September 5, 2012 South Carolina Court of Appeals published opinions

Williams v Moore

Williams brought suit to determine the border between her property and that of the Moore’s. The land had been conveyed in various portions to various parties starting in 1905. The trial court admitted surveys form unlicensed surveyors and heard evidence form witness who visited the disputed property in the 1930s. The trial court found that there was no separate conveyance of the disputed land and therefore the Moore’s did not own the disputed land. On appeal, the panel affirmed.  It held the trial court properly qualified the unlicensed surveyor as an expert, that the reliance on artificial monuments by the unlicensed surveyor was reasonable in the circumstances and the trial court’s determination of the location of the property line and the various divisions and subdivisions of the land involved were supported by the record. The panel rejected several challenges to the trial court’s factual findings noting any error was harmless given the totality of the record and the trial court’s reasoned determination of the issues in the case.

Wyndahm Enterprises, LLC v City of North Augusta

Wyndham applied for a special use exemption to run a fireworks stand in a zoned commercial area. The Board of Zoning Appeals denied the request finding the stand would not be in harmony with nearby residential neighborhoods and be detrimental to future residential development. The denial was upheld by the circuit court. The panel reversed. It held the testimony of the property owners in the nearby neighborhoods was not competent to prove the stand would decrease their property values as their views were conjecture and their concerns about traffic were not supported by evidence as there was no testimony indicating how the stand would change the traffic into and out of the neighborhood. The panel further held that considering whether the stand would be harmful to future residential growth was arbitrary and capricious as the ordinance required comparison to the commercial zone and not residential zones.

State v Price

Price was convicted of assault with intent to kill and other charges arising from a shooting during a home invasion. The trial court charged the jury that malice could be inferred from the use of a deadly weapon. The panel, with one judge concurring in result only and one judge dissenting, affirmed. The opinion announcing the affirmance argued that there was no evidence that would mitigate or justify the shooting. Thus the sole issue was whether Price or his codefendant fired the shot. In those circumstances, the charge was permissible. The dissent argued that there was evidence in the record suggesting the victims tried to rob Price or that the shooting occurred during a drug deal gone bad and, additionally,  that both parties agreed there was some evidence that could mitigate or excuse the shooting. Further, the South Carolina Supreme court had disapproved the giving of the inferred malice charge in assault with intent to kill cases where there was any evidence that would mitigate, excuse or justify the shooting. As there was some evidence that could have reduced the severity of the shooting, it was error to make the charge which the dissent argued was not harmless.

Lewis v L.B. Dynasty, Inc.

Lewis was shot in the abdomen while dancing at a strip club. She filed a claim for worker’s compensation which was denied. The panel, 2-1, affirmed. It held that Lewis was not an employee of the club as she controlled the manner of her dancing, that her person was the equipment required for her dancing, she was not paid by the club and in fact had to pay a fee to perform and the club’s right to end its relationship with Lewis for failure to obey the law was consistent with independent contractor status. The dissent argued that the club required Lewis to sign an agreement to obey its rules, decided when she performed, provided the stage and other equipment for her performances, limited what parts of her costume she could remove and could fine or fire her for failure to perform when ordered, leave before her shift was done or changing VIP prices. Thus, consistent with case law from Oklahoma and Virginia, the dissent would hold the club had the right of control and granted benefits.

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