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South Carolina
Judicial Branch
Court of Appeals - Roster of Cases for Hearing

   
The summary below each case is prepared to offer lawyers and the public a general overview of what issues are included in a case which will be argued. The summary is not a limit on what issues a party to a case may present at oral argument.
Monday, September 12, 2005
Courtroom I
(Court convenes at 2:00 p.m.)
 2:00 p.m. (Time Limits: 10 - 10 - 5 )  
13464   2002-CP-21-120 Honorage Nursing Home of Florence, S.C., Inc., Appellant v. Florence Convalescent Center, Inc., Respondent._______________________2002-CP-21-1058 Honorage Nursing Home of Florence, S.C. Inc., Appellant v. Genevieve Powell, Respondent.

Charles Craig Young, of Florence, for Appellant. Jeffrey L. Payne, of Florence, for Respondents.

In this civil action, Honorage Nursing Home of Florence, South Carolina, Inc., appeals (1) the circuit court's action in vacating the default judgment against Florence Convalescent Center, Inc. and (2) the circuit court's grant of summary judgment in favor of Florence Convalescent.

Tuesday, September 13, 2005
Courtroom I
(Court convenes at 9:30 a.m.)
 9:30 a.m. (Time Limits: 10 - 10 - 5 )  
13586   The State, Respondent v. Cornelius Washington, Appellant.

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant. Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Derrick K. McFarland, of Columbia, and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

This case presents issues relating to evidentiary rulings--the refusal of the trial court to admit evidence in two instances and the allowance of evidence in the third instance.

 10:15 a.m. (Time Limits: 10 - 10 - 5 )  
13665   Mary Lizee, Respondent v. SC Department of Mental Health, Employer, and State Accident Fund, Carrier, Appellants.

Matthew C. Robertson and Ajerenal Danley, of Columbia, for Appellant SCDMH. Cynthia B. Polk, of Columbia, for Appellant State Accident Fund. E. Courtney Gruber, of Charleston, for Respondent.

In this workers' compensation case, Respondent claimed she was injured while employed at a South Carolina Department of Mental Health facility. The Workers' Compensation Commission found her injury was compensable, a determination subsequently affirmed by the circuit court. The Department now appeals to this court, arguing Respondent failed to provide the Department adequate notice of her injury as required by South Carolina Code section 42-15-20 (1985). The Department also claims the Commission erred in its determination that Respondent was permanently and totally disabled as a result of the alleged on the job injury.

 11:00 a.m. (Time Limits: 10 - 10 - 5 )  
13629   The State, Respondent v. Phillip H. Crocker, III, Appellant.

John Dennis Delgado and Kathrine Haggard Hudgins, of Columbia, for Appellant. Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Senior Assistant Attorney General William Edgar Salter, III, of Columbia, and Solicitor W. Barney Giese, of Columbia, for Respondent.

Crocker appeals his conviction for trafficking in marijuana. Several assignments of error are raised, including alleged lack of personal and subject matter jurisdiction, improper venue, improper denial of Crocker's motions for directed verdict, and improper admission of evidence obtained during a law enforcement search of Crocker's home.

 11:45 a.m. (Time Limits: 10 - 10 - 5 )  
13648   GMAC Commercial Mortgage Corporation, Respondent v. F.C. "Tally" Roberts, Jr., Appellant.

James W. Bradford, Jr., of York, and Bruce M. Simpson, of Charlotte, NC, for Appellant. Robert C. Byrd, of Charleston, for Respondent.

Queries whether the trial court applied the law of the correct state to determine whether a waiver of the right to a jury trial should be upheld, and also questions if it was appropriate to add a third party to the proceedings.

