A lawyer-turned-ophthalmologist who has become a regular fixture in South Carolina’s appellate courts will not be able to bring a malpractice claim against her former attorneys, the state’s Supreme Court ruled June 4. In the same ruling the court also upheld an award of sanctions against the plaintiff, Cynthia Holmes.

The case dates to 1999, when Holmes filed the first of four lawsuits against her former employer, East Cooper Community Hospital, after Holmes lost her privileges to admit patients and perform procedures there. As previously reported by Lawyers Weekly, the Supreme Court disposed of the last of those suits on March 26, upholding an award of sanctions against Holmes personally under the state’s Frivolous Civil Proceedings Sanctions Act.

Holmes had also sued Haynsworth Sinkler Boyd and two of its attorneys — Manton Grier and James Becker — for malpractice over the way they handled her first unsuccessful suit, in which she accused East Cooper of federal antitrust violations. The Supreme Court upheld a circuit court’s dismissal of the suits, finding that the circuit court properly dismissed the suit against the firm because Holmes lacked the relevant expertise to testify as an expert witness in her own case, and that the statute of limitations had lapsed for her suit against Grier and Becker.

A lawyer, but not an expert

Holmes is a licensed South Carolina attorney, subsequently suspended, but has not practiced law in over 30 years and has never represented a client other than herself. Nonetheless, Holmes tendered herself to the circuit court as an expert on the relevant standard for legal malpractice, arguing that she was qualified as an expert by the mere fact of her being a licensed attorney. The circuit court had disqualified Holmes as an expert, and the Supreme Court held that it was within its discretion to do so. (Holmes did not offer any other expert opinion to bolster her case.)

“Regardless of her status as a licensed attorney, Appellant was required to demonstrate to the circuit court’s satisfaction that she had the requisite training, experience, and education to testify as an expert witness in this case. Although Appellant is a licensed attorney, we agree Appellant was unqualified to testify as an expert regarding the applicable standard of care for attorneys handling a federal antitrust lawsuit due to the mere fact that she is licensed to practice law,” Chief Justice Jean Hoefer Toal wrote for the court.

Holmes had also argued that Haynsworth Sinkler Boyd’s own expert witness had conceded that the firm committed malpractice. The Supreme Court rejected that argument, saying that Holmes had taken out of context the witness’ answer to a hypothetical question posed by Holmes on cross-examination that was not based on the facts of the case.

It tolls not for thee

The Court also found that the statute of limitations for bringing a malpractice suit had passed. Holmes first filed a pro se motion in federal court, which included complaints about the way her attorneys were handling the case, in January 2000. After Holmes and Haynsworth Sinkler Boyd were unable to resolve a fee dispute, Holmes filed her malpractice claim against the firm in April 2002 — but didn’t serve process on the firm or its attorneys until April 2003.

South Carolina has a three-year statute of limitations for legal malpractice suits. The Supreme Court agreed with the circuit court that the statute began running at the time she filed her pro se complaint. Holmes, an attorney, clearly should have known, and in fact did know, she had a potential claim against her attorneys at that time, the court said. Holmes argued that the circuit court should have tolled the statute of limitations after Becker and Grier appeared in court to respond to her complaint and participate in motions to dismiss for lack of jurisdiction and transfer venue, an argument the court rejected.

“We have never tolled the statute of limitations by the date on which a party subjects himself to the personal jurisdiction of the court, and we decline to do so here,” Toal wrote.

Persistent plaintiff pays price

The circuit court also ruled that Holmes’ lawsuit was frivolous and ordered her to pay sanctions to the defendants, stating that “the entire tenor of [Appellant's] case appears to be her belief that she is right and her former lawyers and 4 other courts are all wrong.” (Emphasis in the original.) The Supreme Court, noting that Holmes lodged “frivolous and dilatory appeals,” and moved for reconsideration after nearly every ruling made by the circuit court, held that “without a doubt,” the circuit court did not abuse its discretion.

As one example, the circuit court had to order Holmes, who had been attempting to proceed under a “J. Doe” pseudonym, to proceed under her real name.

The sanctions were not the only negative outcome of the case for Holmes. While the court was hearing oral arguments for the case in October 2012, it noted that Holmes was not properly registered with the state’s Attorney Information System, and instructed Holmes to provide the state with a working email account. Holmes refused to comply with that directive, and the court suspended her license to practice law in October 2013.

Richard Dukes and R. Hawthorne Barrett of Turner, Padget, Graham & Laney, in Charleston and Columbia, respectively, represented Haynsworth Sinkler Boyd, and Grier and Becker. Chalmers Carey Johnson of Tacoma, Washington represented Holmes.

The 23-page decision is Holmes v. Haynsworth, Sinkler & Boyd, P.A. (Lawyers Weekly No. 010-054-14). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan

A York County father will not be on the hook for $5,000 in attorneys’ fees after the South Carolina Court of Appeals overturned the circuit court’s award on June 4. Attorneys for the father called the decision a significant precedent for divorce cases.

“This case I think is probably going to end up being a well-cited case in the future because this case essentially says that attorneys seeking awards of attorneys’ fees are going to have to clearly establish the need for attorneys’ fees and the beneficial result. I think it stands for the proposition that attorneys are going to have to do a little better job proving their attorneys’ fees,” said Thomas McDow, one of the father’s attorneys.

Wendell and Desiree Brown divorced in 2009. The divorced decree awarded custody of their two minor children to Desiree and provided that Wendell would pay child support. For a time, Wendell fell behind on his payments, but got up to date prior to a final hearing, at which time his monthly child support payment was significantly reduced.

The family court also ordered Wendell to pay an additional $5,000 of Desiree’s attorneys’ fees. While the family court acknowledged that Wendell was more successful in the action, it said the dispute “was a relatively simple case which was drawn out of proportion by Father.” Wendell appealed the award of attorneys’ fees, and the Court of Appeals overturned, finding that the lower court had committed an error by making the award.

The appeals court said that when deciding whether to award attorneys’ fees, the family court should consider the four factors laid out in E.D.M. v. T.A.M., a 1992 ruling by the state Supreme Court: a party’s ability to pay his or her own attorneys’ fee, the beneficial results obtained by the attorney, the parties’ respective financial conditions, and the effect of the attorneys’ fees on each party’s standard of living.

The appeals court said that those factors couldn’t support awarding Desiree attorneys’ fees. Three of the factors were basically neutral since the Browns were similarly situated in their financial conditions, ability to pay their attorneys’ fees, and the fees’ impact on their standards of living. The fourth factor actually weighed in favor of Wendell since the family court found he was more successful in the litigation. The primary issue in family court was the amount of his child support obligation, and he attained a beneficial result on that issue by successfully petitioning for a reduction of it.

Desiree argued that attorneys’ fees were properly awarded because of Wendell’s failure to cooperate in the litigation. The appeals court noted that that a party’s lack of cooperation is a sufficient basis to assess attorneys’ fees, but found no evidence that Wendell’s failure to timely pay child support prolonged the proceedings. McDow said that his client’s efforts were not unusual in any way, and that he had not engaged in the sort of obstinate behavior that had been the basis for attorneys’ fees in previous cases.

McDow and Erin Urquhart of the Law Office of Thomas F. McDow in Rock Hill represented Wendell Brown. David Shea of the Law Offices of Shea and Barron in Columbia represented Desiree Brown. Shea did not respond to a call seeking comment.

A second appeal related to a separate award of attorneys’ fees remains outstanding.

The six-page decision is Brown v. Brown (Lawyers Weekly No. 011-066-14). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan

Turner Padget Graham & Laney announced that Marshall Tinsley has joined the firm’s business transactions practice group in its Columbia office.

Nickels

Johnny Warren and Cameron Stoll joined the Charleston office of Womble Carlyle Sandridge & Rice. Warren and Stoll will represent clients in general corporate matters, mergers and acquisitions, commercial real estate transactions and banking law.

Tinsley

The Law Offices of David Aylor in Charleston announced that Jerod Frazier has joined the firm. Frazier attended the Charleston School of Law, where he served as president of the Black Law Students Association.

Attorney Chris Nickels of the Charleston office of Clawson and Staubes was one of 50 participants selected for Leadership South Carolina. Participants study the state’s most pressing issues.

Cook

C. Edward Rawl Jr., an associate at the Columbia office of Fisher & Phillips, has been appointed to serve as the national Member Service Project Coordinator in the Young Lawyers Division of the American Bar Association.

Turner Padget Graham & Laney announced that Matthew R. Cook has recently been approved by the South Carolina Board of Arbitrator and Mediator Certification as a Certified ADR Mediator.

Rawl

Follow Laurie Landsittel on Twitter @NCLWLandsittel #lawyersonthemove. Send items for Lawyers on the Move to laurie.landsittel@nclawyersweekly.com.

Back in the 1990s a group of bar leaders in Greenville County started talking about a place where low-income litigants could mediate their disputes without having to pay high-priced private mediators.

The group’s discussions resulted in the Upstate Mediation Center, a not-for-profit organization that over the last 15 years has altered the legal landscape in Greenville and beyond by encouraging the creation of similar centers in Charleston and Columbia.

On any given day, volunteer mediators and licensed therapists and counselors at the center are serving as referees in virtually every imaginable type of small-dollar civil and family case, from divorces and squabbles over barking dogs to rifts between church members.

Last year, the center mediated 400 family disputes. This year it has handled more than 250, putting it on course to break its record of 500, said Richard Kahn, who went from volunteering as a mediator at the center to being its part-time executive director.

The center was founded in response to a state Supreme Court administrative order requiring litigants in Greenville and a handful of other pilot counties to mediate disputes on the Family Court and Common Plea’s docket before going to trial.

The founders had worried that mandatory mediation would price lower-income residents out of the courts. Private mediators in the Greenville area typically charge about $200 an hour.

“A lot of us realized that these poor people needed to go somewhere,” said Kirby Mitchell, senior litigation attorney at South Carolina Legal Services in Greenville, where the center was housed during its infancy. It now operates out of an office building a few minutes outside downtown Greenville.

Three-hour family law mediation sessions at the center cost $150 per party. A non-family civil session runs $250. The center takes $50 off the fee for people who make less than $12,000 a year, but its services are available to anyone – even the well-to-do.

“We do get a percentage of people who have significant assets: homes, IRAs, 401Ks, boats,” said Mitchell. “They’re paying to try it out and they often come back several times. That’s not what we do, but that’s what helps pay the bills.”

Some local lawyers weren’t thrilled about having a new, budget-friendly competitor in town when the center first opened, according to Mitchell and Kahn. While most of the opponents have come around, a few still aren’t big fans of the place, said Amos Workman, one of the center’s founders. He is a mediator and family law attorney at the Wyche law firm in Greenville.

“There has always been some sense of competition among some of the lawyers,” he said, adding that “lawyers were a little bit skeptical about using it at first but now it’s kind of the default place to have mediation. I think it has become more accepted.”

Kimberly Dunham, a family law attorney in Greenville, said she and the majority of her colleagues often take clients to the center for affordable, effective mediation with experienced mediators, many of whom are retired judges or private trial lawyers.

“Generally,” Dunham said, “these clients are going to be folks with not a lot of money to go around. For them to put out $400 to $500 each for mediation, they’re just not going to do it. So we use Upstate Mediation.”

The center, combined with court-ordered mediation, has “completely decimated the civil jury trial docket,” according to Mitchell.

“Last year we had something like 30 trials. Before mediation was mandatory it was easily four, five or six times that,” he added. “It’s been a radical change that kind of quietly happened. It’s really a quiet success story.”

Exceeding expectations

Thirty of the state’s 46 counties now have mandatory mediation, which has been expanded to apply to probate and magistrate cases in some jurisdictions, including Greenville. The expansion, combined with backing from the Upstate Mediation Center, has had a profound effect on Greenville’s trial docket.

The center began sending volunteer mediators to magistrate court on a monthly basis in 2010, when mediation became a requirement for magistrate matters. Magistrate Michael Stokes, who oversees the mediation program, had expected that it would lead to settlements in about half of the pending civil jury trials.

After the first two months, the program cleared 70 percent of the cases from the trial docket and saved the county about $12,000, according to Kahn, the center’s executive director.

Stokes’ research shows that over the last four years 490 cases have gone through the mediation program and 82 percent have settled.

“This is an unqualified success,” he said. “Jury trials have dropped by almost three quarters in my court.”

Stokes added that the program cleared away the magistrate court’s backlog of more than 100 cases, several of which were at least two or three years old. Now, he said, the cases tend to be less than six months old when they reach mediation, which gives the parties just enough time to cool off before they sit down together.

“Quite frankly,” he said, “it seems to have a higher chance of success if the case has seasoned a little bit before it gets to us.”

Big savings

For every settlement, the county saves about $1,000 on the cost of holding a trial, according to Kahn. That’s a major reason why the county lends a financial hand to the center, providing a $20,000 annual stipend.

The county also has given the center an additional $55,000 for its magistrate program over the last four years, said Kahn. During that same time, he estimates that the center has saved the county a minimum of $180,000.

Grants and a pool of volunteers help keep the center afloat. Lawyers and non-lawyers can volunteer. All must complete a $1,325 training course before they can mediate at the center.

“There’s this silence when you tell them that,” Kahn said. “Then they say, ‘Let me get this straight. You want me to pay $1,325 to volunteer for you?’ I say, ‘Hey, you’re a good listener. You’d make a good mediator.’ ”

The center has only one full-time employee – a mediation coordinator – and a pool of about 50 family law mediators and 20 civil mediators. Half of the family mediators and all of the civil mediators are lawyers.

In an attempt to attract more volunteers, the center recently began offering to cover half the course fee in exchange for a commitment from the volunteer to show up for at least 18 mediation sessions over the next year. It also has toyed with the idea of offering pro bono credit.

“But it’s an uphill battle trying to convince someone to give credit for volunteering here when they could do a DUI case or something,” Kahn said.

Residents of counties that are not near the state’s three nonprofit mediation centers have to rely on pro bono help – the state’s alternative dispute resolution rules require certified mediators to perform a certain amount of free work.

“It’s not that you have to mediate and you have to pay. There’s nothing that’s going to prevent anyone from having access to the courts,” said Lisa Kinnon, a retired family court judge who has a private family law practice in Horry County. The county has mandatory mediation and lacks a mediation center.

“But,” she added, “I think it would be wonderful if everyone in the state had access to mediation centers.”

- Follow Phillip Bantz on Twitter @SCLWBantz

WASHINGTON — This week’s ruling from the U.S. Supreme Court holding that a man who bought a firearm on behalf of another qualified buyer violated a federal law barring “straw purchases” of guns may be limited to its facts.

But the decision in Abramski v. U.S. is still spurring lawyers to advise their gun-purchasing clients to exercise caution — and follow the law to the letter — to avoid potential prosecution.

“I think this is a classic case of buyer beware,” said Craig Pisarik, a criminal defense attorney in Rock Hill.

The key takeaway is that failing to be truthful can have serious criminal repercussions when it comes to firearm sales.

“I don’t see this as a shocking ruling or anything that changes the status quo,” said John Pierce, an attorney whose Bristol, Virginia practice focuses on firearms law. But, he said, it is a powerful reminder “not to make a false statement in federal gun purchasing paperwork.”

A favor gone awry

The case stems from a gun purchase Bruce Abramski, a former police officer, made for his uncle. Although the uncle was qualified to buy a gun, Abramski sought to purchase it for him because Abramski was eligible for a law enforcement discount.

When Abramski purchased the gun in Virginia, he used his own name and passed a required background check. But in his paperwork, he answered “Yes” to the question: “Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you.”

