The State v. Brandt
| Decision Date | 25 July 2011 |
| Docket Number | No. 27014.,27014. |
| Citation | 713 S.E.2d 591,393 S.C. 526 |
| Parties | The STATE, Respondent,v.Donald M. BRANDT, Appellant. |
| Court | South Carolina Supreme Court |
OPINION TEXT STARTS HERE
James M. Griffin and Margaret N. Fox, both of Columbia, for Appellant.Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Mark R. Farthing, all of Columbia, for Respondent.Daniel A. Speights, C. Alan Runyan and A. Gibson Solomons, all of Speights & Runyan, of Hampton, for Amicus Curiae Elizabeth K. Gooding.Justice BEATTY.
After Donald M. Brandt produced a fraudulent document in a civil proceeding, a circuit court held Brandt in civil and criminal contempt. In turn, the court dismissed Brandt's legal malpractice action with prejudice and ordered him to serve six months in jail and pay the defendants' attorneys' fees and costs in the amount of $883,621.93.
Subsequently, based on the fraudulent document, the State indicted Brandt for forgery in an amount greater than $5,000.1 After a jury found Brandt guilty of the indicted offense, the trial judge sentenced Brandt to ten years' imprisonment, suspended upon the service of four years, followed by five years' probation and payment of restitution in the amount of $883, 621.93. Brandt appeals his forgery conviction and sentence. We affirm in part, reverse in part, and remand.
In 1998, Brandt sued Elizabeth K. Gooding and her law firm Gooding & Gooding, P.A. (collectively “Gooding”) for legal malpractice based on Gooding's representation of him in a real estate transaction. During the course of discovery, Brandt presented to his attorney a document (the “Edisto Farm letter”), which appeared to have been sent by Ronald L. Summers, the Senior Vice President of Edisto Farm Credit (the lender in the transaction) to Brandt on September 18, 1995. Brandt also provided the letter to his malpractice expert. The letter was then introduced in the expert's deposition and used by him to opine that Gooding had committed malpractice.
The document, if authentic, would have imputed knowledge to Gooding of a conflict of interest related to the representation of Brandt in the real estate transaction. Gooding, however, claimed the document was fraudulent. As a result, Gooding requested a hearing to determine whether the document was authentic. Additionally, Gooding requested the court hold Brandt in contempt and award costs if such authenticity could not be established. Circuit Court Judge Diane Goodstein delayed a contempt hearing until it could be determined whether the document was authentic.2
In subsequent motions before Circuit Court Judge Paul M. Burch, Gooding moved for summary judgment, dismissal of the legal malpractice action, and contempt. At the hearing on these motions,3 Gooding presented an expert in document examination and authenticity who opined that the letter was fraudulent.
At the conclusion of the hearing, Judge Burch found Brandt in contempt for committing fraud on the court. As a result, he dismissed Brandt's Complaint as a sanction and granted summary judgment in favor of Gooding. Judge Burch also held Brandt in criminal contempt for perpetrating a fraud upon the court and sentenced him to six months' imprisonment.
Approximately one month later, Judge Burch held a hearing regarding additional sanctions against Brandt. By order dated January 9, 2002, Judge Burch memorialized his earlier oral ruling regarding contempt and the concomitant sanctions.
On appeal, this Court affirmed Judge Burch's grant of summary judgment to Gooding and his findings of civil and criminal contempt. Brandt v. Gooding, 368 S.C. 618, 629, 630 S.E.2d 259, 264 (2006).
Following the issuance of this Court's opinion, Judge Burch held a hearing to establish the amount of attorneys' fees and costs that should be awarded under the prior contempt order of January 9, 2002. On August 13, 2007, he entered an order that required Brandt to pay $255,353.44 to Gooding & Gooding, P.A. and $628,268.49 to Elizabeth K. Gooding.
On appeal, this Court reversed Judge Burch's award to Gooding on the ground there was no competent evidence to support the finding that Gooding incurred any attorneys' fees and costs. Brandt v. Gooding, Op. No.2010–MO–010 (Sup.Ct. filed Apr. 12, 2010). As to Gooding & Gooding's award, this Court modified the award holding that the law firm was only entitled to “those fees and costs incurred by Respondent law firm from the date Brandt introduced the fraudulent letter (April 4, 2001) to the date the trial court denied Brandt's motion for reconsideration (May 16, 2002)[and] were directly related to Brandt's introduction of the letter.” Brandt, slip op. at 2. As a result, we modified the circuit court's order so as to award $80,547.89, plus applicable interest accrued to Gooding & Gooding. Id.
