STATEMENT OF ISSUES ON APPEAL

STATEMENT OF THE CASE

On July 12, 2004, appellant, Carolyn Bair Austin (AAustin@), individually and as Personal Representative of the Estate of Robert Jacob Bair (her son), brought this action seeking damages from the Beaufort County Sheriff's Office (ABCSO@) arising out of its destroying evidence necessary for her to seek and prove damages on account of her son's death. (R. p. 9)

BCSO responded by filing a motion for more definite statement. (R. p. 12) The circuit court granted the motion. (R. p. 1) On January 5, 2005, Austin filed an amended complaint. (R. p. 14)

BCSO responded to the amended complaint by filing a motion to dismiss under 12(b)(6), SCRCP. The motion came before the circuit court for hearing on May, 4, 2005; it was denied.

On May 9, 2005, BCSO answered the amended complaint generally denying its allegations and affirmatively raising defenses relating to immunity. (R. p. 17)

On July 25, 2005, BCSO filed a motion for summary judgment asserting that (1) Austin failed to state a claim of intentional interference with prospective contract rights, (2) Austin failed to state a claim of negligence upon which relief may be granted, and (3) Austin cannot state a claim for negligence. (R. p. 22)

On September 2, 2005, BCSO filed a memorandum in support of its motion for summary judgment. (R. p. 24)

The motion for summary judgment was set for hearing on September 15, 2005.

On September 13, 2005, Austin served a motion to continue the September 15 hearing by fax and mail (R. p. 55), together with an affidavit of counsel under Rule 56(f), SCRCP, (R. p. 53) and a motion to strike the affidavit filed in support of BCSO's motion for summary judgment. (R. p. 51) Both motions were filed on September 14, 2005.

Notwithstanding Austin's pending motions to continue and strike, on September 15, 2005, the circuit court heard BCSO's motion for summary judgment. (R. p. 64) The following is an extract from the transcript of the hearing:

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THE COURT: What's this case about? I've heard something about this case; haven't I?

MR. GESS: I don't think so, sir.

MS. RICE: I don't know if you have. This case -- the plaintiff's son um died in July of 2001 under what the plaintiff calls mysterious circumstances.

The Beaufort County Sheriff's Office started an investigation. They took several items into evidence, um which really gets into my summary judgment motion, but they took blood swabs, some photographs, photographs that they took, not photographs that they -- they collected on the scene, some marijuana, crack cocaine, and a syringe.

Um that evidence was later destroyed. The plaintiff claims that that interfered with their ability to pursue a wrongful death claim, and they have brought suit in negligence and conversion.

THE COURT: A wrongful death claim against whom?

MS. RICE: I don't know.

(R. p. 67, line 13 - p. 68, line 6)

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THE COURT: All right. [Mr. Austin] Tell me in thirty seconds or less the theory of your case against the Sheriff's Department.

MR. AUSTIN: The theory of this case is developing, first of all. The um -- young Robert Bair died as a result of what the Coroner found to be, and the autopsy to be, a drug overdose.

The question is going to come about how that happened, what happened, what happened to the evidence, was there other evidence, and so forth.

This case is based on spoliation. And um -- and South -- and that's what we're talking about. And the extent to which evidence was tampered with, destroyed, or otherwise, we're still in the discovery period, sir.

THE COURT: Do you have any um idea that the Sheriff's Department is connected in any way with the -- with someone who might have been responsible for the death of young Mr. Bair?

MR. AUSTIN: Do not know that, because as I C

THE COURT: You're not -- you're not alleging that.

MR. AUSTIN: No, sir, not at all.

THE COURT: Okay. All right. I deny the Motion to Disqualify Mr. Austin. I'll hear your Motion for Summary Judgment.

MS. RICE: Thank you, Your Honor. We've already been through the facts a little bit. I'm not going to belabor the point. I'm just going to move right into it.

The plaintiff has sued under theories of both negligence and conversion. When you read the Complaint as a whole, underlying that is this notion that we have interfered with his perspective [sic] civil claim. I have not been able to find any case law in South Carolina that addresses a cause of action specifically for interference with a civil claim. I have found case law for interference with perspective [sic] contract rights.

In order to succeed on that claim, he's got four elements -- I'm sorry, three elements you have to satisfy: Intentional C

THE COURT: All right. Rather than put you in the difficult position of disproving a negative, why don't I get Mr. Austin to explain to me the legal basis of his claim?

MS. RICE: Thank you.

MR. AUSTIN: First of all, I would say that in South Carolina, the word 'spoliation' does not appear anywhere in a single case that's there.

Spoliation at the -- I went back and looked at the different cases that have considered it, and I looked -- Florida has, and I found that the case most similar to what we have here came out of West Virginia, and this -- let me submit these to the Court, if I might. I would be the first to say, Your Honor, that this is not novel, but it has just not expanded out to use the word 'spoliation' in this particular case.

In this particular situation, we're talking about certainly a potential claim, and we have not undertaken any discovery, and we would respectfully suggest that this motion is premature. Once we sent out Interrogatories, they came back C

THE COURT: Go ahead. I'm listening.

MR. AUSTIN: All right. Before this hearing today, sir, we filed an affidavit, Mr. Gess did, under 56(f), and we explained that we could not get those Interrogatories, could not file an opposing affidavit, and that based on that, I would suggest that this motion be deferred until we can have some semblance of discovery.

THE COURT: All right, sir. All right. Thank you.

MR. AUSTIN: All right.

THE COURT: Anything further?

MR. AUSTIN: No, sir.

THE COURT: All right. Because I am satisfied that there can never be a cause of action against someone who is not connected to a potential tortfeasor for the spoliation of evidence, particularly a sheriff's department -- sit down, please.

MR. AUSTIN: All right, sir.