After the purchase, Abramski traveled to his uncle’s home state of Pennsylvania to transfer ownership of the gun through a licensed gun dealer.

A federal agent who was investigating Abramski for a different crime subsequently discovered that his uncle had sent him a check for the cost of the gun with “Glock 19 handgun” written on the memo line before the initial purchase in Virginia. The agent also discovered that in his paperwork Abramski had asserted that the gun was for his own use.

A grand jury indicted Abramski for making a false statement about the identity of the buyer that was “material to the lawfulness of the sale” under 18 U.S.C. §922(a)(6), the law designed to outlaw such “straw purchases” of guns.

He moved to dismiss the indictment, arguing that § 922(a)(6) did not apply because his uncle, the intended buyer, was another lawful purchaser. His answer to the question on the paperwork, he argued, was immaterial since the purchase was not made for an illicit purpose.

A U.S. District Court denied the motion and the 4th U.S. Circuit Court of Appeals affirmed, holding that the law applies to such purchases even if the gun will be resold to an individual qualified to buy a gun.

The 4th Circuit decision widened the circuit split on the issue, with the 6th and 11th Circuits holding that purchasers like Abramski could be liable under the law, while the 5th and 9th Circuits held to the contrary.

Rich Dietz, an attorney with Kilpatrick Stockton in Winston-Salem, represented Abramski before the Supreme Court. In a divided decision, the court affirmed the 4th Circuit, holding that Abramski’s misrepresentation was material.

“Abramski’s reading would undermine — indeed, for all important purposes, would virtually repeal — the gun law’s core provisions,” wrote Justice Elena Kagan for the 5-4 majority, noting that the purpose of the law is to verify the buyer’s qualifications and keep a permanent record of information about the buyer’s purchase. “The twin goals of this comprehensive scheme are to keep guns out of the hands of criminals and others who should not have them, and to assist law enforcement authorities in investigating serious crimes.”

In his dissent, Justice Antonin Scalia used those very goals to underscore his view that Abramski’s representation was not material, given that there was no unqualified buyer.

“The Government’s contention that Abramski’s false statement was material to the lawfulness of the sale depends on a strained interpretation” of the law, he wrote.

States divided; lawyers say stick to the truth

The case divided states who lined up on either side as amicus curiae. Twenty-six states — including Arizona, Louisiana, Michigan, Missouri, Oklahoma, South Carolina and Virginia —backed Abramski, as did gun rights groups like the National Rifle Association.

Nine states and the District Columbia urged the court to adopt the government’s interpretation of the statute. Those on the winning side cheered the ruling, calling the victory crucial to law enforcement officials’ efforts to keep guns out of the wrong hands.

“Knowing the identity of the true buyer of a gun allows for a complete background check and is a key tool to keeping firearms away from people who should not have them,” said Massachusetts Attorney General Martha Coakley in a statement after the ruling. New York and Maryland joined Massachusetts in support of the government.

Criminal attorneys said the result was not unexpected.

“The only surprising thing about the ruling is that such a case even went all the way to the Supreme Court,” said Pierce, who pointed out that the evidence against Abramski came about through federal officials’ investigation of unrelated charges.

But the decision did answer the open question of whether qualified buyers can still run afoul of the “straw purchaser” law. Now that the issue is settled, lawyers can better advise their clients.

Immediately after the ruling, Pierce said he started receiving questions about the impact of the ruling, such is whether it is illegal to buy a gun for another as a gift.

While gift purchases are not barred by the law, he said, the ruling is a reminder for purchasers to be careful.

“My advice if you are buying a firearm as a gift is to just send the recipient the money” so he can purchase the gun himself, he said.

If you want to surprise the recipient, “under no circumstances should you accept any compensation for it,” Pierce said. “A gift needs to be a gift.”

Attorneys said they don’t expect a flurry of prosecutions under the law. The fact that prosecutors had such clear, smoking-gun evidence — such as the check from Abramski’s uncle indicating that the money was for a gun purchase — made this case an unusual one.

“I do believe this case may end up being somewhat of an outlier,” Pisarik said. “There was a clear paper trail showing the actual purchaser’s intent was to buy the gun for somebody else. In reality, there often won’t be such a clear paper trail showing a person’s intent at the time of the purchase.”

In that case, he said, “the government will have a difficult time proving this type of violation.”

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersweekly.com

Officials are happy with the preliminary results of a state Department of Corrections program aimed at keeping young, adult offenders out of the prison system, though it’s too soon to gauge its long-term effect on the recidivism rate.

The Young Offender Parole and Reentry Services is an intensive supervision program introduced in 2011 by former agency director and Family Court Judge William “Bill” Byars Jr. He figured that the services he found so useful while heading the Department of Juvenile Justice might work on young adults, too.

“If you can catch these people up to age 30 or so, they’re less likely to come back,” Byars said. “You can teach them.”

When Byars retired last October, Bryan Stirling took over on an interim basis and has since been appointed permanent director by Gov. Nikki Haley. He says the success rate of YOPRS, which he defines as more a set of services than a program, is sky high. According to Stirling, about 60 percent of youthful offenders who are released from prison will return. Of the 1,086 offenders in YOPRS, more than half are gainfully employed and 311 have enrolled in education ranging from GED classes to college courses.

Less than five percent have violated their parole conditions so far and only 12 have returned to prison after committing new crimes.

“And an untold number of lives have been changed and saved, probably,” Stirling added.

A melding of philosophies

YOPRS is a parole-type program that begins well before an offender is released on supervision. Participants are segregated from the general population and receive classes and counseling on a variety of issues including socialization, education, family issues and the impact of crime.

Its demographic aim is first-time, nonviolent offenders between the ages of 17 and 25. By catching an inmate early in his incarceration, the program’s goal is to empower him, change his way of thinking and help him reclaim his life.

Just as important, officials say, is post-release guidance and supervision.

Byars believes in the method, so naturally, after taking the helm at the corrections department, he felt it would work there, too. During his three-year tenure as director, Byars saw promise, despite the often-differing philosophies between juvenile and adult offenders, and ideologies concerning their incarceration and rehabilitation.

“In juvenile justice, it’s ‘We’re here to help you,’ ” Byars said. “In corrections, it’s ‘We’re here to punish you and make you change what you’ve been doing.’ We tried to do a melding of those two and lo and behold, the blooming thing worked.”

Program director Ginny Barr, whom Byars credits for much of the program’s success, believes that success is directly attributable to the early intervention of its intensive supervision officers, or ISOs.

“Within three weeks of an offender being assigned to an institution, their ISO shows up,” she said. “Rather than waiting for the offender to exit the system and meet their supervisor, they meet them when they enter the system to start planning their reentry.”

ISOs are SCDC employees, but they’re neither corrections officers nor parole officers. They don’t carry weapons and their relationship with offenders more closely resembles that of a mentor.

“It really is a true social worker who is helping this person readjust and maybe fix some things in their lives,” Stirling said.

Get a plan together

Once released, an offender can spend as little as a year under supervision or as many as six years. It’s not a walk in the park, but officials say it’s effective. And those looking to just lay low and do their time are in for a surprise. Failing to meet any of the program’s terms can lead to sanctions ranging from home detention to electronic monitoring to reincarceration (though Barr said ISOs are encouraged to use incentives, rather than sanctions, as often as possible).

“It’s not good enough that an offender says, ‘Well, you know, I haven’t been arrested this year,’ ” Barr said. “The only way you’re going to get released is to make progress. You’ve enrolled in school, you’ve gotten a job, you’ve gotten your medication under control …”

“Drug testing,” added Stirling, who comes from a long line of law enforcement. He earned his law degree from the University of South Carolina School of Law and spent several years with the Attorney General’s office. He believes that the Department of Corrections should not only punish, but correct.

“When I go around the institutions I always ask the inmates ‘What’s your plan for when you get out?’ Some have plans, some don’t. These intensive supervision officers help these offenders come up with a plan over time, which I think makes a huge difference.”

Byars insists he didn’t create anything, but merely pieced together a program he believes can solve the revolving-door puzzle.

“When you’re trying to change the system, you don’t try and reinvent the wheel,” he said. “You just go out and find who has put things together that have worked. You learn from everyone else’s mistakes and successes.”

The formula, Byars believes, is a simple one: to send individuals back to their communities better than they were when they entered prison.

“They’ve got to be able to make a living,” Byars said. “You can’t turn them out with no education, say ‘Sin no more and have a good life, even though you have no skills.’ The whole idea is to find out what this person needs and try to fix it.”

Follow Heath Hamacher on Twitter @SCLWHamacher

South Carolinians will be hanging up a lot more now that a federal judge has lifted a state ban on political robocalls, but free speech attorneys say the court made the right decision.

When U.S. District Court Judge Michelle Childs decided earlier this month that the state law criminalizing political robocalls is unconstitutional, she made plenty of campaign groups happy – and they can thank prominent GOP consultant Robert Cahaly for putting the issue before the court.

Cahaly, who has advised Gov. Nikki Haley, House Speaker Bobby Harrell and former Lt. Gov. Ken Ard, challenged the law criminalizing political robocalls as part of his lawsuit against the S.C. Law Enforcement Division, or SLED.

Childs ruled on June 10 in favor of Cahaly’s claim that his First Amendment rights had been violated, declaring that the state statute outlawing certain robocalls was flawed because it targets commercial and political messages without offering a “legitimate ‘neutral justification’ for doing so.’”

“Without any evidence regarding the legislature’s purpose for restricting robocalls on the basis of their commercial or political content, the court finds the statute’s differential treatment of speech impermissible,” Childs added.

Cahaly’s attorney, Samuel Harms of Greenville, said that while the ruling specifically strikes down restrictions on automated political calls, the issue of whether commercial robocalls are illegal remains up in the air.

That’s because Childs made no finding on the constitutionality of the state’s ban on commercial speech, which would require a different legal analysis and standard than the law against political speech, Harms said.

“A person who wants to use a robocall machine to sell a consumer product, they’re going to have to challenge the constitutionality of that statute,” he added. “The constitutionality of that statute in that area is still very questionable.”

‘Fatal for its underinclusiveness’

Phone records revealed that Cahaly was behind a recorded message that was sent to voters during the 2010 election with the use of an auto dial machine. The call asked voters if they thought incumbent state Rep. Anne Peterson-Hutto “should invite her fellow Democrat Nancy Pelosi to come campaign for her?” They could press 1 to answer yes and 2 for no.

Hutto, a Charleston lawyer who lost the election, requested a SLED probe of the messages, which resulted in Cahaly being arrested on a half-dozen misdemeanor charges of violating the robocall ban.

However, prosecutors dropped the case against Cahaly because they didn’t like their chances of securing a conviction. Assistant solicitor Harrison Bell of Orangeburg told reporters that the statute was “crazy” and poorly written.

The state attorney general later issued an opinion that interpreted the robocall law as only restricting messages that promoted specific political candidates, but not calls that went straight to answering machines or those that conducted political surveys.

Meanwhile, SLED and the co-defendants named in Cahaly’s suit – SLED agent Paul LaRosa, who investigated Cahaly, and former SLED chief Reginald Lloyd – contended that the state was interested in “eliminating virtually all robocalls” because the messages are “intrusive.”

In her ruling, Childs said that she was sympathetic to the cause, but concluded that if the legislature wanted to ban all robocalls it shouldn’t have written a law that “is fatal for its underinclusiveness and its singling out of commercial and political speech.”

‘We all detest these calls’

Cheryl Perkins, a First Amendment attorney and partner at Whetstone, Perkins & Fulda in Columbia, who has no stake in Cahaly’s case, applauded Childs’ opinion, albeit a bit reluctantly.

“We all detest these calls,” she said “but I think the judge did what she had to do based on the language of the statute and the constitution. This is a statute that attempts to criminalize free speech.”

Laura Waring, a constitutional law attorney at Grimball & Cabaniss in Charleston, also agreed with the ruling.

“I think she’s right on the money,” Waring said of Childs. “It [the law] was not narrowly tailored to the need it purported to serve. Even if there were a legislative effort to ban all robocalls, the statute did not serve that end.”

Perkins suggested that lawmakers might revive the law by expanding its scope in a similar way that the federal law has a blanket prohibition on robocalls with a few exceptions, such as public service announcements about emergencies.

She added that the legislature also could possibly overcome Childs’ ruling without rewriting the statute if it can demonstrate that it enacted the ban for a legitimate non-censorial purpose. Childs’ opinion was based, in part, on the fact that the legislative intent behind the law is murky.

“It seems likely the General Assembly will address the issue next legislative session,” said Matt Orr, a spokesman for the S.C. Republican Party. A few weeks before Childs issued her decision, the SCGOP sent out a memo reminding campaigns that political robocalls were illegal.

In the wake of Childs’ ruling, which obviates the memo, Orr said he had “notified campaigns, consultants and elected officials of the court’s decision.” He declined further comment

SLED’s attorneys, Kenneth Woodington and William Davidson of Davidson & Lindemann in Columbia, did not respond to interview requests.

While Childs struck down the ban on political robocalls, she rejected Cahaly’s claims for malicious prosecution and false imprisonment. He’d argued that SLED lacked probable cause to arrest him, but Childs found that investigators had sufficient reason to believe he violated the law.

Follow Phillip Bantz on Twitter @SCLWBantz

A wrongful death lawsuit filed this week in Florence County alleges that employees of a state-run residential care facility killed a 21-year-old disabled woman whose death has been ruled a homicide.

The woman’s mother, Velisa Ward, said that she’d entrusted the S.C. Department of Disabilities and Special Needs with her daughter, Fantasia Franklin, when the girl was admitted to the Pee Dee Regional Center in Florence 10 years ago.

Franklin was autistic and “suffered with severe intellectual and speech disability,” according to Ward’s suit against the state.

“My daughter was killed by the people I trusted to care for her special needs. Fantasia’s voice must be heard,” Ward said in a news release.

Ward alleges that workers at the Pee Dee Regional Center used a Posey blanket to strap Franklin to a hospital bed on her back then sat on her chest, which prevented the 103-pound woman from being able to breathe and caused her death last December.

The Posey company’s website recommends that its blankets, which resemble a mesh net and have padded cuffs to hold a patient’s limbs in place, be used for people who are “assessed to be in extreme danger of injury to themselves or others.”

Ward asserts in her suit that the Pee Dee facility’s employees were grossly negligent for sitting on Franklin. She also claims that the state was grossly negligent in hiring, training and supervising its employees.

“Not only did the department fail miserably in its duties and caused this woman’s death, this was an especially slow, painful and agonizing death,” the family’s attorney, John Clark of Sumter, stated in the news release.

He added, “It is the family’s hope that this lawsuit will hold those responsible for this tragic and unacceptable incident accountable and will let the public know how this agency is operating with taxpayer dollars.”

Follow Phillip Bantz on Twitter @SCLWBantz

Attorney: Kristie Ann McAuley

Location: Anderson

Bar membership: Member since 2008

Disciplinary action: Suspended from the practice of law for 18 months on June 18, retroactive to August 24, 2011, the date of her interim suspension.

Background: McAuley was a lawyer for the 10^th Circuit Public Defender’s Office. While there, she represented clients who were not financially qualified to receive a public defender and accepted funds from some of the non-qualified clients whom she represented. McAuley was arrested and charged with misconduct in office by a public official. She resigned from the public defender’s office on Aug. 22, 2011 and was placed on interim suspension two days later. On Jan. 16, 2014, she pled guilty to misconduct in office by a public official and was ordered to pay a $100 fine and court costs.

