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OPINIONS OF THE SUPREME COURT AND COURT OF APPEALS OF SOUTH CAROLINA ADVANCE SHEET NO. 27 July 10, 2006 Daniel E. Shearouse, Clerk Columbia, South Carolina www.sccou rts.org 1 CONTENTS THE SUPREME COURT OF SOUTH CAROLINA PUBLISHED OPINIONS AND ORDERS 26181 – Charleston Trident v. Town Council 17 26182 – Hom e Port Rentals Inc. v. Roger Moore 31 Order – In re: Am endm ent to Rule 402 36 Order – In re: Am endm ents to Com mission’s Regulations for Mandatory CLE for Judges and Active Mem bers of the SC Bar 37 UNPUBLISHED OPINIONS 2006-MO-025 – John Henry Tillm an v. State (York County – Judges John C. Hayes, III and Lee S. Alford) PETITIONS – UNITED STATES SUPREME COURT 26087 – The State v. Brad Keith Sigm on Denied 6/26/2006 26101 – Robert Lee Nance v. R. Dodge Frederick Pending PETITIONS FOR REHEARING 26152 – Charleston County DSS v. Pam ela King Denied 7/7/06 26155 – The State v. Bynum Rayfield Denied 7/7/06 26168 – Calvin Jeter v. SCDOT Pending 26170 – Caroline Boyd, et al. v. BellSouth Telephone Telegraph Co. Inc Pending 26172 – The State v. Charles Pagan Denied 7/10/2006 26173 – George Lanford Douglas v. State Denied 7/7/2006 EXTENSION OF TIME TO FILE PETITION FOR REHEARING 26167 – The State v. Helen Marie Douglas Granted 6/30/2006 2 THE SOUTH CAROLINA COURT OF APPEALS PUBLISHED OPINI ONS Page 4134-City of Beauf ort v. Eddie Holcom be 40 4135-Dan R. Williamson and Dan F. Willia mson and Company v. Alfred C. 47 Middleton 4136-Diane Ardis and Davi d Ardi s v. Edward L. Sessions, D.C. 59 UNPUBLISHED OPINIONS 2006-UP-289-Waterford Place Homeowners Association of Lexington, Inc. v. Richie D. Barnes (Lexington, Judge Marc H. Westbrook) 2006-U P-290-Jennie Wright Taylor, by and through Ma rgaret Derrick, her
2006-UP-289-Waterford Place Homeowners Association of Lexington, Inc. v. Richie D. Barnes (Lexington, Judge Marc H. Westbrook) 2006-U P-290-Jennie Wright Taylor, by and through Ma rgaret Derrick, her Attorney in Fact v. Bank of America Corp oration f/k/a The Citizens and Southern National Bank of S outh Car olina (Spartanburg, Judge Roger L. Couch) 2006-U P-291- The State v. Cynthi a Sm ith, Defendant, a nd Ruby Ri ce, d/b/a R&R Bonding, and Safety National Casualty Cor poration, as Surety, of whom Ruby Rice d/b/a R&R Bail Bonding is Appellant (Spartanbu rg, Judge J. Derham Cole) 2006-UP-292-Ricky and Tammy Polson v. William an d Wendy Johnson (Spartanbu rg, Judge Jane D. Fender) 2006-U P-293- Emory Alvin Michau, Jr. v. So uth Car olina Departm ent of C orrections (Charleston, Judge R. Markley Dennis, Jr.) 2006-U P-294- Emory Alvin Michau, Jr. v. Office of the Ninth Circuit Solicitor (Charleston, Juge R. Markley Dennis, Jr.) 2006-U P-295- Cleveland Ridge H omeowner’s A ssociation, Inc. v. State Farm Fire and Casualty Company a nd State Farm General Insurance C ompany (Greenville, Judge Larry R. Patterson) 3 2006-U P-296- The State v. Allen Marty C ornwell (Horry, Judge John L. Breeden) 2006-U P-297- Employers Insurance of Waus au v. Robert J. Moran and Eric C. Hansen (Georgetown, Judge James E. Lockem y and Judge Paula H. .Thom as) 2006-U P-298- The State v. Marcus K. Wilson (Richla nd, Judge Clifton Ne wman) 2006-U P-299-J ohn E. Kelley, Jr. and Mary V. Kelley v. Sandra P. Herman (Laurens, Judge Wyatt T. Saunders, Jr.) 2006-U P-300- Emory Alvin Michau, Jr. v. J. Al Cannon, Sheriff of Charleston County and Henry McMaste r, Attorney General of South Carolina (Charleston, Judge R. Markley Dennis, Jr.) 2006-UP-301-The State v. Cornelius Keith
n Michau, Jr. v. J. Al Cannon, Sheriff of Charleston County and Henry McMaste r, Attorney General of South Carolina (Charleston, Judge R. Markley Dennis, Jr.) 2006-UP-301-The State v. Cornelius Keith (Sum ter, Judge H oward P. K ing) 2006-UP-302-Richard B. Erwin v. Ryan’s Family Steakhouses, Inc. (Greenville, Judge Larry R. Patterson) 2006-U P-303- The State v. Tim othy Di nkins (Richland, Judge Brooks P. Gol dsmith) 2006-UP-304-J ohn Phillip Bethards v. Mike Tenny d/b/a Synco Ente rprise and Weather Shield (Charleston, Judge Daniel F. Pieper) PETITIONS FOR RE HEARING 4040-C ommander Healthcare v. SCDHEC Pending 4043-Sim mons v. Simmons Pending 4104-Ham brick v. GMAC Pending 4106-Kelley v. Kelley Pending 4107-State v. R. Rice P ending 4108-Middleton v. Johnson Pending 4 4109-Thompson v. SC Steel Pending 4111-LandBank VII v. Dick erson P ending 4112-D ouan v. Charleston Cty. Pending 4113-Pirri v. Pirri Denied 06/30/ 06 4114-Martin v. Rapid Plum bing Pending 4115-Sm ith v. NCCI, Inc, Denied 06/30/ 06 4118-Richa rdson v. D onald Ha wkins Const. Pending 4119-D oe v. Roe Denied 06/29/ 06 4122-Grant v. Mount Vernon Mills Pending 2006-UP-158-State v. R. Edm onds Pending 2006-U P-191- State v. N. Boan Denied 06/29/ 06 2006-UP-194-State v. E. Johnson Pending 2006-U P-203- Sammy Garrison C onst. v. R usso Pending 2006-U P-211- Cunningham v. Mixon Denied 06/29/ 06 2006-U P-218- Luther Smith v. State Pending 2006-UP-222-State v. T. Lilly Pending 2006-UP-230-Ex Parte: Van Osdell In re: Babb v. Gr aham Denied 06/30/ 06 2006-U P-235- We D o Alterations v. Powell Denied 06/30/ 06 2006-U P-237- SCDOT v. McD onald’s Corp. Denied 06/30/ 06 2006-U P-238- SCDSS v. Hutson Pending 2006-U P-239- SCDSS v. Glenn Denied 06/30/ 06 5
U P-235- We D o Alterations v. Powell Denied 06/30/ 06 2006-U P-237- SCDOT v. McD onald’s Corp. Denied 06/30/ 06 2006-U P-238- SCDSS v. Hutson Pending 2006-U P-239- SCDSS v. Glenn Denied 06/30/ 06 5 2006-U P-243- SunTrus t Mortga ge v. Gobbi Denied 06/29/ 06 2006-U P-245- Gobbi v. Peoples’ Fed. Ba nk Pending 2006-U P-246- Gobbi v. Simerman Denied 06/29/ 06 2006-U P-247- State v. S. Hastings Denied 06/29/ 06 2006-U P-249- State v. L. Flem ing Denied 06/29/ 06 2006-U P-251- Rabon v. SCD HPT Denied 06/30/ 06 2006-U P-256- Fulm er v. Cain Pending 2006-U P-258- SCDSS v. Smith Denied 06/30/ 06 2006-U P-262- Norton v. Wellm an Pending 2006-U P-265- Brown v. Harris Pending 2006-U P-267- Barnum v. Sto Corp. Pending 2006-U P-268- DSS v. Mother et al. Denied 06/29/ 06 2006-U P-270- Elgin v. Kelly Pending 2006-U P-277- State v. Hunsuc ker Pending 2006-UP-279-Williamson v. Be rmuda Run Pending 2006-U P-280-I ngram v. SCPPPS Pending 2006-UP-281-Johnson v. Sonoco Products et al. Pending PETITIONS - SOUTH CAROLINA SUPREME COURT 3787-State v. Horton Pending 3900-State v. Wood P ending 3903-M ontgomery v. CSX Trans portation Pending 6 3906-State v. James P ending 3914-Knox v. Greenville Hospital Denied 06/22/06 3917-State v. Hubner P ending 3918-State v. N. Mitchell Pending 3926-Brenc o v. SCDOT Pending 3928-C owden Enterprises v. East Coast Pending 3929-Coakley v. Horace Mann Pending 3935-Collins Entertainment v. White Pending 3936-Rife v. Hitachi Construction et al. Pending 3938-State v. E. Yarborough Pending 3939-State v. R. Johns on Pending 3940-State v. H. Fletcher P ending 3949-Liberty Mutual v. S.C. Second Injury Fund Pending 3950-State v. Passmore P ending 3952-State v. K. Miller Pending 3956-State v. Michael Light Pending
40-State v. H. Fletcher P ending 3949-Liberty Mutual v. S.C. Second Injury Fund Pending 3950-State v. Passmore P ending 3952-State v. K. Miller Pending 3956-State v. Michael Light Pending 3963-McMillan v. SC Dep’t of Agriculture Pending 3965-State v. McCall Pending 3966-Lanier v. Lanier P ending 3967-State v. A. Zeigler Pending 3968-Abu- Shawareb v. S.C. Stat e University Pending 7 3971-State v. Wallace Pending 3976-Mackela v. Bentley Pending 3977-Ex parte: USAA In Re: Smith v. Moor e Pending 3978-State v. K. Roach P ending 3981-D oe v. SCDDSN et al. Pending 3982-LoPresti v. Burry P ending 3983-State v. D. Young Pending 3984-Martasin v. Hilton Head Pending 3985-Brewer v. Stokes Kia Pending 3988-M urphy v. Jefferson Pilot Pending 3989-State v. Tuffour Pending 3993-Thom as v. Lutch (Stevens) Pending 3994-Huffines Co. v. Lockhart Pending 3995-C ole v. Raut Pending 3996-Bass v. Isochem Pending 3998-A nderson v. Buonforte Pending 4000-Alexander v. Forklifts Unlimited Pending 4004-Historic Charleston v. Mallon Pending 4005-Waters v. Southern Farm Bureau Pending 4006-State v. B. Pinkard Pending 4011-State v. W. Nicholson Pending 8 4014-State v. D. Wharton Pending 4015-Collins Music Co. v. IGT Pending 4020-Englert, Inc. v. LeafGuar d USA, Inc. P ending 4022-Widdicombe v. Tucker-Cales P ending 4025-Blind Tiger v. Ci ty of C harleston Pending 4026-W ogan v. Kunze Pending 4027-Mishoe v. QHG of Lake City Pending 4028-Armstrong v. Collins Pending 4033-State v. C. Washi ngton Pending 4034-Brown v. Greenwood M ills Inc. Pending 4035-State v. J. Mekler P ending 4036-State v. Pichar do & Reyes Pending 4037-Ea gle Cont. v. C ounty of Newberry P ending 4039-S huler v. Gregory Electric et al. Pending 4041-Bessinger v. Bi-Lo Pending
J. Mekler P ending 4036-State v. Pichar do & Reyes Pending 4037-Ea gle Cont. v. C ounty of Newberry P ending 4039-S huler v. Gregory Electric et al. Pending 4041-Bessinger v. Bi-Lo Pending 4042-H onorage Nursing v. Fl orence Conval. Pending 4043-Sim mons v. Simmons Pending 4044-G ordon v. Busbee Pending 4045-State v. E. King P ending 4047-Carol ina Water v. Lexi ngton County Pending 4048-Lizee v. SCDMH P ending 9 4052-Smith v. Hastie Pending 4054-Cooke v. Palmetto Health Pending 4058-State v. K. Williams Pending 4060-State v. Compton Pending 4061-Doe v. Howe et al.(2) Pending 4062-Cam pbell v. Cam pbell Pending 4064-Peek v. Spartanburg Regi onal Pending 4065-Le vine v. Sparta nburg Regi onal Pending 4068-McDill v. Mark’s Auto Sales P ending 4069-State v. Patterson Pending 4070-Tom linson v. Mixon Pending 4071-State v. K. Covert Pending 4074-Schnellmann v. Roettger Pending 4078-St okes v. Spartanbur g Regional Pending 4079-State v. R. Bailey Pending 4080-Lukich v. Lukich Pending 4082-State v. Elmore P ending 4085-Sl oan Construction Co. v. Southco Pending 4088-S C Mun. Ins. & Risk F und v. City of Myrtle Beach Pending 4091-West v. Alliance Capital Pending 4092-Cedar Cove v. DiPietro Pending 10 4093-State v. J. Rogers Pending 4095-Garnett v. WRP Enterprises Pending 4096-A uto-Owners v. Ham in Pending 4100-Menne v. Keowee Key Pending 4102-Cody Discount Inc. v. Merritt Pending 2003-UP-757-State v. Johnson Pending 2004-U P-271- Hilton Head v. Bergm an Pending 2004-U P-487- State v. Burnett Pending 2004-U P-537- Reliford v. Mitsubi shi Mo tors Granted 06/22/ 06 2004-U P-605- Mori ng v. Mori ng Pending 2004-U P-606- Walker Investm ent v. Ca rolina First Denied 06/22/ 06 2004-UP-610-Owenby v. Kiesau et al. P ending
Mitsubi shi Mo tors Granted 06/22/ 06 2004-U P-605- Mori ng v. Mori ng Pending 2004-U P-606- Walker Investm ent v. Ca rolina First Denied 06/22/ 06 2004-UP-610-Owenby v. Kiesau et al. P ending 2004-U P-617- Rays or v. State Pending 2004-U P-650- Garrett v. Est. of Jerry Marsh Pending 2004-U P-653- State v. R. Blanding Pending 2005-UP-001-Hill v. Marsh et al. Pending 2005-UP-014-Dodd v. Exide Batte ry Corp. et al. Pending 2005-U P-016- Averett e v. Browni ng Pending 2005-U P-018- State v. Byers Pending 2005-U P-022- Ex parte Dunagi n Pending 2005-U P-023- Cantrell v. SCDPS Pending 11 2005-U P-054- Reliford v. Sussm an Pending 2005-UP-058-Johnson v. Fort Mi ll Chrysler P ending 2005-UP-113-McCallum v. Beaufort Co. Sch. Dt. Pending 2005-U P-115- Toner v. SC Em ployment Sec. Com m’n Pending 2005-UP-116- S.C. Far m Bureau v. Hawki ns Pending 2005-U P-122- State v. K. Sowell Pending 2005-UP-124-Norris v. Allstate Ins. Co. Pending 2005-U P-128- Discount Auto Cent er v. Jonas Pending 2005-U P-130- Gads on v. ECO Services Pending 2005-U P-138- N. C harleston Sew er v. Berkeley C ounty Pending 2005-U P-139- Smith v. Dockside Association Pending 2005-U P-152- State v. T. Davis Pending 2005-U P-163- State v. L. Staten Pending 2005-UP-165-Long v. Long Pending 2005-U P-170- State v. Wilbanks Pending 2005-U P-171- GB&S Cor p. v. C nty. of Florence et al. Pending 2005-U P-174- Suber v. Suber Pending 2005-U P-188- State v. T. Zeigler Pending 2005-U P-192- Mathias v. Rural C omm. Ins. Co. P ending 2005-UP-195-Babb v. Floyd Pending 2005-U P-197- State v. L. Cowan P ending 12 2005-U P-216- Hiott v. Kelly et al. Denied 06/22/ 06 2005-U P-219- Ralphs v. Trexle r (Nordstrom ) Pending 2005-U P-222- State v. E. Rieb Pending 2005-U P-256- State v. T. Edwar ds Pending
