November 14, 2012 South Carolina Court of Appeals published opinions

State v Bonner

Bonner was sentenced to life without parole for first degree burglary arising from a home invasion robbery. He was 17 at the time of the robbery. He did not challenge the sentence at sentencing or by post trial motion. After his sentencing, the United States Supreme Court held juvenile life without parole sentences for nonhomicide offenses are unconstitutional.  On appeal, Bonner argued his unpreserved error should be reached and his sentence vacated. The panel agreed and vacated his sentence as the State admitted in its brief the sentence was error and this provided exceptional circumstances to exercise jurisdiction in the interests of judicial economy.

Paine Gayle Properties, LLC v CSX Transportation, Inc.

Paine used an access road under a trestle to reach its property along the Savannah River. It sought to subdivide the land and sued for an easement when it was unable o communicate with a CSX officer with power to grant an easement. The trial court found Paine could not prove any of its causes of action and granted judgment to CSX. The panel affirmed. It held no estoppels occurred because the railroad was unaware of the plan o subdivide. It held no prescriptive easement existed as all of Paine’s use of the access road was with permission of CSX. It held there was no laches as CSX had always maintained the position that Paine had no rights to cross under the trestle. It finally held that there was no easement by necessity as water access would have been sufficient in 1878 when the railroad obtained its right of way. The panel concluded with a reminder that no one can use the land over which the railroad has a right of way in manner which interferes with the railroad’s use of the right of way.

Lewis v Lewis

Father appealed the final divorce decree challenging the child support, attorney fee and child custody provisions and an evidentiary finding. The panel affirmed in part and reversed and remanded in part. As to child support, the panel reversed holding that the trail court erred in imputing income to father as there was no evidence in the record that father was unemployed for bad faith reasons nor was the trial court able to remember why it chose the level of imputed income. As to child custody, the panel noted joint custody is disfavored in South Carolina and that the record supported custody to mother given the parties inability to communicate and the opinions of the experts that joint custody was not appropriate in this case. It held the evidentiary finding that an expert witness was unaware of certain angry outbursts and conduct by father was harmless given the record as a whole indicated the trial court did not rely on this finding in making any decision other than granting the divorce. Finally the panel held that father was at least as responsible for the protracted litigation in this matter and the order for each party to bear its own attorney fees was not erroneous.

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