Administrative
Driver’s License Suspension – DUI Arrest – Refusal to Blow – Arbitrary & Capricious
Chisolm v. South Carolina Department of Motor Vehicles (Lawyers Weekly No. 011-040-13, 16 pp.) (Daniel F. Pieper, J.) Appealed from the Administrative Law Court (Deborah Brooks Durden, ALJ) S.C. App.
Holding: According to the arresting officer’s testimony, after her DUI arrest, appellant blew into the DataMaster – the breath test instrument – for a minute and 53 seconds; there was a steady tone while appellant blew, meaning air was going into the instrument; but the instrument “just didn’t read it.” The officer recorded this as a refusal. Despite appellant’s agreement to re-take the test, the DataMaster would not let appellant take the test again. On these facts, the suspension of appellant’s driver’s license was arbitrary and capricious.
We reverse the ALC’s decision to uphold the suspension of appellant’s driver’s license.
Antitrust
Dental Board Action Violates Antitrust Law
N.C. State Board of Dental Examiners v. Federal Trade Comm’n (Lawyers Weekly No, 001-126-13, 37 pp.) (Shedd) No. 12-1172, May 31, 2013; On Petition for Review; 4th Cir.
Holding: A state agency that regulates the practice of dentistry cannot overturn a Federal Trade Commission decision that the agency’s efforts to shut down teeth-whitening services performed by non-dentists constituted unfair competition that violated federal antitrust law; the 4th Circuit rejects the state dentistry board’s petition for review of the FTC order.
Arbitration
Motion to Compel – Different Terms
IntegraMed America, Inc. v. Patton (Lawyers Weekly No. 002-071-13, 10 pp.) (Patrick Michael Duffy, J.) 2:12-cv-03566; D.S.C.
Holding: Defendants are entitled to compel arbitration, but they are not entitled to change the terms of the parties’ arbitration agreement.
Defendants’ motion to compel arbitration is granted according to the terms of the arbitration agreement, i.e., the controversy is to be submitted to the American Arbitration Association.
Arbitration
Labor & Employment – Broad Clause – Breach of Contract – Tort/Negligence – Corporate
Landers v. Federal Deposit Insurance Corp. (Lawyers Weekly No. 010-021-13, 15 pp.) (John W. Kittredge, J.) Appealed from Charleston County Circuit Court (J. C. Nicholson Jr., J.) S.C. S. Ct.
Holding: Given the breadth of the arbitration clause in plaintiff’s employment contract and his allegations linking his tort and corporate claims to his employment, the court finds that all of plaintiff’s claims are subject to arbitration.
We reverse the trial court’s ruling that plaintiff’s tort and corporate claims are not subject to arbitration.
Arbitration
Unconscionable Contract – Limitation of Liability – Warranty Disclaimers – Home Construction
Smith v. D.R. Horton, Inc. (Lawyers Weekly No. 011-055-13, 7 pp.) (Paul E. Short Jr., J.) Appealed from Dorchester County Circuit Court (Edgar W. Dickson, J.) S.C. App.
Holding: The parties’ contract was unconscionable in that it attempted to disclaim implied warranties and it exempted the defendant-builder from monetary damages; we do not find the contract’s arbitration clause to be severable.
We affirm the circuit court’s denial of the builder’s motion to compel arbitration.
Arbitration
Manifest Disregard of Law – Contract – Contractor’s License
C-Sculptures, LLC v. Brown (Lawyers Weekly No. 010-048-13, 7 pp.) (John W. Kittredge, J.) (Costa M. Pleicones, J.) Appealed from Richland County Circuit Court (William P. Keesley, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: S.C. Code Ann. § 40-11-370(C) and our case law are clear: Any builder who enters into a contract for home construction without obtaining the required license cannot enforce the contract. The arbitrator manifestly disregarded the law when he allowed a contractor – who is only licensed up to $100,000 — to enforce a contract to build an $800,000 house.
We reverse the Court of Appeals’ decision.
