South Carolina Court of Appeals’ Opinions

Court of AppealsIn February, the South Carolina Court of Appeals published five opinions:

Toney v. Lee County School District, the Lee County appeals the circuit court’s reversal of its decision to terminate the employment of teacher Laura Toney. Toney was terminated following a grievance reported by another teacher complaining that Toney had revealed personal information about him in front of five other teachers. During a department meeting, Toney commented to the other teacher that  she knew he could relate to her sadness over losing her husband because he had also recently lost a spouse A few days later the other teacher filed a grievance asserting Toney’s sharing of private details of his life, relating to his sexual orientation, was an attack on his character and could have resulted in him losing his job and his positive relationships with his coworkers and students. The Board issued a written decision upholding Toney’s termination. Toney appealed to the Circuit Court which overturned the Board’s decision and ordered Toney’s reinstatement. The Board appealed.

The Court of Appeals reviewed the facts and affirmed the circuit court’s reversal of the Board’s decision because the record does not contain substantial evidence to support the Board’s decision to terminate Toney’s employment contract.

Belle Hall Plantation v. Keys was a foreclosure action, in which the Keys allege the Master-in-Equity erred by vacating a foreclosure sale, denying their motion to stay the order vacating the sale, and denying their motion to strike affidavits presented to the master. The Court of Appeals affirmed the findings of the Master-in-Equity.

In Brooks v. South Carolina Commission on Indigent Defense, Appellant Charles Brooks challenges the circuit court’s order disqualifying Irma Brooks, Appellant’s wife and life partner, from representing him and disqualifying Appellant from representing himself pursuant to Rule 3.7 of the S.C. Rules of Professional Conduct.

The Executive Director of the Commission filed a complaint with the Office of Disciplinary Counsel (ODC) alleging that Appellants, practicing attorneys, were overbilling via submission of vouchers to the Commission over a three-year period.  After the initial investigation, ODC and Appellant agreed that his unpaid vouchers would be reduced by $61,826.40, due to excessive billing. Appellant filed a complaint against the Commission seeking payments of the amount owed on the unpaid vouchers reduced by the amount Appellant had overbilled. The Commission asserted counterclaims: fraud, misrepresentation and negligence, and listed Irma Brooks as a witness. Irma Brooks filed a Notice of Appearance on Appellant’s behalf.  The circuit court issued a rule disqualifying Irma Brooks from representing Appellant and also Appellant from representing himself. Additionally, the circuit court found Irma Brooks was a necessary witness under Rule 3.7(a) of the S.C. Rules of Professional Conduct. 

In this appeal, Appellant argues the court erred in disqualifying Irma Brooks because she is not a necessary witness, her disqualification would be a substantial hardship upon Appellant, and Rule 3.7(b) allows a firm attorney to advocate in trial in which another attorney from the same law firm will be a witness.

The Court found that the circuit court did not abuse its discretion in disqualifying Irma Brooks to be an advocate because the record includes sufficient evidence supporting the conclusion that Irma Brooks is a necessary witness.

The Court found Appellant’s argument of substantial hardship abandoned as Appellant did not challenge the court’s finding on this issue in his appellate brief.  Accordingly, the Court did not address this issue.

The Court found that Rule 3.7(b) does not apply to Irma Brooks.  Rule 3.7(b) would have permitted Irma Brooks to act as an advocate for Appellant if another firm attorney   was testifying. Here, Irma Brooks is a necessary witness, therefore likely to testify. Additionally, the Court found that Rule 3.7 does not apply to Appellant as a pro se attorney. The Court found that the circuit court erred as a matter of law when it applied Rule 3.7 to Appellant and disqualified him from serving as his own counsel. The Court found “no reason why the constitutionally guaranteed right to self-representation should be curtailed for a pro se attorney by Rule 3.7“.

Finally, the Court vacated the circuit court’s order restricting Appellant’s ability to testify if he served as a pro se attorney. The Court found that the circuit court’s decision was based on an erroneous interpretation of Rule 3.7.  

Accordingly, the decision of the circuit court was affirmed in part, reversed in part, vacated in part and remanded.

In First Citizens Bank v. Park at Durbin Creek, the Court of Appeals affirmed the circuit court’s decision to set aside a property conveyance from Kenneth Clifton to the Park at Durbin Creek, LLC.

The Court concluded that First Citizen’s Bank established the conveyance was made in violation of the Statute of Elizabeth, Clifton failed to rebut this presumption, and thus, the transfer was invalid.

State v. Brandenburg was a criminal appeal, in which, Brandenburg claims the circuit court erred in charging the jury on first-degree harassment (harassment) as a lesser included offense of stalking.

The Court of Appeals disagreed with Brandenburg’s argument that harassment is not a lesser included offense of stalking because harassment includes two elements not found in stalking: “unreasonable intrusion into the private life of a targeted person” and “emotional distress.” 

In making this conclusion, the Court found that despite the difference in the working of the elements between the two crimes, the legislature intended harassment to be a lesser-included offense of stalking. Accordingly, the Court affirmed the circuit court’s decision.

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