Previous discipline: None

All information contained in the Bar Discipline Roundup is compiled from orders issued by the South Carolina Supreme Court and edited by staff writer David Donovan. He can be reached at david.donovan@sclawyersweekly.com

McNair Family Law recently celebrated its opening in Summerville. The firm was founded by Carolyn McNair, who formerly practiced with the Parise Law Firm in Columbia.

Thurmond Kirchner Timbes & Yelverton announced that the firm has added Thomas J. Rode as an associate. Rode focuses on civil litigation, business litigation and appellate practice.

Turner Padget announced that Elaine H. Fowler, a shareholder in the Charleston office and a member of the firm’s business transactions group, has been elected to serve as the 2014-2015 president of the South Carolina Bar Foundation effective July 1.

Moore & Van Allen is pleased to announce that the firm’s public affairs counsel Robert “Rob” R. Smith was appointed to serve on the board of directors of RecyclonomicsSC. Smith’s term commenced in May, and he will serve for two years.

Nexsen Pruet attorney Brad Waring has been reappointed by Supreme Court Chief Justice Jean Toal to serve an additional four-year term on the South Carolina Judicial Council. His term will expire on June 30, 2018.

Nexsen Pruet remains on The National Law Journal’s list of the 350 largest law firms in America, ranked 224th. This year, only two South Carolina-based firms made the list. The journal ranked Nexsen Pruet as the second largest firm in South Carolina behind Nelson Mullins. South Carolina Lawyers Weekly also ranked Nexsen Pruet second largest in South Carolina on its annual largest law firms list.
J. Ashley Twombley of Twenge + Twombley Law firm in Beaufort was elected to serve as chairman of the board of directors for the United Way of the Lowcountry.
The president of the South Carolina Bar has selected Carlock Copeland Partner Michael Ethridge to serve as chair of the South Carolina Bar’s Task Force on Attorney Wellness.

McKay, Cauthen, Settana & Stubley announced that Partner, Kelli Sullivan, has been asked to serve as chair of the South Carolina Bar Ethics Advisory Committee. Sullivan has been a member of the committee for 10 years.

Follow Laurie Landsittel on Twitter @SCLWLandsittel #lawyersonthemove. Send items for Lawyers on the Move to laurie.landsittel@sclawyersweekly.com.

david.donovan@sclawyersweekly.com

There may have been almost a year-long lull in published opinions coming out of the South Carolina Business Court—a lull that ended with two opinions published online this month, the first since July of last year—but judicial officials say the expansion of the court is coming along well and attracting significant interest from attorneys across the state.

In January of this year the state Supreme Court expanded the Business Court—which started in 2007 as a pilot program covering Charleston, Greenville and Richland Counties—and took it statewide to cover all counties. Since then, state Supreme Court Chief Justice Jean Hoefer Toal has assigned 15 new business court cases, bringing the total number of active cases to 72 as of last week.

A need for new case law

“Since the January order, the Business Court petitions have really, I don’t want to say skyrocketed, but they have greatly increased,” said Judge Clifton Newman, one of three judges assigned to the court. “A number of cases from other parts of the state have filed petitions to have them transferred to Business Court.”

Pre-expansion, the court had not been known for a prodigious output of written opinions. Stephanie Nye, counsel for Justice Toal, said that a major reason for the dearth of opinions is the fact that having one judge handling the case from beginning to end encourages parties to settle, so many cases end in a settlement rather than a formal opinion. Many of the opinions issued by the Business Court thus far have concerned pretrial issues like discovery.

Nevertheless, the increased volume of cases coming before the Business Court may translate into more written opinions and a larger body of law for business attorneys to parse. Developing additional case law on issues facing businesses in litigation was one of the original purposes of the Business Court.

Newman said Business Court judges are encouraged to write more detailed orders and to address topics that might have precedential value or offer guidance to other judges.

“I would think that, just based on the sheer volume, it would probably translate into more opinions,” Newman said.

South Carolina’s Business Court expansion is part of a trend toward the increasing use of specialized business courts nationwide. At least 21 states have some sort of special court for handling complex business cases.

The advantages of the Business Court are that cases assigned to the court are placed under the jurisdiction of a single judge and case manager, allowing them to become more familiar with the facts of what are often complex or novel cases.

“It’s a good way for business to have their disputes resolved in a manner in which they can be confident that the necessary attention will be placed on their litigation,” Newman said.

“It won’t be lumped together with the run-of-the-mill matter and will be given a special emphasis, from the top court administration reviewing the cases for assignment and judges having to give rather frequent reports about the status of a case. I think Business Court cases get special attention, and that’s what any litigant would typically want to have.”

Growing interest

Attorneys, while interested, still have a lot of questions about how the new Business Court works, said Carmen Thomas, an attorney with Nelson Mullins in Columbia with experience handling Business Court cases.

“People seem to be very interested in it, lawyers and clients alike,” Thomas said. “It’s something that they’ve seen in other states and they’re glad to be able to take advantage of it here. The procedure before the expansion allowed for cases from any part of the state to be in the Business Court, but this makes it easier to do that, but it’s also raising a lot of questions because people haven’t used it before.”

One common question attorneys have concerns the venue for Business Court cases. If the Chief Justice assigns jurisdiction over a case to one of the state’s three Business Court judges, that judge retains jurisdiction over the case regardless of where court is held, but the venue for the case remains in the county where the case was filed.

Thomas said that many attorneys were either unaware of how that aspect of the Business Court worked, or that the procedure wasn’t clear to them. But she said it could be beneficial to have the attention of a single judge on the case, as it could make the process more efficient. She praised the job that the judges, and their case managers, have been doing with the complex business cases.

“No business wants to be in litigation, but if you have to be, I think a client may be more comfortable knowing that these three judges, or however many there will be, to know that they have more experience dealing with similar cases,” Thomas said.

Nye said that since the January expansion, her office has fielded a lot of calls from attorneys with questions about the procedure and what they need to do to file a case.

“The business court is actually going really well,” Nye said. “The expansion really allows more lawyers and more clients to benefit from our business court structure. A lot of attorneys are interested in it, so we’ve really been pleased.”

Follow David Donovan on Twitter @SCLWDonovan

Every week, our staff gets a steady stream of emails about attorneys starting their own firms, or joining existing ones to create new practices. These are happy occasions that we enjoy sharing, but usually there’s a flip side — the attorneys have typically left their old firms, or sometimes existing law firms split up entirely. We never get emails about the breakups, though some of those would be more instructive.

When attorneys split up, many times a tug-of-war ensues over who gets to keep certain clients, which is to say, who gets to keep the client’s fees. In these battles, unfortunately it occasionally winds up that the client, whose interests should be kept paramount, ends up as a loser as well.

I still remember the first time, as a still relatively tenderfoot attorney, I parted ways with a firm. Some of my clients were people who I had brought personally, and with great effort, into the firm’s book. I was very much under the impression that I should be entitled to keep “my” clients — which was wrong. The managing attorney brusquely cut me off, saying that “those are the office’s clients” — which was equally wrong.

The truth is that clients don’t “belong” to anyone. Like so many attorneys, we were haggling over a decision that in reality shouldn’t be in the control of anyone but the client. (I’m happy to say that we eventually worked everything out in precisely that spirit.)

But, based on what I gather from talking to folks in multiple states who advise attorneys on ethical issues, many attorneys still have questions about how to handle a split with the highest level of professionalism. That’s really rather surprising since law firms change rosters with such common frequency, hence the steady stream of emails mentioned above.

The guiding principle should be easy: Always, always put the client first. More practically, when an attorney leaves a firm, the firm has an obligation to notify every existing client with whom that attorney has a personal relationship. The notice should explain the choices the client has, whether it’s to stay with the firm, follow the departing attorney, or — and this one is important to remember — to take their matter somewhere else entirely. But above all, the clients need to understand the fact that the choice is entirely theirs — and that they need to make clear what their choice is, so the attorneys know what to do with the file.

I’ll never forget the best piece of advice I ever received on the subject, from an attorney I greatly respect. If the attorneys work together and agree on the text of a joint letter to send to clients, then things are probably going to turn out OK. If attorneys can’t agree on a joint letter, that’s where you’re likely to run into problems. Even though firms aren’t absolutely required to give clients notice in writing, a jointly written letter is likely the best option by far.

So please, keep those emails coming as you share the good news about new beginnings. But for every arrival there is also a departure, and departures often mean that attorneys have to work extra hard to make sure that a client’s right to choice of counsel is adequately protected.

South Carolina Lawyers Weekly’s regular Ethics & Professionalism column covers bar discipline, malpractice suits and other related topics. Follow columnist David Donovan on Twitter @SCLWDonovan

Based on a U.S. Supreme Court ruling, the state’s Supreme Court recently overruled one of its prior decisions and held that nursing home residency agreements do, in fact, implicate interstate commerce and the Federal Arbitration Act.

The ruling, filed on June 18, came in Darlene Dean v. Heritage Healthcare of Ridgeway,LLC, appealed from Fairfield County Circuit Court. And while the court overruled the oft-cited 1993 case Timms v. Greene, it remanded Dean for further proceedings regarding the plaintiff’s authority to sign the agreement on her mother’s behalf and the question of whether there was a meeting of the minds between the parties, as required by law, prior to the signing.

Jeanne Born, a health law attorney with Nexsen Pruet in Columbia, was not involved in this case but regularly represents nursing homes and other healthcare facilities. She said that the ruling simply shores up her understanding, especially with regards to agreements.

For instance, previously drafted client contracts she recently reviewed already included a rescission period to ensure parties fully understand terms of the agreement before being bound by it.

“That takes care of the ‘meeting of the minds’ and whether there was recognition that it was an integral part of the contract,” Born said.

In 2009, Dean’s mother, a patient at Tanglewood Health Care Center, fell on three separate occasions within a 10-day period. In the third fall, she fractured her hip, and underwent two surgeries over the next two months. Due to complications from the surgeries, she died on Sept. 30, 2009.

In December 2011, Dean, acting as personal representative of her mother’s estate, filed a Notice of Intent to file a medical malpractice suit and alleged claims for survival and wrongful death. Heritage filed a motion to dismiss or, alternately, a motion to compel arbitration and stay the litigation.

Dean opposed that motion, claiming that the nursing home residency agreement was unenforceable because in her view, the “exclusive” arbitral forum was unavailable. Since 2003, the American Arbitration Association, has refused to accept personal injury disputes without a post-injury agreement to arbitrate.

The Supreme Court found, however, that: (1) the plain language of the arbitration agreement suggests no reason that AAA’s rules can’t be followed in a different forum and (2) the parties wish to follow AAA’s rules, not its policies. While AAA has a policy not to arbitrate individual patients’ claims, it has no such rule stating that they are not arbitrable, the Court said. That, according to the court, would be “in direct conflict with [the] strong public policy in favor of arbitration.”

Dean also argued that the agreement did not involve interstate commerce. In Greene, the court held that a residency contract was “obscure, if not devoid, of any basis for holding that [interstate] commerce was involved.”

It specifically found that a nursing home’s assertion that its supplies and goods were purchased from out of state was irrelevant because it was not the basis of the contract, which was to provide patient services in a South Carolina facility.

But since the Supreme Court decided in Allied-Bruce Terminix Cos. v. Dobson, 1995, many — if not all — federal and state courts have held that residency contracts implicate interstate commerce and the FAA because the contracts “usually entail providing residents with meals and medical supplies that are inevitably shipped across state lines…”

In its opinion, the state Supreme Court referred to Timms as a “relic” decided before Allied-Bruce more broadly defined interstate commerce. Though it concedes meals and medical supplies are irrelevant to the dispute, the court said they must be considered because the residency agreement requires nursing homes to provide them.

Born wasn’t surprised by the decision, despite the years passed and likely number of similar cases that have been decided to the contrary based on Timms.

“I think the court really had no choice here but to come down on the side of the nursing home … finding that the residency agreement is involved in interstate commerce,” she said. “I don’t know that it could’ve arrived at any other conclusion.”

After addressing the interstate commerce issue, the court expressed concern that Porter, despite being competent to do so, signed neither the residency nor arbitration agreements. Further, Dean did not possess a health care power of attorney to sign either contract on her mother’s behalf. The issue was not addressed on appeal, and the court notes that on remand, the circuit court “must engage in a full inquiry into this matter” before any attempt to enforce the agreement.

The 15-page decision is Dean v. Heritage Healthcare of Ridgeway, LLC (Lawyers Weekly No. 010-060-14). The full text of the opinion is available online at sclawyersweekly.com

Tiawan Eurie was heading to work about the same time that Steven Keavney walked away from a Summerville bar called Shooters and got behind the wheel of his car, according to a lawsuit that recently settled for more than $1 million.

After their vehicles collided on a Dorchester County road, Eurie accused bartenders at Shooters of overserving Keavney. His blood alcohol level was measured at .178, which is more than twice the legal limit, two and half hours after the crash.

Eurie’s attorneys, Tiffany Spann-Wilder, who has an eponymous practice in North Charleston, and David Yarborough Jr. of Yarborough Applegate in Charleston, said their toxicology expert determined that Keavney’s alcohol level was at least .278 while he was at the bar.

Based on that level of intoxication, Yarborough said, it should have been obvious to the bar staff that Keavney was in no condition to drive.

Keavney pleaded guilty to DUI and admitted responsibility for the crash, which left Eurie with a fractured femur, broken hand, facial lacerations, $94,000 in medical bills and $13,800 in lost wages, according to Yarborough.

Keavney said he’d gone to Shooters twice on the day of the incident. He had a receipt from the first visit, which was around noon, but said he paid cash for the second tab, which covered about four or five hours of heavy drinking. He had a passenger during the crash who corroborated his story.

The bar staff confirmed that Keavney came in during the early afternoon and had a few beers, but denied that he returned later, Yarborough said. He added that the bar does not have a video surveillance system.

“It was going to be his word against theirs,” Yarborough said.

Further complicating the case was the fact that police officers noted in their crash report that Keavney told them he was coming from a different bar called Jack’s Place, which is near Shooters.

“We think Mr. Keavney may have been there [at Jack’s] at some earlier time,” Spann-Wilder said.

Eurie also named Jack’s in his complaint, which the bar failed to answer, causing it to be found in default. After some wrangling with Jack’s insurer over coverage, the insurer’s errors and omissions carrier agreed to pay $312,500 toward the settlement.

Shooter’s insurer paid $725,000, Keavney’s auto insurance kicked in $50,000, and Eurie’s underinsured motorist coverage contributed another $25,000 for a total payment of $1,112,500 for Eurie’s injuries.

“I hope this is a wake-up call to businesses that serve alcohol,” Spann-Wilder said. “Their desire to profit can really turn into peril for an unsuspecting motorist.

Attorneys for Shooters and Jack’s Place did not respond to interview requests.

- Follow Phillip Bantz on Twitter @SCLWBantz

DRAM SHOP CLAIM – NEGLIGENCE

Case name: Eurie v. Keavney, et al.

Court: Dorchester County Circuit Court

Date of settlement: May 16

Amount: $1,087,000

Attorneys for plaintiff: Tiffany Spann-Wilder, North Charleston; David Yarborough and Douglas Jennings of Yarborough Applegate, Charleston

Attorneys for defendants: Adam Neil of Murphy & Grantland, Columbia; Adam Yount of Haynsworth Sinkler Boyd, Charleston; and Elizabeth McMillan of McAngus Goudelock & Courie, Greenville

Attorney: Kathleen Devereaux Cauthen

Location: Blythewood

Bar membership: Member since 1999

Disciplinary action: Suspended until further notice on June 27

Background: The Supreme Court suspended Cauthen’s license to practice law until further order and appointed a special receiver to assume responsibility for her client files and law office accounts to protect the interests of her clients. The appointment is for a period of no longer than nine months unless an extension is requested.

