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This page is a compilation of some of the recent developments in our firm’s Practice Areas. To check for updates in your area of interest, simply click on the Practice Area to your left.

Appellate

Spence v. Wingate, 381 S.C. 487, 674 S.E.2d 169 (2009).
Opinion No. 26613, decided March 9, 2009.

In Spence v. Wingate, 378 S.C. 486, 663 S.E.2d 70 (Ct. App. 2008), the widow of a deceased congressman appealed the trial court’s grant of partial summary judgment to the defendants, the attorney’s for her deceased husband’s estate, in her legal malpractice action. She argued that the attorneys owed her duties based on their prior representation of her in another matter, but the South Carolina Court of Appeals declined to address the issue because it had not been ruled upon by the trial court and was thus not preserved for appellate review. However, the South Carolina Supreme Court reversed, holding that the widow was not required to file a Rule 59(e) motion to preserve the issue for review because the trial court’s finding that the attorneys owed her “no duty or obligation” sufficiently addressed her arguments in opposition to the summary judgment motion. Therefore, the court held that the issue was indeed reserved for appellate review and remanded to the Court of Appeals for a ruling on the merits.

Judy v. Martin, 381 S.C. 455, 674 S.E.2d 151 (2009).
Opinion No. 26604, decided February 23, 2009.

In 2000, the defendant filed an action against the plaintiff in magistrate’s court and the plaintiff filed a counterclaim in an amount over the jurisdictional limit of the magistrate. The plaintiff failed to appear at the trial, the magistrate entered a verdict for the defendant, and the plaintiff appealed to the circuit court. The circuit court affirmed the magistrate’s judgment and the plaintiff did not appeal the circuit court’s order. Four years later, in an attempt to satisfy the magistrate’s judgment, the defendant had a Notice of Levy issued on a piece of property owned by the plaintiff. The plaintiff then filed this declaratory judgment action seeking to have the magistrate’s judgment declared void ab initio for lack of jurisdiction. The master-in-equity found for the defendant, and the South Carolina Supreme Court affirmed. The court held that the circuit court’s unchallenged disposition on the magistrate’s jurisdiction was the law of the case and declined to reopen the issue in this subsequent action.

Chastain v. Hiltabidle, 381 S.C. 508, 673 S.E.2d 826 (Ct. App. 2009).
Opinion No. 4487, decided January 22, 2009.

The plaintiffs purchased a house through the defendant real estate agency. The sale was contingent upon the sellers’ completion of a disclosure statement revealing known defects in the property, which the sellers completed. After the sale, two days of rain resulted in several inches of water intrusion onto the property, causing damage to the plaintiffs’ furniture and to the property itself. The plaintiffs filed suit against the real estate agency, alleging that the disclosure statement was inaccurate or incomplete. The trial court granted summary judgment to the agency, and the plaintiffs filed a motion for reconsideration in which they argued the trial court did not issue a detailed order reflecting its findings of fact and conclusions of law, did not rule on their due process argument based on Rule 7(a), SCRCP, and did not comply with the rule that novel issues should be decided with a full and complete record. The trial court subsequently issued a seven page explanation of its decision, and the plaintiffs filed another motion for reconsideration on essentially the same grounds. The motion was denied and the plaintiffs appealed. The South Carolina Court of Appeals affirmed, holding that the plaintiffs could not show any prejudice which resulted from the agency’s alleged failure to comply with Rule 7(b)(1), SCRCP. Moreover, summary judgment was appropriate because the plaintiffs presented no evidence that the agency had actual or constructive knowledge that the disclosure statement was inaccurate or incomplete. The court also held that although the plaintiffs’ motions for reconsideration were technically insufficient to preserve the Rule 7(b)(1) issue, the court would not apply the rules of error preservation so rigidly as to bar an otherwise properly presented issue.

Johnson v. Sonoco Products Co., 381 S.C. 172, 672 S.E.2d 567 (2009).
Opinion No. 26584, decided January 20, 2009.

An employee filed a claim for workers’ compensation benefits. The single commissioner awarded benefits, but the Workers’ Compensation Commission reversed. On appeal, the circuit court reversed the commission and reinstated the single commissioner’s award. The South Carolina Court of Appeals affirmed the circuit court’s order, and the South Carolina Supreme Court denied certiorari. Prior to the conclusion of the appeal in the underlying case, the employee filed motions in the circuit court to compel payment of benefits and for sanctions against the employer. The employer objected on the grounds that the award of benefits was stayed during the appeal and that the circuit court lacked jurisdiction to consider the motions absent a remand. The circuit court rejected the employer’s arguments and awarded the requested relief. The employer subsequently paid the benefits, but challenged the award of sanctions on appeal. The South Carolina Supreme Court affirmed, holding that when the commission’s denial of benefits was reversed and an award made by the circuit court, the award was not stayed by the appeal. The court further held that because the circuit court retains jurisdiction over matters not affected by an appeal, it had the authority to enforce by appropriate sanctions matters not stayed by the appeal, including the award of benefits.