P ending 12 2005-U P-216- Hiott v. Kelly et al. Denied 06/22/ 06 2005-U P-219- Ralphs v. Trexle r (Nordstrom ) Pending 2005-U P-222- State v. E. Rieb Pending 2005-U P-256- State v. T. Edwar ds Pending 2005-U P-274- State v. R. Tyler Pending 2005-UP-283-Hill v. Harbert Pending 2005-U P-296- State v. B. Jewell Pending 2005-UP-297-Shamrock Ent. v. The Beach Market Pending 2005-U P-298- Rose nblum v. Carbone et al. Pending 2005-U P-303- Bowen v. Bowen Pending 2005-UP-305-State v. Boseman Pending 2005-U P-319- Powers v. Graham Pending 2005-U P-337- Griffin v. White Oak Prop. Pending 2005-U P-340- Hansson v. Scalise Pending 2005-U P-345- State v. B. Cantrell Pending 2005-U P-348- State v. L. St okes P ending 2005-U P-354- Fleshm an v. Trilogy & CarOrder Pending 2005-UP-361-State v. J. Galbreath Pending 2005-UP-365-Maxwell v. SCDOT P ending 2005-U P-373- State v. Summersett Pending 2005-U P-375- State v. V. Mathis Pending 13 2005-U P-422- Zepsa v. Randazzo Pending 2005-U P-425- Reid v. Maytag Corp. Pending 2005-U P-459- Seabr ook v. Simmons Pending 2005-U P-460- State v. McHam Pending 2005-U P-471- Whit worth v. Windo w Worl d et al. Pending 2005-U P-472- Roddey v. NationsWaste et al. Pending 2005-U P-490- Widdicom be v. Dupree Pending 2005-UP-506-Dabbs v. Davis et a l. Denied 06/22/ 06 2005-U P-517- Turbe vile v. Wilson Pending 2005-U P-519- Talley v. Jonas Pending 2005-U P-530- Moseley v. Oswald Pending 2005-UP-535-Tindall v. H& S Homes P ending 2005-U P-540- Fair v. Gary Realt y Pending 2005-U P-541- State v. Samuel Cunni ngham Pending 2005-U P-543-Jam rok v. Rogers Pending 2005-U P-556- Russell Cor p. v. Gregg P ending 2005-U P-557- State v. A. Mickle Pending 2005-UP-574-State v. T. Phillips Pending 2005-UP-580-Garrett v. Garrett Pending
Jam rok v. Rogers Pending 2005-U P-556- Russell Cor p. v. Gregg P ending 2005-U P-557- State v. A. Mickle Pending 2005-UP-574-State v. T. Phillips Pending 2005-UP-580-Garrett v. Garrett Pending 2005-U P-584- Respons ible Eco. v. Florence C onsolid. Pending 2005-UP-585-Newberry Elect. v. C ity of Newberry Pending 14 2005-UP-590-Willis v. Grand Stra nd Sandwich Shop Pending 2005-U P-592- Biser v. MUS C Pending 2005-U P-595- Powell v. Powell Pending 2005-UP-603-Vaughn v. Salem Carriers Pending 2005-UP-604-Ex parte A-1 Bail In re State v. Larue Pending 2005-U P-608- State v. (Mack.M) Isiah Jam es Pending 2005-U P-613- Browde r v. Ross Marine Pending 2005-U P-615- State v. L. Carter Pending 2005-U P-635- State v. M. Cunningham Pending 2006-U P-001- Heritage Plantation v. Paone Pending 2006-UP-002-Johnson v. Estate of Smith Pending 2006-U P-013- State v. H. Poplin Pending 2006-U P-015- Watts Const. v. Feltes Pending 2006-UP-022-Hendrix v. Duke Energy Pending 2006-U P-025- State v. K. Blackwe ll Pending 2006-U P-027- Costenbader v. Costenbader Pending 2006-UP-030- State v. S. Simmons Pending 2006-UP-037-State v. Henderson Pending 2006-UP-038-Baldwin v. Peoples Pending 2006-UP-043-State v. Hagood Pending 2006-U P-047- Rowe v. Advance America Pending 15 2006-U P-049- Rhine v. Swem Pending 2006-U P-065- SCDSS v. Ferguson Pending 2006-U P-066- Singleton v. Ste ven Shipping Pending 2006-UP-071-Seibert v. Brooks Pending 2006-UP-072-McCrea v. Gheraibeh Pending 2006-UP-073-Oliver v. AT&T Nassau Metals Pending 2006-U P-074- Casale v. Stivers Chrysler-Jeep Pending 2006-U P-079- Ffrench v,. Ffrench Pending 2006-UP-084-McKee v. Brown Pending 2006-U P-088- Meehan v. Meehan Pending 2006-U P-096- Smith v. Bloom e Pending 2006-UP-115-Brunson v. Brunson Pending
nding 2006-U P-079- Ffrench v,. Ffrench Pending 2006-UP-084-McKee v. Brown Pending 2006-U P-088- Meehan v. Meehan Pending 2006-U P-096- Smith v. Bloom e Pending 2006-UP-115-Brunson v. Brunson Pending 2006-U P-122- Young v. Greene Pending 2006-UP-128-Heller v. Heller Pending 2006-UP-130-Unger v. Leviton Pending 16 __________ __________ __________ ___________ ___________ ___________ THE STATE OF SOUTH CAROLI NA In The Supreme Court Charlesto n Trident Home Builders, Inc., Appellant, v. Town Council of Town of Summerv ille and Town of Summerville, Respondents. Appeal from Dorchester County Patrick R. Watts, Master-in-E quity Opinion No. 26181 Heard March 21, 2006 – Filed July 10, 2006 AFFIRM ED AS MODIFIED Stephen P. Groves, Sr., R. Bruce Wallace, and Jeffrey S. Tibbals, of Nexsen Pruet, LLC, of Charlesto n, for appellant. William H. Davidson, II, and Kennet h P. Woodington, of Davidson, Morrison & Lindemann, P.A., of Columbia for respondents. 17 JUSTICE MOORE : Appellant Charleston Trident Home Builders, Inc. (Trident) is a non-profit corporation whose members construct homes, and own and develop property within the town limits of respondent Town of Summerville (Town). Trident commenced this action challenging Town’s development impact fee ordinance which was enacted in 2003 pursuant to the South Carolina Development Impact Fee Act, S.C. Code Ann. § 6-1-910 et seq. (2004) (the Act). We affirm. FACTS The Act defines a development impact fee as “a payment of money imposed as a conditio n of development approval to pay a proportionate share of the cost of system improvements needed to serve the people utiliz ing the improvements. ” § 6-1-920(8). The Act requires that the local planning commission conduct studies and make
ortionate share of the cost of system improvements needed to serve the people utiliz ing the improvements. ” § 6-1-920(8). The Act requires that the local planning commission conduct studies and make recomme ndations for a capital improv ements plan and impact fees by service unit.1 § 6-1-950. After notice and a public hearing, the capital improvements plan may then be adopted by the local government. § 9- 1-960(A). A capital improvements plan is required before an impact fee ordinance can be enacted. § 6-1-930. The revenue from impact fees must be maintained in a separate account and used only for “the category of system improvements and within or for the benefit of the service area for whi ch the impact fee was imposed as shown by the capital improvements plan.” § 6-1-1010. To comply with the Act, in February 2001 Town Council directed Town’s planning commission to conduct studies for an impact fee. Town hired Tischler & Asso ciates, Inc., a consulting firm, to prepare a feasibility analysis. Tischler issued its initia l proposal recomme nding the impositio n of the fees. A capital impro vements p lan was also drafted. Finally, in May 2002, Tischler issued an impact fee study (the “Tischler Report”), which detailed the proposed calculation of impact fees. 1 A service unit is a standardized measure of use or discharge attributable to an individual unit of development. § 6-1-920(20). 18 After several public meetings, the capital improvements plan was adopted in December 2002. The impact fee ordinance was subsequently adopted on January 8, 2003, incorporating by reference the capital improvements plan and the Tischler Report. The ordinance became effective February 1, 2003. Trident commenced this action claiming the ordinance did not
8, 2003, incorporating by reference the capital improvements plan and the Tischler Report. The ordinance became effective February 1, 2003. Trident commenced this action claiming the ordinance did not comply with the Act in several resp ects. The case was ref erred with finality to the maste r-in-equ ity who granted Town’s motio n for summary judgment on several grounds, including Trident’s lack of standing, Trident’s failure to exhaust administra tive remed ies, lack of an appropriate remedy, and the ordinance’s compliance with the Act. Trident appeals. ISSUES 1. Does Trident have standing to maintain this actio n? 2. Was Trident required to exhaust administra tive remedies? 3. Does the capital improvemen ts plan substantially comply with the Act? 4. Is the fee calculation in the ordinance proper? DISCUS SION 1. Standing The master found Trident had no standing to maintain this action. We disagree. An organization has standing on behalf of its members if one or more of its members will suffer an individual injury by virtue of the contested act. Sea Pines Ass’n for Pr otection of Wildlife, Inc. v. South Carolina Dep’t of Nat. Resources , 345 S.C. 594, 550 S.E.2d 287 (2001). The three required elements to establish standing are: an 19 injury in fact, a causal connection, and likelihood that a favorable decision would give relief. Id. The record includes an affidavit by Frank Finlaw, president of Trident, stating he has paid more than $100,000 in impact fees since the ordi nance was enacted. In the event the ordinance was i nvalidated, Town could be ordered to issue refunds which would be adequate redress. We conclude Trident has standing to mainta in this challe nge to the ordinance. 2. Exhaustion of administra tive remed ies
ated, Town could be ordered to issue refunds which would be adequate redress. We conclude Trident has standing to mainta in this challe nge to the ordinance. 2. Exhaustion of administra tive remed ies The master found Trident was requi red to exhaust administrative remedies before bringing this action. We disagree. As required by the Act, Town’s ordinance provides for administrative relie f. 2 The ordinance provides that a refund will be issued if: (a) the fees are not expe nded within three years of the date they were scheduled to be spent under the capital improvements plan; or (b) a building permit was subsequently denied. This relief does not extend to the right to challenge the validity of th e ordinance itself. A party is not require d to exhaust admin istrative remedies if the issue is one that cannot be ruled upon by the administrative body. Ward v. State , 343 S.C. 14, 538 S.E.2d 245 (20 00). We find Trident was not required to exhaust administrative remedies before bringing this action. 3. Capital improve ments pla n a. Incorporation of Tischler Report Trident complain s that the capital imp rovements plan does not comply with the Act. The document entitled “Capital Imp rovements Plan” is simply a list of items with cost estimates for future years. 2Section 6-1-1030(A) provides: “A governmental entity which adopts a development impact fee ordinance shall provide for administrative appeals by the developer or fee payor.” 20 (1) a general description of all existing public facilities, and their existing deficiencies, within the service area or areas of the governmental entity, a reasonable estimate of all costs, and a plan to develop the funding