Attorneys
Disqualification Motion – Denial – Civil Practice – Interlocutory Appeal – No Substantial Right Affected
EnerSys Delaware, Inc. v. Hopkins (Lawyers Weekly No. 010-023-13, 4 pp.) (Kaye G. Hearn, J.) Appealed from Sumter County Circuit Court (George C. James Jr., J.) S.C. S. Ct.
Holding: Unlike an order granting a motion to disqualify counsel in a civil trial, an order denying such a motion does not affect any substantial rights (such as the right of a party to have an attorney of his choosing).
We dismiss plaintiff’s appeal of the denial of its motion to disqualify defense counsel.
Attorneys
Fee Request – Constitutional – First Amendment – Prevailing Party – Unjust
Lefemine v. Wideman (Lawyers Weekly No. 002-065-13, 13 pp.) (Henry M. Herlong Jr., Sr.J.) 8:08-cv-03638; D.S.C.
Holding: Even though plaintiff was a prevailing party, the totality of the circumstances amount to special circumstances that would make an award of attorney’s fees unjust. Here, defendants had qualified immunity, the sheriff’s office had no policy or custom of discrimination against abortion protesters, and plaintiff was awarded no damages and only limited injunctive relief.
Plaintiff’s request for attorney’s fees is denied.
Attorneys
Tort/Negligence – Unjust Enrichment – Equitable Indemnity – Real Property – Judgment Lien – Title Insurance
Inglese v. Beal (Lawyers Weekly No. 011-061-13, 14 pp.) (John C. Few, Ch.J.) (Daniel F. Pieper, J.) Appealed from Charleston County Circuit Court (R. Markley Dennis Jr., J.) S.C. App.
Holding: Even though a closing attorney ended up reimbursing a title insurance company $10,000 for a judgment lien against property sold by the attorney’s client, since the attorney should have made written arrangements to deal with the lien at closing, his client is not liable to him for the $10,000.
We affirm summary judgment for the client.
Attorneys
Attorney-Client Privilege – Work Product Doctrine – Civil Practice – Discovery – Banks & Banking – Real Property – Mortgages
First South Bank v. Fifth Third Bank, N.A.(Lawyers Weekly No. 002-08-013, 32 pp.) (Mary G. Lewis, J.) 7:10-cv-02097; D.S.C.
Holding: Although plaintiff-participant provided $4 million of an $11 million loan, and although the parties’ “Participation Agreement” exempted the defendant-lender from liability for “good faith” action or inaction in connection with the loan and also said, “Lender may consult with legal counsel … and shall not be liable for any action taken or omitted to be taken in good faith … in accordance with the advice of such counsel,” the Participation Agreement did not waive the lender’s attorney-client privilege or work-product protection.
The court denies plaintiff’s motion to compel production of protected documents.
Attorneys
Discipline – California Lawyer – Solicitation of S.C. Residents
In re Van Son (Lawyers Weekly No. 010-066-13, 5 pp.) (Per Curiam) S.C. S. Ct.
Holding: Even though respondent is not licensed to practice law in South Carolina, he is subject to discipline here because he sent solicitations to S.C. residents.
Respondent failed to respond to allegations related to his solicitation of S.C. residents as part of a mortgage modification scam; therefore, he is in default, and the court need only determine the appropriate sanction.
We adopt the recommendation of the hearing panel of the Office of Disciplinary Counsel, and we prohibit respondent from admission or appearance of any kind in South Carolina, and we prohibit him from advertising or soliciting business in South Carolina. The sanctions shall run for five years, and the five years shall begin to run when respondent regains his status as a member in good standing of the California State Bar.
Attorneys
Legal Malpractice – Expert Affidavit – Real Property – Title Insurance – Oral Contract
H&H of Johnston, LLC v. Old Republic National Title Insurance Co. (Lawyers Weekly No. 011-078-13, 7 pp.) (James E. Lockemy, J.) (John C. Few, Ch.J., concurring in part & dissenting in part) Appealed from Richland County Circuit Court (DeAndrea G. Benjamin, J.) S.C. App.
