Journal of the House of Representatives
of the Second Session of the 110th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 11, 1994
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1994
Attended on August 26, 1993; 3-1251; Judicial Conference, SCCA; 7.5 hours of
JCLE credit
Attended February 27-March 5, 1993; Advanced Constitutional Criminal
Procedure in Scottsdale, Arizona; 32.5 hours of JCLE credit
Attended February 4, 1994; Practical Aspects of Arbitration & Mediation
at Inn of Court; .75 hour of JCLE credit
Attended May 25, 1993; Practical Aspects of Arbitration & Mediation at
Inn of Court; 1 hour JCLE credit
November 4, 1993; Opening Arguments and Closing Arguments; 1 hour JCLE credit
9. Taught or Lectured:
Presented Trial and Appellate Advocacy, 1989, CLE
Panelist on Bench Bar 1992 Update - October 9, 1992 JCLE
November, 1992 - presenter at CLE on Automotive Law Materials prepared by
Honorable Ralph King Anderson
JCLE material presented jointly with Mike Tighe - Default Matters - 1991
Moderator and Program Coordinator at October, 1993 JCLE
Panelist at 1994 Criminal Law JCLE
Panelist at 1990 JCLE State Grand Jury Overview
Panelist at various S. C. Defense Lawyers Conferences
Presenter 1992 and 1993 meetings of Circuit Judges of jury charges
10. Published Books and Articles:
Published Trial and Appellate Advocacy for 1989 CLE
Published Workplace Defamation and other Ancillary causes of action in
employment claims
Published JCLE material jointly with Mike Tighe - Default Matters - 1991
12. Legal experience since graduation from law school:
While in law school he clerked for the old McKay firm performing general
duties as well as research and rendering trial preparation assistance and was
permitted to sit with the late Gus Black, Eli Walker and the McKays, Doug,
Jr. and Jay, during various trials. Upon gradation from law school in
January of 1964, he moved to Camden and clerked for Henry Savage, Jr. and Ed
Royall until admission to the Bar in April of 1964, when he became an
associate.
Printed Page 5141 . . . . . Thursday, April 28,
1994
Henry was a business attorney and tried with his assistance in mid-1964 his
only Circuit Court case in his 24 years with the law firm. Mr. Savage
successfully caused the reassessment of all Kershaw County realty, which
Order for reassessment Judge Kinard assisted in drafting.
The firm was strictly a defense firm when he arrived. Ed Royall generally
preferred to handle non-circuit matters; so since he appeared at ease with
motions, pleadings and procedure within the court system, most of the
litigation was turned over to him, although Ed obviously assisted him where
their exposure was great or his experience needed. Domestic cases and equity
matters were quickly added to his slot, along with City Court appearances and
a few Worker's Compensation hearings. By 1965, when he was made a partner,
they had picked up several new carriers as clients and also expanded their
representation in commercial litigations, with the addition of several
finance companies to their clientele. Several utilities and roads have
crossed portions of Kershaw County during his practice years and he has
participated in or handled many such cases. Over the years, he has appeared
in Social Security Disability, Unemployment Security Commission and zoning
type matters as well as appearing in Coroner's inquests.
In trials, his representation of Defendants in personal injury litigation
exceeded that of Plaintiffs, but they had fair success representing
Plaintiffs and the firm has had at least one settlement exceeding $100,000
per year, fortunately, for the last several years that he practiced with the
firm.
As managing partner in charge of personnel and procedure from 1968 until
his departure in May of 1988, delegating and assigning various cases and
functions to firm members was his responsibility. They added Bob Sheheen in
1968, Bill Byars in 1972, Moultrie Burns in 1974, Doug Robinson in 1979, Dana
Morris in 1983, and John Rabb in 1987, and he generally trained Bob, Bill,
Doug, Dana and John in trial procedure and tried jury cases with each of
them.
