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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He has two children: Constance Erica, age 21 (senior at the University of South Carolina and employed as a page in the Senate during the 1993 Legislative Session); and Benjamin Christian, age 8.

5. Military Service: United States Navy; 1965-1968 (active duty); 1969-1971 (active reserve); attained the rank of Lieutenant; Honorable Discharge; Serial number 699748

6. He attended Coker College in Hartsville, South Carolina, 1959-1960, transferred; Furman University in Greenville, South Carolina, 1960-1963, Bachelors Degree in History; the University of South Carolina School of Law, 1963-1964 (left to teach school one year and perform military service) and 1969-1971, J.D.; and the University of Florida in Gainesville, Florida, 1975-1976, Master of Law Degree in Taxation.

8. Legal/Judicial education during the past five years:

1993 to date 15th Annual Educational Conference on Workers' Compensation; Myrtle Beach, South Carolina; October 27-30, 1993
Restructured State Government and the State of Administrative Law; CLE seminar at USC Law School; August 6, 1993
Administrative Law: Workers' Compensation course; The National Judicial College; Reno, Nevada; March 19-21, 1993
1992 14th Annual Educational Conference on Workers' Compensation; Hilton Head Island, South Carolina; October 18-21, 1992
13th Annual Workers' Compensation Medical Seminar; Charleston, South Carolina; June 12-14, 1992
1991 13th Annual Educational Conference on Workers' Compensation; Myrtle Beach, South Carolina; October 27-30, 1991
12th Annual Workers' Compensation Medical Seminar; Myrtle Beach, South Carolina; April 12, 1991
24th Annual Joint Meeting, South Carolina Defense Trial Attorneys' Association and Claims

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Management Association of South Carolina; Asheville, North Carolina; July 18-20, 1991
1990 12th Annual Educational Conference on Workers' Compensation; Hilton Head Island, South Carolina; October 14-17, 1990
Workers' Compensation in South Carolina; NBI; USC Law School; Columbia, South Carolina; May 4, 1990
Legal Ethics and Professional Responsibility, SC-BAR-CLE; Trident College; Charleston, South Carolina; March 16, 1990
1989 Claims seminar; Chicago Title Insurance Company; Marriott Hotel; Columbia, South Carolina; May 17, 1989
Lender Liability in South Carolina; NBI; Radisson Hotel; Columbia, South Carolina; March 10, 1989
1988 Basic Probate in South Carolina; NBI; Hyatt Hotel; Greenville, South Carolina; May 3, 1988
South Carolina Eminent Domain Procedure; Wampee Plantation; Pinopolis, South Carolina; South Carolina Public Service Authority Seminar with Roy Bates; April 18, 1988
Underwriting Seminar; Chicago Title Insurance Company; Marriott Hotel; Columbia, South Carolina; April 26, 1988
So You Want to be a Workers' Comp. Attorney; SC-BAR-CLE; USC Law School; Columbia, South Carolina; March 11, 1988
1987 Practice Under the New South Carolina Uniform Probate Code; Winthrop College and York Bar Association; Winthrop College; Rock Hill, South Carolina; August 28, 1987
Practical Aspects of the New Probate Code, SC-BAR-CLE; USC Law School; Columbia, South Carolina; April 24, 1987
Current Developments in Estate Planning; SC-BAR-CLE; USC Law School; Columbia, South Carolina; March 13, 1987
1986 Estate Planning Council Seminar; Columbia Estate Planning Council; Columbia, South Carolina; September 19, 1986
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Current Issues in Family Court; SC-BAR-CLE; USC Law School; Columbia, South Carolina; April 25, 1986
Southern Federal Tax Institute; Atlanta, Georgia;
September 29-October 3, 1986
The New Probate Code, SC-BAR-CLE; USC Law School; Columbia, South Carolina; September 5, 1986
Estate Planning & Probate in South Carolina-Beyond the Basics; NBI; Best Western Motel; Columbia, South Carolina;
December 6, 1986

9. Taught or Lectured: He has spoken or participated in panel discussions at the following:
(a) 15th Annual Educational Conference on Workers' Compensation; Myrtle Beach, South Carolina; October 28, 1993
(b) 24th Annual Joint Meeting; South Carolina Defense Trial Attorneys' Association and Claims Management Association of South Carolina; Asheville, North Carolina; July 19, 1991
(c) 13th Annual Educational Conference on Workers' Compensation; Myrtle Beach, South Carolina; October 28, 1991