Previous discipline: None

All information contained in the Bar Discipline Roundup is compiled from orders issued by the South Carolina Supreme Court and edited by staff writer David Donovan. He can be reached at david.donovan@sclawyersweekly.com

Most attorneys recall law school as a blur of long hours spent reading cases and what seemed like even longer classes spent waiting for professors to ask questions about the reading, all accompanied by a vague sense of dread and panic. Generations of lawyers have endured the rigors of the Socratic method, held as the best way to teach critical thinking and reasoning, application of the law to factual circumstances and how to think on one’s feet.

In recent years experiential education has challenged the supremacy of the Socratic method as law schools have embraced more simulated practice as instruction. A growing prevalence of externships, co-ops, moot court, mock trial and clinics means less time sitting in class, sweating the answers and more time learning by doing.

In August, the American Bar Association House of Delegates will consider whether to adopt expanded requirements for experiential education for accredited law schools. The Standards Review Committee of the American Bar Association’s Section of Legal Education has approved Proposed Alternative Standard 303(a)(3), which includes a demand that law students complete six hours’ worth of experiential education in order to graduate.

Historically, all law schools have utilized some form of experiential education. Students can participate in moot court, mock trials and externships at almost any law school. The popularity of experiential methods has grown in part as a result of new lawyers’ complaints that law school failed to teach them the skills involved in the practice of law. And economic changes in the profession mean that the workplace offers fewer opportunities for rookie attorneys to cut their teeth.

A changing understanding

Among the experiential method’s supporters is Elon University School of Law’s new dean, Luke Bierman, a national leader in the field. Bierman says that the number of law professors who have some form of the words “experiential education” in their title has jumped from 12 to 75 in recent years. What is meant by that designation varies widely.

“I think the idea is that learning from doing might be connected to a classroom experience, self-directed or from other practitioners,” he said. “It could range from cooperative legal education, where the students literally leave the school and are essentially employees of a firm or government, to in-class simulations. It also includes externships. The key is it is not just an exchange of information from the teacher to the student.”

Bierman said that experiential education dates to when lawyers became lawyers by doing. But in the 1970s, its popularity soared through the development of clinics and externships.

Another proponent, William “Bill” Henderson, a professor at Indiana University School of Law, said our understanding of experiential education has changed over time. In the 1920s the Socratic method was considered highly experiential compared to a Blackstone lecture, but the Socratic method would not be considered experiential today.

He was the principal investigator of an in depth-study of experiential education at Northeastern University School of Law. Henderson’s research into the benefits of the experiential method found that insight students gain into a field of law by participating in a co-op help them determine whether to continue on the career path they have chosen. This research involved 6,400 alumni of Northeastern School of Law. The results are based on interviews, focus groups, data from the alumni database and surveys.

Henderson’s preliminary results found that a law student who participates in one co-op, which entails leaving the classroom and gaining on-the-job experience, during law school is likely to change his or her mind about his or her career path 43 percent of the time due to the co-op experience. The percentage jumps to 92 percent when a student takes four co-ops. Henderson’s preliminary findings also show students involved in a form of experiential education have greater career satisfaction and accelerated professional maturation. He also found that students in experiential classes — especially second and third years — are more prepared for class and participate more often.

“You cannot do an oral argument, deposition, etc. without experience,” Henderson said. “Exposure to some form of experiential education accelerates knowledge absorption as well.”

Time and money

Jim Klein, distinguished visiting professor of law and director of externships at Charleston School of Law, views experiential education as the ideal complement to a student’s legal education.

“Experiential learning is teaching students through the actual experience of working on real life cases and legal matters as opposed to simulations.” Klein said, “It also involves reflecting on the student’s work activities … it’s exciting, because it brings back the self-esteem they lost their first year of law school. Students rediscover how good they actually are in experiential programs.”

Jim Exum, former North Carolina Supreme Court Chief Justice and an Elon Law School faculty member, agrees that in-class simulations are an important part of legal education. But, he says, experiential education is not without its disadvantages.

Exum said that one challenge schools face with experiential programs is time. Experiential programs take up a lot of time, and students often do not have the time necessary to complete other law school requirements and an intensive experiential program.

Both Exum and Klein said that experiential programs are costly. Klein said one reason these programs are costly is due to the low student-to-professor ratio needed to ensure each student is properly supervised.

Another disadvantage of experiential programs, according to Klein, is the “severe consequences if a student is not successful.” A student can commit malpractice when working on legal problems for real clients, so proper supervision is essential, he said.

Finding the right formula

Dr. Richard Clark, emeritus professor of educational psychology and director the Center for Cognitive Technology at University of Southern California, is not a fan. He points to the theory of experiential education called the discovery approach, where students are given problems in teams or study groups and charged with solving them. Clark said the flawed assumption is that if the group solves this particular problem, they will have then learned how to solve similar problems.

“It takes experts years to discover how to solve complex problems. How can you expect students do this in teams or groups?” he said. He believes that that some experiential approaches result in the students knowing less than when they started.

Most of the educators and leaders believe there needs to be a mixture between experiential education and the more traditional form. Alan Duncan, immediate past-president of the North Carolina Bar Association, is among them.

“I understand and appreciate the need for greater practical experiences in law school, but at the same time recognize law schools cannot lose sight of the fact that young lawyers in training have to maintain a solid foundation and understanding of the law.”

Bierman agrees with Duncan.

“My view is experiential education and classroom learning go hand-in-hand,” he said. “They should be fully integrated so it is seamless to students—students just learn how to be a lawyer. The teacher should offer different ways to learn that prepares students to become excellent, ethical lawyers.”

Henderson said, “Lots of knowledge needs to be conveyed in law school, so there’s plenty of room for traditional education, but to get the judgment and skills you require to be a really good lawyer, you need experiential.”

Follow Laurie Landsittel on Twitter @NCLWLandsittel

DUI – Driver’s License Revocation – Evidence – Breathalyzer Test

South Carolina Department of Motor Vehicles v. Brown (Lawyers Weekly No. 010-005-14, 16 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones, J., concurring) (Donald W. Beatty, J., joined by Kaye G. Hearn, J., dissenting) Appealed from the Administrative Law Court (Carolyn C. Matthews, ALJ) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27346.pdf

Holding: Where petitioner waited until his closing argument to raise the issue of whether the arresting officer had testified that a specific provision in S.C. Code Ann. § 56-5-2950 was followed, the S.C. Department of Motor Vehicles was not given the opportunity to meaningfully respond to allegations that its breathalyzer test results were not reliable. We reject petitioner’s argument that § 56-5-2950(e) automatically excludes breathalyzer test evidence when the Department does not specifically adduce testimony that law enforcement followed each procedure required by § 56-5-2950(a); in order for a hearing officer to consider the provisions of § 56-5-2950, a party must make a motion for such consideration.

We affirm the Administrative Law Court’s reversal of the hearing officer’s decision, and we affirm the suspension of petitioner’s driver’s license.

Administrative

Company Exec Liable for ‘Scareware’

Federal Trade Commission v. Ross (Lawyers Weekly No. 001-051-14, 18 pp.) (Davis, J.) No. 12-2340, Feb. 25, 2014; USDC at Baltimore, Md. (Bennett, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/122340.P.pdf

Holding: The 4^th Circuit upholds a decision by the Federal Trade Commission that defendant Kristy Ross engaged in deceptive Internet advertising practices, specifically, running a deceptive Internet “scareware” scheme in violation of the prohibition on deceptive advertising in 15 U.S.C. § 45(a).

Administrative

Landfill Permit – Municipal – Emergency Ordinance – Certiorari – Improperly Granted

York County v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 010-046-14, 2 pp.) (Per Curiam) Appealed from the Administrative Law Court. (Carolyn C. Matthews, ALJ) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27387.pdf

Holding: Where our Court of Appeals held, The petitioner-county could not avoid the respondent-agency’s permitting of a landfill in the county by passing an emergency ordinance and imposing a moratorium on new landfills, certiorari was improvidently granted.

Dismissed.

Administrative

Licenses & Permits – Liquor by the Drink – Restaurant – Seating for 40 – Wide Rail

Be Mi, Inc. v. South Carolina Department of Revenue (Lawyers Weekly No. 011-062-14, 9 pp.) (Aphrodite Konduros, J.) Appealed from the Administrative Law Court (Shirley Robinson, ALJ) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5233.pdf

Holding: There was substantial evidence to support the Administrative Law Court’s finding that the respondent-restaurant had seating at tables for at least 40 people, counting bar stools at a wide rail; accordingly, the ALC did not err in finding that the restaurant met the seating requirements to have a liquor-by-the-drink license.

Affirmed.

Arbitration

Health Care Consent Act – Authority to Contract – Patient’s Sister – Estoppel – Tort/Negligence – Wrongful Death

Coleman v. Mariner Health Care, Inc. (Lawyers Weekly No. 010-023-14, 12 pp.) (Costa Pleicones, J.) (Jean Hoefer Toal, Ch.J., dissenting) Appealed from Florence County Circuit Court (Michael Nettles, J.) S.C. S. Ct.

http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27362.pdf

Holding: Although the Health Care Consent Act gave plaintiff the authority to have her sister admitted to a healthcare facility and to make her sister financially liable for the care she would receive there, the Act did not give plaintiff the authority to enter into an arbitration agreement on behalf of her sister.

We affirm the circuit court’s denial of defendants’ motion to compel arbitration.

Arbitration

Contract – Nursing Home – Tort/Negligence – Wrongful Death – AAA Rules

Dean v. Heritage Healthcare of Ridgeway, LLC (Lawyers Weekly No. 010-060-14, 15 pp.) (Jean Hoefer Toal, Ch. J.) (Costa Pleicones, J., concurring in the result only without separate opinion) Appealed from Fairfield County Circuit Court (J. Ernest Kinard Jr., J.) S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27401.pdf

Holding: In light of Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995), the court overrules its holding in Timms v. Greene, 310 S.E. 469, 427 S.E.2d 642 (1993), and holds that a nursing home residency agreement implicates interstate commerce and thus the Federal Arbitration Act.

Furthermore, while the American Arbitration Association no longer arbitrates personal injury disputes without a post-injury agreement to arbitrate, the parties’ agreement to arbitrate according to the AAA’s rules does not require that the arbitration be conducted by the AAA.

We reverse the circuit court’s denial of defendants’ motion to arbitrate on these grounds and on the basis of waiver. We remand for consideration of whether plaintiff had authority to sign the agreement and whether there was a meeting of the minds between the parties.

Attorneys

No Malpractice Claim for Missed Sanctions Appeal

Sartin v. McNair Law Firm PA (Lawyers Weekly No. 011-123-14, 20 pp.) (Niemeyer, J.) No. 13-1265, June 23, 2014; USDC at Columbia, S.C. (Anderson, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/131265.P.pdf

Holding: A district court properly applied Fed. R. Civ. P. 60(a) to clarify that its order requiring “Plaintiffs” to pay nearly $1 million in sanctions and attorney’s fees was meant only to sanction plaintiff’s attorney – who noticed 14 depositions in Milan, Italy, but only conducted two, cancelled the remainder and left Italy; because the district court’s Rule 60(a) order was proper, the lawyer suffered no injury when the law firm he hired to appeal the order filed a late appeal notice, and the lawyer loses his legal malpractice claim against the firm, the 4^th Circuit holds.

Attorneys

Incivility – Opposing Counsel’s Name – Sex Abuse Victim

Doe v. South Carolina Department of Social Services (Lawyers Weekly No. 002-012-14, 5 pp.) (G. Ross Anderson Jr., Sr.J.) 8:13-cv-01772; D.S.C.

Holding: In their motions for summary judgment, defendants published the name of plaintiff’s counsel as a victim of sexual abuse. In doing so, defense counsel have acted without a shred of civility and have violated the S.C. Lawyer’s Oath, which pledges “fairness, integrity, and civility, not only in court, but also in all written and oral communications.”

Defendants shall redact any references to the childhood sexual assault of plaintiff’s counsel that identify plaintiff’s counsel by name and remove any unnecessary identifying information.

Attorneys

Tort/Negligence – Legal Malpractice – Real Property – Closing Attorney – Title Searcher – Reliance

Johnson v. Alexander (Lawyers Weekly No. 011-026-14, 6 pp.) (John Few, Ch.J.) (Daniel Pieper, J., concurring in the result) Appealed from Charleston County Circuit Court (J.C. Nicholson Jr., J.) S.C. App.

http://www.judicial.state.sc.us/opinions/HTMLFiles/COA/5208.pdf

Holding: Viewing the evidence in the light most favorable to the closing attorney, there is a genuine issue of material fact as to whether he acted with reasonable care in relying on a title search conducted by another lawyer.

We reverse the grant of partial summary judgment for plaintiff as to liability on her legal malpractice claim against the closing attorney, and we remand for trial.

Attorneys

Fees – Out-of-State Counsel – Local Rates – Insurance – Duties to Defend & Indemnify

Crossman Communities of North Carolina, Inc. v. Harleysville Mutual Insurance Co. (Lawyers Weekly No. 002-116-14, 21 pp.) (R. Bryan Harwell, J.) 4:09-cv-01379; D.S.C.

Holding: Despite the fact that plaintiffs have a long-term relationship with Washington, D.C. law firm King & Spalding, the issues in this case were not so unusual that plaintiffs needed to retain out-of-state counsel. Although plaintiffs had already negotiated a 10 percent discount off King & Spalding’s usual rates, the court declines to make an attorneys’ fee award at those rates (which top out at $715.50 per hour); instead, the court awards fees at the reasonable rates charged by plaintiffs’ S.C. counsel (the highest of which is $300 per hour).

In response to plaintiffs’ request for $991,153.05 in attorneys’ fees, the court awards $308,674.50. In response to plaintiffs’ request for costs of $119,330.27, the court awards $102,031.41.

Attorneys

Tort/Negligence – Legal Malpractice Claim – Civil Practice – Statute of Limitations – Service of Process – Evidence – Expert Witness – Sanctions

Holmes v. Haynsworth, Sinkler & Boyd, P.A. (Lawyers Weekly No. 010-054-14, 23 pp.) (Jean Hoefer Toal, Ch. J.) (Costa Pleicones, J., joined by Donald Beatty, J., concurring) Appealed from Charleston County Circuit Court (Thomas Hughston Jr., J.) S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27395.pdf

Holding: Even though plaintiff filed her complaint against the individual defendants within the statute of limitations period, she did not forward the complaint to the sheriff’s department until more than a year later, after the limitations period had expired. Plaintiff’s claims against the individual defendants are time-barred.

We affirm the trial court’s grant of a directed verdict for defendants and its award of sanctions against plaintiff.

Bankruptcy

Post-Petition Perfection Allowed for Sub Liens

Branch Banking & Trust Co. v. Construction Supervision Services Inc. (Lawyers Weekly No. 011-106-14, 19 pp.) (Wynn, J.) No. 13-1560, May 22, 2014; USDC at Raleigh, N.C. (Boyle, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/131560.P.pdf

Holding: Construction subcontractors entitled to a lien on funds under North Carolina law had an interest in property when debtor construction company filed its Chapter 11 bankruptcy petition, and the lower courts correctly allowed the subcontractors to serve notice of, and thereby perfect, their liens post-petition, the 4^th Circuit says.

Banks & Banking

Debit Posting Order – Overdraft Fees – Constitutional – Supremacy Clause – State Law Claims – Tort/Negligence

King v. Carolina First Bank (Lawyers Weekly No. 002-123-14, 13 pp.) (Timothy Cain, J.) 6:13-cv-02264; D.S.C.