 2:00 p.m. (Time Limits: 10 - 10 - 5 )  
13597   Civil Action No.: 2001-CP-32-0711 Carolina Water Service, Inc., Appellant v. Lexington County Joint Municipal Water and Sewer Commission, Respondent. Civil Action No.: 2001-CP-32-0819 Town of Lexington, Appellant v. Lexington County Joint Municipal Water and Sewer Commission, Respondent. Civil Action No.: 2001-CP-32-1527 Carolina Water Service, Inc., Appellant v. Lexington County Joint Municipal Water and Sewer Commission, Respondent. Civil Action No.: 2001-CP-32-1534 Town of Lexington, Appellant v. Lexington County Joint Municipal Water and Sewer Commission, Respondent. Civil Action No.: 2002-CP-32-0036 Town of Lexington, Appellant v. Lexington County Joint Municipal Water and Sewer Commission, Respondent. Civil Action No.: 2002-CP-32-0078 Lexington County Joint Municipal Water and Sewer Commission, Condemnor, Respondent v. Carolina Water Service, Inc., Utilities, Inc., Landowners, Appellants, Town of Lexington, Other Condemnee, Appellants. Unknown Claimants. Civil Action No.: 2002-CP-32-0083 Carolina Water Service, Inc., Appellant v. Lexington County Joint Municipal Water and Sewer Commission, Respondent.

K. Chad Burgess, Paige J. Gossett, and John M.S. Hoefer, of Columbia, and Timothy E. Madden, of Greenville, for Appellant Carolina Water Service Inc. and Utilities Inc. Clifford O. Koon, Jr., of Columbia, for Appellant Town of Lexington. Joel W. Collins, Jr. and William A. Bryan, Jr., of Columbia, and Nikki G. Setzler, of West Columbia, for Respondent Lexington Cty. Joint Municipal Water and Sewer Comm.

In this civil action, Carolina Water argues the circuit court abused its discretion in lifting the stay of its actions challenging Lexington County's condemnation actions of property owned by Carolina Water.

 2:45 p.m. (Time Limits: 10 - 10 - 5 )  
13660   Essie Favor, Claimant, Respondent v. Michelin North America, Inc., and Pacific Employers Ins., Employer/Carrier, Appellants.

M. Chad Abramson, of Columbia, for Appellants. Daniel Ernest Peagler, of Columbia, for Respondent.

In this workers' compensation action, Favor claimed she suffered occupational hearing loss from exposure to harmful and excessive noise levels in the workplace. The single commissioner found her injury was not compensable and denied benefits to Favor. The Workers' Compensation Commission subsequently affirmed the order of the single commissioner in its entirety. The circuit court reversed. Michelin argues the circuit court erred in finding a lack of substantial evidence to support the order of the Commission. Michelin also claims the circuit court erred in reversing the Commission as to the physician's opinion letter.

 3:30 p.m. (Time Limits: 10 - 10 - 5 )  
13491   Kenneth Shuler, Husband, Jason Brandon Shuler, Minor Child and William Bryant Shuler, Minor Child, Beneficiaries of Linda Shuler, Deceased Employee, Respondents v. Gregory Electric, Employer and Comptrust AGC of South Carolina, Appellants.

Richard C. Detwiler and Mikell H. Wyman, of Columbia, for Appellants. E. Courtney Gruber, of Charleston, W. Scott Palmer, of Santee, and R. Walter Hundley, of Charleston, for Respondents.

In this workers' compensation action, the court determines whether an injury suffered by an employee in an automobile accident while returning from a visit to the doctor for treatment of a previously compensable worker's compensation injury arises out of the course and scope of employment.

Wednesday, September 14, 2005
Courtroom I
(Court convenes at 9:30 a.m.)
 9:30 a.m. (Time Limits: 10 - 10 - 5 )  
13536   Kay Biser, individually and as duly appointed Personal Representative of the Estate of Christopher Biser, M.D., Appellant v. Medical University of South Carolina, University Medical Associates, John M. Kratz, M.D., and Andrea J. Shaer, M.D., Defendants, Of Whom Medical University of South Carolina, University Medical Associates, and John M. Kratz, M.D. are the Respondents.

J. Edward Bell. III, and Kevin R. Dean, of Sumter, for Appellant. Robert H. Hood, Robert H. Hood, Jr., Roy P. Maybank, and Deborah H. Sheffield, of Charleston, for Respondents.

In this medical malpractice case, the court determines whether the trial court properly dismissed certain parties from the action. Such an analysis necessarily requires an examination of the relationship between the Medical University of South Carolina and its authorized practice plan, University Medical Associates.

 10:15 a.m. (Time Limits: 10 - 10 - 5 )  
13658   Eula M. Nicholson, Respondent v. Betty Gresham, John Doe, Mary Roe, and Richard Roe, fictitious names used to designate all other persons unknown claiming any right, title, estate, interest in or lien upon the real estate described in the Complaint herein, Defendants, of whom Betty Gresham is, Appellant.

