Steven M. Okun v. Pobuckra Properties LLC

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

Steven Michael Okun, as Personal Representative of the
Estate of Jane Luanne Okun, Respondent,

v.

Pobuckra Properties, LLC, and Alliance Commercial
Property Management, Inc., Appellants.

Appellate Case No. 2023-000063

Appeal From Georgetown County
William H. Seals, Jr., Circuit Court Judge

Unpublished Opinion No. 2025-UP-117
Submitted March 1, 2025 – Filed April 2, 2025

AFFIRMED

M. Dawes Cooke, Jr., of Barnwell Whaley Patterson &
Helms, LLC, and Diane Summers Clarke, II, of
Luzuriaga Mims, LLP, both of Charleston; and Colleen
P. Sorensen and Agelo L. Reppas, both of BatesCarey
LLP, of Chicago, Illinois, all for Appellants.

Gene McCain Connell, Jr., of Kelaher Connell &
Connor, PC, of Surfside Beach, for Respondent.
PER CURIAM: Pobuckra Properties, LLC, and Alliance Commercial Property
Management, Inc. (collectively, "Appellants") appeal a circuit court order granting
Steven M. Okun's motion to strike Appellants' answers and affirmative defenses
after Appellants lost possession of a handrail they were instructed to "not take any
further action to replace, repair or alter" and to allow Okun to "view, inspect,
examine and/or to perform an agreed upon scope of testing" pursuant to a prior
circuit court consent order. Appellants argue the circuit court abused its discretion
when it granted the motion because Okun did not show Appellants had acted with
bad faith, willful disobedience, or gross indifference to his rights; Okun did not
suffer prejudice from the loss of evidence; and the circuit court's remedy was not
narrowly tailored to rectify the loss of evidence. We affirm pursuant to Rule
220(b), SCACR.
We hold the circuit court did not abuse its discretion when it granted Okun's
motion to strike Appellants' answers and affirmative defenses because there was
evidence in the record to support a finding that Appellants had acted in bad faith.
Specifically, at the hearing on the motion to strike, Appellants explained the
right-side handrail had been discarded in the "springtime," but Okun only learned
in September 2022, several months after it had been discarded, that the right-side
handrail was no longer in Appellants' possession. Further, because the right-side
handrail was the subject of the consent order and Appellants knew it was no longer
in their possession, Appellants' failure to notify Okun that it had been discarded
was done in bad faith. See Griffin Grading & Clearing, Inc. v. Tire Serv. Equip.
Mfg. Co., 334 S.C. 193, 198, 511 S.E.2d 716, 718 (Ct. App. 1999) ("The selection
of a sanction for discovery violations is within the trial court's discretion."); id.
("This court will not interfere with that decision unless the trial court abused its
discretion."); id. ("An abuse of discretion may be found where the appellant shows
that the conclusion reached by the trial court was without reasonable factual
support and resulted in prejudice to the rights of appellant, thereby amounting to an
error of law."); id. at 198-99, 511 S.E.2d at 719 ("Where the sanction would be
tantamount to granting a judgment by default, the moving party must show bad
faith, willful disobedience or gross indifference to its rights to justify the
sanction."); Orlando v. Boyd, 320 S.C. 509, 511, 466 S.E.2d 353, 355 (1996) ("A
sanction of dismissal is too severe if there is no evidence of any intentional
misconduct."); Portrait Homes - S.C., LLC v. Pennsylvania Nat'l Mut. Cas. Ins.
Co., 442 S.C. 515, 573, 900 S.E.2d 245, 276-77 (Ct. App. 2023) (finding multiple
instances of bad faith in the record to support the trial court's finding of bad faith,
including Penn National "not informing Castillo of all of the pertinent information
known to it about the claim").
Additionally, we hold there is evidence to support Okun was prejudiced by the loss
of the handrail because although the left-side handrail remained available to Okun
for inspection, it was constructed from two pieces of wood whereas the right-side
handrail was constructed from one piece of wood. Further, the right-side handrail
was the handrail that was allegedly not properly attached to the structure and that
"gave way." See Griffin Grading & Clearing, Inc., 334 S.C. at 199, 511 S.E.2d at
719 ("In determining the appropriateness of a sanction, the court should consider
such factors as the precise nature of the discovery and the discovery posture of the
case, willfulness, and degree of prejudice."). Finally, because the handrail is gone
and there is no opportunity for Okun to inspect or use the right-side handrail in
support of his causes of action for negligence, wrongful death, and survival, we
hold there is evidence to support the sanction was narrowly tailored. See id. at
198, 511 S.E.2d at 718 ("The selection of a sanction for discovery violations is
within the trial court's discretion."); Karppi v. Greenville Terrazzo Co., 327 S.C.
538, 543, 489 S.E.2d 679, 682 (Ct. App. 1997) ("The sanction imposed should be
reasonable, and the court should not go beyond the necessities of the situation to
foreclose a decision on the merits of a case."); id. ("The sanction should be aimed
at the specific misconduct of the party sanctioned."); id. ("[W]hatever sanction is
imposed should serve to protect the rights of discovery provided by the Rules of
Civil Procedure.").
AFFIRMED. 1

WILLIAMS, C.J., and GEATHERS and TURNER, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.