Holding: In state-law claims, plaintiffs challenge the defendant-bank’s practice of posting daily debits from highest in value to lowest, thereby increasing plaintiffs’ overdraft fees. Since plaintiffs’ claims only incidentally affect the bank’s deposit-taking powers under federal law, and since the bank has not established that refraining from the challenged wrongful conduct would significantly interfere with its ability to engage in the business of banking, the court cannot conclude at this time that plaintiffs’ state-law claims are preempted by federal banking laws.

The bank’s motion to dismiss is granted as to plaintiffs’ unconscionability claim, but the motion is otherwise denied.

Civil Practice

Voluntary Dismissal – One of Several Defendants – Indivisible Damages – Joint & Several Liability

Fagnant v. K-Mart Corp. (Lawyers Weekly No. 002-007-14, 9 pp.) (R. Bryan Harwell, J.) 4:11-cv-00302; D.S.C.

Holding: Although S.C. Code Ann. § 15-38-15(D) says, “A defendant shall retain the right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged injury or damages and/or may be liable for any or all of the damages alleged by any other party,” the plaintiffs have the right under Fed. R. Civ. P. 41(a) to dismiss one of the defendants, and the dismissed defendant will not be included on the jury verdict form.

Defendants’ motion to strike or vacate plaintiffs’ notice of dismissal is denied.

Civil Practice

Appeals – Summary Judgment – Tort/Negligence – Fraud & Unfair Trade Practices – Real Property Contract

Woodson v. DLI Properties, LLC (Lawyers Weekly No. 010-003-14, 12 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) Appealed from Lancaster County Circuit Court (Brooks P. Goldsmith, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27344.pdf

Holding: While it is the better practice for a trial judge to articulate relevant findings and conclusions of law in an order granting summary judgment, such findings are not required for appellate review. We overrule Bowen v. Lee Process Systems Co., 342 S.C. 232, 536 S.E.2d 86 (Ct. App. 2000), to the extent it is relied upon to vacate and remand orders granting summary judgment.

Nevertheless, in this case, the circuit court’s reasoning is clear from its order, petitioners provided the requisite evidentiary material to the Court of Appeals, and the Court of Appeals therefore had a sufficient record before it to permit meaningful appellate review and to make a decision on the merits.

Civil Practice

Class Action – Constitutional – Due Process – Notice & Representation – Statute of Limitations – Negligent Supervision

Doe v. Bishop of Charleston (Lawyers Weekly No. 010-004-14, 9 pp.) (Costa M. Pleicones, J.) Appealed from Charleston County Circuit Court (Kristi Lea Harrington, J.) S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27345.pdf

Holding: If plaintiffs can show that the settlement of a previous class action failed to provide either sufficient notice or adequate representation to absent class members, they would be entitled to a hearing on their underlying claims. Furthermore, the statute of limitations applicable to plaintiffs’ negligent supervision claims may have been tolled by an alleged systematic practice of secrecy and concealment of respondents’ knowledge of sexual abuse by employees.

We affirm in part and reverse in part the circuit court’s dismissal of plaintiffs’ complaint.

Civil Practice

Service of Process – Insurance Company – Contract – Policy’s Method

White Oak Manor, Inc. v. Lexington Insurance Co. (Lawyers Weekly No. 010-011-14, 10 pp.) (Kaye G. Hearn, J.) (Costa M. Pleicones, J., dissenting) Appealed from Spartanburg County Circuit Court (J. Derham Cole & Roger L. Couch, JJ.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27351.pdf

Holding: Although S.C. Code Ann. § 15-9-270 says insurance companies are to be served through the Director of the Department of Insurance, the parties could – and did – agree to a different method of service of process.

We reverse the Court of Appeals and affirm the circuit court’s order denying the defendant-insurance company’s motion to set aside default.

Civil Practice

Removal Jurisdiction – Timely Notice — ‘Other Paper’ – Counsel’s Correspondence

Wright v. Dollar General Store #4722/Dolgencorp, LLC (Lawyers Weekly No. 002-038-14, 7 pp.) (Mary G. Lewis, J.) 4:13-cv-01447; D.S.C.

Holding: Despite plaintiff’s efforts to draft the complaint to thwart removal to federal court, subsequent email correspondence from plaintiff’s counsel to defense counsel referred to “intertwined Fed/state labor issues.” This email was an “other paper” within the meaning of 28 U.S.C. § 1446(b)(3); since defendant filed its notice of removal within 30 days of receiving this email, removal was timely.

The court denies plaintiff’s motion to remand to state court but grants plaintiff leave to amend the complaint to state a claim under the Fair Labor Standards Act.

Civil Practice

Federal Question Jurisdiction – Attorneys – Tort/Negligence – Legal Malpractice Claim – Intellectual Property – Patent Application & Sale

McCrory v. Killough (Lawyers Weekly No. 002-066-14, 7 pp.) (Weston Houck, J.) 2:13-cv-00988; D.S.C.

Holding: In his legal malpractice claim, the plaintiff-client alleges that the defendant-attorney (1) created paperwork, which plaintiff did not sign off on; (2) failed to provide information and documentation concerning plaintiff’s patent; (3) failed to apprise plaintiff of his rights under the patent; and (4) sold the patent without plaintiff’s knowledge. These are not patent issues.

The court accepts the magistrate judge’s recommendation. This case is remanded to state court.

Civil Practice

Door Closing Statute – Accident Location – Ohio Plaintiff – Delaware Defendants – Statute of Limitations – Tort/Negligence – Products Liability – Discovery Rule – TV Ad

Kennedy v. Techtronic Industries North America (Lawyers Weekly No. 002-067-14, 6 pp.) (J. Michelle Childs, J.) 8:13-cv-00871; D.S.C.

Holding: Even though defendants’ business is located in South Carolina, since defendants are incorporated in Delaware, they seek to apply South Carolina’s Door Closing Statute, S.C. Code Ann. § 15-5-150, to the Ohio plaintiff. It is true that, pursuant to the Door Closing Statute, a non-South Carolina resident cannot bring an action in South Carolina when the cause of action did not arise within South Carolina. However, the complaint does not indicate where plaintiff’s accident occurred; since there is no indication that plaintiff’s claim arose outside of South Carolina, the Door Closing Statute does not apply.

Defendants’ motion to dismiss is denied without prejudice.

Civil Practice

Sanctions – South Carolina Frivolous Civil Proceedings Sanctions Act – Successive Motions to Dismiss – Collateral Estoppel

Holmes v. East Cooper Cmty. Hosp., Inc. (Lawyers Weekly No. 010-030-14, 30 pp.) (Jean H. Toal, C.J.) (Costa M. Pleicones, J., concurring in part and dissenting in part) Appealed from Charleston County Circuit Court (Kristi Lea Harrington, J.) S.C. S. Ct.

Holding: In this consolidated appeal, Dr. Cynthia Holmes, M.D. (appellant) asks this court to reverse the circuit court’s decisions granting summary judgment in favor of East Cooper Community Hospital, Inc., and Tenet HealthSystem Medical, Inc. (collectively, respondents), and sanctioning her pursuant to the South Carolina Frivolous Civil Proceedings Sanctions Act (the FCPSA). We affirm the circuit court’s grant of summary judgment in favor of respondents and the award of sanctions against appellant.

Civil Practice

Personal Jurisdiction – Mississippi Attorneys – Asbestos Litigation – Tort/Negligence – Legal Malpractice

Parker v. Asbestos Processing, LLC (Lawyers Weekly No. 002-075-14, 6 pp.) (Joseph Anderson Jr., J.) 0:11-cv-01800; D.S.C.

Holding: When they reached into South Carolina through travel and correspondence related to the litigation of asbestos cases involving (among others) S.C. plaintiffs, Mississippi lawyers subjected themselves to the jurisdiction of courts in South Carolina.

The court denies the motions to dismiss of defendants McCormick and Pittman and their respective law firms. The court grants without prejudice the motions to dismiss of the remaining moving defendants.

Civil Practice

Time Requirement for Judge Recusal Motion

Kolon Industries Inc. v. E.I. DuPont de Nemours & Co. (Lawyers Weekly No. 011-076-14, 60 pp.) (Diaz, J.) No. 12-1587, April 3, 2014; USDC at Richmond, Va. (Payne, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/121587.P.pdf

Holding: A split panel of the 4^th Circuit says there is a timeliness requirement for a motion for a judge’s recusal under 28 U.S.C. § 455(b)(2), which defendant Kolon Industries failed to meet in the trade secret-antitrust litigation, and the summary judgment against Kolon on its antitrust counterclaims is affirmed.

Kolon Industries contends that DuPont attempted to wield, or did wield, monopoly power over the U.S. para-aramid fiber market in violation of the Sherman Act, 15 U.S.C. § 2. In addition to evidence of market concentration and high barriers to entry, Kolon adduced evidence that DuPont earned profit margins of as high as 75 percent between 1997 and 2005 and had the ability to price discriminate among its customers.

Civil Practice

Excluding Trade-Secret Defense Evidence Was Error
E.I. DuPont deNemours & Co. v. Kolon Industries Inc. (Lawyers Weekly No. 011-077-14, 17 pp.) (Per Curiam) No. 12-1260, April 3, 2014; USDC at Richmond, Va. (Payne, J.) 4^th Cir. Unpub.

http://www.ca4.uscourts.gov/Opinions/Unpublished/121260.U.pdf

Holding: The 4^th Circuit vacates a $919.9 million jury award in DuPont’s suit alleging theft and misappropriation of 149 trade secrets involving production of para-aramid fibers used in bulletproof armaments; the district court abused its discretion and prejudiced Kolon when it excluded evidence to support Kolon’s defense that many disputed trade secrets had been disclosed by DuPont during prior litigation.

Civil Practice

Personal Jurisdiction – Tort/Negligence – Wrongful Death – S.C. Sailor – Georgia Company – Indonesian Seas

Van Der Walt v. Wayneworks Marine, LLC (Lawyers Weekly No. 002-081-14, 9 pp.) (J. Michelle Childs, J.) 8:13-cv-01162; D.S.C.

Holding: Even though the Georgia defendant only employs seven South Carolinians and has provided nonspecific services to 160 S.C. customers, since plaintiff’s claims arose on the high seas, her claims do not arise in any other state whose courts might provide a more likely forum.

The court denies defendant’s motion to dismiss for lack of personal jurisdiction.

Civil Practice

Vulnerable Adult – First Impression – Standard of Proof – Clear & Convincing Evidence

Doe v. South Carolina Department of Social Services (Lawyers Weekly No. 010-045-14, 16 pp.) (Donald Beatty, J.) (John Kittredge, J., joined by Costa Pleicones, J., dissenting) Appealed from Richland County Family Court (Tommy Edwards, J.)

http://www.sccourts.org/opinions/HTMLFiles/SC/27385.pdf

Holding: We hold that, for a person to be deemed a vulnerable adult under the S.C. Omnibus Adult Protection Act (the Act), a person’s physical or mental condition, including advanced age, must cause a diminished ability to adequately provide for self-care or protection.

We reverse the family court’s ruling that appellant Doe is a vulnerable adult. We remand for findings as to any new developments.

Civil Practice

Discovery – Motions to Quash – Privileges – Tort/Negligence – Auto Accident – Insurance

Smyth v. Williamson (Lawyers Weekly No. 002-106-14, 10 pp.) (David Norton, J.) 2:13-cv-02553; D.S.C.

Holding: Where plaintiff seeks to depose the defendant’s auto insurer to find out (1) whether defendant gave any statements to the insurer and, if so, the substance of those statements; and (2) whether the insurer communicated with defendant regarding plaintiff’s injuries, health, medical bills, or condition, plaintiff is not seeking documents or tangible things; therefore, the work-product doctrine does not apply.

The court denies the motions to quash filed by defendant and her insurer. Plaintiff’s deposition of the insurer is limited to 10 minutes and to the matters set out above.

Civil Rights

Specialty License Plate Statute Struck

ACLU of North Carolina v. Tata (Lawyers Weekly No. 001-040-14, 28 pp.) (Wynn, J.) No. 13-1030, Feb. 11, 2014; USDC at Raleigh, N.C. (Fox, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/131030.P.pdf

Holding: The 4^th Circuit upholds a decision striking a North Carolina law that allows a specialty license plate with the message, “Choose Life,” while not allowing a specialty plate for pro-choice advocates; the state’s license message policy in this matter constitutes blatant viewpoint discrimination.

Civil Rights

Excessive Force – Pretrial Detainee – Qualified Immunity – De Minimis Injury

French v. Richland County Lawyers Weekly No. 002-085-14, 22 pp.) (Margaret Seymour, Sr.J.) 3:11-cv-00717; D.S.C.

Holding: In 2010, the U.S. Supreme Court held that officers who assaulted a pretrial detainee were not entitled to qualified immunity just because the detainee was not severely injured; however, when plaintiff was injured during his pretrial detention in 2009, the law of the Fourth Circuit was that officers were entitled to qualified immunity if a pretrial detainee’s injuries were de minimis. The defendant-officers are entitled to qualified immunity in this case.

Constitutional

Separation of Powers — Appropriations Act — Line Item Veto – Administrative – CON Act – Funding Cut

Amisub of South Carolina, Inc. v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 010-042-14, 20 pp.) (Jean Hoefer Toal, Ch.J.) (Costa Pleicones, J., dissenting) S.C. S. Ct.

http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27382.pdf

Holding: The governor’s veto of a line item in an appropriations act does not repeal a separate, already existing statute.

Respondent (DHEC) is required to carry out its duties under the State Certification of Need and Health Facility Licensure Act (the CON Act).

Constitutional

First Amendment – Robocalls – Political Speech – Tort/Negligence – False Imprisonment – Probable Cause

Cahaly v. LaRosa (Lawyers Weekly No. 002-126-14, 21 pp.) (J. Michelle Childs, J.) 6:13-cv-00775; D.S.C.

Holding: Where S.C. Code Ann. § 16-17-446 does not ban all robocalls, but only restricts robocalls on the basis of their commercial or political content, the statute’s differential treatment of speech violates the First Amendment.

The court declares § 16-17-446 unconstitutional and permanently enjoins its enforcement against political speech. The court grants summary judgment for defendants as to plaintiff’s tort claims and his claim for damages under 42 U.S.C. § 1983.

Contract

Statute of Frauds – Gamecock Basketball – New Arena Seats – Estoppel

Springob v. University of South Carolina (Lawyers Weekly No. 010-024-14, 7 pp.) (John Kittredge, J.) (Costa Pleicones, J., concurring) Appealed from Richland County Circuit Court (Alison Renee Lee, J.) S.C. S. Ct.

http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27363.pdf

Holding: An agreement to provide/pay for several seasons’ worth of seats at USC basketball games obviously can’t be accomplished within one year, so the Statute of Frauds applies. The university logo on the brochure offering the deal is not the university’s signature for purposes of the Statute of Frauds; in any event, material terms are missing from the parties’ correspondence.

However, the university might be equitably estopped from denying oral promises made to plaintiffs that, after five seasons of paying considerably more, they could keep the premium seats by paying just the face value of the tickets and Gamecock Club dues.

We affirm the circuit court’s grant of summary judgment for defendants on the issue of whether the Statute of Frauds applies. We reverse and remand on the issue of equitable estoppel.