of all existing public facilities, and their existing deficiencies, within the service area or areas of the governmental entity, a reasonable estimate of all costs, and a plan to develop the funding resources, including existing sources of revenues, related to curing the existing deficiencies including, but not limited to, the upgrading, updating, improving, expanding, or replacing of these facilities to meet existing needs and usage; (2) an analysis of the total capacity , the level of current usage , and commitments for usage of capacity of existing public facilities, which must be prepared by a qualified professional using generally accepted principles and professional standards; Under the Act, a capital improvements plan is “a plan that identifies capital improvements for which development impact fees may be used as a funding source.” § 6-1-920(3). Impact fees may be charged only for system improvement costs that are capital improvements included in the capital improvements plan. § 6-1-920(8) and (22)(a). The expenditure of revenue generated by impact fees is limited to capital improvements identified in the capital improvements plan. § 6-1-1010(B). Finally, under § 6-1-960(B), the capital improvements plan must contain: (3) a description of the land use assumptions ; (4) a definitive table establishing the specific service unit for each category of system improvements and an equivalency or conversion table establishing the ratio of a service unit to various types of land uses, including residential, commercial, agricultural, and industrial, as appropriate; (5) a description of all system improvements and their costs necessitated by and attributable to new 21 development in the service area, based on the approved
ultural, and industrial, as appropriate; (5) a description of all system improvements and their costs necessitated by and attributable to new 21 development in the service area, based on the approved land use assumptions, to provide a level of service not to exceed the level of service currently existing in the community or service area, unless a different or higher level of service is required by law, court order, or safety consideration; (6) the total number of service units necessitated by and attributable to new development within the service area based on the land use assumptions and calculated in accordance with generally accepted engineering or planning criteria; (7) the projected demand for system improvements required by new service units projected over a reasonable period of time not to exceed twenty years; (8) identification of all sources and levels of funding available to the governmental entity for the financing of the system improvements; and (9) a schedule setting forth estimated dates for commencing and completing construction of all improvements identified in the capital improvements plan. (emphasis added). The document entitled “Capital Improvements Plan” does not meet most of these requirements since it is simply a list of items. Town asserts, however, that the capita l improve ments pla n should be read together with the Tischler Report since both were enacted with and incorporated by reference into the ordinance. We agree. Section 6-1-960(A) requires public notice and a hearing before adoption of the capital improvements plan and, under subsection (C), any change in the capital improvements plan must be approved in the same man ner as the origina l plan. The Act also provides th at the
ion of the capital improvements plan and, under subsection (C), any change in the capital improvements plan must be approved in the same man ner as the origina l plan. The Act also provides th at the capital improvements plan originate with the local planning 22 commission. The commission’s recommendations, however, “are not binding on the government e ntity, which may amend or alter the plan.” § 6-1-960(A). Although the Tischler Report did not originate with the planning commission, it was included in the enactment of the ordinance and was s ubjected to public notice a nd hearing. Accordingly, we find the capital improvements plan was effectively amended by the Tischler Report. b. Statutory compliance Section 6-1-930(A)(1) provides: Only a governmental entity that has a comprehe nsive plan , as provided in Chapter 29 of this title, and which complie s with the requireme nts of this article may impose a development impact fee. If a governmental entity has not adopted a comprehensive plan , but has adopted a capital improve ments pla n which substantially complies with the requirements of Section 6-1-960(B), then it may impose a development impac t fee. (emphasis added). Town has a comprehensive plan. Although § 6-1 - 930(A)(1) seems to delineate the appropriate standard of compliance for a capital improv ements plan based on whether or not the local entity has a comprehensiv e plan, we will not read the statute to effect an absurd result. See Kiriakide s v. United Artists Communications, Inc. , 312 S.C. 271, 275, 440 S.E.2d 364, 366 (1994) (when construing a statu te, the Court will re ject meaning that would lead to an absurd result not intended by the legisla ture). A local entity with the added
271, 275, 440 S.E.2d 364, 366 (1994) (when construing a statu te, the Court will re ject meaning that would lead to an absurd result not intended by the legisla ture). A local entity with the added safeguard of a com prehensive plan must be subject to the same, and not a more stringent, standard than a local entity without such a plan. We conclude this sectio n requires that a capital impro vements p lan be in substantia l complia nce with the requirements of § 6-1-960(B), regardless of whether there is a comprehensive plan in place. Accordingly, substantial co mpliance with the requireme nts for a capital improvements plan applies here. 23 c. Statutory requirements Trident complain s there is no general descriptio n of Town’s existing facilities as required in § 6-1-960(B)(1). The Tischler Report references specific facilities for each of the three categories (parks and recreation , fire, and municipa l). For example, a descriptio n of a facility under the Parks and Recreation category is: “an extensive trails system including four mile s of hiker/biker tr ail improve ments.” This type of summary description is adequate as a general description. Trident contends the Tischler Report failed to include “an analysis o f total capacity, the level of current usa ge, and commitmen ts for usage of capacity of existing public facilitie s” as required by § 6-1 - 960(B)(2). The Tischler Report does include evaluations of its existing facilities for each category of service and indicates fees are calculated to maintain the current level of service. Because Town’s existing facilities are currently functioning at an acceptable level of capacity, the fees are calculated to continue this level of service by improve ment
the current level of service. Because Town’s existing facilities are currently functioning at an acceptable level of capacity, the fees are calculated to continue this level of service by improve ment at incremental stag es. This evaluation substantia lly complies with these requiremen ts for a capital improv ements plan. Trident contends the capital improve ments pla n fails to identify “all sources and levels of funding.” The Tischler Report does note that some existing construction, such as the Public Safety Build ing, was purchased with the proceeds of bond issues, and calculates a credit for future bond payments. Joseph Christie, the Director of Planning and Development, states in his affidavi t that other funding sources were too speculative to serve as a basis for planning. Although this evaluation should have been i ncluded in the Tischler Report, there is no evidence other funding was actually available but not considered. Trident complain s the capita l improve ments pla n does not include estima ted dates for commenci ng and completing construction. The document entitled “Capital Improvements Plan” states the “year needed” is indicated for each capital improvement on the list of items. Although there are no commencement and completion dates, this informa tion provides an estimate of when the funds will be needed. 24 Trident complain s the capita l improve ments pla n includes items that cost less than $100,000 for equipment or have a useful life of less than five years in contravention of § 6-1-920(2) and (18)(g). The original document entitled “Capital Improvements Plan” includes such items, but they are not included in the Tischler Report which actually provides the figures used for the calculation of the impact fees. The
ocument entitled “Capital Improvements Plan” includes such items, but they are not included in the Tischler Report which actually provides the figures used for the calculation of the impact fees. The fact that these items were included in the origina l document has no significance in the calculation of fees. Trident contends the capital improvements plan lacks a proportionate share analysis as required by § 6-1-990. This section provides that “an impact fee imposed upon a fee payor may not exceed a proportionate share of the costs incurred by the governmental entity in providing system improvements to serve the new development.” Proportionate share is defined as the cost attributable to the new development. Section 6-1-990(B) also lists specific factors to be considered including: (1) cost of existing system improvemen ts resultin g from new development within the service area or areas; (2) means by which existing system improvements have been financed; (3) extent to which the new development contributes to the cost of syste m improv ements; (4) extent to which the new development is required to contrib ute to the cost of existing system impro vements in the future ; (5) extent to which the new development is required to provide system improvements, without charge to other properties within the service area or areas; 25 (6) time a nd price differen tials inherent in a fair comparison of fees paid at different times; and (7) availability of other sources of funding system improvements including, but not limited to, user charges, general tax levies, intergovernmental transfers, and special taxation. The Tischler Report takes into account all these factors except (6), time and price differen tials. The report, however, explains tha t all
levies, intergovernmental transfers, and special taxation. The Tischler Report takes into account all these factors except (6), time and price differen tials. The report, however, explains tha t all costs are given in current dollars with no assumed inflation rate, which negates th e need for time and price differentials. Although the capital improvements plan, as amended by t he Tischler Report, does not comport wi th every cr iterion of the Act, we find it sub stantially complie s with the statuto ry requireme nts. 4. Calculation of fees The Act provides for the calculation of impact fees in several provisions. Section 6-1-940(1) requires that the ordinance include an explanation of the calculation of the fee. Section 6-1-930(B)(2) provides that the amount of the fee “must be based on actual improvement costs or reasonable estimates of the costs, supported by sound engineering studies.” Section 6-1-990 limits the impact fee to a proportionate share of the cost of improvements. Finally, § 6-1-980 provides: § 6-1-980. Calculation of impact fees. (A) The i mpact fee for each service unit may not exceed the amount determined by dividing the costs of the capital improvements by the total number of projected service units tha t potentia lly could use the capital improvement. If the number of new service units projected over a reasonable period of time is less than the total number of new service units shown by the approved land 26 use assumptions at full development of the service area, the maximum impact fee for each service unit must be calculated by dividing the costs of the part of the capital improve ments nec essitated by and attributab le to the projected new service units by the total projected new service units.