Joseph Todd Manley, of Moncks Corner, for Appellant. George B. Bishop, of Moncks Corner, for Respondent.

This is an action to quiet title pursuant to S.C. Code Ann. Section 15-67-10, et seq. Encapsulated in the appeal are various issues: (1) the applicability of the Statute of Frauds, S.C.Code Ann. Section 32-3-10; (2) part performance and/or complete performance of a contract for the sale of land; (3) efficacy of a written agreement signed by the parties; (4) effect of ruling by the court that an alleged deed is null and void; and (5) authority of the court to grant specific performance.

 11:00 a.m. (Time Limits: 10 - 10 - 5 )  
13688   The State, Appellant v. Alicia Jeanette Haase, Respondent.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., of Columbia, and Solicitor Jerry W. Peace, of Greenwood, for Appellant. John W. Carrigg, Jr., of Columbia, for Respondent.

In this criminal action stemming from an arrest for driving under the influence, the court analyzes whether S.C. Code Ann. Section 56-5-2934 (Supp. 2004), which places certain notice requirements on the arresting officer, should be applied retroactively.

 11:45 a.m. (Time Limits: 10 - 10 - 5 )  
13652   Ann M. Clayton, Respondent v. Malcolm T. Clayton, Appellant.

Miles Loadholt, of Barnwell, and Charles E. Carpenter, Jr., of Columbia, for Appellant. William D. Rhoad, IV, of Bamberg, for Respondent.

In this domestic action, the court determines whether the family court erred in finding that a parcel of real property was transmuted into marital property.

 2:00 p.m. (Time Limits: 10 - 10 - 5 )  
13635   Phyllis J. Wogan, individually and as Personal Representative of the Estate of James J. Wogan, Appellant v. Kenneth C. Kunze, M.D.; Hilton Head Gastroenterology, P.A.; Thomas P. Rzecycki, M.D.; Hilton Head General and Laparoscopic Surgery, P.A.; Gary W. Thomas, M.D.; and Gary W. Thomas M.D., P.A., Respondents.

Timothy M. Wogan, of Hilton Head Island, and I. McDuffie Stone, III, of Bluffton, for Appellant. James S. Gibson, Jr., of Beaufort, and Elliott T. Halio and Andrew S. Halio, of Charleston, for Respondents.

In this medical malpractice case, the court analyzes the novel issue of whether a private cause of action in favor of a Medicare recipient may be implied under 42 U.S.C. Section 1392(a), et seq. Appellant avers the cause of action for negligence is brought under state common law and not under The Medicare Act. Additionally, Appellant posits three theories for recovery: (1) whether an act of medical negligence may constitute a breach of fiduciary duty existing between a physician and a patient; (2) whether a physician's failure to file a Medicare claim may be asserted as a private cause of action under the South Carolina Unfair Trade Practices Act; and (3) whether a physician's failure to file a Medicare claim may be asserted as a third party beneficiary contract claim.

 2:45 p.m. (Time Limits: 10 - 10 - 5 )  
13600   State Capital Insurance Company, Appellant/Respondent v. Jill Johnson Forrest, Scott Gordon Forrest, Karen B. Smith, as Personal Representative of the Estate of Joseph Drew Smith, a Minor, Deceased, Respondents, and Randall W. Smith, Respondent/Appellant.

John H. Tiller, of Charleston, for Appellant-Respondent. Edwin R. Jeter and Daryl L. Williams, of Columbia, and Robert L. Buchanan, Jr., of Aiken, for Respondent-Appellant.

In this insurance case, the court analyzes a circuit court finding of more than one "occurrence" under the policy, allowing for recovery for each as separate accidents.

 3:30 p.m. (Time Limits: 10 - 10 - 5 )  
13645   The State, Respondent v. Jacqueline Mekler, Appellant.

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant. Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Melody J. Brown, and Solicitor David Michael Pascoe, Jr., of St. Matthews, for Respondent.