Contract

Auto Wholesale – Bounced Checks – Auctioneer’s Status – Buyer’s Bond

Centennial Casualty Co. v. Western Surety Co. (Lawyers Weekly No. 011-059-14, 6 pp.) (James Lockemy, J.) Appealed from Charleston County Circuit Court (J. C. Nicholson Jr., J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5231.pdf

Holding: Even though an auto wholesale auctioneer required its sellers to sign an agreement which said the auctioneer was the seller’s “legal representative,” S.C. Code Ann. § 56-15-520 clearly says an auctioneer is not deemed to be the seller of a motor vehicle’s title. Therefore, the auctioneer was not the seller’s “legal representative” under S.C. Code Ann. § 56-15-320 when a buyer bounced the checks it wrote for cars it purchased at the auction.

We reverse the circuit court’s ruling that the auctioneer and its insurer were “legal representatives” under § 56-15-320.

Contract

Equitable Indemnification – Real Property – Environmental – Ground Contamination – Attorney’s Fees

McCoy v. Greenwave Enterprises, Inc. (Lawyers Weekly No.  010-056-14, 5 pp.) (John Kittredge, J.) Appealed from Dorchester County Circuit Court (Doyet Early III, J.) S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27397.pdf

Holding: When the respondent-seller sold real property to the appellant-buyers, the seller breached the purchase agreement by failing to disclose a prior petroleum release. Subsequently, the buyers had to defend a ground contamination lawsuit filed by the plaintiff-neighbors. Under these circumstances, the buyers are entitled to equitable indemnification from the seller, including the attorney’s fees and costs they incurred in defending the neighbors’ lawsuit.

We reverse and remand the trial court’s refusal to award attorney’s fees and costs to the buyers.

Criminal Practice

Constitutional – Municipal & Magistrate Courts – Attorney General – Authority to Prosecute

State v. Long (Lawyers Weekly No. 010-006-14, 6 pp.) (Costa M. Pleicones, J.) On writ of certiorari. S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27347.pdf

Holding: In light of this court’s longstanding recognition of the broad prosecutorial authority of the Attorney General and the limited practical effect that S.C. Const. art. V, § 24 had on that authority, we hold that art. V, § 24 does not expressly or implicitly restrict the Attorney General from prosecuting cases in magistrate and municipal courts, and that as the “chief prosecuting officer” of the State of South Carolina, the Attorney General may prosecute cases in these summary courts.

We uphold the ruling of the municipal court of Batesburg-Leesville, reverse the ruling of the municipal court for the city of West Columbia, lift the stay, and remand these cases to proceed in accordance with this opinion.

Criminal Practice

Capital Case – Self-Representation – Competence to Stand Trial

State v. Barnes (Lawyers Weekly No. 010-008-14, 38 pp.) (Costa M. Pleicones, J.) (Jean Hoefer Toal, Ch.J., joined by John W. Kittredge, J., dissenting)Appealed from Edgefield County Circuit Court (R. Knox McMahon, J.) Substituted opinion. S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27322.pdf

Holding: A defendant who is competent to stand trial is also competent to represent himself, even in a capital case. Since the trial court denied defendant the right to self-representation, defendant is entitled to a new trial.

The court declines to adopt the higher competency standard permitted by Indiana v. Edwards, 554 U.S. 164 (2008).

Criminal Practice

Constitutional – Confrontation Clause – Joint Trial – Co-Defendant’s Confession – Obvious Redaction

State v. Henson (Lawyers Weekly No. 010-014-14, 11 pp.) (Kaye G. Hearn, J.) Appealed from York County Circuit Court (John C. Hayes III, J.) S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27354.pdf

Holding: Since defendant was tried jointly with his co-defendant, the co-defendant could not be compelled to testify. Since the jury could easily infer that the co-defendant’s redacted confession referred to defendant, admission of the co-defendant’s confession violated defendant’s right to confront the witnesses against him.

Defendant is entitled to a new trial.

Criminal Practice

PCR – Constitutional – Ineffective Assistance Claim — Jury Instructions – Involuntary Manslaughter – Firing Gun Intentionally

Sullivan v. State (Lawyers Weekly No. 011-006-14, 5 pp.) (John C. Few, Ch.J.) Appealed from Greenville County (D. Garrison Hill & G. Edward Welmaker, JJ.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5190.pdf

Holding: Even if petitioner was only trying to scare the victim, petitioner intentionally fired the shots, so he was not entitled to any jury instruction on involuntary manslaughter. Therefore, he did not receive ineffective assistance when his trial counsel failed to sufficiently request additional language from State v. Burris, 334 S.C. 256, 513 S.E.2d 104 (1999).

We affirm the lower court’s denial of post-conviction relief.

Criminal Practice

No Waiver of Prospective Speedy Trial Claim

U.S. v. Mosteller (Lawyers Weekly No. 001-036-14, 15 pp.) (Keenan, J.) No. 12-4434, Feb. 4, 2014; USDC at Florence, S.C. (Wooten, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/124434.P.pdf

Holding: A defendant charged with theft of government funds for her continued receipt of veteran’s surviving spouse benefits after her remarriage and educational benefits while failing to attend classes, is not entitled to plain error review of her Speedy Trial Act claim, after she waived her Speedy Trial Act rights as a condition to obtaining a mistrial in her first trial; the 4^th Circuit affirms her conviction under 18 U.S.C. § 641.

Criminal Practice

Homicide by Child Abuse – Two Caretakers – Circumstantial Evidence

State v. Palmer (Lawyers Weekly No. 011-015-14, 15 pp.) (John C. Few, Ch.J.) (Daniel F. Pieper, J., concurring in part & dissenting in part) Appealed from Horry County Circuit Court (Larry B. Hyman Jr., J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5198.pdf

Holding: Where the state presented direct medical evidence that the 17-month-old child’s fatal injuries were the result of child abuse committed on the day he died, and where the state presented circumstantial evidence that would have allowed the jury to find that either defendant delivered the fatal blows, the trial court correctly denied defendants’ motions to dismiss.

We affirm defendants’ convictions of homicide by child abuse and unlawful conduct toward a child. We reverse defendants’ convictions of aiding and abetting homicide by child abuse.

Criminal Practice

PCR – Constitutional – Attorneys – Ineffective Assistance Claim – First Impression – Jury Charge – Lesser Included Offense – Armed Robbery – Strong Arm Robbery

Abney v. State (Lawyers Weekly No. 011-025-14, 14 pp.) (Aphrodite Konduros, J.) (Daniel Pieper, J., concurring) (John Few, Ch.J., dissenting) Appealed from Newberry County Circuit Court (D. Garrison Hill, J.) S.C. App.

http://www.judicial.state.sc.us/opinions/HTMLFiles/COA/5207.pdf

Holding: The court adopts the view of other states that the decision as to whether to ask for a jury charge on a lesser included offense is an element of trial strategy. While trial counsel’s decision not to request a charge on the lesser-included offense of strong arm robbery turned out to be unsuccessful, it was within the realm of trial strategy.

We affirm the circuit court’s denial of post-conviction relief.

Criminal Practice

Collateral Attack Allowed for Career Offender

Whiteside v. U.S. (Lawyers Weekly No. 001-074-14, 69 pp.) (Gregory, J.) No. 13-7152, April 8, 2014; USDC at Asheville, N.C. (Reidinger, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/137152.P.pdf

Holding: A federal inmate may use a 28 U.S.C. § 2255 motion to challenge a sentence that was based on the career offender enhancement under the federal sentencing guidelines when subsequent case law reveals the enhancement does not apply to him; in a split decision that creates a circuit split, the 4^th Circuit vacates defendant’s sentence and remands for resentencing.

We hold that the mistake results in a fundamental miscarriage of justice that is cognizable on collateral review. We grant a certificate of appealability, vacate the petitioner’s sentence and remand the case for resentencing.

Criminal Practice

Murder – Jury Instructions – Involuntary Manslaughter – Struggle for Gun – Conflicting Evidence

State v. Battle (Lawyers Weekly No. 011-041-14, 10 pp.) (John Geathers, J.) Appealed from Greenville County Circuit Court (C. Victor Pyle Jr., J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5222.pdf

Holding: Even though the state presented evidence that the gun defendant and the victim were struggling over was not the gun that was used to shoot the victim, defendant’s testimony – that the victim pointed a gun at defendant, the two struggled over the gun, and the gun went off, shooting the victim – entitled him to a jury instruction on involuntary manslaughter.

We reverse defendant’s murder conviction and remand for a new trial.

Criminal Practice

Confusing Indictment & Verdict – Indictment Amendment – Cocaine Trafficking – Amount

Roberts v. State (Lawyers Weekly No. 011-042-14, 11 pp.) (Thomas Huff, J.) Appealed from Charleston County Circuit Court (Roger Young, J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5223.pdf

Holding: Where (1) defendant was indicted for trafficking between 200 and 400 grams of cocaine, (2) at some point someone marked through the “2” and wrote in a “1” on one place on the indictment (leaving the 200-400 numbers unaltered in other places in the indictment), (3) the court clerk initially announced a guilty verdict of trafficking in 200 to 400 grams of cocaine but inexplicably later announced a guilty verdict of trafficking in 100 to 200 grams of cocaine, and (4) the jury poll did not take into account the change in the numbers, defendant was convicted based upon a confusing indictment which led to a confusing jury verdict.

We reverse defendant’s trafficking conviction and remand for a new trial.

Criminal Practice

DUI – Video Recording – Field Sobriety Tests – Visibility — Defendant’s Head

State v. Gordon (Lawyers Weekly No. 011-045-14, 7 pp.) (Aphrodite Konduros, J.) Appealed from Oconee County Circuit Court (Alexander Macaulay, J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5226.pdf

Holding: The magistrate relied on a case that had been decided under a former version of S.C. Code Ann. § 56-5-2953 when the magistrate held it did not matter whether defendant’s head was visible in the video recording of him performing one of the field sobriety tests (the horizontal-gaze nystagmus test). The magistrate should have taken into account the fact that the statute now requires that the video recording “include any field sobriety tests administered….”

Affirmed in part, vacated in part, and remanded.

Criminal Practice

Voluntary Manslaughter – Stand Your Ground – Social Guest – Evidentiary Hearing Requirement – Castle Doctrine

State v. Manning (Lawyers Weekly No. 011-047-14, 11 pp.) (Daniel Pieper, J.) Appealed from Richland County Circuit Court (G. Thomas Cooper Jr., J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5228.pdf

Holding: A homeowner was not entitled to immunity under S.C. Code Ann. § 16-11-440 when he shot a social guest who had refused to leave and pointed a gun at him.

We affirm defendant’s conviction for voluntary manslaughter.

Criminal Practice

DUI – Video Recording Requirement – Unequipped Patrol Car – Excused

State v. Johnson (Lawyers Weekly No. 011-057-14, 9 pp.) (Paula Thomas, J.) Appealed from Greenville County Circuit Court (G. Edward Welmaker, J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5230.pdf

Holding: Despite the Greenville Police Department’s sustained efforts to equip its patrol cars with cameras, the arresting officer’s car was not equipped with a camera; therefore, the state was excused from producing a video recording of defendant’s arrest for driving under the influence.

We affirm the circuit court’s denial of defendant’s motion to dismiss.

Criminal Practice

Hobbs Act Robberies Targeted Drug Dealers

U.S. v. Taylor (Lawyers Weekly No. 011-113-14, 18 pp.) (Wilkinson, J.) No. 13-4316, June 6, 2014; USDC at Roanoke, Va. (Conrad, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/134316.P.pdf

Holding: The 4^th Circuit says a defendant, who as a member of the Roanoke-based “Southwest Goonz” gang targeted homes of illegal drug dealers for robberies, can be convicted of two counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), even though the affected “interstate commerce” was illegal drug dealing.

Domestic Relations

Equitable Distribution – Adultery Allegation – Intercepted Emails – Classification & Valuation – Rental & Business Properties

Teeter v. Teeter (Lawyers Weekly No. 011-021-14, 11 pp.) (Aphrodite Konduros, J.) Appealed from Lexington County Family Court (Deborah Neese, J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5203.pdf

Holding: Although the husband testified that he found the wife’s email password on a piece of paper on top of her purse while he was visiting the parties’ children, the wife testified that she had not written down her password and would have left it in her planner at work had she done so. Moreover, the husband admitted putting spyware on the wife’s computer, though he indicated it only produced a couple of “garbled” screen shots. Based on this evidence, the husband has not shown that the family court erred by excluding evidence related to the wife’s relationship with a former colleague.

The family court’s equitable distribution order is modified in part and affirmed.

Domestic Relations

Termination of Parental Rights – “Severity” or “Repetition” of Abuse – Constitutional – Standing – Void for Vagueness

S.C. Dep’t of Soc. Servs. v. Michelle G. (Lawyers Weekly No. 010-031-14, 8 pp.) (Donald W. Beatty, J.) (Costa M. Pleicones, J., concurring in result only) (Appealed from Anderson County Family Court (Karen F. Ballenger, J.) S.C. S. Ct.

Holding: This is an expedited appeal by a mother in a termination of parental rights (TPR) case. The family court terminated appellant’s parental rights to her two minor sons and denied appellant’s motion to dismiss, in which she challenged the constitutionality of § 63-7-2570(1) of the South Carolina Code. On appeal, appellant contends the TPR statute violates the fourteenth amendment and is void for vagueness. We affirm.

Domestic Relations

Equitable Distribution – Classification & Valuation – Rental Properties – Adultery – Credibility – Attorney’s Fees

Teeter v. Teeter (Lawyers Weekly No. 011-058-14, 11 pp.) (Aphrodite Konduros, J.) Appealed from Lexington County Family Court (Deborah Neese, J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5203.pdf

Holding: Even though, during the parties’ marriage, the husband used proceeds from the sale of his separate property to make a down payment on a rental property, and even though the mortgage on the rental property was paid from the rents the property generated, the mortgage was nevertheless a marital debt, the excess rental profits were used in support of the marriage, and the rental payments were always deposited in the husband’s only checking account. Therefore, the family court correctly determined that the rental property was a marital asset.

We modify the equitable distribution order as to the valuation of the husband’s business and remand for adjustment of the division of assets to reflect this modification. Otherwise, we affirm.

Domestic Relations

Parent & Child – Support – Attorney’s Fees

Brown v. Brown (Lawyers Weekly No. 011-066-14, 6 pp.) (H. Bruce Williams, J.) Appealed from York County Family Court (Brian Gibbons, J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5236.pdf

Holding: It does not appear that the father’s failure to pay his child support on time actually prolonged these proceedings. The parties’ financial conditions and ability to pay their attorney’s fees are similar, as would be the impact such fees would have on their standards of living. Since the father was more successful than the plaintiff-mother in this litigation – he successfully petitioned for a reduction in his child support obligation – the record does not support the family court’s award of attorney’s fees to the mother.

We reverse the family court’s order that the father pay $5,000 of the mother’s attorney’s fees.

Insurance

CGL – Damages – Attorneys’ Fee Claim — Church Split – Advertising Injury

Episcopal Church in South Carolina v. Church Insurance Company of Vermont (Lawyers Weekly No. 002-008-14, 17 pp.) (Patrick Michael Duffy, J.) 2:13-cv-02475; D.S.C.

Holding: The defendant-insurer only has a duty to defend the plaintiff-church in underlying litigation if the underlying complaint seeks “damages which may be covered by the Commercial Liability Coverage” i.e., monetary compensation for a person who claims to have suffered an injury that is covered by the Commercial Liability Coverage. The insurer must defend the church in the underlying litigation because the complaint seeks attorneys’ fees and alleges that the underlying plaintiffs were injured by the church’s alleged use of their registered service marks in the course of advertising the church’s services.

Defendant The Church Insurance Company’s (CIC) motion to dismiss is granted. Defendant Church Insurance Company of Vermont’s (CIC-VT) motion to dismiss is denied. Plaintiff’s motion for summary judgment as to CIC-VT is granted in part and denied in part.