During the pendency of the above-outlined proceedings, a Charleston County grand jury indicted Brandt for forgery in an amount greater than $5,000 based on the September 18, 1995 Edisto Farm letter.
In the course of Brandt's jury trial, which was conducted by Circuit Court Judge Roger M. Young, the State presented testimony regarding the underlying real estate transaction, the legal malpractice action, and the authenticity of the Edisto Farm letter.
In terms of the real estate transaction, Gooding testified she performed the closing for an Aiken real estate transaction involving Brandt and the Lombard Corporation, whose partners included Don Houck and Johnny Godley. The actual closing took place on December 14, 1995. According to Gooding, she learned of Brandt's involvement only a few weeks before the closing. Gooding acknowledged that Brandt had filed a legal malpractice claim against her primarily on the ground that Gooding had failed to properly protect his interest in the land deal. Gooding disputed Brandt's claim on the basis that she had not been aware that Brandt was a party to the transaction until shortly before the December 1995 closing date. When presented with the September 18, 1995 Edisto Farm letter,4 Gooding claimed she had not been hired by Brandt by the date of the letter, nor was it her job to secure financing from Edisto Farm Credit. Had the letter been true, Gooding testified that “[i]t would have established my connection with Mr. Brandt in this matter and this transaction almost three months before I had any knowledge of him being involved.” She further testified the letter contradicted the sworn testimony she had given in a deposition regarding the legal malpractice case.
Lawrence Richter, Jr., Brandt's attorney who filed the legal malpractice action, testified Brandt came to him alleging that Gooding had
Because one of the key issues in dispute concerned Gooding's knowledge of when Brandt became involved in the land transaction, Richter deposed Gooding, Brandt, and Summers. Richter also retained Professor John Freeman as an expert witness to support Brandt's claim of Gooding's malpractice.
Richter testified that on December 27, 2000, he and his law partner met with Brandt and Freeman regarding the case. During the meeting, Brandt produced a faxed copy of a letter he claimed to have just discovered in his home. The letter was dated September 18, 1995, was on Edisto Farm Credit letterhead, and was purportedly signed by Summers. Subsequently, the letter was introduced into the case for the first time during Freeman's deposition in April 2001. When Gooding's counsel questioned the authenticity of the letter, Richter believed it was necessary to retain a professional examiner to authenticate the document. Brandt, however, directed Richter not to have the document examined.
Richter acknowledged the letter significantly impacted the case against Gooding in that the date of the letter “together with the statements in the letter, would have supported Mr. Brandt's version of the facts that Ms. Gooding knew very early on of his involvement in the real estate transaction in issue, and it would have been a statement to that effect by somebody else other than Mr. Brandt.” Assuming the letter to be accurate and true, Richter believed it would have substantially increased the value of Brandt's case, “far more than $5,000.”
In April 2001, Marvin Dawson, a private document examiner, analyzed the letter produced by Brandt and concluded the signature on the letter was not genuine. Dawson further determined that the letter was not produced on the computer or typewriter used by the secretary at Edisto Farm Credit, was not sent from the fax machine at Edisto Farm Credit, did not have a watermark like other Edisto Farm Credit paper, and had microscopic security dots, which represented technology that post-dated the letter.
After Dawson's review, the letter was sent to the United States Secret Service for further analysis. Susan Fortunato, a document analyst for the Secret Service, analyzed the Edisto Farm letter. During her examination of the letter, Fortunato discovered a serial number in a pattern of yellow dots. Based on these dots, Fortunato determined that the letter had been produced on December 10, 2000 around 3:00 p.m. using a Xerox machine with the serial # 043391 located at a Kinko's copy shop in Augusta, Georgia. Fortunato also learned that the copy machine was not installed in the Kinko's shop until January 6, 2000. Because the pattern of yellow dots did not exist until 2000, Fortunato definitively testified that the document “didn't exist until the year 2000.”
In addition to the testimony of the document examiners, the State presented the testimony of Summers and Dell Murdaugh, the administrative loan assistant...
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