August 27, 2014 South Carolina Court of Appeals published opinions

Bagwell v State

Bagwell moved for post conviction relief arguing ineffective assistance of counsel. The circuit court denied his motion. The panel, 2-1, reversed. The majority held that trial counsel was ineffective when she failed to have blood samples form the crime scene tested because she knew the evidence existed and had an independent duty to test. The deficient performance was prejudicial as the state’s case was weak and the solicitor pointed to the blood samples to connect Bagwell with the crime scene. The panel rejected Bagwell’s argument that his attorney should have argued for the introduction of evidence of bias of a witness as the proposed testimony had already been held irrelevant in a prior appeal. The dissent argued there was no prejudice from the lack of testing as there was a plausible alternate explanation for the blood samples which was also consistent with Bagwell’s guilt and the case was ultimately about whether Bagwell or his accusers were more credible.

Tuten v Joel 

Joel appealed a legal malpractice judgment. The panel, with one judge concurring separately, affirmed. The majority held that the circuit court properly granted partial summary judgment as to liability to Tuten as she signed a retainer agreement with Joel; Joel failed to terminate the relationship as he never communicated his intent to terminate the relationship and the letter actually sent can only be reasonably read to mean Joel remained Tuten’s lawyer as he was to receive part of any fees earned in the case; the attorney Joel relied upon did not prosecute Tuten’s claim and this breach of duty is Joel’s responsibility as the other attorney was Joel’s agent; and these actions caused at least some of Tuten’s damages because the suit was dismissed and the defendant in the dismissed case had insurance coverage which could have satisfied at least some of any judgment obtained.   The majority upheld the denial of a new trial motion as the damage award was supported by the evidence of Tuten’s injuries including broken vertebrae and ribs and a collapsed lung. The concurrence argued that part of the majority’s reasoning, that Joel admitted his attorney-client relationship in this case when he filed an unrelated lawsuit against a different attorney seeking return of fees paid to that attorney, was not correct as the existence and allegations in that lawsuit did not contradict the testimony and evidence in this case.

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