Holding: Both parties’ evidence indicates that the defendant-lawyer’s actions in relation to a real property closing constituted the practice of law. Therefore, plaintiff’s failure to file an affidavit of an expert witness in compliance with S.C. Code Ann. § 15-36-100(B) dooms its claim.
We affirm summary judgment for the defendant-lawyer but reverse summary judgment for the defendant-title insurer.
Attorneys
Practice of Law – Trusts & Estates – Probate Court – Business Claim – Non-Attorney
Medlock v. University Health Services, Inc. (Lawyers Weekly No. 010-069-13, 3 pp.) (Per Curiam) S.C. S. Ct.
Holding: A non-attorney may present claims against an estate and petition for allowance of claims in the probate court on behalf of a business entity without engaging in the unauthorized practice of law.
Bankruptcy
Medicare – Participating Supplier – Overpayments – Recoupment vs. Setoff – First Impression
Fischbach v. Centers for Medicare & Medicaid Services (Lawyers Weekly No. 002-055-13, 13 pp.) (J. Michelle Childs, J.) 1:12-cv-00513; D.S.C.
Holding: Considering the Medicare system of estimated payments and later account reconciliations, the court determines that, when a physician has been overpaid by Medicare, the government’s withholding of payment for subsequent services is recoupment rather than setoff. Therefore, the withholding of payment is permitted under the Bankruptcy Code.
The district court affirms the bankruptcy court’s grant of summary judgment in favor of the Centers for Medicare and Medicaid Services and Palmetto Government Benefits Administrators, LLC.
Bankruptcy
No Recovery of Brokerage Account Assets
Grayson Consulting Inc. v. Wachovia Securities LLC (Lawyers Weekly No. 001-124-13, 21 pp.) (Wynn, J.) No. 12-1518, May 24, 2013; USDC at Charleston, S.C. (Bertelsman, Sr.J.) 4th Cir.
Holding: In this adversary proceeding arising out of the bankruptcy of debtor Derivium Capital LLC, the 4th Circuit upholds judgment against a consulting company, assignee of the bankruptcy trustee, that was attempting to recover as “fraudulent conveyances” assets transferred into debtor’s brokerage accounts, as well as commissions, fees and interest payments.
Bankruptcy
Chapter 13 Eligibility – Unsecured Debt Total – Mortgage Guaranty – LLC Property
In re Jones (Lawyers Weekly No. 003-009-13, 8 pp.) (Helen Elizabeth Burris, J.) 12-04833; B.S.C.
Holding: The mortgaged home in which the debtor lives is owned by an LLC. Although the debtor owns the LLC and personally guaranteed the mortgage, his personal debt to the lender is unsecured, and this debt pushes his unsecured-debt total over the $360,475 limit for chapter 13.
If this case is not converted to a case under another chapter within 14 days, the trustee may submit a request for dismissal without further notice or hearing.
Bankruptcy
Dischargeability – Judgment Debt – Supplemental Proceedings – Domestic Relations – Wife’s Expenses
Rockstone Capital, LLC v. Caimano (Lawyers Weekly No. 003-010-13, 21 pp.) (David R. Duncan, Ch.J.) 12-80188; B.S.C.
Holding: Although a family court ordered the defendant-debtor to continue to pay his wife’s expenses, the master-in-equity in a supplemental proceeding had already ordered the debtor not to deplete his assets and to use certain assets to pay the plaintiff-judgment creditor. Based on the debtor’s failure to attempt to reconcile these orders and his use of his assets to pay his wife’s expenses, the court concludes that the creditor has shown intent to hinder, delay, or defraud by a preponderance of the evidence.
Debtor’s discharge is denied under 11 U.S.C. § 727(a)(2).
