South Carolina Court of Appeals Opinions


On Wednesday, June 17th, 2015, the South Carolina Court of Appeals published an opinion in  Deep Keel v. Atlantic Private Equity.

Augusta Private Equity Group, LLC defaulted on a promissory note personally guaranteed by Terry L. Rohlfing and Jerry T. Caldwell. The master-in-equity ordered foreclosure of the mortgage securing the note and entered a deficiency judgment against Atlantic. On appeal, Atlantic challenges the master’s admission of evidence on authentication and hearsay grounds. This Court affirmed the judgment of foreclosure because it finds the loan documents upon which the judgment was based were properly admitted into evidence. However, the Court reversed the deficiency judgment because the testimony of the amount remaining due on the note was hearsay. In addition, the Court vacated the master’s finding that Rohlfing and Caldwell were liable on the guaranties because the finding was outside the scope of the order of reference. This Court remanded for further proceedings.

On Wednesday, June 10th, 2015, the South Carolina Court of Appeals published two opinions: State v. Parvin and Meyer v. Custom Mechanical.

In State v. Parvin, a criminal appeal, Leslie Parvin argues that the trial court committed reversible error in allowing in admissible hearsay statements from two witnesses.

Parvin was indicted on two counts of murder of Lopez and Gutierrez. The State tried the case under the theory that Parvin solicited Lopez for sex and then killed both in retaliation when Lopez refused him later than night. Parvin argued he acted in self-defense following a dispute over money.

Prior to trial, the court denied Parvin’s motion in limine to exclude any testimony referring to other crimes, wrongs, or bad acts. Specifically, Parvin was wanting to keep out any statements he was at Lopez’s home for homosexual acts arguing such statments were inadmissible.  The trial court ruled that the  statements were (1) admissible under the res gestae theory; (2) constituted an exception to the hearsay rule and (3) were probative to the issue of Parvin’s motive. Parvin was convicted of two counts of murder and sentenced to thirty-four years’ imprisonment; this appeal followed.

This court found that the trial court erred in ruling the statements were admissible because the timing of the declarant’s statement was not established during the testimony.  Although this Court has not determined a time frame appropriate to satisfy the “immediately thereafter” element requiredan admission of a hearsay statement, it has held that ten hours after the perceived incident is too long to be admitted under Rule 803(1). See State v. Burroughs, 328 S.C. 489, 499 (Ct.App. 1997). In this case, the witnesses gave no indication as to the amount of time between the alleged solicited sex and when Lopez spoke to the them. The State explanation as an “ongoing chain of events” did not satisfy this requirement.

Despite the finding of error, this Court found that the error did not prejudice Parvin because the hearsay testimonies were cumulative to the testimonies provided by both investigators corroborating the information in the hearsay testimonies. Further, the investigators testimonies were not objected to by Parvin. Because this other evidence became cumulative to testimonies in question this Court finds that the error in allowing those testimonies was rendered harmless. Therefore, the Court affirms Parvin’s conviction.

Meyer v. Custom Mechanical was an appeal involving 29-7-10 of the S.C. Code. The issue was whether the section created a first lien on money paid to a contractor when (1)the laborers claiming the lien did not work for the contractor, but for its subcontractor, and (2) the funds to which the lien would attach were held in escrow by court order instead of paid directly to the contractor. A special referee granted summary judgment based on a finding that the section did not create a lien.

This Court reversed and remanded the case back to the special referee, finding the special referred erred on three grounds: 1.) in finding that the employees were not entitled to a first lien because of being employed by Custom Industrial and not Custom Mechanical. The Court disagreed finding that the specific identity of the employer does not make a difference per absence of such a requirement in the language in the statute. 2.) in finding the the employees were not entitled to a first lien because no money had come into the hands of Custom Mechanical and 3.) in finding that the employees did not have an independent claim to the unpaid vacation funds since a claim for the funds had already been litigated and resolved. This Court found that the parties had acknowledged at oral argument that each employee had a direct contractual right to receive the funds. Therefore, the employees have independent claims regarding their entitlement to the funds.   thus, the court revered and remanded the decision of the special referee. The Court did not address the validity of the employees’ claims.

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