South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Piedmont Promotions vs. SCDOT

AGENCY:
South Carolina Department of Transportation

PARTIES:
Petitioners:
Piedmont Promotions

Respondents:
South Carolina Department of Transportation
 
DOCKET NUMBER:
01-ALJ-19-0093-CC

APPEARANCES:
Charles H. McDonald, Attorney for Petitioner

Barbara M. Wessinger, Attorney for Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division (Division or ALJD) upon Piedmont Promotions' (Piedmont) appeal of the South Carolina Department of Transportation's (Department) decision to declare three outdoor advertising permits void pursuant to the Highway Advertising Control Act, S.C. Code Ann. §§ 57-25-150(G) and -180 (Supp. 2000) and concomitant refusal to issue permits necessary for re-erection of the signs pursuant to 25A S.C. Code Ann. Regs. §§ 63-350(C)(6) and 63-349(B) (Supp. 2000). The Department voided the sign permits on the grounds that they were nonconforming structures which had become a safety hazard. Pursuant to the Department's request, Petitioner removed the signs; the Department precluded the re-erection of the signs, as it determined that Petitioner had failed to maintain a meaningful business activity. Importantly, Piedmont does not contest the Department's determination that the signs were unsafe. (1)

At the beginning of the hearing, Piedmont made a motion that this tribunal require the Department to proceed first and put forth its evidence, as Piedmont contended that the Department bore the burden of proof in this matter. This motion was denied for the reasons stated herein. At the close of Piedmont's case, the Department's motion for involuntary nonsuit was granted based on (1) Piedmont's failure to maintain a qualifying business, which rendered the signs nonconforming as of January 23, 2001, when the Department's determination was made, and (2) Piedmont's failure to prove that water service was resumed after being shut off by the city on March 14, 2000, within one year of the granting of the original permit. Thus, these two interrelated facts demonstrate that Piedmont failed to prove that it met the requirements to obtain the requested permits necessary to re-erect the signs.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of evidence:

1. On May 6, 1999, the Department issued Piedmont three permits (Permit #04-20-426994, 426995, and 426996) to construct and maintain outdoor advertising signs on Interstate 77 in Fairfield County, South Carolina, at mileposts 31.8, 31.9, and 32, respectively.

2. The signs were located within an unzoned commercial or industrial area within 600 feet of Interstate Auto Sales, the qualifying activity which the signs advertised.

3. Mr. Samuel Rhodes is the President and sole owner of Piedmont. Mr. Rhodes' wife owns Interstate Auto Sales, but he is familiar with the operation of the business. Mr. Rhodes testified that his family is in the used car business at other locations.

4. On January 21, 2001, one of the signs (Permit #04-20-426994) fell onto the travel lanes of Interstate 77. As a result, the Department conducted an investigation and determined that the other two signs were unsafe and presented a hazard to the motoring public.

5. On January 23, 2001, the Department notified Piedmont that the three sign permits were canceled based on its investigation and ordered that all three signs be removed.

6. The Department informed Piedmont that it must remove the signs, or the Department would remove the signs at Piedmont's expense. Consequently, Petitioner removed the two standing signs and the debris from the one that had fallen.

7. The Department refused to issue new permits to allow Petitioner to re-erect the signs, as it determined that Interstate Auto Sales was no longer a qualifying business.

8. On March 14, 2000, within one year of the issuance of the outdoor advertising permits, the water service at Interstate Auto Sales was cut off by the city. Petitioner presented no evidence that water service was ever restored at this location. By Petitioner's own admission, the water was shut off. Petitioner further testified that the employee who oversaw the day-to-day operations of the business shut the water off at the trailer for repairs after the pipes burst sometime in November 2000. This testimony conflicts with the fact that the water was turned off in March 2000. As of the hearing, the pipes had still not been repaired. Despite the conflict in the evidence regarding when and how the water was shut off, Interstate Auto Sales had neither running water nor an operable restroom on January 23, 2001.

9. The site contains one metal building and two trailers. The trailers have several windows broken out.

10. Certain cars on the site were vandalized in December of 2000. As of January 23, 2001, the vandalized cars had not been repaired. By Petitioner's own admission, some cars onsite have flat tires, and two or three are inoperable.

