March 19, 2014 South CArolina Court of Appeals published opinions

Beckman v Sysco Columbia, LLC

Beckman injured his back and Sysco accepted his claim for workers compensation. The appellate panel awarded scheduled permanent disability benefits under South Carolina Code 42-9-30 ruling the only injury sustained was to Beckman’s back. The panel reversed and remanded. It held that the record supported the conclusion that Beckman suffered radiating pain due to the injury to his back. Thus, he was entitled to general disability benefits under South Carolina code 42-9-20 as his injury affected more body parts than his back.

Watson v Underwood

Watson sued to void an irrevocable trust purportedly set up by Underwood under a power of attorney. The circuit court granted partial summary judgment ruling the power of attorney gave Underwood the power to create the trust and the trust was not a will. The panel, with one judge dissenting in part, affirmed. The majority, held the power of attorney was unambiguous on its face thus, under normal contract construction rules, no parole evidence could be used to analyze its meaning. Here the power clearly gave Underwood the power to create a trust and the use of the provisions of a will to identify the corpus did not transform the trust into a will. The majority refused to consider other issues as either not raised below or so entwined with the matters to be tried as unreviewable until final judgment. The partial dissent would have vacated all the relief granted by the circuit court except for the issues of of the existence of the power of attorney and the power to create the trust.

Abney v State

Abney sought post-conviction relief arguing his counsel was ineffective for failing to request a lesser included offense jury instruction. The circuit court denied his petition. The panel, with one judge adding a concurrence and one dissent, affirmed. The majority joined courts in other states and held the decision to request or not request lesser included instructions is matter of trial strategy and thus can be reasonable even if unsuccessful. Here, trial counsel believed Abney was winning the trial and that requesting the instruction was not in Abney’s interests. This was sufficient to affirm. The concurrence argued that the choice to request a lesser included offense instruction is tactical decision vested with the attorney and that the trial court did not have an independent duty to give the instruction. The dissent argued that trail counsel was ineffective as counsel misunderstood the law and persisted in that misunderstanding even after being corrected by the circuit court during final argument and the deficient performance was prejudicial as counsel admitted guilty to robbery but asked for acquittal creating an all or nothing scenario which may have resulted in a conviction merely to keep an admitted robber off the streets.

Johnson v Alexander

Johnson sued Alexander and other attorneys for negligence in closing a real estate sale without finding outstanding taxes owed during a title search. The circuit granted summary judgment as to Alexander’s liability on the grounds that the attorney who performed the title search was negligent and this should be imputed to Alexander. The panel, with one judge concurring in judgment, reversed and remanded for trial. The majority held that the issue was whitest Alexander was negligent in relying on the title report and summary judgment was improper here as there was no evidence as to the standard of care owed and there was a genuine issue of fact as to whether Alexander’s reliance was reasonable. Ten concurrence argued there was a genuine issue as to the agency relationship between alexander and the other attorney and as to whether Johnson authorized the reliance.

State v Whatley

At Whatley’s robbery trial, the circuit court prevented cross examination as to the mandatory minimum sentences faced buy one cooperating witness. The panel, with one judge concurring in result, affirmed. The majority held that the limitation on cross examination was improper under South Carolina precedent. However, the majority held the error was harmless as Whatley was allowed extensive cross examination as to the witness’ motive to lie and her testimony was cumulative to the testimony of the third participant in the robbery.

 

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