Civil Practice
Res Judicata – Municipal Budget – Constitutional – Delegation of Legislative Authority
South Carolina Public Interest Foundation v. Greenville County (Lawyers Weekly No. 011-009-13, 16 pp.) (John D. Geathers, J.) Appealed from Greenville County Circuit Court (John C. Few & D. Garrison Hill, JJ.) S.C. App.
Holding: The same parties or their privies who are involved in this action were also involved in an action in 1996. While the complaints’ allegations involve different fiscal years, both complaints challenge the legality of defendants’ practice of using county council “reserves” as a delegation of legislative authority to individual council members, a practice that has continued from year to year since the 1995-95 fiscal year. This action is barred by res judicata.
We reverse the circuit court’s grant of summary judgment and attorney’s fees to plaintiffs.
Civil Practice
Subject Matter Jurisdiction – Declaratory Judgment – Auto Insurance – Class I Insured – Domestic Relations – Common Law Marriage
Motsinger v. Nationwide Mutual Insurance Co. (Lawyers Weekly No. 002-022-13, 9 pp.) (J. Michelle Childs, J.) 4:11-cv-01734; D.S.C.
Holding: Even though the defendant-insurer’s declaratory judgment counterclaim will require the court to determine the validity of plaintiff’s purported common law marriage, the court has jurisdiction to consider the counterclaim in this diversity case.
Plaintiff’s motion to dismiss the insurer’s counterclaim is denied.
Civil Practice
Motion to Redact Transcript – Settlement Amount – Confidentiality Agreement – Wrongful Death Action
Martin v. American Honda Motor Co. (Lawyers Weekly No. 002-072-13, 5 pp.) (Henry M. Herlong Jr., Sr.J.) 6:11-cv-02048; D.S.C.
Holding: Even though the settlement agreement between plaintiff and defendant American Honda Motor Co. contained a confidentiality provision regarding the settlement amount, Honda is not entitled to redaction of the trial transcript to remove plaintiff’s counsel’s reference to the settlement amount.
Motion denied.
Civil Practice
Removal – Pending Discovery – Motion to Dismiss – Affidavit
Steen v. Garrett (Lawyers Weekly No. 002-079-13, 7 pp.) (David C. Norton, J.) 2:12-cv-01662; D.S.C.
Holding: The court adopts the majority rule: The requests for admission that plaintiff filed in state court were not due by the time defendants removed to this court; therefore, those requests were rendered null and ineffective by the removal to federal court.
Defendants’ motion to strike is granted. Plaintiff’s opposition to defendants’ motion to dismiss may not rely on the requests for admission or on a witness’s affidavit. Plaintiff may file a revised memorandum in opposition to defendants’ motion to dismiss.
Civil Practice
Discovery – Attorney-Client Privilege – Work-Product Doctrine – Insurance – Claims Adjustment
Gilliard v. Great Lakes Reinsurance (U.K.) PLC (Lawyers Weekly No. 002-07-013, 10 pp.) (David C. Norton, J.) 2:12-cv-00867; D.S.C.
Holding: Only one of the documents at issue in this motion to compel discovery includes defense counsel in the correspondence. This document relates to a legal services bill; therefore, it does not fall within the attorney-client privilege. None of the documents at issue are protected by the attorney-client privilege.
Plaintiff’s motion to compel is granted in part and denied in part.
Civil Rights
Seizure & Excessive Force Claims – Taser – Accident Scene – Tort/Negligence – Malicious Prosecution, Battery & Defamation
Lenard v. Scott (Lawyers Weekly No. 002-002-13, 12 pp.) (Margaret B. Seymour, Ch.J.) 3:11-cv-01574; D.S.C.
Holding: There is conflicting evidence as to whether plaintiff was complying with the defendant-deputy’s instructions when the deputy tased plaintiff; therefore, summary judgment is inappropriate as to plaintiff’s excessive force claim.
Defendants’ motion for summary judgment is granted as to plaintiff’s seizure, malicious prosecution, and defamation claims. The motion is denied as to plaintiff’s excessive force and battery claims.