On the criminal side, in his early years the firm did not handle criminal
matters, but he was immediately court appointed on many cases, which exposure
led to his acquiring several fee producing criminal cases. Through the years
he has been involved in the defense of virtually all crimes from hunting
violations in Magistrate's Court through several murder trials in Circuit
Court and trial defense of a bank president on an embezzlement charge in
Federal Court. However, he did prefer civil practice, so he generally ceased
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1994
handling criminal cases in 1975, as Bob Sheheen and Bill Byars of his former
law firm handled those cases, and he would not generally participate unless some
special circumstances required his input.
The firm handled numerous real estate matters over which he generally
supervised the closing, including many commercial projects such as apartment
projects, shopping centers, with many realtors and builders as clients,
numerous contract and commission controversies he personally handled through
litigation. Generally small estates were handled by other firm members, but
he did handle a few large estates and prepared estate tax returns for the
firm.
Over the years, routine foreclosure, collection suits and claim and
delivery actions became his responsibility, which functions he handled as one
of his secretaries was quite competent in setting these actions up and
following through with minimum attorney input.
Prior to 1979, he filed a few bankruptcies for the firm and studied the
changes. Since then bankruptcies with the new changes have mushroomed.
While the bankruptcy practice only consumed about 10% of his total law
practice, from September of 1987 through December 31, 1987, he filed 21
individual and corporate bankruptcies, consisting of Chapter 13's, Chapter
11's and 7's. From the first of 1988 until his departure in May of 1988, he
filed about 5 more. He handled bankruptcies for individuals and corporations
in all the surrounding counties, as there was apparently no attorney in the
area outside of Columbia who would then handle them. He was fully competent
to handle all styles from individual through business reorganizations, and he
also represented creditors in bankruptcy matters.
As managing partner, he was cognizant of most of the pending cases, but he
had moved toward a business and tax planning role as the firm's
representative of local banks. His services at that time as personal
attorney for a savings and loan and his representation of various business
interests dictated that much of his time be thus spent at roster meetings.
Interrogatories, pleadings and depositions required blocks of time he could
more profitably spend on other matters. Therefore, as mentioned above, his
limited criminal practice had ceased, and he had limited his Family Court
practice to a minimum and would have eliminated it entirely if family
problems were not interwoven with business relationships. The savings and
loan that he represented, First Federal, converted to stock ownership. He
prepared proxy statements and obtained their approval for the years 1986 and
1987, and in addition also prepared proxy statements
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1994
and obtained its approval in 1987 for Palmetto State Savings and Loan.
Palmetto State and First Federal merged after he became a judge.
He represented numerous realtors and builders and handled numerous warranty
and contract disputes.
After his election to the bench and swearing-in on May 3, 1988, he has
presided over numerous civil and criminal trials, heard agency appeals, and
non-jury merit and motion matters.
13. Rating in Martindale-Hubbell:"AV" was last rating.
17. Five (5) of the most significant litigated matters in either trial or
appellate court:
(a) Mary Whitaker v. Catawba Timber Company; Court of Common Pleas;
Kershaw County, South Carolina (81-CP-28-159); decision May 3, 1982;
Judge Walter J. Bristow, Jr.
The Plaintiffs in 1947 agreed to accept an increasing yearly rental for
a 66-year term for about 260 acres and further executed an option to
purchase for $15,000 any time after the 20th year increasing 5% per year
from the 21st year through the 66th year of the lease term. Plaintiff
filed suit seeking cancellation of the lease and option after he
attempted to exercise the option to purchase for the company.
Basically, the Plaintiff alleged inadequacy of consideration and that
the option violated the rule against perpetuities. He paid the
consideration into court and counterclaimed, seeking specific
performance. After a trial without a jury before Judge Bristow, Judge
Bristow executed an Order granting specific performance, and they
immediately closed the purchase. A group of cases do hold such a clause
violative of the rule and that issue was novel to South Carolina;
however, his research had found the majority rule to hold favorable in
similar circumstances, including a then recent Georgia decision
involving a landowner, a paper company and a 60-year lease. Catawba
Timber is a subsidiary of Bowater and many thousands of acres were under
option under similar leases. House counsel for Bowater advised him that
based on his research, they ascertained that their options in several
states would possibly be held to violate the perpetuities rule in those
states. They accordingly exercised all their options to purchase rather
than risk litigating the issue again which, of
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1994
course, is why he, as sole counsel, found the case to be significant.
