March 27, 2013 South Carolina Court of Appeals published opinions

Taylor v Aiken County Assessor

Taylor sought review of the 2010 tax assessment on property he purchased in 201. Review was denied based on the fact he did not own the property in question on December 31, 2009. The panel reversed. It held that under the plain language of the statute, 12-20-60(22), Taylor owned property encumbered by the 2010 tax lien and thus had standing to challenge the tax. This interpretation also effectuates the intent of the legislature to allow landowners to challenge assessment during periods where countywide revaluations are not taking place.

Brown v Brown

One devisee sued his siblings for a partition of property they jointly owned and an accounting of expenses. The master ordered the land sold and awarded attorney fees. The panel reversed in part. It affirmed the decision by the master to not consider certain payments between the siblings as they were part of the estate administration which was under the jurisdiction of the probate court. It reversed the sale order holding that neither the inability to agree on a division, a supposed county prohibition on subdivision nor the landlocked nature of one of the two parcels supported the sale order. The master also failed to value the properties making its order unreasonable given the statutory duty to weigh whether a five member commission was unnecessary. Based on the remand, the attorney fee award was vacated.

Caldwell v Wiquist

Wiquist moved to set aside the default order and judgments against her on the grounds that the affidavits field in support of service by publication did not comply with the relevant statute. The trail judge denied her motion. The panel reversed. It held that South Carolina precedent requires strict compliance with the service by publication statute. As the affidavits failed to say that Wisquist could not be served in the state or give any facts from which a finding of due diligence could be made, the affidavits failed to comply with the statute and the default order and judgments had to be reversed. The panel noted this decision as consistent with persuasive authority from North Carolina, Wet Virginia, California, Florida, Maryland and Mississippi. It finally held two other arguments were not preserved and were thus unreviewable.

Miranda C. v Nissan Motor Co., Ltd.

Miranda brought a design defect claim against Nissan for injuries she sustained as a passenger as a result of a fire after a collision. The jury was charged on both customer expectations and risk-utility theories of liability. After the verdict in Miranda’s favor, the trail court had the jury answer a special interrogatory as to whether she had proved a feasible alternative design. It answered “no”. A few days later, the South Carolina Supreme Court held that the risk-utility theory was the sole basis for design defect liability. The trial court granted a new trial. The panel affirmed. It held the new rule for design defect cases applied retroactively as it was a civil litigation case which typically applies retroactively and it did not create liability where there was none beforehand. It further held that the special interrogatory was improper as it was given to the jury after the verdict on an issue the court had deemed irrelevant and the parties did not agree to be bound by the answer to the interrogatory. Finally, the panel held the new trial was proper as Miranda had been allowed to obtain a verdict without proving a feasible alternative design which is a required element in design defect case.

Chisolm v South Carolina Department of Motor Vehicles

Chisolm was deemed to have failed a breath test based on the officer’s conclusion that the machine indicated she field to produce a readable air sample. The panel reversed. It held that under the relevant statute, the person taking the test must fail not the machine. Looking to appellate authority in Georgia, Ohio Oregon, Missouri Connecticut and Pennsylvania, it held that where, as here, the person taking the test blows into the machine, creates a steady tone and the machine fails to register, no failure has taken place. The officer’s decision to report a failure, particularly when he did not know why the machine did not register a result, was arbitrary and capricious. Thus, the suspension had to be reversed.

City of Greer v Humble

Humble was arrested for DUI. His arrest was not recorded and the officer field an affidavit stating reasonable efforts were made to keep the recording equipment operative, but, not stating which efforts had been made. The municipal court held the affidavit was defective and the efforts to maintain described by the officer through oral testimony and a maintenance log were unreasonable. The circuit court reversed both determinations and reinstated the DUI charge. The panel reversed. It held the relevant statute, South Carolina Code 56-5-2953 plainly requires the affidavit explaining that the equipment was inoperative to set out which reasonable efforts were made to maintain the equipment. That was not done here. As an additional ground supporting dismissal, the panel held that because the City knew the equipment in the officer’s car was malfunctioning, it had been malfunctioning for over a year, that the latest malfunction was reported ten days before Humble’s stop, that eh manufacturer offered to come on site to service the equipment and the city refused to pay for the service call, the City failed to make reasonable efforts to keep the equipment in operable condition. Thus, the municipal court properly dismissed the DUI charge.

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