award to be reduced. As to all other issues, we affirm.

4870 - Grant v. State

In this action to declare title to tidelands, Peter D. Grant, Trustee, (Grant) argues the trial court erred in concluding he failed to rebut the State of South Carolina's presumptive title to the tidelands adjacent to his property.

4871 - State v. Burgess

In this Fourth Amendment search and seizure case, Sandy Burgess appeals her convictions and sentences for trafficking crack cocaine, possession with intent to distribute (PWID) cocaine, PWID ecstasy and possession of marijuana. Burgess argues the trial court erred in determining Investigator John Lutz had reasonable suspicion to stop her vehicle.

4872 - State v. Morris

During a traffic stop, police officers searched the trunk of a car driven by Kenneth Darrell Morris, II, and discovered a quantity of ecstasy pills. A large amount of marijuana was also found during the subsequent inventory search. During his trial for trafficking ecstasy and possession of marijuana with intent to distribute, Morris unsuccessfully moved to suppress the drugs as fruit of an illegal search. A jury convicted Morris of both charges. Morris appeals the trial court's decision not to suppress the drugs. We affirm.

4873 - MRI at Belfair v. SCDHEC

In this appeal from the ALC, the Court of Appeals affirms the ALC's determination that Coastal Carolina Medical Center's amendments to its MRI project at its hospital were not substantial enough to void its certificate of need application.

8-24-2011 - Opinions

4874 - Wachovia v. Blackburn

In this mortgage foreclosure action, William and Judith Blackburn appeal the circuit court's order granting Wachovia's motion to strike their jury trial demand.

4875 - Powell v. Bank of America

In this negligence action, a jury found Bank of America, North America (BOA) liable for negligence and awarded Cody P. by and through his Conservator, Kelly H. Kelley, and his natural and legal guardian Elizabeth Powell (collectively Powell) $205,735.37 in actual damages and $1,583,000 in punitive damages. BOA appeals arguing the trial court erred in denying its (1) motions for judgment notwithstanding the verdict (JNOV) as to negligence and punitive damages and (2) motion for a new trial based on the admission of evidence regarding its size. BOA also contends the trial court erred in finding the award of punitive damages was constitutionally proper.

4876 - Crosby v. Prysmian Communications

The workers' compensation commission found that Melissa Crosby was injured in the course and scope of her employment with Prysmian Communications Cables and Systems USA. Prysmian fired her nineteen days after her injury. Crosby sued Prysmian for retaliatory discharge, claiming she was fired for filing a workers' compensation claim. In a motion for summary judgment, Crosby asked the circuit court to give preclusive effect to the commission's finding and grant summary judgment on Prysmian's affirmative defense that the workers' compensation claim was fraudulent. We affirm the circuit court's order granting partial summary judgment that the commission's finding is preclusive, and hold Prysmian's affirmative defense fails as a matter of law. We also affirm the circuit court's order granting summary judgment on Prysmian's counterclaims. However, we reverse the circuit court's order granting partial summary judgment as to the causal connection between the filing of the workers' compensation claim and Crosby's firing. We remand for further proceedings consistent with this opinion.

4877 - McComb v. Conard

Ryan Conard appeals the family court's decision regarding custody, a restraining order, and attorney's fees in this relocation case. We affirm.

4878 - JASDIP v. Estate of Richardson

This case arises from a contract for the sale of commercial property. Stewart Richardson (Seller) rescinded the contract after JASDIP Properties SC, LLC (Buyer) was unable to close in a timely fashion. A jury determined neither party breached the contract and awarded no damages on that basis. Buyer appeals the trial court's subsequent denial of its unjust enrichment claim, which permitted Seller to retain $215,000 in earnest money and extension fees. We reverse and remand.

4879 - Wise v. Wise

Stephen Brad Wise appeals the circuit court's dismissal of his workers' compensation claim that arose from the same facts as a civil action he settled against a third party and a default judgment he obtained against his employer. He maintains the circuit court could not take judicial notice of the existence of his civil action when evidence of that claim did not appear in the appellate record. We affirm.

8-31-2011 - Opinions

4880 - Gordon v. Busbee

In this probate matter, Charles Gordon, as personal representative for the estate of Clara Burch, appeals the circuit court's failure to grant a directed verdict in his favor as to certain claims, related to the transfer of Clara's assets, against Laurie and Dennis Burch, children of Clara's husband George Burch, and Jacqueline Busbee, individually and as personal representative of George's estate. Gordon further appeals the failure of the circuit court to give certain jury instructions and the circuit court's denial of his post-trial motions. We affirm in part, reverse in part, and remand.

4881 - Barrow v. Barrow

Husband argues the family court erred in equitably apportioning the marital estate in several respects including the allocation of martial tax debt of the parties and in giving Wife a $30,000 special equity in the marital home. We affirm in part as modified and reverse in part.

4882 - Palmetto Co. v. McMahon

Sean McMahon appeals the circuit court's affirming the magistrate's court's ruling that the ten-year statute of limitations found in section 15-3-350 of the South Carolina Code (2005) applies to the collection of rent due under a commercial lease. We reverse.

4883 - Nestberg v. Nestberg

This cross-appeal from an equitable division proceeding presents two primary issues: (1) whether property purchased before the marriage should have been included in the marital estate for purposes of equitable division, and (2) whether alleged marital economic misconduct should have affected the division of the marital estate. We affirm the family court's decision to include the property in the marital estate, but reverse the ruling that economic misconduct affected its valuation. We remand for a new trial as to the valuation of one asset of the marital estate.

4884 - Winters v. Fiddie

On appeal from a dispute over the sale of real property, the Court of Appeals reverses the trial court's grant of a new trial absolute, finding the sellers' failure to timely object to a flawed jury instruction foreclosed the trial court from granting a new trial absolute. Additionally, the Court of Appeals affirmed the trial court's decision to deny the sellers' motion for a directed verdict and the trial court's application of the Residential Property Condition Disclosure Act as well as its admission of certain evidence.