September 3, 2014 South Carolina Supreme Court

In the Matter of Mark Andrew Peper 

Peper improperly administered an estate including failing to keep financial records and failed to properly prosecute a civil claim resulting in the statute of limitations running on the claim. He agreed to discipline and The Court publicly reprimanded him and further ordered him to pay the costs of the investigation and pass the bar’s ethics and management courses.

Levy v Carolinian, LLC 

Levy foreclosed the distributional interest of one of the members of Carolinian. Carolinian obtained a court order compelling Levy to sell the interest to Carolinian. The Court reversed holding that under the South Carolina Limited Liability Act, companies can only redeem the distribution interest before a foreclosure sale which did not happen here. The Court also held the transfer provisions o the operating agreement did not apply as Levy was not a member, the transfer was involuntary and consent form Carolinian was not required to foreclose.

In the Matter of the Care and Treatment of Gonzalez 

Gonzalez appealed his designation as a sexually violent predator arguing the trial court improperly allowed the missing witness negative inference argument during the state’s closing argument. The Court of Appeals affirmed. The Court, with one justice concurring in result, affirmed as modified. The majority held that, based on the purposes of the missing witness rule and the criticism of the rule, the negative inference is never to be charged to the jury and may only be argued by counsel at closing argument if the missing witness is a fact witness who is an agent, employee, relation or associate of a party. Here, the majority held allowing the argument was error as the witness not called was a psychiatric expert. The majority affirmed on the ground that the error was harmless as no objection was raised about the cross examination that revealed the independent evaluation to the jury and the argument was thus cumulative, Gonzalez’s attorney also used the negative inference in argument and there was strong evidence from Gonzalez past offenses and his blaming a curse put on him by a girlfriend and demons for his actions. The concurrence argued the negative inference should be allowed for expert witnesses in proper circumstances and the limits on which fact witnesses qualify are too severe.

In the Matter of the Care and Treatment of Way 

Way appealed his designation as a sexually violent predator arguing that the trial court improperly allowed cross examination and missing witness argument involving his independent psychiatric evaluation. The Court of Appeals affirmed. The Court, with one justice concurring in result, affirmed as modified. The majority held under Gonzalez it was error to allow the negative inference argument and further held that the cross examination was unduly prejudicial and should not have been allowed. However, the majority held the error was harmless in light of Way’s criminal past and the state’s expert testimony. The majority dismissed the state’s appeal as it prevailed on the ultimate issue below and thus was not an aggrieved party.

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