Curtis v. Blake, 381 S.C. 189, 672 S.E.2d 576 (2009).
Opinion No. 26583, decided January 20, 2009.

On the tenth day after a personal injury trial which resulted in a plaintiff’s verdict, the defendant served a Rule 59(b) motion for new trial by placing it in the mail. However, the motion was not filed by the clerk of court until the fifteenth day after trial. The plaintiff claimed the motion was untimely because it was not “made” within ten days after trial. The circuit court held that the motion was timely made, but denied the motion on the merits. The defendant appealed, but the South Carolina Court of Appeals dismissed the appeal on the grounds that it was untimely because the defendant’s motion for new trial was itself untimely and therefore did not toll the time for appeal. However, the South Carolina Supreme Court reversed, holding that the motion was “made” when it was placed in the mail for service on opposing counsel. Therefore, both the motion and the appeal were timely.

Coker v. Cummings, 381 S.C. 45, 671 S.E.2d 383 (Ct. App. 2008).
Opinion No. 4471, decided December 18, 2008.

In this boundary line dispute, the trial court granted summary judgment to the defendants. On appeal, the defendants argued that the plaintiff’s notice of appeal was untimely. However, the South Carolina Court of Appeals held that the appeal was timely because even though a form order was entered more than thirty days before the plaintiff filed his notice of appeal, the plaintiff received notice of the order within thirty days prior to filing his notice of appeal. The court affirmed the grant of summary judgment to the defendants, holding that because the record contained nothing to dispute the defendants’ evidence that they had lived on their property with the boundaries as they claim for at least twenty years, the plaintiff had acquiesced to the new boundary lines.

Paschal v. Price, 380 S.C. 419, 670 S.E.2d 374 (Ct. App. 2008).
Opinion No. 4454, decided November 24, 2008.

The claimant, a driver for a repossession company, was paralyzed from the waist down in an automobile accident after the vehicle he was towing blew a tire and caused him to lose control of his own vehicle. Almost two years later, the claimant sought workers’ compensation benefits as a result of the accident. His employer denied that the claimant was an employee, asserting that he was an independent contractor, however the single commissioner found that the claimant was an employee and awarded benefits. The Appellate Panel and circuit court affirmed the single commissioner’s findings, as did the South Carolina Court of Appeals. The court applied the “right to control” test and determined that a preponderance of the evidence indicated that the claimant was an employee. The court also rejected the claimant’s argument that the employer’s notice of appeal to the circuit court was untimely because it did not initially contain a civil action cover sheet. The court found that the omission of the cover sheet was a non-prejudicial clerical error which did not destroy an otherwise timely and legitimate appeal.

Cole v. Raut, 378 S.C. 398, 663 S.E.2d 30 (2008).
Opinion No. 26503, decided June 9, 2008.

The plaintiffs brought a medical negligence action against their obstetrician, alleging that the obstetrician’s negligence during the delivery of their son resulted in brain damage to and, ultimately, the death of the baby. At the close of evidence, the trial court permitted the obstetrician to amend her pleadings to assert the defense of assumption of the risk. The trial court then instructed the jury on the law of negligence and the doctrine of assumption of the risk. The jury rendered a defense verdict, but the South Carolina Court of Appeals reversed and remanded for a new trial, find that the trial court’s charge on assumption of the risk prejudiced the plaintiffs and was therefore erroneous. The South Carolina Supreme Court, however, reversed the Court of Appeals and reinstated the jury’s verdict. The court found that though the jury instruction on assumption of the risk was erroneous, it did not prejudice the plaintiffs in light of the entire jury charge, which included the general negligence instruction. Furthermore, the court found that the two-issue rule, which provides that a verdict will not be reversed where it is supported as to at least one of two or more issues or defenses, applied as an additional sustaining ground because the jury rendered a general defense verdict after hearing a properly submitted negligence claim and an erroneous charge on assumption of the risk.

Jones v. Lott, 379 S.C. 285, 665 S.E.2d 642 (Ct. App. 2008).
Opinion No. 4396, decided May 28, 2008.