Insurance

Homeowners – Sexual Assault – Joint Obligations Provision – First Impression – Declaratory Judgment

Allstate Indemnity Co. v. Tilmon (Lawyers Weekly No. 002-070-14, 14 pp.) (J. Michelle Childs, J.) 1:13-cv-00690; D.S.C.

Holding: The “joint obligations” provision in plaintiff’s homeowners’ insurance policy makes one insured’s acts binding on the other insureds. Even though defendant Davis only alleges negligence and breach of fiduciary duty on the part of insureds Roosevelt and Mona Tilmon, since insured Anthony Tilmon committed an intentional act when he committed criminal sexual conduct upon Davis’s minor daughter, plaintiff has no duty to defend or indemnify Roosevelt or Mona Tilmon in Davis’s underlying lawsuit.

The court declares that homeowners’ insurance policy issued to Roosevelt Tilmon by plaintiff (the Tilmon policy) does not provide coverage for the claims asserted in the underlying lawsuit. Plaintiff does not have any duty to either provide Roosevelt Tilmon or Mona Tilmon with a defense in the underlying lawsuit or indemnify them for the amount of any judgment and other relief that might be entered against them in the underlying lawsuit. Plaintiff is also entitled to summary judgment on defendant Davis’s counterclaim for coverage under the Tilmon policy.

The Tilmon policy does not provide coverage for injury caused by an insured’s intentional or criminal act.

Judges

Recusal Motion – Tort/Negligence – Attorneys – Legal Malpractice Action – Judge’s Former Firm

Kohler Co. v. Infinger (Lawyers Weekly No. 002-112-14, 4 pp.) (J. Michelle Childs, J.) 7:13-cv-03511; D.S.C.

Holding: In this legal malpractice action, plaintiff bases its recusal motion on nothing more than the judge’s former employment with the defendant-law firm (13 years prior to the filing of this action) and an email from the court informing plaintiff of this fact and offering plaintiff the opportunity to have the case re-assigned. These facts do not form a valid basis for recusal.

Plaintiff’s motion for recusal is denied.

Labor & Employment

Retaliation Claim – 14-Month Gap – Recurring Actions – Tort/Negligence – Defamation

Howard v. Allen University (Lawyers Weekly No. 002-010-14, 13 pp.) (Margaret B. Seymour, Sr.J.) 3:11-cv-02214; D.S.C.

Holding: Even though 14 months passed between the time plaintiff first refused to make a subordinate’s life so miserable that she would quit and the time the alleged retaliation against plaintiff began, since plaintiff’s superior threatened him and badgered him about the subordinate in the interim, the 14-month gap isn’t fatal to his retaliation claim.

The court accepts the magistrate judge’s recommendation and denies defendants’ motion for summary judgment.

Labor & Employment

Civil Rights – Race Discrimination Claim – Retaliation – Complaints to Subordinates – Protected Activity – First Impression

Cason v. South Carolina State Ports Authority (Lawyers Weekly No. 002-048-14, 9 pp.) (Richard Mark Gergel, J.) 2:11-cv-02241; D.S.C.

Holding: If a supervisor tells his subordinates that their employer discriminates on the basis of race and if the employer fires the supervisor for making these statements, the supervisor can make out a retaliation claim under Title VII.

Labor & Employment

Public Employees – Retired & Rehired – Salary Reduction – Retirement Accounts – Employer Contribution

Grimsley v. South Carolina Law Enforcement Division (Lawyers Weekly No. 011-019-14, 3 pp.) (John Few, Ch.J.) Appealed from Richland County Circuit Court (J. Ernest Kindard Jr., J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5201.pdf

Holding: When plaintiffs were rehired after retirement, they were required to sign a form which said, “You will have a reduction of 13.6 percent in your salary to cover the amount it will cost [the S.C. Law Enforcement Division] to pay the employer portion of retirement.” A reasonable jury could find SLED agreed to pay each rehired employee the same salary it paid before retirement and that the percentage reduction represents an illegal requirement that the employee pay the retirement contribution that the employer is required to pay under S.C. Code Ann. § 9-11-90(4)(b).

We reverse summary judgment for SLED and remand.

Labor & Employment

State Wage Claims Preempted by LMRA

Barton v. House of Raeford Farms Inc. (Lawyers Weekly No. 001-061-14, 45 pp.) (Niemeyer, J.) No. 12-1943, March 11, 2014; USDC at Greenville, S.C. (Childs, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/121943.P.pdf

Holding: In this suit by employees of a Greenville, S.C., poultry processing plant, plaintiffs’ state-law wage claims are preempted by federal labor law, as the parties are subject to a collective bargaining agreement, but the 4^th Circuit affirms an award for two of six employees who allege retaliation for filing state workers’ compensation claims.

Labor & Employment

Civil Rights – Religious Discrimination Claim – Title VII Preemption – EEOC Employee – LGBT Investigations

Somers v. EEOC (Lawyers Weekly No. 002-080-14, 8 pp.) (Mary G. Lewis, J.) 6:13-cv-00257; D.S.C.

Holding: Plaintiff is an EEOC investigator, and his religion teaches that homosexual behavior is immoral. Even if plaintiff has been assigned to investigate a discrimination case based on sexual lifestyle, and even if the EEOC denies his requested accommodation, plaintiff must follow the administrative process required by Title VII.

The court adopts the magistrate judge’s recommendation and grants the EEOC’s motion to dismiss without prejudice. Plaintiff’s motion to amend is denied as futile.

Labor & Employment

Employer Can Be Liable for Third-Party Harassment

Freeman v. Dal-Tile Corp. (Lawyers Weekly No. 011-088-14, 31 pp.) (Shedd, J.) No. 13-1481, April 29, 2014; USDC at Raleigh, N.C. (Britt, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/131481.P.pdf

Holding: An African-American female customer service representative at a tile company who complained to her employer about an independent salesman who referred to her and other women as “bitches” and “black bitches” and commented frequently on his sexual activities, may try her hostile environment and sexual harassment suit; the 4^th Circuit adopts a negligence standard for employer liability for third-party harassment, and vacates summary judgment for employer.

Prisons & Jails

Sentence Calculation – Constitutional – Due Process – Ambiguous Sentencing Sheets & Transcript

Tant v. South Carolina Department of Corrections (Lawyers Weekly No. 010-051-14, 11 pp.) (Kaye Hearn, J.) (Costa Pleicones, J., concurring) Appealed from the Administrative Law Court (Ralph King Anderson III, ALJ) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27392.pdf

Holding: When the Department of Corrections seeks to recalculate its initial determination of an inmate’s sentence, the DOC must give the inmate timely, formal notice and advise him of his right to file a grievance and to obtain a hearing. Additionally, when an inmate’s sentencing sheet is unambiguous, it is controlling; however, if the sheet is ambiguous, the DOC may consider the sentencing transcript.

In this case, both the sentencing sheets and the transcript are ambiguous; as a result, respondent’s sentences must be construed to run concurrently.

We modify and affirm the Court of Appeals’ opinion.

Real Property

Fannie Mae & Freddie Mac Exempt from Transfer Taxes

Montgomery County, Md. v. Federal Nat’l Mtge. Ass’n (Lawyers Weekly No. 001-028-14, 25 pp.) (Niemeyer, J.) No. 13-1691, Jan. 27, 2014; USDC at Greenbelt, Md. (Chasanow, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/131691.P.pdf

Holding: Although general tax exemptions applicable to Fannie Mae and Freddie Mac do not apply to real property taxes, they do cover real property transfer taxes, and the 4^th Circuit affirms decisions of district courts in Maryland and South Carolina that Congress acted within its Commerce Clause power in providing the tax exemptions.

Securities

UCC – Indirect Holding System – Agency – Trusts & Estates

Rider v. Estate of Rider(Lawyers Weekly No. 010-027-14, 13 pp.) (Donald Beatty, J.) Appealed from Beaufort County Circuit Court (Carmen Mullen, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27367.pdf

Holding: A dying husband was the entitlement holder of an investment account at Wachovia. Once he issued an entitlement order directing Wachovia to transfer certain assets from his investment account to a new account for his wife, the transfer was effective pursuant to the Uniform Commercial Code. The Court of Appeals erred by applying agency law to rule that one of the assets – transferred to the wife’s account several months after the husband died – was part of the husband’s probate estate.

We reverse.

Tort/Negligence

Defamation – Slander – Tortious Interference with Contract – Insurance Administrator

Johns v. Amtrust Underwriters, Inc. (Lawyers Weekly No. 002-024-14, 13 pp.) (J. Michelle Childs, J.) 6:12-cv-01683; D.S.C.

Holding: Defendant Schumann, who worked for the defendant-insurance company, and plaintiff, who worked for the insurance company’s administrator, didn’t get along, and Schumann changed the way she audited the administrator’s files so that it was difficult to find the basis for Schumann’s conclusion that plaintiff was not adequately supervising her files; in this situation, plaintiff may be able to prove that Schumann slandered her.

Defendants’ motion for summary judgment is denied.

Tort/Negligence

Oral Debt Protest Works for FDCPA

Clark v. Absolute Collection Services Inc. (Lawyers Weekly No. 001-030-14, 10 pp.) (Per Curiam) No. 13-1151, Jan. 31, 2014; USDC at Raleigh, N.C. (Boyle, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/131151.P.pdf

Holding: Plaintiffs may sue a collection agency for a violation of the Fair Debt Collection Practices Act based on the collection agency’s demand that plaintiffs’ challenge to a debt be in writing; the 4^th Circuit reverses dismissal of the potential class action.

Tort/Negligence

Products Liability – Design Defect – Truck Door Lock – Rod vs. Cable Linkage – Damages – Setoff – Settlement Allocation

Riley v. Ford Motor Co. (Lawyers Weekly No. 011-011-14, 16 pp.) (John C. Few, Ch.J.) Appealed from Bamberg County Circuit Court (Doyet A. Early III, J.) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5195.pdf

Holding: Plaintiff presented sufficient evidence that the defendant-truck manufacturer chose a less safe door locking system when there was a feasible, safer alternative that was somewhat more expensive; in addition, plaintiff presented sufficient evidence that the door locking system malfunctioned during the accident, leading to the decedent’s ejection from his truck.

Where the only evidence regarding the decedent’s survival was a witness’s testimony that he saw the decedent and heard “a gasping sound,” it was not reasonable for plaintiff and the settling defendant to allocate 80 percent of their settlement to the survival claim and only 20 percent of the settlement amount to the wrongful death claim.

We affirm the trial court’s denial of defendant’s motion for judgment notwithstanding the verdict (JNOV). We reverse the denial of setoff and the decision to grant a new trial nisi additur. We reinstate the jury’s verdict of $300,000 and award a setoff against the verdict in the amount of $20,000.

Tort/Negligence

Foreseeability – Assumption of Risk – Comparative Negligence – Toxic Chemical Spill

Humphrey v. Day & Zimmerman International, Inc. (Lawyers Weekly No. 002-033-14, 13 pp.) (Timothy M. Cain, J.) 6:12-cv-01458; D.S.C.

Holding: Even though defendant negligently caused an acrylonitrile (AN) spill, it was not foreseeable that plaintiff – who knew of the dangers of AN and the necessity of the proper safety precautions – would attempt to perform non-emergency repairs without taking the proper safety precautions.

Summary judgment for defendant.

Tort/Negligence

Medical Malpractice – Statute of Limitations – Mental Incompetence – Collateral Estoppel

Sims v. Amisub of South Carolina, Inc. (Lawyers Weekly No. 011-014-14, 13 pp.) (James E. Lockemy, J.) Appealed from York County Circuit Court (S. Jackson Kimball III, Special Judge) S.C. App.

http://www.sccourts.org/opinions/HTMLFiles/COA/5197.pdf

Holding: Mental incompetence does not toll the statute of limitations on medical malpractice; therefore, this lawsuit – filed six years after defendants’ alleged negligence – is time-barred.

We modify and affirm summary judgment for defendants.

Tort/Negligence

Slip & Fall – Store Aisle – Spilled Oil – No Constructive Notice – Video Recording

Norris v. Wal-Mart Stores East, L.P. (Lawyers Weekly No. 002-037-14, 11 pp.) (J. Michelle Child, J.) 1:12-cv-02592; D.S.C.

Holding: Plaintiff slipped and fell in a patch of oil in defendant’s store aisle; however, she has forecasted no evidence as to how long the oil was on the floor, and defendant has produced a video recording which strongly suggests the oil was only on the floor for two and a half minutes before plaintiff slipped in it. As a matter of law, plaintiff has not shown that defendant had constructive notice of the spill.

Summary judgment for defendant.

Tort/Negligence

Soldiers Can Sue for Burn Pit Injuries

Metzgar v. KBR, Inc. (In re: KBR, Inc. Burn Pit Litigation) (Lawyers Weekly No. 001-056-14, 55 pp.) (Floyd, J.) No. 13-1430, March 6, 2014; 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/131430.P.pdf

Holding: A district court erred in dismissing negligence suits filed by U.S. service members who allege injuries from defendant private contractors’ management of waste disposal in Iraq and Afghanistan by using open air burn pits with no safety controls and by failing to perform water safety tests to ensure clean drinking water; the 4^th Circuit vacates dismissal and remands for further proceedings.

Tort/Negligence

Premises Liability – New Trial – Juror Misconduct – Intentional Concealment – Voir Dire – Foreperson’s Affidavit

Lynch v. Carolina Self Storage Ctrs., Inc. (Lawyers Weekly No. 011-031-14, 14 pp.) (John C. Few, C.J.) (Daniel F. Pieper, J., dissenting) Appealed from Florence County Circuit Court (D. Craig Brown, J.) S.C. App.

Holding: Susan Ann Bell Lynch brought this premises liability lawsuit against Carolina Self Storage Centers, Inc. after a metal door at one of its storage facilities closed on her foot. Although the jury returned a verdict for Lynch, she moved for a new trial, alleging juror misconduct during deliberations and intentional concealment by a juror during voir dire. We affirm the trial court’s decision to deny her motion, and all other issues raised by the parties.

Tort/Negligence

Products Liability – Auto Defect – Sudden Unintended Acceleration – Contract – Breach of Warranty

Thomas v. Ford Motor Co. (Lawyers Weekly No. 002-084-14, 10 pp.) (J. Michelle Childs, J.) 5:13-cv-01417; D.S.C.

Holding: Even though plaintiffs have not alleged that the sudden unintended acceleration of their car caused an accident, the court is unwilling to dismiss their breach of warranty claim based on defendant’s argument that plaintiffs have not alleged an actionable injury.

Defendant’s motion to dismiss is denied.

Tort/Negligence

Premises Liability – Balancing Test – Retroactive Application – Armed Robbery – Check Cashing Business

Lord v. D & J Enterprises (Lawyers Weekly No. 010-036-14, 18 pp.) (Donald Beatty, J.) (Costa Pleicones, J., concurring) (John Kittredge, J., dissenting) Appealed from York County Circuit Court (John Hayes III, J.) S.C. S. Ct.

http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27376.pdf

Holding: In premises liability cases, the balancing test that this court announced in 2011 applies retroactively, and plaintiff – through her expert witness – presented enough evidence to get past summary judgment on the question of whether defendant’s check cashing business should have hired a security guard during a mentally ill armed robber’s crime spree.

We reverse summary judgment for the check cashing business.