11. Mr. Rhodes testified that Interstate Auto Sales has sold two cars in 2001. He further testified that Interstate Auto Sales sold approximately twenty cars in 2000. Petitioner, however, submitted no persuasive evidence of these sales.

12. The evidence presented in Petitioner's case-in-chief does not demonstrate that a viable business was being conducted at the site. For example, Piedmont presented no documentary evidence that Interstate Auto Sales was conducting a meaningful business. Piedmont introduced no bills of sale to show cars sold, no employee paychecks or other records to show that an employee was onsite at least 36 hours per week for 48 weeks out of the year, no electric, phone, or water bills to show utilities, and no tax records to show that the buildings are considered part of the real estate and taxed accordingly.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

A. Standard for Involuntary Nonsuit

At the close of Petitioner's case, the Department moved for a dismissal of Petitioner's case on the ground that Petitioner had failed to meet its burden of showing that the challenged outdoor advertising permits should be reissued, since Interstate Auto Sales as of March 14, 2000, did not conform to 25A S.C. Code Ann. Regs. 63-342 (U) (Supp. 2000). Under that provision, failure to maintain the standards set forth in 25A S.C. Code Ann. Regs. 63-342(CC) (Supp. 2000), regarding Transient and Temporary Activities, is prima facie evidence that the seemingly commercial activity is instead a sham activity. (2)

"The term 'prima facie evidence' denotes evidence which, if unexplained or uncontradicted, is sufficient [to find] in favor of the issue which it supports, but which may be contradicted by other evidence. Stated otherwise, prima facie evidence means evidence which is sufficient to establish the fact, unless rebutted; evidence which, standing alone and unexplained, would maintain the proposition for which it is introduced." 29 Am. Jur. Evidence § 4 (1994). See also Black's Law Dictionary 1209 (7th ed. 1999) ("Prima facie- Sufficient to establish a fact or raise a presumption unless disproved or rebutted. . . . Prima facie case- . . . A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor."). Once a party establishes a prima facie case, the burden shifts to the opposing party to disprove the proposition established by the prima facie case. McKissick v. J.F. Cleckley & Co. 325 S.C. 327, 479 S.E. 2d 67 (Ct. App. 1996).

Rule 52 of the Rules of Procedure for the Administrative Law Judge Division allows the South Carolina Rules of Civil Procedure to be applied, where practicable, in proceedings before the Division to resolve questions not addressed by the ALJD Rules. The ALJD Rules do not address the procedure for dismissing a matter at the close of a petitioner's case. Rule 41(b) of the South Carolina Rules of Civil Procedure, however, provides guidance:



After the plaintiff in an action tried by the court without a jury has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.



The court as the trier of facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

In Johnson v. J.P. Stevens & Co., 308 S.C. 116, 417 S.E.2d 527 (1992), the South Carolina Supreme Court explained the standard for a court, as the trier of fact, to consider a defendant's motion for involuntary dismissal. In Johnson, the Court held that:



Under Rule 41 in a nonjury trial, the trial judge clearly may dismiss the action even though the plaintiff may have established a prima facie case. Rule 41(b) allows the judge as the trier of facts to weigh the evidence, determine the facts and render a judgment against the plaintiff at the close of his case if justified.



With the above standard in mind, and after careful consideration of all of the testimony and documentary evidence presented in Petitioner's case-in-chief, I find that the instant case should be dismissed, as the failure to maintain a meaningful qualified business rendered the three signs nonconforming. Petitioner failed to prove that it had running water in conformity with the standards set forth in delineating Transient or Temporary Activities under 25A S.C. Code Ann. Regs. 63-342(CC) (Supp. 2000). In fact, Petitioner failed to offer any concrete evidence that it was operating a meaningful business as of January 23, 2001, the date of the Department's decision refusing the reissuance of the outdoor advertising permits.