A suspect was arrested and placed into a police cruiser. While the officers were filling out paperwork, the suspect maneuvered his way into the driver’s seat of the cruiser and attempted to drive away. During the attempted escape, one of the officers fired twice into the vehicle, with one of the shots striking and killing the suspect. The suspect’s estate brought this wrongful death and survival action against the Richland County Sheriff, but the trial court granted the sheriff a directed verdict at the close of the plaintiff’s case. One of trial court’s four stated grounds for issuing the directed verdict was that the sheriff was entitled to statutory immunity, but the plaintiff did not appeal this issue. Therefore, the South Carolina Court of Appeals affirmed on the basis of the “two issue rule,” which states that if the trial court’s decision is based on more than one ground, the appellate court should affirm unless the appellant appeals all grounds because the unappealed ground becomes the law of the case.

Camp v. Camp, 378 S.C. 237, 662 S.E.2d 458 (Ct. App. 2008).
Opinion No. 4383, decided May 2, 2008.

In this domestic dispute, the family court entered an order directing the father of a college student to pay a portion of the student’s and mother’s education expenses. The father filed a timely motion for reconsideration under Rule 59(e), SCRCP. However, the motion did not comply with Rule 7(b)(1), SCRCP, which requires motions to “state with particularity the grounds therefore” and “set forth the relief or order sought.” The mother and student objected to the motion on this basis, and the father subsequently filed a memorandum in support of his motion, though long after the time specified in Rule 59(e) had passed. The family court denied the motion, and on appeal, the South Carolina Court of Appeals confronted the novel issue of whether a motion for reconsideration which is timely under Rule 59(e) but which does not comply with Rule 7(b)(1) tolls the time for appeal. The court held that the time for appeal was not tolled, and therefore dismissed the father’s appeal as untimely.

Wieters v. Bon-Secours-St. Francis Xavier Hospital, Inc., 378 S.C. 160, 662 S.E.2d 430 (Ct. App. 2008).
Opinion No. 4374, decided April 23, 2008.

A physician’s medical staff privileges were summarily suspended by his employer hospital. After the hospital reported the physician’s suspension to the National Practitioner Data Bank, as required by federal law, the physician sued the hospital and various hospital personnel for defamation. During depositions, the physician’s lawyer asked two witnesses to describe the circumstances that led to the suspension of other physicians during their service on peer review committees, but the defendants’ lawyers instructed them not to answer any such questions. The trial court issued an order compelling the witnesses to answer the questions and the defendants appealed. The South Carolina Court of Appeals noted that discovery orders are generally not immediately appealable, but held that in light of McGee v. Bruce Hospital System, 312 S.C. 58, 439 S.E.2d 257 (1993), in which the South Carolina Supreme Court held that a discovery order compelling a hospital to produce credentialing files was immediately appealable, the trial court’s discovery order in this case was likewise immediately appealable. On the merits, the court held that the Peer Review Statute, S.C. Code Ann. § 40-71-20, protected the requested information from discovery, and therefore the court reversed the discovery order. However, the South Carolina Supreme Court later vacated the Court of Appeals’ opinion on the grounds that the discovery order was not immediately appealable. See Wieters v. Bon-Secours-St. Francis Xavier Hospital, Inc., 381 S.C. 332, 673 S.E.2d 417 (2009).

Stanley v. Atlantic Title Ins. Co., 377 S.C. 405, 661 S.E.2d 62 (2008).
Opinion No. 26470, decided April 21, 2008.

After discovering that a portion of his property contained a septic drainage field which serviced another parcel of land, the plaintiff brought this action for damages against his title insurance company. At trial, the parties presented widely differing views on the method to be used in valuing the plaintiff’s damages. The master-in-equity adopted the plaintiff’s viewpoint and awarded appropriate damages. On appeal, the title insurance company argued that the master had applied the wrong measure of damages, but presented a very different valuation method that the one it had argued for at trial. Therefore, the South Carolina Supreme Court held that the title insurance company’s valuation argument had not been preserved for appellate review and affirmed the master’s ruling.

Spence v. Wingate, 378 S.C. 486, 663 S.E.2d 70 (Ct. App. 2008).
Opinion No. 4370, decided April 17, 2008.

The life insurance benefits of a deceased congressman were divided between the congressman’s widow and his four sons. However, the widow believed the benefits should have been distributed exclusively to her. She filed this legal malpractice action against the attorneys for her deceased husband’s estate, alleging negligence, professional negligence, breach of fiduciary duty, and civil conspiracy. The trial court granted the attorneys’ motion for partial summary judgment, holding that pursuant to S.C. Code Ann. § 62-1-109, the attorneys had no duty to the widow with respect to her husband’s life insurance policy. On appeal, the widow argued that the attorneys’ owed her a duty based on their prior representation of her in another matter, but the South Carolina Court of Appeals declined to address the issue because it had not been ruled upon by the trial court and was thus not preserved for appellate review.

Brenco v. S.C. Dep’t of Transportation, 377 S.C. 124, 659 S.E.2d 167 (2008).
Opinion No. 26461, decided March 24, 2008.