(b) Foxwood, a Limited Partnership v. Town of Kershaw; 80-CP-20-10;
Court of Common Pleas; Lancaster County; decision Judge George Coleman;
July 14, 1980.
The Town of Kershaw refused to permit an apartment project to connect to
its water and sewer facilities after earlier granting permission. The
suit was for a writ of mandamus and also sought injunctive relief
alleging basically that the city was estopped, that water hook ups were
ministerial functions and could not be arbitrarily withheld, and that
quasi-zoning by granting or withholding water taps denied equal
protection. Judge Coleman ordered the Town to furnish the services.
The Town filed Notice to Appeal, which was eventually dismissed in early
1981. Incidentally, their clients then sought issuance of permits and
the Town refused, resulting in their filing suit seeking damages and a
contempt order against each council person. Prior to hearing on the
contempt matter, the Town agreed to cooperate, and they filed an Order
of Dismissal in June of 1982, with the apartment project finally
commenced in late 1982, and is now completed. He feels this case to be
significant in that it again shows that if you persevere, elected
officials will be compelled to perform their legal duty and will
acknowledge that they also are under the law.
(c) The State v. McKinley Thomas; Murder Indictment; Trial in
Richland County, South Carolina
Criminal case about 20 years ago when Theodore Byrd and associates
marched 2 Kershaw County deputies off I-20 near Elgin, killed Officer
Potter and severely injured a fellow officer. The case was tried by
Solicitor John Foard before Judge Grimball just before the Solicitor's
defeat by Jim Anders. The trial was widely publicized and took a week
to try. He spent at least one month working on that unpopular court
appointed defense, including many trips to Columbia, and never received
any compensation, as the defense fund was exhausted when the claim was
filed, as he recalls. The trial was complex, many attorneys were
involved, including the Richland County defense group. He served as
Chief Counsel for this defendant and examined every witness and argued
to the jury. They successfully overcame the old
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1994
"hand of one is hand of all" argument in the face of the previous
knowledge brought out in the trial that Byrd had killed another officer the
previous night with the defendant and others in attendance and also that all
defendants were holding guns on the officers when Byrd started shooting. The
jury found the defendants, except Byrd who had pleaded guilty, not guilty of
murder and other related charges, finding guilt only of larceny of the officers'
pistols, as he recalls. Overcoming the Solicitor's vigorous presentation and
the legal issues presented made the case appear significant to him. His jury
arguments, since he felt the defendant should be found guilty, against the hand
of one theory was his most trying moment in his career. While he did not falter
during the argument, he honestly never felt that a not guilty verdict was within
the realm of possibility. He took no pride in that verdict when received, but
did learn to rethink some of his previous conceptions of how juries arrived at
verdicts and feels that his trial skills were helped by participation in that
apparent hopeless decision.
(d) Helen Best, et al. v. L. L. DeBruhl, Court of Common Pleas,
Kershaw County, South Carolina.
He was chief counsel in this case, ably assisted by the late Judge
Clator Arrants and Senator Donald Holland, decided over 20 years ago,
which involved suit by the Plaintiff against the then Sheriff of Kershaw
County alleging false imprisonment and violation of various civil rights
statutes growing out of the Sheriff's arrest of three middle-age ladies
from the Bethune area on alleged drug possession. A reliable informant
advised the Sheriff that the ladies who were under surveillance had
certain drugs in their possession and where they were to be. The
Sheriff picked up the ladies and brought them to the jail and asked if
his wife could search them (this was before they had any female officers
in the County) to which they consented, provided they could first use
the bathroom, which consent was then given (their Sheriff was then
younger and not as experienced). Obviously, the subsequent search
uncovered no controlled substances. The case was difficult to defend as
some procedures were not properly followed and the Sheriff refused to
identify his informant or permit us to present other drug related
evidence damaging to the Plaintiffs, earlier obtained by his force. The
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1994
case was tried before Judge Wade Weatherford and resulted in a verdict for the
Defendant. The case seems significant in that it was widely publicized, and the
favorable verdict tended to discourage frivolous suits locally against elected
officials. In fairness, they would have been pressed to have won the case had
suit been filed in Federal Court due to the minor procedure violations mentioned
above. Plaintiffs' attorneys permitted them to paint a damaging portrait of
their clients by innuendo, which would probably not have been permitted in
Federal Court.