e unit must be calculated by dividing the costs of the part of the capital improve ments nec essitated by and attributab le to the projected new service units by the total projected new service units. (B) An i mpact fee must be calculated in accordance with generally accepted accounting principles. In the Tischler Report, adopted by reference into Town’s i mpact fee ordinance, fees were calculated as follows. First, the report identifies three categories of impact fees: parks and recreation; fire; and municipal facilities and equipment. Fees for each of these categories are calculated with the “incremental expansion method” which uses the current level of service provided by Town’s facilities and assumes expansion in regular increments. This methodology essentially figures a “current replacement cost” at regular intervals to pay for the increase in demand affecting each of the three categories identified above. For each category, the current replacement cost for each capital improvement is divided by Town’s current number of demand units3 to determine the “cost per demand unit.” The impact fee is then calculated by multiplying the cost per demand unit by the “demand indicator” allocated to the type of development in question. For residentia l development, fees are assessed per housing unit; for non - residential development, fees are assessed per 1,000 square feet or per room for motels. As an example: A single fa mily deta ched dwelling is assumed to have 2.87 demand units. The total cost per demand unit for parks and recreation is $179.27. The cost per demand unit ($179.27) is multiplied by 2.87 for a fee of $514 for a single family detached 3The report uses the 2002 population extrapolated from the 2000
parks and recreation is $179.27. The cost per demand unit ($179.27) is multiplied by 2.87 for a fee of $514 for a single family detached 3The report uses the 2002 population extrapolated from the 2000 census to determine demand units. A residential demand unit is per person; non-residential is employees per 1,000 square feet. 27 dwelling for parks and recreation. This calculation is done for each category and added together for a total fee. Trident contends this calculation of fees does not comply with the requireme nts of the Act in the followin g particulars. a. Actual costs or reasonable estima tes Trident claims the incremental expansion method does not use “actual costs or reasonable estimates supported by sound engineering studies” as required by § 6-1-930(B)(2). As noted above, the method used here is basically a current replacement cost approach. In determining cost, the Tischler Report refers to cost information from “Town st aff” and the Marshall & Swif t Valuation Service. References to Town staff refer to the Town engineer, Matt Halter, who is a “public engineer.” Halter testified his cost estimates were “based on similar projects [Town] had done in the past or similar equipment [Town] had bought in the past, historic numbers typically.” Halter stated he gave “engineering estimates” for items in the capital improvements plan. We find the calculation of fees was based on reasonable estimates as indicated by Town’s engineer. b. Sound engineering studies Trident complain s Town’s cost estima tes were not based on sound engineering studies as required under § 6-1-930(B)(2).4 As noted above, Town’s public engineer, Matt Halter, stated he gave “engineering estimates” for the projected costs of capital
ot based on sound engineering studies as required under § 6-1-930(B)(2).4 As noted above, Town’s public engineer, Matt Halter, stated he gave “engineering estimates” for the projected costs of capital improvements. The Tischler Report also references the Marshall & Swift Valuation Service, a national prov ider of real estate costs.5 4This section provides: “The am ount of the development impact fee must be based on actual improvement costs or reasonable estimates of the costs, supported by sound engineering studies.” 5Marshall & Swift is describe d on its website as follows: 28 The Act does not specify what constitutes an “engineering study.” Since Town used its current facilities upon which to base estimated costs, engineering e stimates a re adequate. Further, Trident has provided no evidence indicating cost estimates would have been different had specific engineering st udies been conducted. We find the use of “engineering estimates” and a wi dely accepted valuation service was adequate to meet the requireme nt of “sound engineering studies.” c. Effect of annexation Trident complain s that in recommending impact fees, the forecasted population growth in Tischler’s initial feasibility study was skewed by growth through annexation. This factor does not affect the calculation of impact fees. The purpose of the feasibility study was simp ly to determine whether to consider enacting such fees. d. Current level of service Trident complain s Town failed to evaluate the level of service for its existing facilities. “Level of service” is defined by statute as “a measure of the relationship between service capacity and service demand for public facilitie s.” § 6-1-920(14). Generally, it is an evaluation of how well a given servi ce meets the public’s needs. Under
re of the relationship between service capacity and service demand for public facilitie s.” § 6-1-920(14). Generally, it is an evaluation of how well a given servi ce meets the public’s needs. Under Marshall & Swift serves a vital role in the real estate industry as the leading provider of building cost data. Our acclaimed cost manuals, desktop applications, online solutions and education programs help professionals create accurate cost valuations of commercial and residential real estate in the U.S., U.S. territories, Canada and s elect foreign cities worldwide. http://www.marshallswift.com/ms-about.aspx. 29 § 6-1-930(B)(3)(b), an impact fee ordinance must “include a description of acceptable levels of service for system improvements.” Throughout the Tischler Report, the accepted level of service for projected capital improvements is the current level of service provided by Town. Joseph Christie, Town ’s Director of Planning and Development, testified the existing le vel of service was deemed adequate. This evaluation was based on citizen input. The Tischler Report specifically states Town’s intent to “maintain the current level of service . . . to accommodate new res idential development and not to replace or rehabilitate existing facilities/improvements.” This descriptio n of the level of service for capital imp rovements as the current le vel of service satisfies the Act. We find the calculation of fees in the ordinance sufficient. Further, we note Trident offers no analysis of the various factors challenged that would actually result in different fees. CONCLUSION We find that Trident had standing to mainta in this action and did not have to exhaust administrative remedies. We conclude on the
challenged that would actually result in different fees. CONCLUSION We find that Trident had standing to mainta in this action and did not have to exhaust administrative remedies. We conclude on the merits tha t Town’s ordinance substantially comp lies with the statuto ry requireme nts set forth in the Act regarding the capital imp rovements plan and that the calculation of fees is proper. The master’s order is AFFIRM ED AS MODIFIED. TOAL, C.J., WALLER, BURNETT and PLEICONES, JJ., concur. 30 __________ __________ __________ __________ ___________ ___________ ___________ THE STATE OF SOUTH CAROLI NA In The Supreme Court Home Port Rentals, Inc., Petitioner, v. Roger Moore, Respondent. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS Appeal From Charleston County Deadra L. Jefferson, Circuit Court Judge Opinion No. 26182 Heard June 8, 2006 – Filed July 10, 2006 AFFIRMED AS MODIFIED M. Dawes Cooke, Jr. and Phillip S. Ferderigos, both of Barnwell, Whaley, Patterson & Helms, of Charleston, for Petitioner. Thomas W. Bunch II and L. Jefferson Davis IV, both of Robinson, McFadden & Moore, of Columbia, for Respondent. ACTING JUSTICE KING: This is a judgment-execution case. The circuit court granted summary judgment in favor of Roger Moore 31 (Respondent) against Home Port Rentals, Inc. (Petitioner), holding that South Carolina’s ten-year limitatio ns period for execution1 is not tolled for time during which a judgment debtor is out of state. The Court of Appeals affirmed. Home Port Re ntals, Inc. v. Moore , 359 S.C. 230, 597 S.E.2d 810 (Ct. App. 2004). This Court granted a writ of certiorari to review the Court of Appeals’ opinion. We affirm as modified. FACTS On March 20, 1989, the United States District Court for the District of
0 (Ct. App. 2004). This Court granted a writ of certiorari to review the Court of Appeals’ opinion. We affirm as modified. FACTS On March 20, 1989, the United States District Court for the District of South Carolina entered judgment against Respondent and in favor of Petitioner. Petitioner thereafter tried to locate Respondent in order to execute on the judgment, but could not do so until January 1999. On July 14, 2000, Petitioner filed an action for declaratory judgment in the circuit court. Petitioner sought a declaration that the 1989 judgment was still effective, arguing that the ten-year limitatio ns period for execution had been tolle d for the time during which Respondent was absent from South Carolina – the entire eleven-year period following entry of the judgment. The parties filed cro ss-mo tions for summary judg ment, and the circuit court granted summary judgment to Respondent. The court held that the 1989 judgment was no longer valid because it was more than ten years old. The Court of Appeals affirmed. ISSUE Whether the Court of Appeals erred in holding that the 1989 judgment is no longer valid because it is more than ten years old. ANALYSIS The judgment of the federal district court was enrolled, and therefore became a South Carolina judgment, when it was entered on March 20, 1989. 1 S.C. Code Ann. § 15-39-30 (2005). 32 Under the Uniform Enforcement of Foreign Judgments Act,2 the 1989 judgment of the federal district court is a “foreign judgment.” S.C. Code Ann. § 15-35-910(1) (2005). Ordinarily , a foreign judgment must be enrolled in this sta te in order to be effective as a South Carolina ju dgment. Under federal law, however, a judgment of th e United States Distric t Court for the
arily , a foreign judgment must be enrolled in this sta te in order to be effective as a South Carolina ju dgment. Under federal law, however, a judgment of th e United States Distric t Court for the District of South Carolina is effec tively a South Carolina judgment. The United States Code provides: Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same condition s as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time. 28 U.S.C.A. § 1962 (West 1994). Consequently, South Carolina law determines the date on which the federal court’s judgment became a lien in South Carolina. South Carolina Code section 15-35-810 applies the federal statute and provides that a judgment of the United Stat es District Court for the District of South Carolina shall constitute a lie n upon the real estate of the judgment debtor situate[d] in any county in this State in which the judgment or transcript thereof is entered upon the book of abstracts of judgments and duly indexed, t he lien to begin from the time of such entry on the book of abstracts and indices and to continue for a period of ten years from the date of such final judgment .... S.C. Code Ann. § 15-35-810 (2005). 2 S.C. Code Ann. §§ 15-35-900 through -960 (2005). 33 As the Court of Appeals held, therefor e, the district court’s judgment became effective when it was entered on March 20, 1989. As stated above, Petitioner filed this declaratory-judgment action on July 14, 2000, more than ten years after entry of the 1989 judgment. South Carolina Code section 15-39-30 provides: Executions may issue upon final judgments or decrees
declaratory-judgment action on July 14, 2000, more than ten years after entry of the 1989 judgment. South Carolina Code section 15-39-30 provides: Executions may issue upon final judgments or decrees at any time within ten years from the date of the origina l entry thereof and s hall have active energy during such period, without any renewal or renewals thereof, and this whether any return may or may not have been made during such period on such executions. This Court has consistently held that under the statute, a judgment becomes stale and a judgment lien is extinguish ed after ten years. See, e.g. , Garrison v. Owens , 258 S.C. 442, 446-47, 189 S.E.2d 31, 33 (1972); Hardee v. Lynch , 212 S.C. 6, 46 S.E.2d 179 (1948). In so holding, the Court has reasoned, “A judgment lien is purely statutory, its dur ation as fixed by the legislature may not be prolonged by the courts and the bringing of an action to enforce the lien will not preserve it beyond the time fixed by statute, if such time expires before the action is tried.” Garrison , 258 S.C. at 446-47, 189 S.E.2d at 33 (citations omitted). According to Petitioner, the legisla ture has provided for the prolonging of the existence of the judgment and lien in at least one situation. Relying on South Carolina Code section 15-3-30,3 Petitioner argues the ten-year period provided by section 15-39-30 may be t olled for time that a judgment debtor spends out of the state. We disagree. Section 15-3-30 provides: If when a cause of action shall accrue against any person he shall be out of the State, such action may 3 S.C. Code Ann. § 15-3-30 (2005). 34 be commenced within the terms in this chapter respective ly limited after the return of such person into this State. And if, after such cause of action shall
may 3 S.C. Code Ann. § 15-3-30 (2005). 34 be commenced within the terms in this chapter respective ly limited after the return of such person into this State. And if, after such cause of action shall have accrued, such person shall depart from and reside out of this State or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited fo r the commenceme nt of such action. We agree with the Court of Appeals that the statute does not apply here. Unlike the Court of Appeals, however, we look no further than the language of section 15-3-30 to reach this conclusion. The plain wording4 of section 15-3-30 provides that the statute applies to the accrual of a “cause of action” and the statutory time period within which to bring the action. The statu te does not refer to the statuto ry time period within which to execute an already obtained judgment. Contrary to Petition er’s argument, the right to execute on a judgment does not constitute a cause of action. Indeed, execution is not initiated by bringing an action. Consequently, section 15-3-30 cannot operate to toll the ten-year execution period. While the limitatio ns period for bringing an action may be tolled if the defendant is absent from the state, the period for executing an already obtained judgment may not. The d ecision of the Court of Appeals is therefore AFFIRM ED AS MODIFIED. TOAL, C.J., MOORE, WALLER an d BURNETT, JJ., concur. 4 “Under our general rules of construction, the words of a statute must be given their plain and ordinary meani ng without resort to subtle or forced construction to limit or expand the statute 's operation.” State v. Muldrow , 348 S.C. 264, 268, 559 S.E. 2d 847, 849 (2003). 35 ________
plain and ordinary meani ng without resort to subtle or forced construction to limit or expand the statute 's operation.” State v. Muldrow , 348 S.C. 264, 268, 559 S.E. 2d 847, 849 (2003). 35 ________ ________ The Supreme Court of South Carolina In re: Amendment to Rule 402, SCACR O R D E R Pursuant to Article V, § 4, of the South Carolina Constitution, Rule 402, SCACR, is hereby amended as follows: Footnote 1 shall state: This fee is currently seven dollars and sixty cents ($7.60) and should be paid by check payable to “ACT.” This amendment shall take effect immediate ly. IT IS S O ORDERED. s/Jean H. Toal C.J. s/ John H. Waller, Jr. J. s/ E. C. Burnett, III J. s/ Costa M. Pleicones J. Moore, J., not participating Columbia , South Carolina July 6, 2006 36 ________ ________ The Supreme Court of South Carolina In re: Amendments to the Commission’s Regulations for Mandatory Continuing Legal Education for Judges and Active Members of the South Carolina Bar O R D E R The Com mission on Continuing Legal Education and Specialization has proposed amending the South Carolina Appellate Court Rules concerning audio-visual or media Continuing Legal Education seminars. Pursuant to Article V, § 4, of the South Carolina Constitu tion, we hereby amend Regulation V(H)(2)(d) and (H)(3) of Appendix C to Part IV, South Carolina Appellate Court Rules, concerning audio-visual or media Continuing Legal Education hours per annual reporting period. Pursuant to the amendments, as set forth in the attachment to this Order, a member may now receive up to s ix (6) hours of Continuing Legal Education credit through audio-visual or media presentations. Telephone activities may now be accredited for the actual time spent up to a maximum of ninety (90) minutes
(6) hours of Continuing Legal Education credit through audio-visual or media presentations. Telephone activities may now be accredited for the actual time spent up to a maximum of ninety (90) minutes per activity, and online educational activitie s, including webcasts, may be accredited up to a maximum of six (6) hours per activity. 37 The amendments are effectiv e immediately. IT IS SO ORDERED. s/ Jean H. Toal C.J. s/John H. Waller, Jr. J. s/E. C. Burnett, III J. s/ Costa M. Pleicones J. Moore, J., not participating. Columbia , South Carolina July 6, 2006 38 APPENDIX C REGULATIONS FOR MANDATO RY CONTINUING LEGAL EDUCATION FOR JUDGES AND ACTIVE MEMBERS OF THE SOUTH CAROLI NA BAR . . . V. Accreditation Standards . . . H. Audio-visual and Media Presentations. . . . 2. In addi tion to meeting the standard s of A through G, above, audio-visual or media pre sentations must: . . . (d) Telephone activities will be accredited for the actual time spent to a maximu m of 90 minutes per activ ity, and on-line educational ac tivitie s, to include live webcasts, will be accredited fo r the actual time spent to a maximum of 6 hours per activity; and . . . 3. CLE credit earned through audio-visual or media presentati ons and appl ied to the annual 14 hour minimum requirement shall not exceed 6 hours of credit per annual reporting period. 39 __________ __________ __________ __________ THE STATE OF SOUTH CAROLI NA In The Court of Appeals City of Beaufort, Respondent, v. Eddie Holcombe, Appellant. Appeal From Beaufort County Curtis L. Coltrane, Special Circuit Court Judge Opinion No. 4134 Submitted June 1, 2006 – Fi led July 10, 2006 AFFIRMED Scott Wayne Lee, of Beaufort, for Appellant. William B. Harvey and Caroline Meng, both of Beaufort, for Respondent.