After a trial on the plaintiff’s causes of action for rescission of a deed, negligent misrepresentation, and inverse condemnation, the trial judge found for the defendant on all but the inverse condemnation claim. The plaintiff moved to reopen the case for the taking of additional testimony regarding the inverse condemnation claim, but the trial judge declined to reopen the case and subsequently found in the defendant’s favor on the inverse condemnation claim. The Court of Appeals reversed the trial judge’s refusal to reopen the case, but the South Carolina Supreme Court reversed, holding that the Court of Appeals applied the wrong standard in reviewing whether the trial judge abused his discretion. The court found no abuse of discretion in the trial judge’s refusal to reopen the case when the plaintiff could have provided the “additional” evidence at trial.

Penn-America Ins. Co. v. Mapp, 521 F.3d 290 (4th Cir. 2008).
Docket No. 06-2279, decided March 20, 2008.

A pedestrian was injured when she was struck by a motorcycle driven by a bar patron. She filed suit in state court against the bar, and the bar notified its commercial general liability (CGL) insurer of the suit. The insurer then filed this declaratory judgment action in federal court, seeking an order that it had no duty to defend or indemnify the bar. On cross motions for summary judgment, the district court ruled that the insurer was, as a matter of law, required to defend the bar, but withheld judgment on the indemnification issue, finding that it was not yet ripe for consideration. The court dismissed the case from its active docket, providing that it could be reinstated upon the motion of any party once the pedestrian’s state court action was resolved. On the insurer’s appeal, the United States Court of Appeals for the Fourth Circuit held that the district court’s order was not a “final judgment” under 28 U.S.C. § 1291 because it did not terminate the case on the merits, but rather left part of the case—the indemnification issue—unresolved. Therefore, the court dismissed the appeal for lack of appellate jurisdiction.

Friends of McLeod, Inc. v. City of Charleston, 376 S.C. 610, 658 S.E.2d 544 (Ct. App. 2008).
Opinion No. 4338, decided January 17, 2008.

A college was granted a special zoning exception to operate within a district that would otherwise have prohibited such operations. The local zoning board granted the exception, and a group opposed to the exception appealed to the circuit court within the thirty day time period established by statute. However, the group did not name the college as a party to the appeal, and only moved to amend its pleading after the thirty day period had expired. The South Carolina Court of Appeals held that because development permittees are necessary parties to appeals of their respective permits, the group’s failure to file and serve the notice of appeal on the college within the required thirty day period required the dismissal of the appeal.

Foggie v. General Electric Co., 376 S.C. 384, 656 S.E.2d 395 (Ct. App. 2008).
Opinion No. 4330, decided January 10, 2008.

A machine operator was injured on the job and sought workers’ compensation benefits, but his employer disputed the extent of the injury and denied the employee’s assertion that he was totally and permanently disabled. The claim was heard before a single commissioner and appealed to the full commission and then to the circuit court, which partially affirmed the commission’s decision but remanded for further fact-finding on two issues. The employee sought review by the South Carolina Court of Appeals, but that court dismissed the appeal based on the longstanding principle that an order of the circuit court remanding a case for additional proceedings before an administrative agency is not directly appealable. Because the circuit court did not finally decide the case on the merits, its order was not immediately appealable.

Stearns Bank Nat. Ass’n v. Glenwood Falls, LP, 375 S.C. 423, 653 S.E.2d 274 (2007).
Opinion No. 26394, decided November 5, 2007.

The plaintiff obtained a default judgment of $1.3 million against the defendant, who subsequently filed motions under Rule 60(b), SCRCP, to set aside the default. Those motions were denied, as was the defendant’s motion under Rule 59, SCRCP, to reconsider the denials, and the defendant then appealed to the Court of Appeals. Months later, the defendant moved to stay the enforcement of the default judgment during the appeal. The circuit court denied the motion, but ordered that if the plaintiff desired to enforce the judgment during the pendency of the appeal, he must post a bond pursuant to S.C. Code Ann. § 18-9-130. The Supreme Court of South Carolina reversed the circuit court’s order because § 18-9-130 only applies to appeals from judgments directing the payment of money. Therefore, because the Rule 60(b) order did not direct the payment of money and because the defendant never sought a stay of the judgment pursuant to Rule 62(b), SCRCP, the plaintiff was entitled to enforce its judgment.

Carolina Water Service, Inc. v. Lexington County Joint Mun. Water and Sewer Commission, 373 S.C. 96, 644 S.E.2d 681 (2007).
Opinion No. 26306, decided April 9, 2007.

In this case, the South Carolina Supreme Court reiterated that an order granting a stay is not immediately appealable.



 

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