Civil Rights
Search & Seizure – Bare-Chested TSA Protest
Tobey v. Jones (Lawyers Weekly No. 001-033-13, 44 pp.) (Gregory, J.) No. 11-2230, Jan. 25, 2013; USDC at Richmond, Va. (Hudson, J.) 4th Cir.
Holding: A young man who protested TSA screening at Richmond International Airport by stripping down to running shorts to reveal the text of the Fourth Amendment across his bare chest may sue TSA officials for allegedly violating his First Amendment rights by calling airport security to arrest him; the 4th Circuit upholds a district court decision finding plaintiff stated a First Amendment claim.
Civil Rights
Constitutional – First Amendment – Occupy Protest – Arrest – Qualified Immunity – Clearly Established Right
Occupy Columbia v. Haley (Lawyers Weekly No. 002-019-13, 18 pp.) (Cameron McGowan Currie, J.) 3:11-cv-03253; D.S.C.
Holding: When plaintiffs were arrested, there was no valid regulation that banned their protest on state capitol grounds; therefore, defendants are not entitled to qualified immunity from plaintiffs’ claims for monetary damages.
Defendants’ motion to dismiss or for judgment on the pleadings is granted as to plaintiffs’ claim for injunctive relief. The motion is denied as to plaintiffs’ claim for damages.
Civil Rights
Confederate Flag Shirt Ban Upheld
Hardwick v. Heyward (Lawyers Weekly No. 001-081-13, 28 pp.) (Shedd, J.) No. 12-1445, March 25, 2013; USDC at Florence, S.C. (Wooten, J.) 4th Cir.
Holding: The 4th Circuit upholds a decision by South Carolina public school officials to prohibit a student from wearing Confederate flag shirts to school, as defendant school officials complied with U.S. Supreme Court requirements for regulating student speech.
We conclude the school officials complied with the requirements for regulating student speech as established in Tinker v. Des Moines Indep. Comm. Schl. Dist., 393 U.S. 503 (1969), and that the school dress codes and their enforcement did not violate the 14th Amendment.
Constitutional
Criminal Practice – Sex Offender – Lifetime SBM – Likelihood of Re-Offending
State v. Dykes (Lawyers Weekly No. 010-056-13, 19 pp.) (John W. Kittredge, J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) (Kaye G. Hearn, J., joined by Donald W. Beatty, J., dissenting) Appealed from Pickens County (Charles B. Simmons Jr., Special Circuit Court Judge) S.C. S. Ct.
Holding: Where the General Assembly based its imposition of lifetime satellite monitoring of sex offenders on the likelihood of re-offending, S.C. Code Ann. § 23-3-540(H) – which precludes judicial review for persons convicted of criminal sexual conduct with a minor in the first degree or lewd act on a minor – is unconstitutional.
Persons convicted of criminal sexual conduct with a minor in the first degree (CSC-First) and lewd act on a minor are entitled to avail themselves of the § 23-3-540(H) judicial review process.
Contract
Home Inspection – Limitation of Liability – Tort/Negligence – Public Policy – Unconscionability
Gladden v. Boykin (Lawyers Weekly No. 010-035-13, 17 pp.) (Costa M. Pleicones, J.) (Donald W. Beatty, J., joined by Kaye G. Hearn, J., dissenting) Appealed from Kershaw County Circuit Court (Alison Renee Lee, J.) S.C. S. Ct.
Holding: Although our General Assembly requires home inspectors to be licensed, the General Assembly does not require home inspectors to carry errors and omissions liability insurance. Furthermore, the Residential Property Condition Disclosure Act imposes liability on a seller if she knowingly withholds information about defects. Therefore, a limitation of liability clause in a home inspection contract does not violate public policy.
We affirm summary judgment for the defendant-home inspection company.