(e) Hovis v. Wright, Fourth Circuit; January 10, 1985; 84-1128.
This was a bankruptcy matter where he filed a school teacher in
bankruptcy and claimed as exempt from bankrupt proceedings, the State's
retirement contributions of his teacher/debtor, which amount at that
time exceeded $8,000. Judge Davis, on motion of the Trustee and
hearing, ruled that the Trustee could reach the State retirement fund.
He appealed, and Judge Perry for the District Court held that the
Trustee could not reach the funds. A subsequent appeal was taken to the
Fourth Circuit, where it was held that the funds could not be reached.
This case was very important since not only his individual teacher, but
all State employees were affected by the outcome. He doesn't know the
exact number, but about 40 State employees' retirement benefits were
riding on the outcome of this decision at the time of the final
adjudication. He did not actually appear before the Fourth Circuit as
he asked the Attorney General to intervene since the State's interest
appeared great, and they graciously furnished counsel. He did file a
brief, but did not appear before the Fourth Circuit.
20. Judicial Office:
Elected to Circuit Court, served from May 3, 1988 continuously. Resident
Judge of the Fifth Judicial Circuit
21. Five (5) Significant Orders or Opinions:
(a) Centaur, Inc. v. Richland County, South Carolina; Richland
County Court of Common Pleas; 87-CP-40-5320; November 3, 1988.
(b) South Carolina Department of Highways and Public
Transportation v. W. Richard McClellion and D. C.
Printed Page 5147 . . . . . Thursday, April 28,
1994
Bryson; Newberry County Court of Common Pleas; 91-CP-36-234; July 30,
1992.
(c) State v. Russell Eugene Blankenship; Richland County Court of
Common Pleas; 90-1277; January 3, 1991.
(d) Felecia Nadine Belton v. The South Carolina State Housing Authority
and the South Carolina Budget and Control Board, Division of Human
Resource Management; Richland County Court of Common Pleas; 88-CP-
40-4732; March, 1991.
(e) The Murray Properties Partnership of Dallas v. L. P. Cox Company and
L. P. Cox Company v. Plantation Oaks Investors, Ltd., a Texas Limited
Partnership, and Murray Properties Investors XXIII, Inc., and Crozier
Dallas Associates, Ltd., as general partners, The Murray Properties
Partnership of Dallas and Interfirst Bank Dallas, N.A., Charleston
County Court of Common Pleas; 86-CP-10-2288 and 86-CP-10-3765; February
3, 1989.
22. Public Office:
He was President of the Kershaw County Chamber of Commerce in 1983; elected
by the members as President of the Camden Country Club, 2 years from 1981-
1982 and 1982-1983; elected as Vice-Chairman of the Wateree Community Actions
from 1969 to 1972 by the membership, appointed to the Board by the Kershaw
County Council, elected Vice-Chairman by the members; appointed by City
Council to serve on the Board of Kershaw County Commission on Drug Abuse from
1970 until 1975.
24. Unsuccessful Candidate:
He did announce and ran against Judge Owens Cobb for the seat he now holds in
1983, but withdrew prior to the election.
25. Occupation, business or profession other than the practice of law:
He was raised on a farm and performed farm chores daily, from milking cows to
feeding 40,000 plus chickens and planting and harvesting timber and
crops.
He held various summer jobs while in high school and attending college with
Cherokee & Sloan Construction Companies and worked briefly at the Piano
Factory in Central, South Carolina, while attending Clemson, but had only
engaged in the practice of law since graduation until his election to the
bench.