12. Legal experience since graduation from law school:

April, 1971 - August, 1971: Adjudication Officer; Veterans Administration; Assembly Street; Columbia, South Carolina. In this job he reviewed requests from veterans and/or their dependents for various VA benefits, reviewed the various laws and regulations applicable thereto, and authorized such where allowable and appropriate.
August, 1971 - February, 1973: During this period, he practiced with the law firm of Dennis and Dennis in Moncks Corner, South Carolina. His practice was general in nature with emphasis on real estate, family, tort and criminal law.
February, 1973 - August, 1975: He served as a Trust Officer with the South Carolina National Bank during this period, first as a "new business development officer" in Columbia, South Carolina and later in the same position in Charleston, South Carolina.

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August, 1975 - June, 1976: He attended the University of Florida School of Law taxation program this year, obtaining his graduate degree in taxation.
June, 1976 - November, 1976: The law firm of Stuckey and Wise in Charleston, South Carolina offered him a position upon graduation from tax school. He stayed with them for this short period before returning to the corporate trust department of South Carolina National Bank in Columbia, South Carolina.
November, 1976 - August, 1977: As an officer in the corporate trust offices of South Carolina National Bank, he analyzed their new business development statewide, assisting the officers in the field.
August, 1977 - September 30, 1990: The late Eugene C. Griffith and he practiced together in Newberry, South Carolina, the first few years in association with several attorneys in their Columbia, South Carolina office (2512 Devine Street), under the name of Griffith, Mays, Foster and Kittrell. Subsequently, they separated the offices into two firms and they practiced under the firm name of Griffith & Kittrell until his closure of the office on September 30, 1990 (Gene having passed suddenly on April 20, 1990, and Mr. Kittrell having taken a position as a Commissioner on the Workers' Compensation Commission). Gene Griffith primarily handled the appellate and federal practice, and he concentrated more in estate planning, real estate, family and business law.

13. Rating in Martindale-Hubbell:BV

14. Frequency of appearances in court:
Federal - Social Security Administrative Law Judge (3-4 times annually [estimated])
State - Family Courts (40 times); Probate Court (4-5 times); Common Pleas (3 times)
Other - General Sessions (occasionally for a plea)

15. Percentage of litigation:
Civil - 35%
Criminal - 5%
Domestic - 60%

16. Percentage of cases in trial courts:
Jury - 2-3%
Non-jury - remainder

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sole

17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) Charles Kyzer v. Lisa Turner Kyzer, 89-DR-36-435, Newberry Family Court. This case involved an action for divorce, alimony, equitable division, child support and child custody. The issues were tried two full days on May 8, 1990 and June 13, 1990. Primary issues litigated were divorce on the ground of adultery against the Defendant and child custody from Judge Frank Rogers.
(b) Ronnie Amick v. Ann Amick, 90-DR-36-57, Newberry County, Family Court. This domestic case involved requests for divorce, child custody and support. It was heard before The Honorable John Rucker in Newberry County on August 24, 1990. The primary issue for consideration for adjudication was custody of two little children. Although the guardian ad litem (local attorney) recommended custody with the mother, the trial judge believed the contentions and argument of the plaintiff/father, granting him full custody of the children.
(c) Martha Sease, Individually and as Trustee of the Estate of J. Ellerbee Sease, deceased, David Sease and Emmie Q. Sease v. Phillip T. Wilson, Nan O. Cain, B. Allan Oxner, M. Allan Oxner and Olin B. Cannon, Jr., 86-CP-36-234, Newberry County Court of Common Pleas. This non-jury case, tried before The Honorable James E. Moore on January 29, 1988, involved the usage of a road and whether it was a public or private road. His clients contended it was a public or neighborhood road. The defendants contended it was a private road and that plaintiffs had no right to use it without their consent. Plaintiffs had leased their properties to hunters and alleged lost income and sought damages, the hunters being denied the use of the road by the defendants. The court found the road not to be a public road, but continued usage to the plaintiffs, their heirs and assigns, for personal use and for logging purposes. In that plaintiffs testified to no loss of income, no damages were allowed.
(d) Yahya Abassi Eleaderani v. William H. White, Mary Frances R. White, Robert E. Summer, David B. Summer, Jr., Kenneth W. Riebe and Summer Real Estate, 79-CP