B. Burden of Proof

In civil cases, generally, the burden of proof rests upon the party who asserts the affirmative of an issue. 29 Am. Jur. 2d. Evidence § 127 (2d ed. 1994); Alex Sanders et al., Trial Handbook for S.C. Lawyers § 9:3 Party With Burden, Civil Cases (2000). Piedmont is the party asserting the affirmative in this case; therefore, Piedmont must prove by a preponderance of the evidence that it meets the applicable standards to re-erect the signs after it removed them. (3)

S.C. Code Ann. § 57-25-150(G) (Supp. 2000) provides that a permit for a conforming sign which is removed voluntarily for more than thirty days is void. In addition, a permit for a nonconforming sign is void whether voluntarily or involuntarily removed. Here, the signs became illegal, as they were structurally unsafe pursuant to 25A S.C. Code Ann. Regs. 63-350(B) (Supp. 2000). Because the signs were nonconforming pursuant to 25A S.C. Code Ann. Regs. 63-342(P) (Supp. 2000), the permits were automatically voided upon the required removal of the signs due to safety concerns.

Because the permits were voided, the permits cannot simply be reissued. Rather, requesting permission to re-erect the signs is in essence a re-application, which is analogous to a new application and requires that Piedmont meet all the statutory and regulatory criteria for initial qualification for a permit. Since the statutory scheme disfavors the continuing existence of nonconforming signs, the permits are automatically voided upon removal for those signs which the Department has determined are nonconforming. Thus, Piedmont must reapply for the permits to re-erect the signs. As of the date Piedmont requested permission to re-erect the signs, it must demonstrate that it met all the regulatory qualifications.

This case involves Piedmont making a request of and seeking the permission or approval of the Department. The crux of the burden of proof is that Piedmont does not challenge the Department's determination that the signs were unsafe, nor the order to remove the signs. Rather, Piedmont contests the Department's refusal to allow it to re-erect the signs based on the determination that Interstate Auto Sales is not a qualifying commercial business, but rather is being operated as a sham. In contrast to seeking permission to re-erect the signs, an agency would have the burden of proof in matters involving the assessment of civil penalties, the imposition of sanctions, or the enforcement of administrative orders, such as ordering Piedmont to remove the signs. ALJD Rule 29(B). Here, the Petitioner bears the burden of showing that it is entitled to re-erect the signs. 25A S.C. Code Ann. Regs. 63-349(M) (Supp. 2000) ("The applicant bears the burden of showing that the Department should issue the permit.").

In administrative proceedings, the general rule is that an applicant for relief, benefits, or a privilege has the burden of proof, and the burden of proof rests upon one who files a claim with an administrative agency to establish that required conditions of eligibility have been met. It is also a fundamental principle of administrative proceedings that the burden of proof is on the proponent of a rule or order, or on the party asserting the affirmative of an issue.



73A C.J.S. Public Administrative Law and Procedure § 128 at 35 (1983) (emphasis added), cited with approval in Leventis v. S.C. Dep't of Health and Envtl. Control, 340 S.C. 118, 133, 530 S.E.2d 643, 651 (Ct. App. 2000).

Petitioner must show that it continues to meet all the statutory and regulatory criteria for the re-issuance of the outdoor advertising permits. Piedmont could have introduced documentary evidence to lend support to Mr. Rhodes' assertion that Interstate Auto Sales was conducting a meaningful business. Rather, Piedmont's case was attenuated, and Petitioner failed to present persuasive, concrete evidence of a viable business.

Furthermore, Petitioner failed to affirmatively prove that it met all the criteria for issuance of the permits. The Department has no burden to disprove Piedmont's mere allegations, unsupported by persuasive proof, that it meets the criteria for issuance of the permits. It is fundamental that a mere allegation does not constitute proof. "Proof of facts is the soul of every trial. If there is no need to prove facts, then there is no need for a trial. . . ." (4) Evidence of allegations must be sufficient and probative of the matter to be proven. (5) The test for the sufficiency of a proffer of evidence to warrant a finding of fact is as follows.

