July 3, 2013 South Carolina Court of Appeals published opinions

Turpin v Lowther

While serving as personal representative of his father’s estate, Lowther negotiated a sale of real property in the estate without informing the other heirs. Turpin and the other heirs sold their interest in the real property to Lowther who sold some of the real property for a higher price. Turpin and two other beneficiaries sued for breach of fiduciary duty and prevailed in the probate court. The circuit court affirmed on appeal and increased the damage amount ruling that certain payments for another piece of property should not have been deducted. The panel affirmed. It held that Lowther owed a duty to disclose the proposed sale as the value a third party placed on the property was material information. It held the record supported the lower courts’ determination that proximate cause was proved as Turpin testified she would not have sold her interest if she knew about the proposed sale beforehand. The panel also affirmed the increase in damages holding that the record supported the finding that Turpin and other heirs had an equitable interest in the other parcel including Lowther’s testimony, his insistence that the Turpin quitclaim any interest in the parcel and father’s bequest of the interest to Turpin and the other heirs.

Cherry v Meyers Timber Company, Inc.

Cherry and others sued Meyers alleging vicarious liability for the death and injuries caused when a timber truck of a company Meyers contracted with to harvest timber struck a minivan. The trial court granted summary judgment. The panel affirmed. It held that the timber harvesting company was an independent contractor of Meyers as Meyers did not control how the company harvested and transported the timber nor could Meyers hire or fire employees of the company.

Trimmer v South Carolina Department of Labor, Licensing and Regulation

Trimmier applied for reinstatement of his dentist license. The density board approved the reinstatement conditioned on filing sufficient documentation that he was in good standing with the Georgia dentistry board. The administrative law judge affirmed. The panel affirmed. It held that under south Carolina Code 40-11-140 and -170, the dentistry board was authorized to consider Trimmier’s status in Georgia given Trimmier’s history of discipline. The panel also held that base on his own testimony, Trimmier can obtain the documentation required and that the board’s action was not arbitrary or capricious as it keeps South Carolina from being a haven for forum shopping dentists.

Busillo v City of North Charleston

Busillo was injured and her car damaged when a City police officer ran not her car. She obtained an arbitration ward and later sued for personal injury and property damage. The jury returned a verdict in her favor. The panel, 2-1,  affirmed. It first held that City’s challenge to one of Busillo’s  witnesses was not preserved as only a general objection was stated at trial and, even in the context of pretrial discussion, City failed to identify which interrogatory or other discovery request Busillo did not comply with. It also affirmed on admitting evidence of the paid for property damage as City’s objection was to double recovery and there was no prejudice and finally affirmed the decision to not use a special verdict form as within the trial judge’s discretion. The dissent argued the objection to Busillo’s witness preserved the issue given City’s notice to the trial judge that it objected based on the witness not being listed in discovery. The dissent would have reversed as the trial court did not consider any of the factors precedent requires before allowing an undisclosed witness to testify thus abusing its discretion.

State v Marin

Marin moved to have the trial judge charge the jury that he could continue to fire in self defense until the danger was completely ended and an immunity statute. The trial court refused and Marin was convicted of murder. The panel affirmed. It expressed concern that the continue to shoot charge, while apparently approved by the South Carolina Supreme Court, may not be correct as after the first shot the danger may have been reduced to a point that further shots are not reasonable. Thus, the panel affirmed the trial court holding that the jury charge given focused on the reasonableness of use of force at the time of each shot which is the correct focus for the jury. It also held the immunity statute did not apply and affirmed the decision to not give the charge.

 

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