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-36-201, Newberry County Court of Common Pleas. Plaintiff entered into a contract with the defendants, William H. White and Mary Frances White, to purchase their restaurant. The other defendants, as principals of Summer Real Estate, handled the real estate deal and were his clients. As part of the contract, the sellers were to install a new heating and air conditioning system and drop ceiling by closing. When such was not completed at closing date, plaintiff sued for breach of contract, non-performance of contract, return of earnest money, damages and rescission of contract, alleging "time of the essence." Sellers and his client counterclaimed, alleging specific performance, that the sellers had substantially complied with the terms of the contract, and further that the purchaser had interfered with the completion of the improvements. It was declared a mistrial; however, Judge Francis Nicholson listened to post-trial motions and granted a directed verdict for the plaintiff, allowed rescission of the contract and granted $10,000.00 damages to the plaintiff.
(d) Sandra C. Tipton, Petitioner v. Sherry Harmon, Respondent, 85ES18-00056, Probate Court for Dorchester County. This non-jury case was brought by the petitioner, claiming to be the common-law wife of the deceased. The respondent, answered, both individually and as a beneficiary/daughter of the deceased and as the Personal Representative of her father's estate. In this case which took two days to try, Gene Dukes, co-counsel and he, as attorneys for the estate were able to show to the court's satisfaction there was no marriage, no "holding out as husband and wife" by the deceased, and used the Dead Man's Statute to prevent the petitioner from testifying as to any conversations and relationship she had with the deceased in that she was a party in interest and stood to gain from such.

18. Five (5) civil appeals:

None

20. Judicial Office:
From November 16, 1990, to date he has served as a Commissioner with the South Carolina Workers' Compensation Commission, having statewide jurisdiction. This is a quasi-judicial position, appointed by

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the Governor, by and with the advice and consent of the Senate. On the average he hears and issues decisions on 50 to 75 cases monthly, each involving different factual and interesting legal issues.

Jurisdiction is limited to injuries occurring on the job and benefits allocable thereto under our decisional and statutory law.

Also, he serves as an Informal Hearing Officer on 30 to 70 cases monthly (whenever his schedule will allow), negotiating settlement between injured workers and insurance carriers. One week a month he sits with his other six fellow commissioners at the commission office in Columbia as an en banc appellate panel, hearing appeals from the single commissioner level. They handle approximately 50 to 70 monthly for which orders must be issued, also.

21 Five (5) Significant Orders or Opinions:
(a) David Wilson, Jr., Employee/Claimant v. Georgetown County, Employee, and State Workers' Compensation Fund, Carrier, defendants, W.C.C. File #9037551, decided November 5, 1991. The employee, when called by Georgetown County for jury duty, refused to serve due to religious convictions and was allowed by the circuit court as an alternative to perform work as directed by the clerk of court. While cleaning windows outside the courthouse on a ladder, he fell injuring his back. claimant alleged he was an employee at the time, performing services for the defendant, being under the control of the clerk. He was found to be a dual employee of Georgetown County and Georgetown Steel, his other employee. The case is on appeal to the S. C. Supreme Court.
(b) Charles L. Pulliam, Employee/Claimant v. Carter and Crawley, Inc., Employer, and Pacific Indemnity Company, Insurer, Defendants, W.C.C. File #9100490, decided January 10, 1992. Claimant was hired in South Carolina and sent by his employer to perform labor at a jobsite in Mississippi. Although he had finished his regular work on a Friday, the next morning claimant drove from his motel, stopping at a restaurant for breakfast, toward the worksite. While on the way he wrecked his auto while avoiding a deer that ran in the roadway. His purpose for travelling to the jobsite was to assist the employer in loading