A . . . finding must be based on the evidence and . . . on the facts proved. . . . [A]lthough difficulty of proof does not prevent the assertion of a legal right, the . . . finding cannot rest on surmise nor can it rest on mere speculation. Likewise, . . . a . . . finding cannot rest on conjecture. . . guesswork . . . or rest on supposition, assumption, imagination, suspicion, arbitrary action, whim, caprice, illogical and unsound reasoning, innuendo, percentage, likelihood, mere theory, or conclusions that are in conflict with undisputed fact . . . The evidence on which the . . . finding is based must be competent, legal evidence received in the course of the trial, credible, and of probative force, and must support every material fact. The decision should be against the party having the burden of proof where there is no evidence, or the evidence as to the material issue is insufficient. . . .



32 C.J.S. Evidence § 1042 (1964) (emphasis added); see also S.C. Code Ann. § 1-23-320(i) (Supp. 2000).

C. Requirements for Outdoor Advertising Permits and Qualifying Businesses Under the Highway Advertising Control Act

Under 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2000), "[f]ailure of an activity to maintain the standards set forth under the definition of transient and temporary within one year after a sign permit was issued based on the activity qualifying the sign site as an unzoned commercial or industrial area shall be prima facie evidence that the activity was a sham." Further, the totality of the evidence suggests that Petitioner was not operating a viable or meaningful business. The signs were allowed to fall into disrepair, the windows were not timely repaired in trailers at the site, at least two or three cars were inoperable, and the water had been shut off rendering the bathroom inoperable; these facts do not evince a meaningful business operation. Contrary to Piedmont's argument, the outdoor advertising laws contemplate the continual, meaningful operation of a qualifying business, not just at its inception. See S.C. Code Ann. §§ 57-25-120(4), (5) and -140(A) (Supp. 2000).

Petitioner initially qualified for the outdoor advertising permits by proposing to conduct a commercial business within 600 feet of the highway. S.C. Code Ann. § 57-25-120(4)(c) (Supp. 2000). Because a sham activity is not considered a commercial activity, Interstate Auto Sales is not considered a qualifying activity. S.C. Code Ann. § 57-25-120(5)(i) (Supp. 2000). Since Petitioner failed to maintain the standard established under the definition of "transient or temporary," its operation was deemed a sham. 25A S.C. Code Ann. Regs. 62-342(U) (Supp. 2000). In order to not constitute a transient or temporary activity, a business is required to maintain, among other things, electricity, telephone, running water, and an operable indoor restroom. In essence, the statute contemplates that a permittee is operating a meaningful business. Here, the business' water was terminated within ten months of the issuance of the permits; under 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2000), this constitutes prima facie evidence of a sham. Petitioner offered no concrete evidence to refute the Department's assertion that Interstate Auto Sales has not had water service since March 14, 2000, and did not show that the water to its business was even turned back on. Petitioner's key witness and owner of Piedmont testified that its employee turned the water off in November of 2000 because pipes burst in the trailers. This is in direct conflict with credible evidence that the water service was terminated on March 14, 2000.

Since Petitioner's three signs were not properly maintained and had become unsafe, they were rendered illegal under 25A S.C. Code Ann. Regs. 63-344(G) (Supp. 2000), which necessitated their removal. Further, the Department's refusal to grant the necessary permits for re-erection of the signs was justified, as Interstate Auto Sales was not a qualifying activity as of January 23, 2001.

D. Enumerated Analysis

1. The Administrative Law Judge Division has jurisdiction in this proceeding pursuant to S.C. Code Ann. § 57-25-180(D) and § 1-23-600(3) (Supp. 2000).

2. The requirements in the regulations delineating Transient or Temporary Activities has been judicially determined to be a valid exercise of the authority granted to the Department by statute. Young v. S.C. Dep't of Highways and Public Trans., 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985). S.C. Code Ann. § 57-25-185 (Supp. 2000) explicitly directs the Department to promulgate regulations consistent with the state and federal statutes. These regulations and the agency's interpretation of them are entitled to deference from this tribunal.

Our Supreme Court has held that interpretive rules are 'entitled to great respect by the courts but [are] not binding on them.' An interpretive rule is a rule which is promulgated by an administrative agency to interpret, clarify or explain the statutes or regulations under which the agency operates.