THE COURT: I grant the Motion for Summary Judgment. Next case.

(R. p. 70, line 7 - p. 73, line 17)

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On September 19, 2005, a form judgment was entered granting BCSO's motion for summary judgment. (R. p. 3) On September 25, 2005, the circuit court entered its formal written order (a) acknowledging Austin's submission of Hannah v. Heeter, 584 S.E.2d 560 (W. Va. 2003) in which the Supreme Court of Appeals of West Virginia recognized spoliation of evidence as a tort, (b) declining 'to adopt the tort of spoliation of evidence,' and (c) granting BCSO's motion for summary judgment. (R. p. 5)

On October 10, 2005, Austin timely served her motion to alter or amend the September 19, 2005 judgment and September 25, 2005 Order. (R. P. 57) The motion was denied by order dated January 5, 2006. (R. p. 8) This appeal ensued.

ARGUMENTS

I.	THE CIRCUIT COURT ERRED IN FINDING THAT THERE CAN NEVER BE A CAUSE OF ACTION AGAINST SOMEONE WHO IS NOT CONNECTED TO A POTENTIAL TORTFEASOR FOR THE SPOLIATION OF EVIDENCE, PARTICULARLY A SHERIFF'S DEPARTMENT.

The circuit court's statement, 'Because I am satisfied that there can never be a cause of action against someone who is not connected to a potential tortfeasor for spoliation of evidence, particularly a sheriff's department . . . I grant the Motion For Summary Judgment,' (R. p. 73, lines 9-13, 16) is inconsistent with South Carolina law and overlooks the time-honored principle that '[F]or every wrong or injury there must be an adequate remedy.' Ware Shoals Mfg. Co. v. Jones, 78 S.C. 211, 58 S.E. 811, 812 (1907).

It was upon this time-honored principle that the Supreme Court of Appeals of West Virginia recognized spoliation of evidence as a stand-alone tort. Hannah v. Heeter, 584 S.E.2d 560 (W. Va. 2003). There, the court stated, A[t]he concept of American justice ... pronounces that for every wrong there is a remedy. It is incompatible with this concept to deprive a wrongfully injured party of a remedy[.]"

Austin submits that this concept is reflective of South Carolina law and should be similarly applied herein and that this Court should similarly recognize spoliation of evidence as a stand-alone tort.

Here, there are two distinct wrongs: (1) injury to Robert Bair and (2) injury to Austin's property.

'South Carolina courts construe the term "property" very broadly. The term "property" is a general term that is used to designate a right of ownership and it includes every subject of whatever nature upon which the right of ownership can legally attach, including choses in action.' Ball v. Ball, 312 S.C. 31, 33, 430 S.E.2d 533, 534 (Ct. App. 1993).

A chose in action is simply a right to sue. Here, that right includes suing those responsible for the death of Robert Bair.

By destroying evidence, BCSO deprived Austin of her property in violation of the South Carolina Constitution. There, it is clearly stated: 'The privileges and immunities of citizens . . . of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.' S.C. Const. art. I, ' 3.

Once BCSO assumed the duty to investigate the death of Robert Bair and seized and gathered evidence in furtherance of that investigation, BCSO had a duty to preserve and maintain the evidence and fruits of that investigation. See Gadson v. Hembree, 364 S.C. 316, 321, 613 S.E.2d 533, 535 (Ct. App. 2005).

II.	THE CIRCUIT COURT ERRED IN HEARING AND GRANTING BCSO'S MOTION FOR SUMMARY JUDGMENT.

The circuit court heard and granted BCSO's motion for summary judgment contrary to the applicable rules of procedure. (R. p. 3)

Here, Austin filed an affidavit under Rule 56(f), SCRCP, (R. P. 53) and moved to continue the hearing so she might conduct discovery. (R. p. 55) Notwithstanding, the circuit court proceeded to hear BCSO's motion for summary judgment. (R. p. 64)

The affidavit of Eileen Rios upon which the circuit court, at least partially, based its decision was the subject of a pending motion to strike. (R. p. 51) The motion asserts (1) the affidavit does not show affirmatively that the affiant is competent to testify to the matters stated therein and (2) the papers referred to in the affidavit were not attached thereto or served therewith, as required by Rule 56(e), SCRCP. Disposition of this motion was a prerequisite to hearing the motion for summary judgment. (R. p. 22)

Moreover, the ultimate decision of the circuit court is not reflective of BCSO's motion for summary judgment.

As stated in BPS, Inc. v. Worthy, 362 S.C. 319, 329, 608 S.E.2d 155, 160 (Ct. App. 2005):

Summary judgment must not be granted until the opposing party has had a full and fair opportunity to complete discovery. Doe v. Batson, 345 S.C. 316, 548 S.E.2d 854 (2001); Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991); see also Schmidt v. Courtney, 357 S.C. 310, 319, 592 S.E.2d 326, 331 (Ct. App. 2003) ("Because summary judgment is a drastic remedy, it must not be granted until the opposing party has had a 'full and fair opportunity to complete discovery.'").

Under South Carolina law, to establish a due process violation, there must be a demonstration (1) that the State destroyed the evidence in bad faith, or (2) that the evidence possessed a value apparent before the evidence was destroyed and other evidence of comparable value cannot be obtained by other means. See State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 (2001). Whether Austin was denied due process can only be determined after she has had a full and fair opportunity to complete discovery, regardless of the evidence having been destroyed through negligence or bad faith.

CONCLUSION

For the reasons stated, this Court should reverse the judgment of the circuit court.

Respectfully submitted,

January 3, 2007

_________________________ M. Adam Gess McDaniel & Gess, LLC P. O. Box 2085 Beaufort, SC 29901 843-379-5117 Attorney for Appellant