South Carolina Court of Appeals’ Opinions

Court of AppealsOn Wednesday, the South Carolina Court of Appeals published three opinions: State v. White, Holding v. Divine Capital, and Graham v. Town of Latta.

State v. White is an appeal of a criminal conviction for lewd act upon a minor and second degree criminal sexual conduct. White argued that the trial court erred in: 1.) admitting into evidence a video of the the victim’s forensic interview and allowing the jurors to use a transcript of the interview while watching the video, 2.) finding the victim’s statement in the interview provided particularized guarantees of trustworthiness,  3.) qualifying the forensic interviewer as an expert in the dynamics of child abuse, 4.) denying his motion for a directed verdict because the State failed to present evidence of sexual battery—one of the elements of criminal sexual conduct with a minor in the second degree, 5.) the admission of the forensic interview deprived him of due process, 6.) allowing the forensic interviewer to offer her opinion on the victim’s credibility, and 7.) allowing the forensic interviewer to offer improper character evidence.

On the first issue, the Court affirmed the trial court’s decision finding because the video’s sound was not clear, it was within the trial court’s discretion to allow the jurors to use a transcript while watching the video.The Court affirmed the trial court’s decision  on the second, third, fourth, sixth and seventh issue finding no error and that the trial court acted within its discretion.

The Court found the fifth issue unpreserved for appellate review. Accordingly, the Court affirmed the trial court’s holding.

Holding v. Divine Capital was a breach of contract action between Appellants-Respondents, Divine Capital Group, LLC, John S. Divine, IV, Nathan Anderson, and Divine Dining Group, Inc. (collectively, Divine) and Respondents-Appellants, Nichols Holding, LLC and J. Wade Nichols (collectively, Nichols). Divine appeals seeking review of the court’s order requiring Divine to pay impact fees to Georgetown County Water and Sewer District. Nichols challenged the court’s order requiring Nichols to pay Divine’s outstanding trade debt.

On the first issue, the Court held that the circuit court erred as a matter of law in requiring Divine to pay impact fees to the water district.

For the second issue, the circuit court held that Nichols owed a higher amount to Divine’s orders for trade debt than the evidence supported. Nichols challenged the court’s reliance on John Divine’s affidavit in determining the amount of the outstanding trade debt. This Court found that John Divine’s affidavit was considered by the circuit court without objection from Nichols. The Court found that the circuit court properly relied on John Divine’s affidavit but erroneously deducted from the amount indicated in Mr. Divine’s affidavit. For the foregoing reasons, this Court reversed the circuit court and remanded with instructions to require Nichols’ payment of all vendor invoices attached to Mr. Divine’s affidavit.

Graham v. Town of Latta was a negligence action arising from a municipal sewer system overflow. The Town of Latta (“Town) appealed the circuit court’s denial of its motion for directed verdict and judgment notwithstanding the verdict (JNOV) based on discretionary immunity exception to the South Carolina Torts Claims Act (Torts Claims Act)

On cross-appeal, Claude and Vickie Graham (“the Grahams”) argued that the circuit court erred in 1.) directing a verdict in favor of the Town on Vickie Graham’s claims for inverse condemnation and trespass, and (2) ruling the Town has an easement by prescription for the sewer line located on their property.

The Court affirmed the circuit court’s decision to deny the motions for directed verdict and JNOV based upon S.C. Code Section 15-78-60(5) finding that the evidence did not show that the Town had done the necessary acts to address the problem with the sewer line.

Additionally, the Court affirmed the circuit court’s decision to accept the motion for directed verdict on the inverse condemnation and trespass claims. In affirming this decision, the court cited to its prior holding in Hawkins v. City of Greenville, where it emphasized that for an  inverse condemnation claim, allegations of mere failure to act were insufficient to establish an affirmative, positive, aggressive act. The Court, in comparing the facts of both cases, found that most of the acts alleged by the Grahams were more appropriate characterized as mere failures to act and not an affirmative, positive, aggressive act by the Town. Similarly, the Court rejected the notice that a failure to act may support a claim for trespass. Finally, the Court found that the issue on easement was unpreserved for appellate review. Therefore the Court affirmed the decision of the circuit court.

Justice Cureton concurred in a separate opinion.

On Wednesday, March 23rd,  the South Carolina Court of Appeals published four opinions: State v. Devore, SC Insurance Reserve Fund v. East Richland County, Hidria, USA v. Delo, and State v. Barrett, Jr.

In State v. Devore, Devore appealed his DUI conviction. This Court found that no proper notice of appeal was served or post-trial motion made within ten days of Devore’s sentence. Accordingly, the Court dismissed the appeal finding the Court did not have appellate jurisdiction.

SC Insurance Reserve Fund v. East Richland County was an appeal of the circuit court’s order finding the South Carolina Insurance Reserve Fund (“the Fund”) owed no duty to defend or indemnify the East Richland County Public Service District (“the District”). The District argued the circuit court erred in concluding (1) the policy exclusion relied upon by the Fund did not conflict with the provisions of the South Carolina Tort Claims Act, and (2) the Fund had no duty to defend or indemnify the District.

This Court found that the policy exclusion did not conflict with the the SC Tort Claims Act, and thus were valid exclusions issued under the authority of S.C. Code  Section 1-11-140. Additionally, the Court found that the Fund had not duty to defend or indemnify the District by applying the rules of statutory construction in the interpretation of the statute.

In Hidria, USA v. Delo, d/b/a Slovenskie Novice, Appellant Hidria USA, Inc. (“Hidria”) appealled the circuit court’s order finding Respondent Delo, d.d., d/b/a Slovenske Novice (“Delo”) not subject to personal jurisdiction in South Carolina. Hidria argued it produced the evidence necessary to support the court’s exercise of personal jurisdiction based on Delo’s sufficient contacts within the State. Hidria asserts in the alternative that even if Delo lacked sufficient minimum contacts with South Carolina, the circuit court erred in dismissing the complaint because Delo subjected itself to personal jurisdiction by intentionally targeting Hidria in South Carolina.

This Court affirmed the decision of the circuit court finding that the court supported its conclusion that Delo did not purposefully avail itself of the laws of this State by finding that Dello: had not conducted any business within the state; had no subscribers, no bank accounts, registered agents within the state; had no record of sending agents or employees to the state; and did not solicit advertises in the state. Additionally, the court found that personal jurisdiction failed for Delo as Hidria cannot show that Delow specifically targeted South Carolina readers.

In State v. Barrett, Jr., Barrett appealed his conviction for a lewd act upon a minor, arguing the trial court erred in (1) qualifying Kendra Twitty as an expert “mental health professional, specifically in the area of child sexual abuse characteristics,” and (2) failing to grant a continuance for him to obtain an expert to dispute her testimony. The Court affirmed both decisions by the trial court

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