Young v. S.C. Dep't of Highways and Pub. Transp., 287 S.C. 108, 112, 336 S.E.2d 879, 881-82 (Ct. App. 1985) (citations omitted).

3. The Declaration of Purpose of the Highway Advertising Control Act specifically states that the South Carolina General Assembly found that outdoor advertising is "a business which must be allowed to exist and operate where other business and commercial activities are conducted . . . ." S.C. Code Ann. § 57-25-130 (Supp. 2000). The Highway Advertising Control Act provides that the Department is the agency responsible for issuing outdoor advertising sign permits and for prescribing regulations for their issuance. S.C. Code Ann. § 57-25-150(A) (Supp. 2000). Specifically, Section 57-25-150(A) provides that the Department of Transportation

shall issue permits for the erection and maintenance of outdoor advertising signs coming within the exceptions contained in items (1), (2), and (3) of subsection (A) of Section 57-25-140, consistent with the safety and welfare of the traveling public necessary to carry out the policy of the State declared in this article and consistent with the national standards promulgated by the Secretary of Transportation or other appropriate federal officials pursuant to Title 23, United States Code.



4. S.C. Code Ann. § 57-25-150(D) requires that signs be subject to mandatory maintenance and remain in a state of good repair. See also 25A S.C. Code Ann. Regs. 63-350 (Supp. 2000). The fact that one of the signs fell on the travel lanes of Interstate 77 presents compelling prima facie evidence that the signs were not adequately maintained and had fallen into disrepair. Further, Piedmont does not challenge the Department's determination that the signs were unsafe, nor the order to remove the signs. Rather, Piedmont contests the Department's refusal to allow it to re-erect the signs based on the determination that Interstate Auto Sales is not a qualifying commercial business but rather is being operated as a sham.

5. S.C. Code Ann. § 57-25-140 (A) (Supp. 2000) provides that "[a]n outdoor advertising sign must not be erected or maintained after June 30, 1975, which is visible from the main-traveled way of the interstate or federal-aid primary highways in this State and erected with the purpose of its message being read from the traveled way, except the following: ... (8) signs located in unzoned commercial or industrial areas." According to S.C. Code Ann. § 57-25-120(4) (Supp. 2000):

An unzoned commercial, business, or industrial area means the land occupied by the regularly used building, parking lot, and storage and processing area of a commercial, business or industrial activity and land within 600 feet of it on both sides of the highway. (Emphasis added.)

S.C. Code Ann. § 57-25-120(5)(i) (Supp. 2000) states:

"Commercial or industrial activities" mean those established activities generally recognized as commercial or industrial by zoning authorities within the State, except that none of the following are considered commercial or industrial activities: ... (i) sham, prohibited, or illegal activities. (Emphasis added.)

Furthermore, 25A S.C. Code Ann. Regs. 63-342 (FF) (4) (Supp. 2000) defines "unzoned commercial or industrial areas" as not including areas occupied by sham activities. "Sham activity" is defined in 25A S.C. Code Ann. Regs. 63-342 (U) (Supp. 2000) as:

any activity which is seemingly a commercial or industrial activity but which was created primarily or exclusively to qualify an area as an unzoned commercial or industrial area and which does not conduct any meaningful business at the activity site. Failure of an activity to maintain the standards set forth under the definition of transient and temporary within one year after a sign permit was issued based on the activity qualifying the sign site as an unzoned commercial or industrial area shall be prima facie evidence that the activity was a sham. (Emphasis added).



"Transient or temporary activities" are defined under 25A S.C. Code Ann. Regs. 63-342 (CC) (Supp. 2000), as "activities that do not have":

(1) at least one employee attendant at the activity site, performing meaningful work and available to the public for at least thirty-six (36) hours per week on at least four (4) days per week for at least forty-eight (48) weeks per year;



(2) electricity, telephone, running water, indoor restroom, permanent flooring other than dirt, gravel, sand, etc; adequate heating; and



(3) the activity, or a major portion of it, conducted from a permanent building constructed principally of brick, concrete block, stone, concrete, metal, or wood or some combination of these materials or from a mobile home or trailer which the applicant can prove is considered part of the real estate and taxed accordingly.



