November 28, 2012 South Carolina Court of Appeals published opinions

State v Gilliland

Gilliland was charged and convicted of first degree burglary based on his entry into the home of a former girlfriend in violation of a restraining order. He argued that he was entitled to a directed verdict based on the former girlfriend’s consent and the jury should have been instructed on trespass as a lesser included offense. The panel affirmed. It held that entry into the home with intent to communicate with the former girlfriend in violation of a protective order satisfies the intent element of first degree burglary. This is so even if the jury credits Gilliland’s good intentions to reconcile with the former girlfriend as those good intentions do not negate the violation of the protective order. The panel also held precedent established trespass is not a lesser included offense as trespass has an element which must be proved which differs from first degree burglary.

Thalia S. v Progressive Select Insurance Company

Thalia sued Progressive for not providing full coverage under a Florida issued policy for injuries suffered in a car accident in South Carolina. The trial court gave judgment to Progressive and the panel affirmed. It held that under the terms of the policy, coverage for out of Florida accidents would only occur if South Carolina has a compulsory insurance law for out of state drivers and South Carolina has no such law.

Rivera v Newton

Rivera was ejected from a car when it struck a tractor trailer which was blocking traffic. The driver of the car moved for a directed verdict which was denied on the grounds that he testified he may have been speeding and expert testimony that he should have seen the trailer and stopped. The jury returned a defense verdict and the trial court granted a new trial absolute based on its conclusion the evidence only supported an inference of negligence by the driver, the operators of the tractor trailer or both. The panel affirmed the denial of directed verdict motion based on the evidence of possible speeding and the expert’s opinion. It affirmed, 2-1, the grant of a new trial holding there was no evidence Rivera was negligent in any manner and trial court was within its discretion to order the new trial. The dissenting judge argued that the new trial was not on the facts but represented a change of heart as to Rivera’s motion for directed verdict on liability. As that was not a proper basis for the new trial, the dissenting judge would have reinstated the verdict.

Park Regency, LLC v R&D Development of the Carolinas, LLC

Park, R &D and other entities created Crossroads, LLC and purchased land for development and set out the duties of the various parties in a tenants in common agreement. After a dispute over payment for rental equipment, Park and the other entities brought suit to disassociate R&D from Crossroads. They argued that the value of Crossroads was $0 and they should not have to pay R & D anything. The trial court disagreed and crafted a remedy using the terms of the tenants in common agreement and ordered R & D to be paid either before a sale of the property or after and set the value of the payment at &265,000.00. The panel, 2-1, affirmed finding the trial court properly considered the evidence, agreement and equitable principles to set the value of the buyout. However, the majority was concerned the order would result in a windfall for R & D and modified the order to require the value to be recalculated if the payment was made after a sale to reflect certain deductions in value set out in the agreement. The dissenting judge argued the net value of R & D’ stake was zero and the order should be reversed.

Swilling v Pride Masonry of Gaffney

Swilling injured his back and leg on the job. He received his normal rate of pay and worked after the injury until physically unable. The single commissioner found that Swilling was totally disabled, awarded a lump sum award of 500 weeks wages based on swilling stopping payments five months before the hearing and set the wage rate at the normal rate not the average rate proposed by Pride. The appeals board affirmed with a modification to protect Swilling’s social security benefits. The panel affirmed. It held that substantial evidence existed to support the wage rate including the payment of that rate by pride and Pride’s failure to report the injury to its carrier. It also affirmed the disability finding holding the evidence was sufficient for the board to conclude Swilling would be unable to find work based on his condition. It finally upheld the lump sum payment as Pride failed to show any error in granting the award.

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