Printed Page 5148 . . . . . Thursday, April 28,
1994
28. Financial Arrangements or Business Relationships (Conflict of
Interest):
Recusal would be in order where stock ownership or former clients are
involved. He plans to blind trust the majority of his stock holdings if
elected.
37. Violations of S. C. Code Section 08-13-700:He has no knowledge of any
violations.
38. Violations of S. C. Code Section 8-13-765:He has no knowledge of
violations.
39. Expenditures Relating to Candidacy:
He purchased personal stationery and envelopes totaling $68.39 that he has
paid, and he employed his CPA firm to type correspondence and mail Notice of
Intent to File with legislators. He has not been billed by them to date for
typing or postage.
40. Contributions Made to Members of the General Assembly:
No contributions have been made.
44. Bar Associations and Professional Organizations:
American Bar Association; South Carolina Bar Association; Kershaw County Bar
Association, Secretary 1965, President 1967; American Judicature Society;
sustaining member of South Carolina Bar Foundation; John Belton O'Neall Inn
of Court; National Judicial College Assembly; South Carolina Association of
Circuit Judges; Chairman, South Carolina Civil Jury Charge Committee
45. Civic, charitable, educational, social and fraternal organizations:
Kershaw County Chamber of Commerce (former President); Camden Country Club
(former President); Camden Sertoma Club (former President, now life member);
He was a member of Kershaw Lodge #29 but withdrew in good standing several
years ago; dance club (resigned last year - unable to attend dances); Snipe
Club; also a contributing member to various charities, e.g., S. C. State
Museum, Fine Arts Commission, Riverbanks Zoo, etc.
46. He has held court in 26 counties and has always moved dockets without,
he feels, unduly pressuring attorneys or litigants. He was head of the
first Bar sponsored Settlement Week, which success has
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1994
assisted the Bar in moving toward ADR in many actions. He was the first
Presiding Judge over the State Grand Jury - having qualified three of the State
Grand Juries, and served as Presiding Judge of State Grand Jury for 2 years,
alternate for 18 months and is currently alternate. Two years of service as
Chief Criminal Administrative Judge and over 19 months as Civil Administrative
Judge in the Fifth Judicial Circuit has prepared him for virtually any matter.
Presiding in a high media area has opened his service to full public scrutiny.
47. Five (5) letters of recommendation:
(a) R. Donald Terrell
NationsBank
1025 Broad Street, Camden, SC 29020
425-7268
(b) Larry H. Parrott, M.D., Pathologist
Kershaw County Memorial Hospital
P. O. Box 7003, Camden, SC 29020-7003
432-4311
(c) Terry M. Hancock, Esquire
Sheheen, Hancock & Godwin
P. O. Drawer 428, Camden, SC 29020
432-1424
(d) Robert A. Carswell, CPA
Carswell, Cantey, Burch & Associates
P. O. Box 862, Camden, SC 29020
432-1436
(e) H. Davis Green, Jr.
H. Davis Green, Jr. Appraisals
1109 Broad Street, Camden, SC 29020
432-6226
PERSONAL DATA QUESTIONNAIRE - ADDENDUM
2. Positions on the Bench:
Resident Circuit Court Judge; Fifth Judicial Circuit; May 3, 1988 - June 30,
1995
10. Extra-Judicial Community Involvement:
(1) Member of St. Timothy's Lutheran Church, usher, lector, tabulator -
various committees, but will not offer as
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1994
councilman although his wife currently serves as councilperson
(2) Camden Sertoma Club. He resigned as Chairman of Camden Charity Horse
Show Sec. upon being elected to Bench and became a life member, which
removes him from club responsibilities and permits attendance at an
occasional meeting.
(3) Camden Chamber of Commerce - contributing member only. He does
occasionally attend breakfast meetings.
(4) He was a Master Mason, but withdrew in good standing after several
defendants attempted to use their membership to obtain a sentencing
advantage.
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