Court Judge Opinion No. 4134 Submitted June 1, 2006 – Fi led July 10, 2006 AFFIRMED Scott Wayne Lee, of Beaufort, for Appellant. William B. Harvey and Caroline Meng, both of Beaufort, for Respondent. GOOLS BY, J.: The M unicipal Court of the City of Beaufort convicted Eddie Holcombe of failing to obtain a business license in violation of section 7-1001 of the Beaufort Municipal Code. Holcombe appealed to the circuit court, which upheld the c onviction. Holcombe again appeals, 40 arguing the City’s ordinance violates the Equal Protection Clauses of our federal and state constitutions. We affirm.1 At the time of this action, Holcombe owned a commercial build ing in downtown Beaufort tha t was divide d into multip le offices. Holcombe operated his own optometry business (a professional association) in one of the offices. In addition, he received rental income from an unrelated, commercial tenant occupying another office within the building.2 Holcombe admittedly paid no business license fee related to the re ntal of co mmerc ial property to either of these businesses. On August 14, 2003, the City of Beaufort cited Holcombe for violation of section 7-1001, which requires all persons engaged in any business, service, occupation, or profession clas sified by the City to obtain a business license and pay an annual license fee.3 The City contended Holcombe, as a commercial landlord, should have obtained a business license and paid fees based on the rental income generated from the property he leased to the third party. Although not expressly provided for in the ordinance, the City exempts a landlord from the license fee requirements when the landlord occupies rental property for his own use or pays rent to himself.
Although not expressly provided for in the ordinance, the City exempts a landlord from the license fee requirements when the landlord occupies rental property for his own use or pays rent to himself. In October 2003, the Municipal Court of the City of Beaufort found Holcombe guilty of failing to obtain a business license. Acting Municipa l 1 We decide this appeal without oral argument pursuant to Rule 215, SCACR. 2 In his brief, Holcombe states the bu ilding is divided into two offices and he rents the second office to an unrelated business. The City asserts Holcombe “receives substantial rental income from the multiple commercial tenants within the building.” 3 “Every person engaged, or intending to engage in any calling, business, service, activity, occupation or profe ssion listed in the rate cla ssifica tion portion o f this cha pter, in whole or in part, within the limits of th e city, is required to pay an annual license fee and obtain a business license as herein provided.” Beaufort Municipal Code, Ordinance § 7-1001(a). 41 Judge James A. Grimsley, III noted that under the Beaufort Municipal Code, a license was required for “[l]essors o f non-residential bu ilding s (with gross rental income of $12,000.00 or more). ”4 The judge found Holcombe was the owner of real property in Beaufort and he had failed to obtain an annual business license based on the rental income he received on the property for the years 2000, 2001, and 2002.5 Holcombe was sentenced to thirty days in jail, suspended upon the payment of a $750.00 fine plus all amounts due under the ordinanc e, to include administra tive penaltie s for nonpayment a s may be provided for in the ordinance. On appeal, Holcombe challenged the constitutionality of the City’s
ll amounts due under the ordinanc e, to include administra tive penaltie s for nonpayment a s may be provided for in the ordinance. On appeal, Holcombe challenged the constitutionality of the City’s application of the ordinance. Specifically, he contested the City’s determination that a property owner w ho leases property to himself (or an entity wh olly owned by him) is not in th e busin ess of lea sing so as to require the payment of a business license fee, whereas a property owner who leases property to third parties is in business and thus required to pay a business license fe e. Holcombe argued the City’s unwritten exe mption fo r property owners who rented to themselves (or their alter-egos) violated his equal protection rights. The Equal Protection Clauses of our federal and state constitutions declare that no person shall be denied the equal protection of the laws.6 This “simply means that no person, or class of persons, shall be denied the same protection of the la ws which is en joyed by other persons or other classes in the same place and under like circumstances.”7 4 This specific language does not appear in any portion of the ordinance appearing in the Record on Appeal, but the parties do not dispute its application here and raise no issue in this regard on appeal. 5 The judge applied a three-year statute of limitations. 6 U.S. Const. amend. XIV, § 1; S.C. Const. art. I, § 3. 7 Harrison v. Caudle , 141 S.C. 407, 416, 139 S.E. 842, 845 (1927). 42 In evaluating whether an enactment affords equal protection, we must first decide what level of scrutiny to apply.8 “Courts generally analyze equal protection challenges under one of three standards: (1) rational basis; (2) intermediate scrutiny; or, (3) stric t scrutiny.”9 “If the classification does not
o apply.8 “Courts generally analyze equal protection challenges under one of three standards: (1) rational basis; (2) intermediate scrutiny; or, (3) stric t scrutiny.”9 “If the classification does not implicate a suspect class or abridge a funda mental right, the rational basis test is used.”10 Inherently suspect classificati ons include those based on factors “such as race, religion, or alienage.”11 In this in stance, we agree with th e circuit co urt’s de termina tion that “landlords do not constitute a ‘suspect’ cl ass, [so] the ‘rationa l basis’ te st is used.”12 “To satisfy the equal protection cl ause, a classification must (1) bear a reasonable relation to the legislative purpose sought to be achieved, (2) members of the cla ss must b e treated alike und er simila r circumstances, and (3) the classificatio n must rest on some rational basis.”13 Equal Protection Clauses are subject to a wide scope of discretion and legislative enactments are to be avoided only when they are without any 8 In re Luckabaugh , 351 S.C. 122, 147, 568 S. E.2d 338, 351 (2002). 9 Denene, Inc. v. City of Charleston , 359 S.C. 85, 91, 596 S.E.2d 917, 920 (2004); see also Clark v. Jeter , 486 U.S. 456, 461 (1988); 19 S.C. Juris. Constitu tional Law § 85 (1993). 10 Denene , 359 S.C. at 91, 596 S. E.2d at 920; see also Hendrix v. Taylor , 353 S.C. 542, 549, 579 S.E. 2d 320, 323 (2003). 11 Sunset Cay, LLC v. City of Folly Beach , 357 S.C. 414, 429, 593 S.E.2d 462, 469 (2004). 12 Cf. Fraternal Order of Police v. South Carolina Dep’t of Revenue , 352 S.C. 420, 574 S.E.2d 717 (2002) (applying rationa l basis standard, not heightened scrutiny, to equal protection challenge of revenue statutes dealing with bingo). 13 Sunset Cay , 357 S.C. at 428, 593 S.E.2d at 469. 43
d 717 (2002) (applying rationa l basis standard, not heightened scrutiny, to equal protection challenge of revenue statutes dealing with bingo). 13 Sunset Cay , 357 S.C. at 428, 593 S.E.2d at 469. 43 reasonable basis.14 Only “i rrational and unjustified classifications” are barred.15 “A municipal ordinance is a legislative enactment and is presumed to be constitutional.”16 “The burden is upon the taxpayer to prove unconstitutionality beyond a reasonable doubt.”17 The burden requires the attacker to negate every concei vable basis that might support it.18 The reasonableness of an ordinance is a question of law for the court to decide unless there is a controversy about the facts of the case, which must be decided by a jury.19 In the current case, the City imposes a business license fee on “[l]essors of non-residential buildings (with gr oss rental income of $12,000.00 or more).” Thus, the City has created tw o classes of commercial landlords: (1) those utilizing commercial property for their own businesses, so that those businesses are their source of income, and (2) those who are renting property to third parties, so that the rental fees generated are their source of income. In finding these two groups are not similarly situated and upholding the City’s imposition of a business licens e fee on Holcombe’s rental income, Special Circuit Court Judge Curtis L. Coltrane reasoned as follows: 14 Ward v. Town of Darlington , 183 S.C. 263, 274, 190 S.E. 826, 831 (1937). 15 In re Luckabaugh , 351 S.C. at 147, 568 S.E.2d at 351. 16 Town of Scranton v. Willoughby , 306 S.C. 421, 422, 412 S.E.2d 424, 425 (1991). 17 Id. 18 Id. 19 Ward , 183 S.C. at 270, 190 S.E. at 829. 44 A business owner who rents his own property to himself is not in the business of renting property, but
21, 422, 412 S.E.2d 424, 425 (1991). 17 Id. 18 Id. 19 Ward , 183 S.C. at 270, 190 S.E. at 829. 44 A business owner who rents his own property to himself is not in the business of renting property, but rather is in whatever business he operates fro m within th e property. The business/property owner does not offer his property for rent in the general market. The business owner pays a business license fee on the business he actually operates. A commercial landlord, on the other hand, operates no business from within the property he leases, and pay[s] no business license fee on the businesses operated from with in the pro perty. The commercial landlord does pay a business license fee on the business he actually operates, that be ing the le asing of real property on the open market. We agree with the circuit court’s reasoning and conclude there is a rational and reasonable basis for the City’s classifications. As noted by the circuit court, a property owner who uses commercial property for his ow n business is not in the “business” of ren ting commercial property, but rather, is in whatever business he actually operat es on the prop erty. In this ca se, Holcombe operated an optometry business on the premises he actually occupied. On the other hand, a property owner renting commercial property to third parties is in the business of renting c ommerc ial property. Commerc ial landlo rds rentin g to th ird par ties, as a class, are treated alike and equally in these circumstances.20 Based on the foregoing, we hold the challenged ordinance as ap plied is not plainly arb itrary and does not violate Holcombe’s equal protection rights.21 20 See Ed Robinson Laundry & Dry Cleaning, Inc. v. South Carolina Dep’t of
old the challenged ordinance as ap plied is not plainly arb itrary and does not violate Holcombe’s equal protection rights.21 20 See Ed Robinson Laundry & Dry Cleaning, Inc. v. South Carolina Dep’t of Revenue , 356 S.C. 120, 124, 588 S.E.2d 97, 99 (2003) (“A class may be constitutionally co nfined to a particu lar trade.”); Pee Dee Chair Co. v. City of Camden , 165 S.C. 86, 162 S.E. 771 (1932) (s tating “business,” as used in ordinances requiring persons engaged in a “business” to obtain a license, implies continuity or custom). 45 AFFIRMED. HEARN, C.J ., and ANDERSON, J., concur. 21 See Whaley v. Dorchester County Zoning Bd. of Appeals , 337 S.C. 568 , 576, 524 S.E.2d 404, 408 (1999) (“The determination of whether a classification is rea sonable is initiall y one for the legislative body and will be sustained if it is not plainly arbitrary and there is any reasonable hypothesis to support it.”); Eli Witt Co. v. City of West Columbia , 309 S.C. 555, 425 S.E.2d 16 (1992) (holding ordinance imposing business license tax upon the gross income of businesses did not contain an arbitrary classification where it exempted businesses paying a similar tax on that income to anoth er city; a ll businesses paying a similar tax are treat ed alike and the classification is reasonably related to the purpose of a voiding duplicative taxation); see also Ponder v. City of Greenville , 196 S.C. 79, 12 S.E.2d 851 (1941) (noting legislation does not deny equal protecti on merely because it is specific or limited to a particular class and hol ding statute providing wholesalers delivering goods to retailers in any municipality shall not be charged a business license tax unless they maintain a warehouse within the municipality
class and hol ding statute providing wholesalers delivering goods to retailers in any municipality shall not be charged a business license tax unless they maintain a warehouse within the municipality is not arbitrary and capricious as those operating within the municipality receive advantages and for such privilege they should pay a license tax). 46 __________ __________ __________ __________ __________ THE STATE OF SOUTH CAROLI NA In The Court of Appeals Dan F. Williamson and Dan F. Willia mson and Company, Appellants, v. Middleton, Alfred C., Respondent. Appeal From Greenville County C. Victor Pyle, Jr., Circuit Court Judge Opinion No. 4135 Heard June 15, 2006 – Filed July 10, 2006 REVERS ED Desa A. Ballard, of W. Columbia, for Appellants. James C. Parham, Jr. and Patricia S. Ravenhorst, both of Greenville, for Respondent. 47 ANDERSON, J.: Dan F. Williamson and Dan F. Williamson and Company (collective ly, “Willia mson”) a ppeal fro m the trial court’s award of attorney’s fees to Alfred C. Middleton. Williamson argues that Middle ton is not entitled to attorne y’s fees, or in the alterna tive, that the criteria for awarding attorney’s fees were not met in this case. We reverse. FACTUAL/PRO CEDURAL BACKGROUND For several years, Middleton worked for Williamson as a commissioned sale sman. When Midd leton quit working fo r Willia mson, he was due a commission for having sold yarn pallets to one of Williamson’s customers. Middleton and Williams on disagreed as to the amount of commission due, and Williamson never paid Middle ton any commission , even though it acknowledged owing hi m $906.62. After leaving his employment with Williamson, Middleton began working for Peninsula Plastics, Inc., one of Williamson’s pallet supplie rs.