In this criminal matter, the appellant appeals her conviction for murder. She contends the trial court erred in (1) refusing to allow her to impeach one of the State's witnesses, the deceased's wife, with evidence that the witness expressed fear of the deceased after a domestic dispute, when the witness denied she was ever afraid of the victim; (2) refusing to allow evidence appellant was aware of the deceased's prior act of violence against his wife and the wife's property as this was relevant to appellant's claim of self-defense; and (3) refusing to instruct the jury on the law of involuntary manslaughter based on appellant's self-defense theory, where there was evidence appellant armed herself in self-defense but discharged the gun due to her reckless handling of the weapon.

Tuesday, September 13, 2005
Courtroom II
(Court convenes at 9:30 a.m.)
 9:30 a.m. (Time Limits: 10 - 10 - 5 )  
13730   Georgia Christine F. Howard and the Estate of Leland B. Finklea, Appellants v. Derrell Lawayne Cox, Respondent.

J. Rene Josey, of Florence, for Appellants. Mark W. Buyck, Jr., of Florence, and John Murdock Prosser, Jr., of Johnsonville, for Respondent.

This is an appeal of a grant of summary judgment in an action for breach of contract, specific performance, unjust enrichment, and recission, arising from the sale of two parcels of unimproved property, both of which contained agricultural allotments.

 10:15 a.m. (Time Limits: 10 - 10 - 5 )  
13508   Linda Lee Henderson Powell, Respondent v. James Kevin Powell, Appellant.

Thomas M. Neal, III, of Columbia, for Appellant. Timothy E. Madden,of Greenville, for Respondent.

In this domestic case, Husband appeals the family court's order: (1) granting Wife a divorce on the ground of adultery; (2) valuing and apportioning the marital assets and debts; (3) awarding Wife alimony, and in the alternative, awarding an excessive amount of alimony to Wife; (4) ordering Husband to maintain health insurance and a life insurance policy for the benefit of Wife; (5) ordering Husband to contribute to Wife's attorney's fees and costs; (6) declining to consider, and ultimately denying, Husband's petition to modify his alimony obligation; and (7) holding Husband in contempt for failure to pay his accrued alimony obligation.

 11:00 a.m. (Time Limits: 10 - 10 - 5 )  
13649   Ellis Arthur and Barbara Arthur as Wife, next friend, and companion, Appellants v. Sexton Dental Clinic, and Leigh Westraad and Lisa Ann Eagerton, as personal representatives of the Estate of Dr. H.L. Eagerton, Jr. and his associates A-Z; SC JUA, Respondents.

James H. Dickey, of Atlanta, GA, for Appellants. Saunders M. Bridges, Jr., and Amy Anderson Wise, of Florence, for Respondents.

In this dental malpractice case, Arthur appeals following a jury verdict in favor of Respondents, arguing the trial court erred in: (1) issuing an ex parte scheduling order involving discovery; (2) denying Arthur's motion to set aside the scheduling order; (3) ruling that Respondents did not violate the principles of the Batson case during jury selection; (4) excluding the testimony of Arthur's expert witness and other witnesses because they were not properly identified during discovery; and (5) ruling on several discovery issues.

 11:45 a.m. (Time Limits: 10 - 10 - 5 )  
13493   Maurice Bessinger and Piggy Park Enterprises, Inc., Appellant, v. BI-LO, Inc, Respondent._______________Maurice Bessinger and Piggy Park Enterprises, Inc., Appellant v. The Kroger Co. and Mark Gray, Respondents._______________Maurice Bessinger and Piggy Park Enterprises, Inc., Appellant v. Publix Super Markets, Inc. and John Easterbrook, Respondents._______________Maurice Bessinger and Piggy Park Enterprises, Inc., Appellant v. Piggly Wiggly, Inc., Respondent.

George McMaster, of Columbia, and Glen Winston La Force, Sr., of Hilton Head Island, for Appellant. Kenneth E. Young, of Greenville; John Y. Tiller and Elizabeth Applegate Dieck, of Charleston; Kevin A. Dunlap, of Spartanburg; C. Mitchell Brown, of Columbia; and Steven Daniel Weber, of Charlotte, NC, for Respondents.

Plaintiffs, Maurice Bessinger and Piggy Park Enterprises, appeal the dismissal of their UTPA claims against various retail grocers and store managers.