Tort/Negligence

Hospital – Ordinary Negligence – Unsupervised Patient’s Fall – Medical Malpractice

Dawkins v. Union Hospital District (Lawyers Weekly No. 010-040-14, 7 pp.) (Jean Hoefer Toal, Ch.J.) Appealed from Union County Circuit Court (John Hayes III, J.) S.C. S. Ct.

http://www.judicial.state.sc.us/opinions/HTMLFiles/SC/27380.pdf

Holding: Where plaintiff alleges ordinary negligence in the defendant-hospital’s failure to supervise her while she was dizzy and unstable, plaintiff was not required to comply with the statutory requirements for filing a medical malpractice suit.

We reverse the circuit court’s grant of the hospital’s motion to dismiss.

Tort/Negligence

Privacy Breach – USPS Employees – SSNs Revealed – Civil Practice – Subject Matter Jurisdiction – FECA

Mundy v. United States (Lawyers Weekly No. 002-087-14, 11 pp.) (Margaret Seymour, Sr.J.) 3:13-cv-01969; D.S.C.

Holding: Plaintiffs, employees of the U.S. Postal Service, contend defendants negligently allowed their Social Security numbers to be publicized; there is a substantial question as to whether the Federal Employees Compensation Act applies to plaintiffs’ claims.

Defendants’ motion to dismiss for lack of subject matter jurisdiction is denied without prejudice with leave to re-file pending a final determination from the Secretary of Labor with regard to the applicability of FECA to plaintiffs’ claims.

Tort/Negligence

Outrage – Verbal Communication – Power to Hire & Fire – Probate Judge – County Courthouse

Ray v. Simon (Lawyers Weekly No. 002-094-14, 7 pp.) (Sol Blatt Jr., Sr.J.) 9:13-cv-02013; D.S.C.

Holding: Even though the plaintiff-court clerk’s outrage claim is based only on verbal communications from defendant, a probate judge, since defendant’s outrageous comments were made to plaintiff by her boss who had the power to hire and fire her, plaintiff has stated a claim for outrage.

The defendant-judge’s motion to dismiss plaintiff’s outrage claim is denied. The defendant-county’s motion to dismiss plaintiff’s negligence claim is granted.

Tort/Negligence

Outrage – Verbal Communications – Plaintiff’s Boss – Defamation

Poloschan v. Simon (Lawyers Weekly No. 002-099-14, 8 pp.) (Sol Blatt Jr., Sr.J.) 9:13-cv-01937; D.S.C.

Holding: Although the alleged wrongful conduct was largely verbal communication, it was perpetrated against plaintiff not by a co-worker, but by her boss, who had the power to hire and fire here.

The court denies defendant Simon’s motion to dismiss plaintiff’s outrage/intentional infliction of emotional distress and defamation claims.

Tort/Negligence

Qui Tam Action – Public Disclosures – No Independent Knowledge – Banks & Banking – Mortgages – Fraud

United States ex rel. Szymoniak v. American Home Mortgage Servicing, Inc. (Lawyers Weekly No. 002-103-14, 9 pp.) (Joseph Anderson Jr., J.) 0:10-cv-01465; D.S.C.

Holding: Since Relator Szymoniak’s claims are based on public disclosures rather than her own independent knowledge, her claims are barred insofar as they arise from any false claim submitted to the United States, or one of the states, prior to March 23, 2010, the effective date of an amendment to 31 U.S.C. § 3730(e)(4), the statute relevant to the public disclosure bar in qui tam actions.

Defendant’s motion to dismiss is granted with prejudice as to any pre-March 23, 2010 claims.

Tort/Negligence

Qui Tam Action – First to File Rule – Banks & Banking – Mortgages – Fraud

United States ex rel. Szymoniak v. ACE Securities Corp. (Lawyers Weekly No. 002-104-14, 12 pp.) (Joseph Anderson Jr., J.) 0:13-cv-00464; D.S.C.

Holding: Even though some of the defendants in this action, which was originally filed in North Carolina (the N.C. case) are different from those in an action plaintiffs filed earlier in South Carolina (the S.C. case), the S.C. case put the government on notice to investigate the fraudulent scheme alleged later in the N.C. case. As a result, the later-filed N.C. case is barred by the first-to-file rule applicable to qui tam actions.

Dismissed without prejudice.

Tort/Negligence

Products Liability – Design Defect – Evidence – Expert Witness – Qualifications – Automotive – Deactivation Switch

5 Star, Inc. v. Ford Motor Co. (Lawyers Weekly No. 010-057-14, 7 pp.) (John Kittredge, J.) Appealed from Charleston County Circuit Court (Kristi Lea Harrington, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27398.pdf

Holding: Even though plaintiff’s expert, Leonard Greene, was not qualified as an expert in “automotive design,” and even though he has never worked directly for an automotive manufacturer, he was nevertheless qualified to render an opinion as to whether defendant breached its engineering standard of care in designing the speed control deactivation switch in its 1996 Ford F-250 pickup truck. Greene was qualified as an expert in electrical engineering and in fire origin and cause based on his education and experience, including his work designing many component parts that have been used in vehicles and other products, his work for component manufacturers to determine the cause and origin of fires in vehicles, and his investigation of a number of fires caused by the deactivation switch in Ford vehicles.

The Court of Appeals erred in finding Greene unqualified as an expert to testify as to whether defendant was negligent in designing the deactivation switch. The trial court correctly denied defendant’s motion for a directed verdict. We reverse and remand to the Court of Appeals for resolution of the remaining issues that defendant raised in its appeal.

Tort/Negligence

Products Liability – Component Manufacturer – Contribution Claim – No Duty to Warn – Ethanol

Satterfield v. Fresh Market, Inc. (Lawyers Weekly No. 002-130-14, 8 pp.) (Mary Lewis, J.) 7:11-cv-01514; D.S.C.

Holding: The manufacturer of a component part (ethanol) of a final product (pourable eco-gel fuel) is not liable for contribution in this products liability case since the ethanol itself was not defective.

The court grants summary judgment for the third-party defendant.

Trusts & Estates

Power of Attorney – Wills – Civil Practice – Appeals

Watson v. Underwood (Lawyers Weekly No. 011-024-14, 12 pp.) (Aphrodite Konduros, J.) (John Few, Ch.J., concurring in part & dissenting in part) Appealed from Laurens County Circuit Court (Eugene Griffith Jr., J.) S.C. App.

http://www.judicial.state.sc.us/opinions/HTMLFiles/COA/5206.pdf

Holding: Plaintiff’s power of attorney specifically granted defendant Underwood the power to create irrevocable trusts; the fact that defendant created a trust that used plaintiff’s will to specify how to distribute the trust assets in no way impeded plaintiff’s right to change her will.

We affirm the circuit court’s grant of defendants’ partial summary judgment motion. We do not address the denial of plaintiff’s summary judgment motion or petition to terminate the trust.

Workers’ Compensation

Insolvent Insurer – Guaranty Association – Interest & Penalty – Lump Sum Award

Hudson v. Lancaster Convalescent Center (Lawyers Weekly No. 010-007-14, 12 pp.) (Costa M. Pleicones, J.) Appealed from Lancaster County Circuit Court (Kenneth G. Goode, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

http://www.sccourts.org/opinions/HTMLFiles/SC/27348.pdf

Holding: When the S.C. Property and Casualty Insurance Guaranty Association (Guaranty) assumes the obligations of an insolvent insurer, Guaranty is not responsible for interest on awards against the insolvent insurer; however, interest may be assessed against Guaranty based on its own actions.

We reverse the decision to not assess interest against Guaranty and the rejection of the estate’s settlement with the employee’s grandsons. We affirm the ruling that a lump-sum award is the law of the case and the imposition of a penalty against Guaranty and the employer.

Zoning

Cell Phone Tower Decisions Upheld

T-Mobile Northeast LLC v. The Loudoun County Board of Supervisors (Lawyers Weekly No. 011-075-14, 45 pp.) (Niemeyer, J.) No. 12-2396, April 3, 2014; USDC at Alexandria, Va. (Lee, J.) 4^th Cir.

http://www.ca4.uscourts.gov/Opinions/Published/122396.P.pdf

Holding: A district court did not err in overturning a board of supervisors’ denial of a permit for a cell phone tower disguised as a silo on a Loudoun County farm because the board included alleged harmful health effects as one reason for denying the permit, in violation of the Telecommunications Act of 1996; the 4^th Circuit also affirms denial of a permit to construct a church bell tower as a cell phone tower, because the denial was based on acceptable reasons such as aesthetics, property values and unwanted noise.

Attorneys for a South Carolina law firm have negotiated settlements, estimated to total between $125 million and $145 million, on behalf of the U.S. Virgin Islands as compensation for contamination caused by refineries on the southern coast of St. Croix.

Jerry Evans and Gordon Rhea of Richardson, Patrick, Westbrook & Brickman in Mt. Pleasant represented the Virgin Islands in its suit, along with John Dema, an attorney based in Christiansted, St. Croix. Evans and Rhea are members of the Virgin Islands bar.

The settlements will cover damage caused by two refineries, one for oil and one for alumina, an aluminum oxide with a variety of commercial applications. The oil refinery had allowed millions of gallons of petroleum to seep into the groundwater through leaking underground pipes and storage tanks.

Alumina refineries create a toxic waste product known as red mud. At the St. Croix refinery, red mud and other corrosive byproducts had contaminated the ground surface and seeped into the soils and eventually the groundwater. Both refineries are now closed.

Rhea said that some of most serious damage caused by the refineries was to a large aquifer, an underground water source.

Evans

“Of course, on a Caribbean island, when you’re in the middle of a salt water ocean, a freshwater aquifer is an incredibly valuable resource,” Rhea said. “The contamination had an extreme risk of causing a huge harm.”

The defendants in the case include Hess Oil Virgin Islands Corporation and Hovensa, which owned the oil refinery; and Lockheed Martin, St. Croix Alumina, Alcoa World Alumina and St. Croix Renaissance Group, which owned the alumina refinery. The settlements will include cash payments of approximately $67.25 million, and the defendants agreed to pay for the cost of clean-up work at the sites, the cost of which is still being determined.

Rhea described the settlements as “a win-win” for both sides.

Rhea

“The Virgin Islands government will get this important resource cleaned up and will be compensated for the harm, and of course the industrial giants stepped up and did what we hope anyone similarly situated would do, that is, they’re accepting responsibility and fixing the damage they caused,” Rhea said.

The government of the Virgin Islands initiated the first of the lawsuits in 2005 in federal court. The settlements were reached in stages, and the final settlement, with the oil refinery defendants, was reached on May 28. Several of the alumina refinery defendants settled in 2012, and work on that clean-up is already underway. Two remaining defendants have yet to reach a settlement with the government.

“This kind of development is extremely rewarding because the impact of this kind of contamination, particularly from an oil refinery, can be devastating to a small community,” Rhea said. “Now that this pollution is getting fixed, it’s going to do to a lot to improve the lives of a lot of people, and that is very rewarding.”

Follow David Donovan on Twitter @SCLWDonovan

SETTLEMENT REPORT – ENVIRONMENTAL DAMAGE

Case name:
Commissioner Department of Planning & Natural Res. v. Century Alumina Company

Court: U.S. District Court for the District of the Virgin Islands

Case number: 1:05-cv-00062-HB

Judge: Harvey Bartle

Amount: $67.25 million in cash plus environmental remediation and restoration work estimated to cost $58 million to $76 million

Settlement date: In stages, with the final settlement reached May 28

Mediator: Edward Cahn, retired U.S. District Court judge

Attorneys for the plaintiffs: Jerry Evans and Gordon Rhea of Richardson, Patrick, Westbrook & Brickman, Mt. Pleasant; and John Dema, Christiansted, St. Croix.

Morton & Gettys announced that John Mark Shiflet has joined the firm as an associate. Shiflet will base his practice out of the firm’s York office and will focus primarily on the areas of criminal defense and civil litigation.

Alice Paylor, a partner and member of the management committee at Rosen Hagood, has been appointed to the American Bar Association’s Commission on Women in the Profession in recognition of her career accomplishments and leadership. Paylor is the immediate past president of the South Carolina Bar Association. She has served in various officer positions for the South Carolina Bar and other professional organizations.

Former Nexsen Pruet partner Rick Reames has been appointed director of the South Carolina Department of Revenue. Governor Nikki Haley made the announcement on June 23. His approval is subject to the approval of the South Carolina State Senate.

Collins & Lacy announced that attorney Jack Griffeth has been recognized for his mediation experience by the National Academy of Distinguished Neutrals (NADN), an invitation-only organization of professional mediators and arbitrators. Griffeth’s practice at Collins & Lacy centers on defense trial work. He represents employers in employment-related litigation and mediation.

Collins & Lacy shareholder Scott Wallinger has been certified as a circuit court mediator by the South Carolina Supreme Court’s Board of Arbitration and Mediator Certification. Wallinger is the chair of Collins & Lacy’s professional liability practice group.

Follow Laurie Landsittel on Twitter @SCLWLandsittel #lawyersonthemove. Send items for Lawyers on the Move to laurie.landsittel@sclawyersweekly.com.

A death row inmate is entitled to a hearing to determine whether his sentencing was prejudiced by a juror whose father referred her to a Bible passage about taking “an eye for an eye,” the 4th U.S. Circuit Court of Appeals ruled July 2.

Jason Hurst was convicted for the 2002 murder of Daniel Branch and sentenced to death. Hurst claims he was denied his constitutional right to an impartial jury based on an affidavit by juror Christina Foster. Foster says that, prior to deciding Hurst’s sentence, “My father had given me the section in the Bible where I could find ‘an eye for an eye.’ ” Hurst argues that the juror’s father impermissibly exerted outside influence on the jury by implying that his sentence should be death.

A North Carolina state court denied Hurst’s motion for discovery. Hurst filed for federal habeas corpus relief, and a federal district court again denied his motion. But on appeal, the 4th Circuit reversed, and held that Hurst should have a chance to conduct an evidentiary hearing to develop his case further.

The court cited a 4th Circuit decision earlier this year in Barnes v. Joyner, which held that a defendant is entitled to an evidentiary hearing when he presents a credible allegation of communications or contact between a third party and a juror concerning the matter pending before the jury. Once the defendant presents such a genuine allegation, the presumption of prejudice must be applied and a hearing must be held, the court said.

Barnes involved a juror who contacted her pastor during the sentencing deliberations to discuss the defense counsel’s Biblically-related argument. The pastor provided a biblical passage, one that contradicted the defense counsel’s argument, to the juror, who then shared the passage with her fellow jurors during deliberations. The court’s decision in that case dictated the same result in Hurst’s case, the appeals panel held.

“The affidavits did not allege that Juror Foster discussed with her father the facts or evidence that had been presented in the trial, or the status of the jury’s deliberations. Nor was there any evidence that Juror Foster’s father expressed any opinion about the case or attempted to influence her vote. Nevertheless, Hurst presented a credible allegation of a private communication about the matter pending before the jury, entitling Hurst to the presumption of prejudice and an evidentiary hearing,” Chief Judge William Traxler wrote.

The court’s decision was unanimous, although Judge Dennis Shedd wrote a brief concurring opinion agreeing that the court’s decision in Barnes controlled Hurst’s case, but saying that “if we were writing on a clean slate,” he would have reached the opposite conclusion.

It was not clear from the affidavit, the judges noted, which Bible verse Foster had been given. The Old Testament commands eye-for-an-eye justice, but the New Testament speaks of it critically. Foster’s father had gotten the Bible verse from his mother, whom Hurst’s investigators had not been able to interview. In her affidavit, Foster said the Bible verse “helped me sleep better” but “didn’t make the decision any easier” and does not say how or whether the verse influenced her decision.

The 25-page decision is Hurst v. Joyner (Lawyers Weekly No. 011-134-14). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan