Adrian Hammond v. Gerald and Kimpson, LLC

• Court: Court of Appeals of South Carolina
• Decided: December 16, 2009
• Docket: 2009-UP-594
• Status: Unpublished

Opinion

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Adrian Hammond, Appellant,

v.

Gerald and Kimpson, LLC, Milton Kimpson, and Dennis M. Gerald, Respondents.

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Appeal From Richland County
L. Casey Manning, Circuit Court Judge

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Unpublished Opinion No. 2009-UP-594
Heard December 10, 2009 – Filed December 16, 2009
Withdrawn, Substituted and Refiled  March 4, 2010

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AFFIRMED

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Adrian Hammond, pro se, of Columbia, for Appellant.

Dennis Gerald and Milton Gary Kimpson, both of Columbia, for Respondents.

PER CURIAM: Adrian Hammond appeals the trial court's dismissal of his legal malpractice claim against Dennis M. Gerald, Milton Kimpson, and Gerald and Kimpson, LLC (collectively Respondents).  We affirm.

FACTS

In January of 1994, at the age of sixteen, Hammond was indicted for murder and assault.  Approximately one year later, Hammond hired Respondents to pursue a negligence action against Knight-Ridder, Inc. for publishing his name and identity in violation of section 20-7-780 of the South Carolina Code.[1]  Hammond filed suit in January 1997; however, a year later the trial court dismissed the case, finding (1) in State, ex rel., The Times & Democrat, 276 S.C. 26, 274 S.E.2d 910 (1981), the South Carolina Supreme Court found identical language in another statute unconstitutional; (2) in 1993 the Office of the Attorney General opined section 20-7-780 was unconstitutional; and (3) section 20-7-780 was repealed on July 1, 1996.[2]  Shortly thereafter, Respondents informed Hammond no further legal action was available because section 20-7-780 had been repealed. 

On September 28, 2002, Hammond learned Knight-Ridder declined to publish the names of two South Carolina juveniles charged with murder.  Subsequently, Hammond discovered section 20-7-8510(B) of the South Carolina Code contained language substantially similar to section 20-7-780 and felt section 20-7-8510(B) provided him with recourse against Knight-Ridder.[3]  On September 28, 2005, Hammond filed a legal malpractice action, pro se, against Respondents, alleging failure to research other avenues of recovery, investigate the existence of other defendants, and investigate other instances of publication.  However, Hammond failed to serve his summons and complaint on Respondents.  Hammond subsequently filed a purported amended complaint on January 12, 2006.  Hammond served the summons and amended complaint on Gerald on January 20, 2006, and Kimpson on February 9, 2006.[4] 

Respondents moved to dismiss Hammond's action and for summary judgment.  The trial court noted Hammond should have known of his claim in December of 1997 when his case against Knight-Ridder was dismissed, and therefore held Hammond failed to commence his action within the three-year statute of limitations.  The trial court also found Hammond failed to state facts sufficient to constitute a cause of action for legal malpractice noting he failed to show section 20-7-8510(B) provided him a private cause of action.  Ultimately, the trial court granted the motions to dismiss.  This appeal followed.

LAW/ANALYSIS

Hammond alleges Respondents were negligent in failing to bring an action against Knight-Ridder under section 20-7-8510(B).  We disagree.  

In this case, Hammond failed to state facts sufficient to support a cause of action because no evidence supports the proposition that Hammond is of the class of persons section 20-7-8510(B) is designed to protect. See Rayfield v. S.C. Dep't of Corrs., 297 S.C. 95, 103, 374 S.E.2d 910, 914 (Ct. App. 1988) (stating an appellant must demonstrate "(1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect").

Section 20-7-8510(B) provides: "The name, identity, or picture of a child under the jurisdiction of the [family court], . . . must not be provided to or made public by a newspaper or radio or television station except as authorized by order of the [family court]."  In this regard, section 20-7-6605(1) defines a child as "a person less than seventeen years of age" but specifically excludes from such definition "a person sixteen . . . or older who is charged with . . . a felony which provides for a maximum term of imprisonment of fifteen years or more."[5]  Thus, as Hammond was sixteen years of age at the time of his indictment for murder, which carries a mandatory minimum sentence of thirty years' imprisonment, Hammond is not within the class of persons sought to be protected by section 20-7-8510(B).  See S.C. Code Ann. § 16-3-20(A) (Supp. 2008) ("A person who is convicted of or pleads guilty to murder must be punished by death, by imprisonment for life, or by a mandatory minimum term of imprisonment for thirty years").[6]  Therefore, the trial court properly granted Respondents' motion to dismiss.

Accordingly, the ruling of the trial court is

Affirmed.

Short, Thomas, and Konduros, JJ., concur.

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[1]   At the time of publication, section 20-7-780 provided: "The name, identity or picture of any child under the jurisdiction of the [family court], . . . shall not be made public by any newspaper, radio or television station except as authorized by order of the [family court]." 

[2]   Section 20-7-780 was repealed on July 1, 1996, by 1996 Act No. 383, § 2. 

[3]  On July 1, 1996, the same day section 20-7-780 was repealed by 1996 Act No. 383, § 2, section 20-7-8510(B) was enacted by 1996 Act No. 383, § 1, and provided: "The name, identity, or picture of a child under the jurisdiction of the [family court], . . . must not be provided to or made public by a newspaper or radio or television station except as authorized by order of the [family court]."  Section 20-7-8510(B) has been revised by 2000 Act No. 388, § 4, and the above language was deleted.  Section 20-7-8510 is now section 63-19-2020 of the South Carolina Code (Supp. 2008).

[4] The record does not indicate whether Gerald and Kimpson, LLC was served.

[5] This definition is now found at section 63-19-20(1) of the South Carolina Code (Supp. 2008).

[6] As to Hammond's additional allegations that Respondents were negligent in failing to investigate other defendants and other instances of publication, we agree with the trial court that Hammond should have been aware of these claims at the time his original claim was dismissed, and are therefore barred by the statute of limitation.  See S.C. Code Ann. § 15-3-535 (2005) (making the limitations period for a legal malpractice claim begin to run when the person "knew or by the exercise of reasonable diligence should have known that he had a cause of action").  We need not address the remaining issues on appeal. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).