 12:30 p.m. (Time Limits: 10 - 10 - 5 )  
13638   Terry Cartrette Tindall, Respondent v. H&S Homes, LLC, d/b/a Horton Homes of Conway; and Pete Hughes, Jr., Individually and as an Agent for H&S Homes, LLC, d/b/a Horton Homes of Conway, Horton Homes, Inc., and Bombardier Capital, Inc., Defendants, Of Whom, H&S Homes, LLC is, Appellant.

J. Boone Aiken, III, of Florence, and James B. Richardson, Jr., of Columbia, for Appellant. Peter L. Hearn, Sr., of Conway, and Richard M. Lovelace, Jr., of Conway, for Respondent.

H&S Homes appeals from a jury trial finding for Tindall in a cause of action for negligence, arguing (1) there is no evidence of a negligent breach of any tort duty which H&S owed to Tindall; (2) the judge was bound to grant a new trial absolute because the verdict for actual damages exceeded the largest amount supported by the evidence; and (3) the judge should have stricken the claim for punitive damages because there was no evidence of reckless conduct in a breach of a tort duty.

 2:00 p.m. (Time Limits: 10 - 10 - 5 )  
13657   Newberry Electric Cooperative, Inc., Respondent v. City of Newberry, Appellant.

Robert T. Bockman, of Columbia, and Eugene C. Griffith, Jr., of Newberry, for Appellant. C. Pinckney Roberts, of Columbia, and Thomas H. Pope, III, of Newberry, for Respondent.

After an arbitration panel awarded Newberry Electric Cooperative $3,853,639.14 as just compensation pursuant to South Carolina Code Section 58-27-1360, the City of Newberry filed a declaratory judgment action seeking a determination of the City's rights and obligations under the statue or a remand of the matter to the arbitration panel for clarification or alteration of its decision and award. The circuit court dismissed the declaratory judgment action. The City appeals the dismissal asserting the court erred in refusing to order the remand.

Cases to be Submitted Without Oral Argument
12880    The State, Respondent v. Michael J. Brown, Appellant.

12982    The State, Respondent v. Anthony Ryan Henderson, Appellant.

13110    The State, Respondent v. James Edgar Hutchinson, Appellant.

13203    The State, Respondent v. Willie J. Ladson, Appellant.

13522    The State, Appellant v. Jonathan Frazier, Respondent.

13531    The State, Respondent v. Albert Scruggs, Appellant.

13542    The State, Respondent v. Roger L. Arbogast, Appellant.

13583    The State, Respondent v. Alexander Mickle, Appellant.

13591    Frank T. Fair and Thelma B. Fair, Respondents v. Gary Realty Company, Inc., and Tareyton, Inc., Defendants, Of whom Gary Realty Company, Inc., is the Appellant.

13610    The State, Respondent v. Samuel Cunningham, Appellant.

13620    The State, Respondent v. Hugh Lussardi, Appellant.

13639    The Sun Publishing Company, Inc., Appellant v. Waccamaw Regional Transportation Authority, Inc. and 15th Judicial Circuit Solicitor, Respondents.

13650    Sharon L. Brunson, Appellant v. American Koyo Bearings, Employer, and Tokio Marine and Fire Ins. Co., Carrier, Respondents.

13651    A & I, Inc., Respondent v. Bobby T. Gore, EdwardEdelen and Sun Deck Condominiums Home Owners Associations, Inc., Defendants, Of Whom Bobby T. Gore is the Appellant.

13661    Karol F. Jamrok and Joy K. Jamrok, Appellants v. Emerson Rogers, Kathy Rogers, and John Lunn, Respondents.

13681    Mary Lou Moseley, Appellant v. Jim Oswald, Respondent.

13682    Donald R. Willis, Respondent v. Grand Strand Sandwich Shop and N.C. Insurance Guaranty Assn., Appellants.

13685    James Michael Tharington, Respondent v. Elizabeth Votor, Appellant.

13706    The State, Respondent v. Edmond Stanley Adams, III, Appellant.

13716    Jack Woodham, d/b/a Indian Hill Farms, Respondent v. Robert L. Wiley, Appellant.

13718    Rhonda W. Browning, Respondent v. Gregory W. Browning, Appellant.

13724    Russell Corporation, Appellant v. William M. Gregg, II, Respondent.

13742    Michael E. Landry, Sr., Appellant v. Donna E. Lewis, Respondent.