THE STATE OF SOUTH CAROLINA

IN THE SUPREME COURT

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APPEAL FROM BEAUFORT COUNTY
Court of Common Pleas

Curtis L. Coltrane, Special Circuit Judge

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Unpublished Opinion No. 2007-UP-056
Submitted January 1, 2007 - Filed February 8, 2007

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MARSHA TENNANT,                                  

                                                                                                            Petitioner,

            vs.

BEAUFORT COUNTY SCHOOL
DISTRICT, Employer, and S.C. SCHOOL
BOARD INSURANCE TRUST, Carrier

of whom BEAUFORT COUNTY SCHOOL DISTRICT is                                                

                                                                                                            Respondent.

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PETITIONER’S BRIEF

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  James H. Moss, Esquire
Moss, Kuhn & Fleming, P.A.
Post Office Drawer 507
Beaufort, South Carolina 29901
[843]524-3373
[843] 524-1302 - Facsimile
Attorney for the Petitioner


Table of Contents

Table of Authorities.......................................................................................................................... ii

Argument

I.  The Petitioner did not fail to preserve her argument for review by failing to
raise it before the Court of Appeals or in her Petition for Rehearing............................................................................................................................... 1

Certificate of Service....................................................................................................................... 4


Table of Authorities

Cases:

Bass v. Kenco Group, 2005 S.C. App. 255 (sic 355 S.C. 450, 622 S.E.2d
    577 (Ct. App 2005))..................................................................................................................... 2

State v. Crocker, 366 S.C. 394, 399, 621 S.E.2d 890, 893 (Ct. App. 2005)............................ 1

Regulations:

Rule 225(d)(2), SCACR................................................................................................................... 1


ARGUMENT

I.  THE PETITIONER DID NOT FAIL TO PRESERVE HER ARGUMENT FOR REVIEW BY FAILING TO RAISE IT BEFORE THE COURT OF APPEALS OR IN HER PETITION FOR REHEARING.

The Respondent argues that the issued raised by the Petitioner in her Petition for Writ of Certiorari was not raised before the Court of Appeals or in the Petition for Rehearing, and therefore, that the issue is procedurally barred under Rule 226(d)(2) and is not preserved for review by the Supreme Court.  Brief of Respondents, pp. 3 - 5.  Rule 226(d)(2), SCACR, provides as follows:

Only those questions raised in the Court of Appeals and in the Petition for Rehearing shall be included in the Petition for Writ of Certiorari as a question presented to the Supreme Court. 

Alternatively, the Respondent argues that even if the Petitioner did raise this issue before the Court of Appeals or in her  Petition for Rehearing, it was done so only “vaguely”, or in a “conclusory” manner, and therefore, it is “insufficient to preserve an issue for appellate review.” Respondent’s Brief, pp. 4  - 5, citing State v. Crocker, 366 S.C. 394, 399, 621 S.E.2d 890, 893 (Ct.App. 2005). 

The Respondent’s argument, overlooks the fact that the entire thrust of the appeal to the Court of Appeals, as well as the Petition for Rehearing, is the complaint that the decision by the Full Panel sets forth only conclusory findings of fact which are not supported by substantial evidence, which is precisely the question presented to the Supreme Court by the Petitioner in her Petition for Writ of Certiorari. 

The entire thrust of the Appellant’s brief to the Court of Appeals is that the conclusory finding of fact set forth in the decision by the Full Panel are not supported by substantial evidence.  See, e.g., Final Brief of Appellant, pg. 7 (“. . . there was not substantial evidence in the record showing the causative factors of the unusual stress or exertion . . . “); pg. 16 (“. . . provide all of the substantial evidence necessary for the proof of this case.  There was no substantial evidence in the record . . . “); pg. 16 (“. . . whether the Appellant Panel’s decision is unsupported by substantial evidence . . . “); pg. 21 (“ . . . does not meet the standard under the substantial evidence rule.”); and pg. 22 (“ . . .  The substantial evidence in the record supports the claim of Marsha Tennant . . . “).  Contrary to the assertion made by Respondent in its brief (Brief of Respondent, pg. 4) in her argument to the Court of Appeals the Petitioner does cite case law in support of her argument that the conclusory finding of the Full Panel are not supported by substantial evidence.  E.g., Final Brief of Appellant, pg. 16 (citing Bass v. Kenco Group, 2005 S.C. App.  255 (sic, 366 S.C. 450, 622 S.E.2d 577 (Ct. App. 2005)). 

Likewise, the Petitioner’s Petition for Rehearing to the South Carolina Court of Appeals is a detailed itemization, listing exactly why the conclusory findings of the Full Panel are not supported by substantial evidence.  Items 1 - 8 of the Petition for Rehearing detail the precise reasons why the conclusory findings of fact are not supported by substantial evidence, and item number 9 of the Petition for Rehearing expressly states that the South Carolina Court of Appeals “disregarded the substantial, competent evidence in the record . . .” .  Petition for Rehearing, pp. 2 - 3 (emphasis added). 

It is accordingly respectfully submitted that the question presented to the Supreme Court in the Petition for Writ of Certiorari, i.e., Did the Court of Appeals err in affirming the  lower Court where the decision by the Full Panel set forth only conclusory findings of fact which were not supported by substantial evidence, was raised and argued to the South Carolina Court of Appeals and is properly before the Supreme Court for its consideration.

 

Respectfully submitted,

MOSS, KUHN & FLEMING, P.A.

By:

James H. Moss
1501 North Street
Post Office Drawer 507
Beaufort, South Carolina 29901
(843)524-3373
(843)524-1302 - facsimile

Attorneys for Petitioner

Beaufort, South Carolina
May 5, 2008


CERTIFICATE OF SERVICE

Undersigned certifies that the Petitioner’s  Brief, to which this certificate is affixed, was served upon the party (s) to this action by hand delivery or by depositing a copy of same, enclosed in a first class, postpaid wrapper properly addressed to the attorney(s) of record:

Kirsten L. Barr, Esquire
Jamie C. Guerrero, Esquire
Kathryn C. Thompson, Esquire
TRASK & HOWELL, LCC
Attorneys at Law
Post Office Box 2167
Mt. Pleasant, South Carolina 29465

in a post office or official depository under the exclusive care and custody of the United States Postal Service, on May 5, 2008.

By: Sue Radford