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equipment so it could be transported back to South Carolina. Such activity, argued the claimant, invoked the "special errand" doctrine to establish his claim that he was acting within the course and scope of his employment when the accident occurred. The case was found compensable.
(c) Richard Lee Cato, Employee/Claimant v. T. W. Owens & Sons Trucking, Inc., Liberty Mutual Insurance Company, Carrier, defendants, W.C.C. File #9307697, decided August 19, 1993. Claimant, a trucker, lived in Greenville, S.C.; however, corporate headquarters of the defendant/employer was in Georgia. The issue was whether South Carolina had jurisdiction, claimant alleging it does under the provisions of South Carolina Code Section 42-15-10, such section permitting an employee to bring a claim in (1) the state where hired, (2) the state where injured, or (3) the state where his employment is located. Since the claimant was injured in Georgia, testimony revolved around the other two criteria. It was found that his "base of operation" or place of employment was Greenville, S.C.
(d) Thurmond Glover, employee v. Suitt Construction Co., employer and The Aetna Casualty & Surety Co., Carrier/Defendants, W.C.C. #8756114, decided January 10, 1993. This case involved brain damage suffered by the claimant in a closed head injury from a fall off a 12- foot ladder. Claimant was awarded lifetime benefits under Section 42- 9-10 of the 1976 Code of Laws, as amended, by Commissioner Thomas Marchant. Claimant sought before him a lump sum payment of his lifetime award and lump sum award of attorneys fees based on his life expectancy computed pursuant to the mortality Tables contained in S.C. Code Ann. Section 19-1-150 to establish present day value. Defendants alleged lump sum awards were not allowed in brain damage cases pursuant to Section 42-9-10. The request for partial lump sum attorneys fees was granted. The case is on appeal to the S.C. Supreme Court.
(e) James C. McCreery, Employee/Claimant v. Covenant Presbyterian Church, Employer, and Auto-Owners Insurance Co., Carrier/Defendants, W.C.C. #8560936, decided March 6, 1992. The issues in this case were tried before him on two separate days in Georgetown County. It had previously been to the S.C. Supreme Court where it was
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determined that a Form 15 filed with the Commission is a perfunctory award/order, the parties being bound by all provision therein (excepting average weekly wage amount). The issues before him were whether the claimant had reached maximum medical healing, was entitled to any permanent disability award together with the issues of penalties, fines and interest. An order of Judge Hubert Long from Lexington, S.C. had to be interpreted by him in order to make his decision. Claimant was found to have permanent disability to both his lower extremities which supported an award for loss of earning capacity under S.C. Code Ann. Section 42-9-20. Extensive fines and penalties were also assessed against the defendants.

23. Employment As a Judge Other Than Elected Judicial Office:
See Question #12 above

25. Occupation, business or profession other than the practice of law:
For several years during the 1980's, he built several single family residences in the corporate names of ERBEN, Inc. and Loblolly, Inc., all under his Residential Home Builder's license number 005556.

32. Sued:
Six cases (82-CP-36-008; 84-CP-76-140; 85-CP-36-208; 86-CP-36-218; 87-CP-36- 201; and 89-CP-36-214), filed by the first mortgage holder in foreclosure actions against the owner of the real property, listed Marvin F. Kittrell as a party defendant in that he held a secured second mortgage on the same real property.

He has never been sued professionally (as an attorney), but has been listed as a co-defendant in his fiduciary status as a Guardian ad Litem (79-CP-76-1180), escrow agent (85-CP-36-80) and trustee (87-CP-36-36). All three of the latter were friendly actions as to him.

40. Expenditures Relating to Candidacy:
$150.00 for personal stationery, calling cards and postage
$29.00 for postage

46. Civic, charitable, educational, social and fraternal organizations:

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Rotary Club, Newberry, South Carolina (President, 1979-1980); Southern Association of Workers Compensation Administrators

48. Five (5) letters of recommendation:
(a) E. Monte Bowers, Executive Vice-President
Midlands National Bank
P. O. Box 335, Newberry, SC 29108
364-7300
(b) J. Louis Grant, CPA
Robinson Grant & Co., P.A.
P. O. Drawer 6148, Hilton Head Island, SC 29938-6148
785-8476
(c) Terry L. Kunkle, D.M.D.
Kunkle & Myers
119 Library Street, Moncks Corner, SC 29461
761-8065
(d) H. Mills Gallivan, Esquire
Gibbes & Clarkson, P.A.
P. O. Box 10589, Greenville, SC 29603
271-9580
(e) Richard J. Foster, Esquire
Foster & Sullivan
P. O. Box 2146, Greenville, SC 29602
232-5662

The Board of Commissioners on Grievances and Discipline reports that no formal complaints have ever been filed against you. The records of the applicable law enforcement agencies, that being the Lexington County Sheriff's Office, the Cayce City Police Department, SLED and FBI records, they're all negative. Judgement Rolls of Lexington County are negative. Federal Court records are negative. No complaints were received. No witnesses are present to testify against you.

At this time, I'll give you the opportunity that we've given the other candidates to make a short opening statement. If you chose not to do so, then we'll lead into some questioning by Mr. Elliott.
MR. KITTRELL: I really don't have an opening statement. I think my background is fairly clear based upon the information that I furnished to you generally.
THE CHAIRMAN: Okay. Mr. Elliott.

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