(Emphasis added.) Finally, according to 25A S.C. Code Ann. Regs. 63-344 (G) (Supp. 2000):



Any sign permitted because of an activity subsequently determined to be a sham activity shall be illegal and must be removed at the sign owner's or landowner's expense. Until the sign supported by the sham activity is completely removed from its site, the Department may not approve any application for any sign permit made by the sign owner. Also, the Department may not approve any other application for a sign permit on any site owned or controlled by the landowner of the property on which the sham activity is located. (Emphasis added).

CONCLUSION

In the present case, the water at Petitioner's business was terminated within ten months of the issuance of the outdoor advertising permits. In addition, the totality of the evidence in this case does not indicate that Petitioner was operating a viable or meaningful business. Rather, the evidence indicates that Interstate Auto Sales was created primarily to qualify the signs for Outdoor Advertising Permits. That Interstate Auto Sales failed to maintain the regulatory requirements for a qualifying business confirms the Department's conclusion that the business was a sham, rather than a legitimate qualifying activity.

Further, Piedmont removed the nonconforming signs pursuant to the Department's request. Hence, the permits for these signs were automatically void. S.C. Code Ann. § 57-25-150 (Supp. 2000). At that point, it became incumbent upon Piedmont to prove that it was entitled to the permits and met the requirements for a qualifying business; this it has failed to do. As such, Piedmont is not presently entitled to outdoor advertising permits for re-erection of the three signs based on Interstate Auto Sales, under the analysis of 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2000), Sham Activity, and 25A S.C. Code Ann. Regs. 63-342(CC) (Supp. 2000), Transient or Temporary Activities, in conjunction with the definitions of unzoned and commercial activities under S.C. Code Ann. § 57-25-120(4), (5) (Supp. 2000), as no viable or meaningful business activity continues to be conducted at the site.

ORDER

IT IS THEREFORE ORDERED that Piedmont's application for the three Outdoor Advertising Permits necessary to re-erect the signs is DENIED. IT IS FURTHER ORDERED that the Department's Motion for Involuntary Nonsuit pursuant to Rule 41(b), SCRCP, is GRANTED.

AND IT IS SO ORDERED.



_______________________________

JOHN D. GEATHERS

Administrative Law Judge

May 29, 2001

Columbia, South Carolina

1. Piedmont initially filed this request for a contested case hearing after the Department requested that the signs be removed. As a result of a series of meetings in February, the parties determined that the issue, however, was not a challenge to the Department's determination that the signs were unsafe. Rather, Piedmont challenges the Department's underlying determination that the signs were nonconforming based on the Department's assertion that Interstate Auto Sales had ceased to operate as a meaningful qualified business and was instead a sham activity.

2. The statutory scheme disfavors Transient or Temporary Activities. Somewhat confusingly, the standards set forth in 25A S.C. Code Ann. Regs. 63-342(CC) must be maintained for a business not to be considered Transient or Temporary. In essence, the law presumes that a legitimate business will have water, power, heat, facilities, and all other basic accoutrements of doing business at start-up. The Transient or Temporary Activities provision aims to ensure that only legitimate and ongoing businesses qualify for outdoor advertising permits. Thus, any business which fails to exhibit all the indicia of permanence under the Transient or Temporary Activities provision of 25A S.C. Code Ann. Regs. 63-342(CC) (Supp. 2000) is deemed a Sham Activity under 25A S.C. Code Ann. Regs. 63-342(U) (Supp. 2000).

3. The preponderance of the evidence is "[t]he greater weight of the evidence" or "superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Black's Law Dictionary 1201 (7th ed. 1999). "The preponderance of the evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, supra, § 9:5 Quantum of Evidence in Civil Cases (2000) (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).

4. Alex Sanders et al., Trial Handbook for S.C. Lawyers §10:1, at 391 (2000).

5. See Coleman v. Palmetto State Life Ins. Co., 241 S.C. 384, 128 S.E.2d

699 (1962).


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