commission , even though it acknowledged owing hi m $906.62. After leaving his employment with Williamson, Middleton began working for Peninsula Plastics, Inc., one of Williamson’s pallet supplie rs. Middleton continued to seek the commission Williamson owed him, and sought assistance from his present atto rney. Middleton and his counsel are personal friends, and counsel previously had represented Middleton in less- complicated matters without charge. Middleton’s attorney agreed to help with the claim for c ommissio n, and the two were to discuss a fee at the end of the case. Williamson initially was represente d by Jordan & Clardy, LLC. Middle ton’s atto rneys informed Williamson th at they ha d a complaint drafted and were ready to sue in order to recover the unpaid commission. Williamson’s attorney requested that Middle ton refrain from acting on the drafted complain t until he co uld speak with his client. Middleton agreed, and two days later, W illiamson filed a complain t against Middle ton, allegin g causes of action for fraud, constructive fraud, breach of fiduciary duty, and violation of the South Carolina Unfair Trade Practices Act. Middleton filed an answer, denying the allegations and counterclaiming for commissions 48 owed and sanctions under the South Carolina Frivolous Proceedings Act. Approximately one month prior to tria l, Willia mson hired its current counsel. Of Willia mson’s c laims against Midd leton, only the cause of action for breach of fiduciary duty went to the jury. The jury returned a verdict in favor of Middleton on that cause of action and found in favor of Middleton on his counterclaim for unpaid commission, awarding him $906.62 in actual damages. The trial judge, Judge Pyle, ruled Middleton was entitled to attorney’s
use of action and found in favor of Middleton on his counterclaim for unpaid commission, awarding him $906.62 in actual damages. The trial judge, Judge Pyle, ruled Middleton was entitled to attorney’s fees, but asked the parties to attempt to determine the am ount of attorney’s fees themselves. In the event they could not agree to an amount, Judge Pyle explained he would set the amount for them. The parties could not come to a consensus on the amount of attorney’s fees, and Middleton petitioned the court for assistance. Judge Miller awarded Middleton $35,000 in attorney’s fees. In an unpublished opinion, Willia mson v. Middleton , 2005-UP-011 (S.C. Ct. App. filed January 11, 2005), this Court found that Judge Pyle had retained exclusive jurisdiction over the matter. We therefore reversed Judge Miller’s a ward and remande d the issue of attorney’s fee s for Judge Pyle’s consideration. At the hearing before Judge Pyle, Willia mson argued Middleton was not entitled to attorney’s fees because (1) he was not the pr evailing party; (2) the bill Middleton’s counsel presen ted documenting over $100,000 worth of work listed hours spent on claims other than the unpaid co mmission claim for which attorney’s fees are allowed; and (3) the amount of fees Middleton’s counsel requested, $35,000, far exceed ed the $906.62 verdict. Williamson further maintained Middleton did not incur any fees because when Middleton’s counsel was deposed, he admitted there was no fee agreement between him and Middleton. Judge Pyle acknowledged that Middleton and his attorney had not entered into a formal, written fee agreement, but relied instead “on their long- standing personal relationship and mu tual agreement to determine an
knowledged that Middleton and his attorney had not entered into a formal, written fee agreement, but relied instead “on their long- standing personal relationship and mu tual agreement to determine an appropriate fee for services at the c onclusion of this matter.” The judge found such an agreement did not preclude attorney’s fees. Accordingly, 49 Judge Pyle awarded Middleton $35,000 in attorney’s fees. Willia mson file d a Rule 59(e), SCRCP, motion, which was denied. STANDARD OF REVIEW There must be sufficient evidence in the record to support each of the six factors analyzed for an award of attorney’s fees. See Taylor v. Medenica , 331 S.C. 575, 580, 503 S.E.2d 458, 461 (1998) . “On appeal, absent sufficient evidentiary support on the record for each factor, the award should be reversed and the issue remanded for the trial court to make specific finding s of fact.” Blumberg v. Nealco , 310 S.C. 492, 494, 427 S.E.2d 659, 661 (1993). The interpretation of a statute is not a finding of fact. Thompson v. Ford Motor Co. , 200 S.C. 393, 21 S.E.2d 34 (1942). “The issue of interpre tation of a statu te is a questio n of law for the court.” Jeter v. S.C. Dep’t of Transp. , Op. No. 26168 (S.C. Sup. Ct. filed June 19, 2006) (Shearouse Adv. Sh. No. 23 at 43) (citing Charleston County Parks & Recreatio n Comm’n v. Somers , 319 S.C. 65, 459 S.E.2d (1991); see also Liberty Mut. Ins. Co. v. S.C. Second Injury Fund , 363 S.C. 612, 621, 611 S.E.2d 297, 301 (Ct. App. 2005) (“The dete rmination of legisl ative intent is a matte r of law.”) (citations omitted ); Eldridge v. City of Greenwood , 331 S.C. 398, 417, 503 S.E.2d 191, 200 (Ct. App. 1998) (“[T]he interpretation of a statute is a matter of law.”). See, e.g. , Carolina Power & Light Co. v. Town
tted ); Eldridge v. City of Greenwood , 331 S.C. 398, 417, 503 S.E.2d 191, 200 (Ct. App. 1998) (“[T]he interpretation of a statute is a matter of law.”). See, e.g. , Carolina Power & Light Co. v. Town of Pageland , 321 S.C. 538, 471 S.E.2d 137 ( 1996); Byrd v. Irmo High School , 321 S.C. 426, 468 S.E.2d 861 (1996); Rowe v. Hyatt , 321 S.C. 366, 468 S.E.2d 649 (1996). LAW/ANALYSIS Williamson first a rgues Middleton is not entitled to a ttorney’s fee s because he does not meet the requirements of section 39-65-30 of the South Carolina Code. Specifically, Willia mson points out that th is statute on ly applies to sales representatives w ho seek to recover commissions on 50 “wholesale” sales, and the commission awarded to Middleton was from a sale made to the ultima te consumer. We find this issue is not preserved for our review. Initially, we note that the argum ents Williamson made to Judge Pyle on this issue are not reflected in the record on appeal. Williamson did not advance this argument at the hearing before Judge Pyle, and although Williamson’s counsel refers to a memorandum she filed in opposition to Middle ton’s reque st for attorney’s fe es, that me morandu m was no t included in the record on appeal. See Taylor v. Taylor , 294 S.C. 296, 299, 363 S.E.2d 909, 911 (Ct. App. 1987) (“The burden is on the appellant to furnish a suffic ient record on appeal from which this court can make an intelligen t review.”). We acknowledge, however, that Judge Pyle addressed the argument in his order awarding attorney’s fees, suggesting the argument was set forth in Williamson’s memorandum. In the order, Judge Pyle found Williamson’s argument that Middle ton was not entitled to attorney ’s fees and costs pursuant to section 39-65-30 came too late bec ause during tria l,
on’s memorandum. In the order, Judge Pyle found Williamson’s argument that Middle ton was not entitled to attorney ’s fees and costs pursuant to section 39-65-30 came too late bec ause during tria l, Williamson never objected to the jury instructions referencing section 39-65 - 30, nor did Willia mson challenge Ju dge Pyle’s initial ruling that Middleto n was entitled to attorney’s fees. In its brief to our court, Williams on argues that “[e]ven though the jury returned a verdict . . . that awarded Middleton $906.62 for unpaid commissions, this recovery was sought on alternate grounds, both pursuant to § 39-65-30 and § 41-10-10.” In so arguing, Williamson implies the jury’s award was based on a statute other th an section 39-65-30. Williamson further contends that its argument on this issue is timely because “the request for attorney fees is predicated on en tirely different factors than was the request for commissions.” From the record before us, there is no indication this spec ific argument was ever made to the trial court, either prior to the order awarding atto rney’s fee s or in Willia mson’s motion for reconsideration . Thus, the issue is not preserved for review. See Staubes v. City of Folly Beach , 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000) (“It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.”); see also Floyd v. Floyd , 365 S.C. 56, 73, 615 S.E.2d 465, 474 (Ct . 51 App. 2005) (“‘Imposing this preservation requirement on the appellant is meant to enable th e lower court to ru le properly after it has considered all relevant facts, law, and arguments.’” ) (quoting I’On, L.L.C v. Town of Mt.
preservation requirement on the appellant is meant to enable th e lower court to ru le properly after it has considered all relevant facts, law, and arguments.’” ) (quoting I’On, L.L.C v. Town of Mt. Pleasant , 338 S.C. 406, 422, 526 S.E.2d 716 , 724 (2000)); Ellie, Inc. v. Miccichi , 358 S.C. 78, 103, 594 S.E.2d 485, 498 (Ct. App. 2004) (“Without an initia l ruling by the tria l court, a revi ewing court simp ly would not be able to evaluate whether the trial court committed error.”). Next, Willia mson argues Middle ton failed to prove the ele ments necessary to recover fees. We agree. The general rule is that attorney’s fees are not recoverable unless authorized by contract or statut e. Blumberg v. Nealco, Inc. , 310 S.C. 492, 493, 427 S.E.2d 659, 660 (1993) (citing Baron Data Sys., Inc. v. Loter , 297 S.C. 382, 377 S.E.2d 296 (1989); Hegler v. Gulf Ins. Co. , 270 S.C. 548, 243 S.E.2d 443 (1978); Collins v. Collins , 239 S.C. 170, 122 S.E.2d 1 (1961)); accord Seabrook Island Property Owners’ Ass’n v. Berger , 365 S.C. 234, 238, 616 S.E.2d 431, 434 (Ct. App. 2005). “In South Carolina, the authority to award attorney’s fees can come onl y from a statute or be provided for in the language of a contract. There is no common law right to recover attorney’s fees.” Harris-Jenkins v. Nissan Car Mart, Inc. , 348 S.C. 171, 176, 557 S.E.2d 708, 710 (Ct. App. 2001) (citing Jackson v. Speed , 326 S.C. 289, 486 S.E.2d 750 (1997); American Fed. Ba nk, FSB v. Number One Main Joint Venture , 321 S.C. 169, 467 S.E.2d 439 (1996); Blumberg , 310 S.C. 492, 427 S.E.2d 659; Baron Data , 297 S.C. 382, 377 S.E.2d 296; Dowaliby v. Chambless , 344 S.C. 558, 544 S.E.2d 646 (Ct. App. 2001); Harvey v. South Carolina Dep’t of Corrections , 338 S.C. 500, 527 S.E.2d 765 (Ct. App.
Baron Data , 297 S.C. 382, 377 S.E.2d 296; Dowaliby v. Chambless , 344 S.C. 558, 544 S.E.2d 646 (Ct. App. 2001); Harvey v. South Carolina Dep’t of Corrections , 338 S.C. 500, 527 S.E.2d 765 (Ct. App. 2000); Global Protection Corp. v. Halbersberg , 332 S.C. 149, 503 S.E.2d 483 (Ct. App. 1998); Prevatte v. Asbury Arms , 302 S.C. 413, 396 S.E.2d 642 (Ct. App. 1990)). Section 39-65-30 provides: A princip al who fails to c omply with the provisions of Section 39-65-20 is liable to the sales representative in a civil action for: 52 (1) all amounts due the sales representative plus punitive damages in an amount not to exceed three times the amount of commissions due the sale s representative; and (2) attorney’s fees actually and reasonably incurred by the sales representative in the action and court costs. 53 S.C. Code Ann. § 39-65-30 (Supp. 2005). The jury awarded Middleton the unpaid commission pursuant to section 39-65-20. Therefore, we are dealing with a statutory attorney’s fee provision. When awarding attorney’s fees, the trial court must consider the following six factors: (1) the nature, extent, and difficulty of the legal services rendered; (2) the time and labor necessarily devoted to the case; (3) the professional standing of counsel; (4 ) the contingency of compensation; (5) the fee customarily charged in the locality for similar legal services; and (6) the beneficial results obtained. Baron Data , 297 S.C. at 384-85, 377 S.E.2d at 297. When awarding attorney’s fees, “there is no requirement that [the fees] be less than or comparable to a party’s monetary judgment.” Taylor v. Medenica , 331 S.C. 575, 580, 503 S.E.2d 458, 461 (1998). Here, Middleton incurred no attorney’s fees because no fee agreement
es] be less than or comparable to a party’s monetary judgment.” Taylor v. Medenica , 331 S.C. 575, 580, 503 S.E.2d 458, 461 (1998). Here, Middleton incurred no attorney’s fees because no fee agreement existed between Middleton and his attorn ey. In his deposition, Middleton’s lead counsel stated: [W]e don’t have a fee agreement with Mr. Middleton. W e talked about this with Mr. Mi ddleton to begin with and we decided that we would try to help him collect the monies due him and at the end of the case, we would talk about a fee. So we don’t have a fee agreement with him. But some day, he might pay us a fee. Right now, he has no obligation at this point if there is no agreement. He might feel a moral obligation. And when we talk at the end of the case, he will have the final say. (Emphasis added.) Counsel’s testimony admits th ere was no fee agreement with Middleton. Consequently, there is no obligation to pay, and no fees have been incurred. Hopkins v. Hopkins , 343 S.C. 301, 540 S.E.2d 454 (2000), involved Father’s action to recover overpayment of child support and attorney’s fees. The court found Father was entitled to reimbursement of child support overpayments, but held he could not recover attorney’s fees because his current wife represented him and they did not have a fee agreement. The court began its analysis by noting that Calhoun v. Calhoun , 339 S.C. 96, 529 S.E.2d 14 (2000), held a pro se litigant could not recover attorney’s fees because “a pro se litigant, whether an attorney or layperson, does not become ‘liable for or subject to fees charged by an attorney.’” 343 S.C. at 306, 540 S.E.2d at 457. The Hopkins court declared: [H]ere, we find no evidence Father actually became “liable for or
not become ‘liable for or subject to fees charged by an attorney.’” 343 S.C. at 306, 540 S.E.2d at 457. The Hopkins court declared: [H]ere, we find no evidence Father actually became “liable for or subject to” attorneys’ fees for hi s attorney/wife’s service. There is no contract or fee agreement in the record, nor is there any indication or testimony that Fathe r’s wife/attorney has attempted or intend s to co llect the fee s from Father. Accordingly, Father did not prove that he became liabl e for the fees, such that the family court properly denied Father’s request. 343 S.C. at 307, 540 S.E.2d at 457. The rationale of Hopkins is equally a pplicable in the instant case. Both Calhoun and Hopkins focu sed on the litigan ts’ lack of lia bility fo r attorney’s fees. Here, Middleton’s counsel admits Middleton “has no obligation at this point if there is no agreement.” Ther e is no agreement; therefore, Middleton owes no obligation to pay, and no fees were incurred. Under these facts the trial judge erred in awarding attorney’s fees. 54 Because we reverse the award of attorney’s fees on this ground, we need not address Williamson’s arguments that Middleton was not the prevailing party and that the fees awarded were unreasonable. CONCLUSION We hold that in South Carolina there must be an agreement between counsel and client in order for a court to award attorney’s fees. In the case sub judice , there is unequivocally no agreement to pay attorney’s fees. Accordingly, the award of f ees is REVERS ED. CURETON, A.J., concurs. HEARN, C.J., dissents in a separate opinion. HEARN, C.J.: Because I believe a party can recover attorney’s fees absent a formal agreement, I respect fully disagree with the majority ’s
.J., concurs. HEARN, C.J., dissents in a separate opinion. HEARN, C.J.: Because I believe a party can recover attorney’s fees absent a formal agreement, I respect fully disagree with the majority ’s reversal of the $35,000 award of fees to Middleton. It is well-settled that “[w]here an attorney’s services and thei r value are determined by the trier of fact, an appeal will not prevail if the findings of fact are supported by any competent evidence.” Baron Data Sys. v. Loter , 297 S.C. 382, 384, 377 S.E.2d 296, 296 (1989) (emphasis added). Here, there is evidence supporting the tria l court’s d etermination that Middle ton and his attorne ys had an informal agreement to “determine an appropriate fee for serv ices at the conclusio n of this matte r.” Therefore, I vote to affirm. As the majority points out, Middleton’s lead counsel stated in his deposition: [W]e don’t have a fee agreem ent with Mr. Midd leton. We talked about this with Mr. Middleton to begin with and we decided that w e would try to help him 55 collect the monies due him and at the end of the case, we would talk about a fee . So we don’t have a fee agreement with him. But some day, he might pa y us a fee. Right now, he ha s no obligation at this point if there is no agreement. He might feel a moral obligation. And when we talk at the end of the case, he will have the final say. (Emphasis added.) While this test imony could be interpreted to mean Middleton would never be required to pay a fee, it also indicates that Middleton and his attorneys would discuss a fee at the end of the case. The trial judge adopted this latter interpretation, and based on our standard of review, I do not believe we can second-guess his conclusion.1 Because there was testimony evidencing counsel’s intent to discuss a
udge adopted this latter interpretation, and based on our standard of review, I do not believe we can second-guess his conclusion.1 Because there was testimony evidencing counsel’s intent to discuss a fee with Middleton, I believe this case is easily distinguished from Hopkins v. Hopkins , 343 S.C. 301, 540 S.E.2d 454 (2000). In Hopkins , the supreme court uph eld the family court’s de termination that Husb and was not entitled to attorney’s fees when he was represented at trial by his attorney/wife. In so doing, the supreme court did not merely rely on a lack of a fee agreement, but also stressed there was no “indicati on or testimony that [appellant’s] wife/attorney intends to collect the fees from [appellant].” Id. at 307, 540 S.E.2d at 457. Here, there was evid ence Middleton and his attorney would discuss fees at the conclusion of the cas e. The majority finds Middleton did not incur any attorney’s fees because he and his attorneys did not have a fee agreement. However, the lack of a formal fee agreement does not preclude an attorney from collecting fees. See Singleton v. Collin s, 251 S.C. 208, 210-11, 161 S.E.2d 246, 247 (1968) (“An attorney has a right to be paid for pr ofessional services rendered, and where there is no expre ss contra ct, the law will imply one .”). Although the Singleton case is procedurally different from the case at hand, its 1 If the trial judge had refu sed to award Middleton fees in the present case, I would vote to affirm that d eterminati on also, as there is evidence in the record to support it. 56 determination regarding attorney’s f ees is instructive. In Singleton , an attorney filed an ac tion to collect fees after rendering services to a client in a
vidence in the record to support it. 56 determination regarding attorney’s f ees is instructive. In Singleton , an attorney filed an ac tion to collect fees after rendering services to a client in a domestic relations action. Despite the lack of a formal contract, the trial court imp lied a contract and determined th e amount of attorney’s fees owed. Our supreme court upheld the trial court’s decision, noting: “Whether the services were rendered, and their va lue, are matters of fact to be decided . . . by the court below, and no appeal lies therefrom if the findings of fact are supported by any competent evidence.” Id. at 211, 161 S.E.2d at 247. Although Singleton involves the collection of attorney’s fees from a client rather than an opposing party, it illustrates that the lack of a formal agreement is not fatal to an attorney’s claim for f ees. Here, the trial judge was not precluded from awarding attorney’s fees simply because Middleton and his attorneys lacked a written agre ement. Rather, so long as there was evidence Middleton’s attorneys intended to collect a fee, the trial judge had discretion to award the fee. Not onl y did Judge Pyle find there was such evidence, but Judge Mille r, whose ruling was reversed for lack of subjec t matter jurisdiction, found an informal agreement existed as well. Because there is evidence in the record to support the findings of these two outstanding trial judges, I vote to affirm their determination that a fee had been incurred. In addition to its argument that Middleton did not incur attorney’s fees, Williamson also argues Middleton fa iled to prove the other elements necessary to recover fees, or in the a lternative, that the fees awarded were unreasonably high. I disagree.
incur attorney’s fees, Williamson also argues Middleton fa iled to prove the other elements necessary to recover fees, or in the a lternative, that the fees awarded were unreasonably high. I disagree. When awarding attorney’s fees, the trial c ourt must conside r the following six factors: (1 ) the nature, extent and d ifficu lty of the legal service s rendered; (2) the time and labor ne cessa rily devoted to the case; (3) the professional standing of counsel; (4) the contingency of compensation; (5) the fee customarily charged in the locality fo r simila r leg al service s; and (6) the beneficial results obtained. Baron Data Sys, Inc., v. Loter , 297 S.C. at 384-85, 377 S.E.2d at 297. “Where an attorney’s services and their value are determined by the trier of fa ct, an appeal will not prevail if the findings o f fact are supported by any competent evidence.” Id. at 384, 377 S.E.2d at 296 57 (emphasis added). Here, Judge Pyle made specific findings on each of the six elements, and there is evidence in the record supporting those findings. Williamson also argues that even if we find Middleton was entitled to attorney’s fees, the amount of attorney’s fees awarded was unreasonable in light of the beneficial results Middlet on received. However, “there is no requireme nt tha t attorney’s fees be less than or compa rable to a party ’s monetary judgment.” Taylor v. Medenica , 331 S.C. 575, 580, 503 S.E.2d 458, 461 (1998). Furthermore, although a $35,000 attorney’s fee may initially seem high for a cause of ac tion for unpaid commissions, especially when the action resulted in a $906.62 verdict, under the peculiar circumstances of this case, there was evidence in the record supporting the trial judge’s finding that $35,000 was a reasonable amount to award. First
sulted in a $906.62 verdict, under the peculiar circumstances of this case, there was evidence in the record supporting the trial judge’s finding that $35,000 was a reasonable amount to award. First and foremost, it is important to note that Middleton’s attorney did not institu te this lawsuit. Rath er, in th e best tra dition of the pro fession, h e attemp ted to settle this ma tter with Wi lliamson, and at the specific request of opposing counsel, Middleton delayed bringing suit. However, within a matte r of days, Williamson filed su it against Middleton. In order to litigate his cause of action for unpaid commissions, Middleton had to defend himself against Williamson’s claim against him fo r breach of fiduciary duty, which is an affirmative defense for unpaid commissions. Additiona lly, Middle ton submitted affidavits demonstrating how Williamson emplo yed dilato ry tactic s prior to the tria l of this case, such as persuading Middleton to withhold from filing its complain t so that it could be the first file a co mplain t, cancellin g depositions on the afternoon before or the morning of their scheduled time, and submitting inc omplete responses to Middle ton’s requests for discovery .2 Based on the detailed bills submitte d by Middleton’s attorneys and the difficulties they faced in trying their case, I find competent evidence supports the trial judge’s award of $35,000 in atto rney’s fees. Accordingly, I vote to affirm the trial court’s order. 2 Williamson’s current counsel was not yet involved in this case when the complaint was filed, nor was she i nvolved when these pre-trial delays occurred. 58 __________ ___________ ___________ ___________ ___________ THE STATE OF SOUTH CAROLI NA In The Court of Appeals Diane Ardis & William David
r was she i nvolved when these pre-trial delays occurred. 58 __________ ___________ ___________ ___________ ___________ THE STATE OF SOUTH CAROLI NA In The Court of Appeals Diane Ardis & William David Ardis, Appellants, v. Edward L. Sessions, D.C., Respondent. Appeal From Charleston County Deadra L. Jefferson, Circuit Court Judge Opinion No. 4136 Heard October 6, 2005 – Filed July 10, 2006 REVERS ED AND REMANDED Ellis I. K ahn and Justin S. Kahn, both of Charleston, for Appellants. Charles E. Hill a nd R. Hawthorne Barrett, b oth of Columbia, for Respondent. 59 HEARN, C.J .: In this ap peal of a chiropra ctic malp ractice ac tion, Diane B. Ardis and William David Ardis raise issu es concerning the exclusion of evide nce, jury instruc tions, and the tria l court’s re fusal to strike the cross-examination of Diane Ardis’ s treating physician based on ex parte contact with the opposing side. We reverse and remand. FACTS In their complaint filed June 1, 2001, Diane and William Ardis (collectively “Ardis”) alleged that Ed ward L. Sessions negligently injured Diane by performing spinal manipulations on February 19, 1996. Ardis claims Sessions’s negligence caused a ruptured or herniated disk in Diane’s back, an increase in the severity of her initial in jury, and ultimate ly the need for back surgery. Sessions denied th at he performed a manipulation on that date. His notes indicate Diane’s disk was herniated when she fell from a ladder prior to coming to his office on February 19.1 At trial, Sessions testified that instea d of a manipulatio n that day, he used a less invasive treatment, which would have been insufficient to herniate Diane’s disk. At an in camera hearing, Sessions, who serv ed as a municipal court
stea d of a manipulatio n that day, he used a less invasive treatment, which would have been insufficient to herniate Diane’s disk. At an in camera hearing, Sessions, who serv ed as a municipal court judge for the City of Hanahan, moved to prevent Ardis from making an inquiry into his public reprimand by the South Carolina Supreme Court. In 2000, the Sessions was reprimanded for act s of judicial misconduct, which included making and directing the making of false entries in judicia l records. See In re Sessions , 342 S.C. 427, 538 S.E.2d 1 ( 2000). Sessions also moved in limine to exclude any mention of his billing practices in regard to his different fee schedules for individuals a nd insurance carriers. The trial court granted Sessions’s motions. At trial, Ardis objected to the following instru ctions giv en by the tria l court regarding the applicable standard of care: 2 1 Ardis claims that she received spinal manipulations merely to limber up for an upcoming ski trip and that she mentioned falling off of a ladder in jest. 2 Ardis also objected to additional elements of the charge and requested an additional charge on spoliation of evidence. 60 The law does not require of him absolute accuracy either in his practice or hi s judgment . . . It does not even require of him the utmost degree of care and skill of which the human min d is capable. I instruct you that a physician is not an insurer of a cure or even of a beneficial result; thus, the mere fact that a tre atment is not beneficia l or that it is even harmful will not of itse lf raise a p resumptio n of negligenc e . . . I instruct you that a bad result o f the failure to cure is not by itself insuffic ient to raise an inference or a presumption of negligence on the part of a physician.
sumptio n of negligenc e . . . I instruct you that a bad result o f the failure to cure is not by itself insuffic ient to raise an inference or a presumption of negligence on the part of a physician. I charge you that a physician is not ordinarily liable for making an incorrect diagnosis where it is made in good faith and there is reasonable doubt as to the nature of the physical conditions involved or as to what should be done in accordance with recognized authority in good current practice or where it is made in good faith on observation of the patient. The jury returned a verdict fo r Sessions. The trial court denied Ardis’s motion fo r JNOV, or in the alterna tive for a new tria l. This appeal followed. LAW/ANALYSIS Ardis contends the trial court erred in instructing the jury regarding the applicable standard of care for a medical malpractice claim. Specifically, Ardis argues the instruction given by the trial c ourt ra ised the stan dard to a subjective standard, meaning that Ardis’s burden of proof would require a showing that any error of judgment was made in bad faith. We agree. 3 3 Because we reverse on this issue, we decline to address Ardis’s remaining arguments. See Whiteside v. Cherokee County School Dist. No. One , 311 61 A trial court is required to charge only the current and correct law of South Carolina. Cohens v. Atkins , 333 S.C. 345, 349, 509 S.E.2d 286, 289 (Ct. App. 1998). “The substance of the la w is what must be instructed to the jury, not any particular verbiage. . . . A jury charge which is substantially correct and covers the law does not re quire reversal.” Burroughs v. Worsham , 352 S.C. 382, 391, 574 S.E.2d 215, 220 (C t. App. 2002). When reviewing a jury charge for alleged error, the appella te court must consider the charge as a
re quire reversal.” Burroughs v. Worsham , 352 S.C. 382, 391, 574 S.E.2d 215, 220 (C t. App. 2002). When reviewing a jury charge for alleged error, the appella te court must consider the charge as a whole in light of the evidence and issues presented at trial. Daves v. Cleary , 355 S.C. 216, 224, 584 S.E.2d 423, 427 (Ct. App. 2003). “Where a request to charge is timely made and involves a c ontrolling legal principle, a refusal by the trial judge to charge the request constitutes reversible error.” Koutsogiannis v. BB&T , 365 S.C. 145, 149, 616 S.E.2d 425, 427-28 (2005). To warrant reversal for refusal to give a requested instruction, the refusal must have not only been erroneous, but prejudicial as well. Cohens , 333 S.C. at 349, 509 S.E.2d at 289; see also Daves , 355 S.C. at 224, 584 S.E.2d at 427 (stating a circuit court’s refusal to give a properly requested charge is reversible error only when the reque sting party can demonstrate prejudice from the refusal). The instructions given in the instant case are very similar to those addressed in the case of McCourt by and through McCourt v. Abernathy , 318 S.C. 301, 457 S.E.2d 603 (1995). In that case, McCourt, through the personal representative of her estate, filed a medical malpractice action against a doctor in connection with her death fro m sepsis. The defendant argued the trial court erred in refusing to instruct the jury as follows: When a physician exercises ordinary care and skill in keeping within recognized and proven methods, he is not liable for the result of a bona fide mistake in judgment. S.C. 335, 428 S.E.2d 886 (1993) (holding an appellate court need not address remaining issues when the resolution of a prior issue is dispositive). 62 A physician is not ordinarily liable for making an
.C. 335, 428 S.E.2d 886 (1993) (holding an appellate court need not address remaining issues when the resolution of a prior issue is dispositive). 62 A physician is not ordinarily liable for making an incorrect diagnosis where it is made in good faith and there is reasonable doubt as to the nature of the physical condition involved or as to what should be done in accordance with recognized authority and good current practice, or where it is made in good faith observation of a patient. A physician cannot be held liable for a mere error in judgment. When a physician exercises ordinary care and skill in keeping with recognized and proven methods he is not liable for the result of a me re mista ke of judgment or for a bad result which does not occur because of any negligence on his part. McCourt , 318 S.C. at 306, 45 7 S.E.2d at 606. In affirming the refusal to give the charge requested, the supreme court stated that such a jury instruction impe rmissib ly implied “to the jury that an error in judgment is actionable onl y if made in bad faith.” Id. at 306, 457 S.E.2d at 606. The court reasoned that this would “impos e an unrealistic burden on the plaintiff to prove the doct or’s jud gment was rendere d with less than good faith.” Id. Like the proposed instruction in McCourt , the trial court’s instruction in th is ca se impermissibly implied to the jury that any e rror in ju dgment b y Sessions would be actionable only if rendered in bad faith. Such an implication prejudiced Ardis because it imposed the same “unrealistic burden” disapproved of in McCourt . CONCLUSION For the reasons stated herein, the trial court’s dec ision is 63 REVERS ED and REMANDED. SHORT, J. concurs. BEATTY, J. dissents in a separate opinion.
c burden” disapproved of in McCourt . CONCLUSION For the reasons stated herein, the trial court’s dec ision is 63 REVERS ED and REMANDED. SHORT, J. concurs. BEATTY, J. dissents in a separate opinion. BEATTY, J. (dissenting): I respectfully dissent. When reviewing a jury in struction fo r alleged e rror, the a ppellate court mu st consider the charg e as a whole in light of the evidence and issues presente d at tria l. Davis v. Cleary , 355 S.C. 216, 224, 584 S.E.2d 423, 427 (Ct. App. 2003). “If the charge is reasonably free from error, isolated porti ons whi ch might be misleadin g do not constitute reversible error.” Id. The majority rests its decisio n on a comparison of a small portion of the trial court’s in struc tions to a substantia l part of the requested instructions in McCourt v. Abernathy , 318 S.C. 301, 457 S.E.2d 603 (1995). In McCourt , the trial court’s decision not to give requested instructions was affirmed. Although the court did not identify any specific offending jury charge requested, the court noted that the requested charges may be confusing to the jury. The court stated, “Some of the charges imply to the jury that an error in judgment is actionable only if made in bad faith. Such an instruction would impose an unrealistic burden on the plaintiff to prove the doctor’s judgment was rendered in less than good faith.” McCourt , 318 S.C. at 306, 457 S.E.2d at 606. Although the phrase “good faith” was used in a requested charge on making a diagnosis, the phrase was never actually used in an “error in judgment” charge in McCourt . Rather, a specific charge on “error in judgment” implied that bad faith was required to find the doctor liable.4 In my view, the McCourt decision is based upon the full 4 This charge provided:
ourt . Rather, a specific charge on “error in judgment” implied that bad faith was required to find the doctor liable.4 In my view, the McCourt decision is based upon the full 4 This charge provided: Request # 5: A physician cannot be held liable for a mere error in judgment. Where, according to standard medical practice, the diagnosis and course 64 considera tion o f the jury instructions in total, n ot the mere use of the phrase “good faith.” Although similar, in part, the jury instruction here is significantly different from McCourt . Here, the trial court’s “error in judgment” charge stated: I further charge you that when there is more than one recognized method of treatment, the physician is at liberty to follow any such recognized treatment. There may be more than one school of thought as to the proper treatment for a particular illness. In cases where there is a difference of opinion between competent medical authorities, a physician will not be liable if, in the exercise of his judgment, he followed a course of treatment supported by reputable, respectable and reasonable medical experts. Moreover, considering the trial cour t’s instructions here as a whole, they are substantially correct, reasona bly free of error, and do not tend to confuse the jury as to what is required to establish liability. The trial court gave the following instruction: I instruct you that when a chiropractor undertakes to treat a patient, the law requires him to use reasonable care and diligence in the ex ercise of his sk ill and in of treatment involved are ma tters to be subjected to the judgment of the physician, a physician must be allowed the exercise of that judgment and he cannot be held liable if in the ex ercise of the judgment he
nt involved are ma tters to be subjected to the judgment of the physician, a physician must be allowed the exercise of that judgment and he cannot be held liable if in the ex ercise of the judgment he has made a mistake as to the course of treatment to be taken. McCourt v. Abernathy , 318 S.C. 301, 306, 456 S.E.2d 603, 606 (1995). 65 the application of his learning to accomplish the purpose for which he was employed. The chiropractor is required by law to use his best judgment in exercising his skill and applying his knowledge. And the law would, therefore, hold a chiropractor liable for any inju ry to his pa tient resulting from w ant or lack of the requisite or required knowledge or ski ll or the omission to exercise reasonable care or the failure to use his best judgment. Therefore, a chiropractor’s duty in treating his patients is to be measured by both his skill and diligence. If, by lack of the required skill, a chiropractor fails to properly treat his patient so that the patient is injured thereby or his condition is made worse than it would have been otherwise, then the chiropractor would be liable for any in jury prox imate ly caused to the patient. He would also be liable if having the required or requisite skill, he negligently fails to use it or if he is not as careful and d iligen t in the treatment to the extent that he should be, which is to say as careful and diligent as a physician of ordinary prudence would have been under the same circumstances. In a case such as this, negligence is the failure to do that which an ordinarily, careful and prudent chiropractor would do under the same circumstances; or, it is the doing of that which an ordinarily prudent chiropractor would not have done under the existing circumstances.
rily, careful and prudent chiropractor would do under the same circumstances; or, it is the doing of that which an ordinarily prudent chiropractor would not have done under the existing circumstances. Negligence on the part of a chiropractor is not presumed, but must be affirmatively proved. I told you earlier that the burden of proof was on the 66 plaintiffs to prove their case by the preponderance or the greater weight of the evidence. In the absence of evidence to the contrary, it will be presumed that a chiropractor has fully discharged his duty to the patient. The burden of proof of negligence, proximate cause and injury in a malpractice case is on the plaintiff throughout. In order to establish liability in a malpractice case, the plaintiff must prove by a preponderance of the evidence the following things: what the recognized and generally accepted standards, practices and procedures which would be exercised by competent chiropractors under similar circumstances: the physician in question negligently deviated from the generally accepted standards practices and procedures; such negligent deviation from the generally accepted standards, practices and procedures was a proximate cause of the plaintiff’s injury ; and that the plaintiff was injured. I instruct you that a physician is not an insurer of a cure or even of a beneficial result; thus, the mere fact that a tre atment is not beneficia l or that it is even harmful will not of itse lf raise a p resumptio n of negligence. Injury and suffering are not alone sufficient to support a cause of action for malpractice unless it is shown by the greater weight of the evidence that the physician did not possess the degree of skill common to other physicians or that he failed to use such skill
of action for malpractice unless it is shown by the greater weight of the evidence that the physician did not possess the degree of skill common to other physicians or that he failed to use such skill in the treatment of the patient. I instruct you that a bad result or the failure to cure is not by itself sufficient to raise an inference or a 67 presumption of negligence on the part of a physician. Thus, if you find that the defendant in this case used due care and skill in treatin g the patient and that the physician followed recognized medical procedures and despite th is, th e patient suffered injuries, th e fact of injury alone is not evidence of negligence and your verdict in such case should be for the defendant. I instruct you, Madame Forelady and members of the jury, that you are not permitted to arbitrarily set up a standard of your own in determining whether the defendant’s learning skill and conduct fulfilled the duties imposed upon him by law. The standard is that which I have already indicated, that is, did the chiropractor exercise that degree of knowledge, care and skill possessed by members of h is specia lty in good standing in the same or similar circumstances? I further charge you that when the opinions of medical experts are relied upon to establish causal connection of negligence to injury, the proper test to be applie d is that the expert must, with reaso nable certainty, state that, in his professional opinion, the injuries c omplaine d of most probably resulted from the alleged negligence of the defendant. Jurors are to apply the same standards of evaluation of expert witness testimo ny as a pplied to othe r witnesses. It is for the jury to judge the credibility of the expert witnesse s, as well as any o ther witn esses,
the same standards of evaluation of expert witness testimo ny as a pplied to othe r witnesses. It is for the jury to judge the credibility of the expert witnesse s, as well as any o ther witn esses, and to decide what weight, if any, is attached to the expert testimony, as well as the testimony of any other witn esses. . . . 68 I further charge you that in considering whether a physician has exercised reasonable judgment in a given case, you must consider such judgment in relationsh ip to the facts as they existed at the time the judgment was made and not in light of what hindsight may reveal. I further charge you that a mistake in diagno sis o f itself will not supp ort a ve rdict in a malpractice suit. I charge you that a physician is not ordinarily liable for making an incorrect diagnosis where it is made in good faith and there is reasonable doubt as to the nature of the physical conditions involved or as to what should be done in accordance with recognized authority in good current practice or where it is made in good faith on observation of the patient and based upon physical evidences and symptoms which would warrant such diagnosis by a reasonably prudent and informed physician. I further charge you that when there is more than one recognized method of treatment, the physician is at liberty to follow any such recognized treatment. There may be more than one school of thought as to the proper treatment for a particular illness. In cases where there is a difference of opinion between competent medical authorities, a physician will not be liable if, in the exercise of his judgment, he followed a course of treatment supported by reputable, respectable and reasonable medical experts. I charge you that the question of whether a physician
liable if, in the exercise of his judgment, he followed a course of treatment supported by reputable, respectable and reasonable medical experts. I charge you that the question of whether a physician in making a diagnosis deviated from applicable standard of care either by not employing a particular procedure or by not ordering a particular test, is to be 69 determined by what an ordinary, careful and prudent physician would have done under the same or similar circumstances. I further charge you that the degree of skill and care a physician must use in diagnosing a condition is that which would be exercised by a competent practitioner in the defendant doctor’s field of chiropractic. In order to find for the plaintiffs in a medical malpractice action, the plaintiff must show by the greater weight of the evidence that the physician did not possess the degree of skill common to other doctors in defendant’s field of medicine, or that he failed or was negligent in so exercising such skills in the treatment of a patient. There must be a failure to do that which an ordinary, careful and prudent physician in the defendant’s field of medicine would do under the same or similar circumstances shown by the evidence to have existed at the time of the transaction in question; or, it was the doing of that which an ordinary, careful and prudent physician in defendant’s field of medicine would not have done under the same or similar circumstances known to have existed at the time of the transaction in question. A jury charge which is substantially correct and covers the law does not require reversal. Burroughs v. Worsham , 352 S.C. 382, 392, 574 S.E.2d 215, 220 (Ct. App. 2002). I would affirm. 70