Contract
SPPA – Tort/Negligence – Sovereign Immunity – Municipal
Shirley’s Iron Works, Inc. v. City of Union (Lawyers Weekly No. 010-060-13, 13 pp.) (John W. Kittredge, J.) Appealed from Union County Circuit Court (John C. Few, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: The Subcontractors’ and Suppliers’ Payment Protection Act (SPPA) does not permit a private cause of action sounding in tort; however, under the SPPA, a subcontractor may sue a municipality as a third-party beneficiary of the municipality’s contract with the general contractor, and the plaintiff-subcontractors in this case have made out a third-party beneficiary claim against the defendant-city.
The circuit court granted summary judgment to the city, and our Court of Appeals reversed. We reverse as to the tort claim but affirm as to the contract claim.
Contract
Mechanic’s Lien – Payments to Other Subcontractors
Action Concrete Contractors, Inc. v. Chappelear (Lawyers Weekly No. 010-072-13, 6 pp.) (Costa M. Pleicones, J.) Appealed from Anderson County Circuit Court (Alexander S. Macaulay, J.) S.C. S. Ct.
Holding: After the plaintiff-subcontractor gave the defendant-owners notice of its mechanic’s lien, the owners didn’t fire the general contractor, but they started paying the other subcontractors directly. These payments count as payments to the general contractor under S.C. Code Ann. § 29-5-50, and the payments would have been sufficient to pay plaintiff’s entire lien.
We affirm summary judgment for plaintiff.
Criminal Practice
DUI – Videotape – ‘Pre-Test’ – Test Refusal
State v. Hercheck (Lawyers Weekly No. 010-062-13, 8 pp.) (Jean Hoefer Toal, Ch.J.) Appealed from Richland County Circuit Court (L. Casey Manning, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: When a DUI arrestee refuses the take a breath test, there is no need for a “pre-test” videotape under S.C. Code Ann. § 56-5-2953.
We reverse the Court of Appeals’ decision, which upheld dismissal of the DUI charge against defendant.
Criminal Practice
DUI – Videotape – ‘Pre-Test’ – Test Refusal
State v. Elwell (Lawyers Weekly No. 010-063-13, 8 pp.) (Jean Hoefer Toal, Ch.J.) Appealed from Chester County Circuit Court (Brooks P. Goldsmith, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: Since defendant refused to take a breath test after being arrested for driving under the influence, the state was not required to produce a 20-minute “pre-test” videotape.
We affirm the Court of Appeals’ reversal of the trial court’s dismissal of the DUI charge.
Criminal Practice
DUI – Insufficient Affidavit – Video Recording – Inoperable Camera – Insufficient Maintenance Efforts
City of Greer v. Humble (Lawyers Weekly No. 011-039-13, 10 pp.) (Daniel F. Pieper, J.) Appealed from Greenville County Circuit Court (Letitia Verdin, J.) S.C. App.
Holding: First, since the arresting officer’s affidavit doesn’t say which steps the city took to keep video recording equipment in operable condition, the affidavit doesn’t comply with S.C. Code Ann. § 56-5-2953(B).
Furthermore, since the city knew there was an ongoing problem with the officer’s video recording equipment but did not want to pay for the service call to repair it, the city did not make reasonable efforts to maintain the equipment.
We reverse the circuit court’s decision and reinstate the municipal court’s dismissal of the DUI charge.
Criminal Practice
Glock Handgun Purchase – ‘Straw Man’ – False Affirmation
U.S. v. Abramski (Lawyers Weekly No. 001-038-13, 19 pp.) (King, J.) No. 11-4992, Jan. 23, 2013; USDC at Roanoke, Va. (Conrad, J.) 4th Cir.
Holding: A former police officer who thought he could get a good deal in buying a Glock 19 handgun that his uncle wanted, can be convicted as a “straw purchaser” for making a false affirmation that he was the owner, in violation of federal firearms laws; the 4th Circuit joins the 6th and 11th Circuits and rejects defendant’s claim that his purchase was legal because both he and his uncle were legally eligible to purchase the handgun.
Criminal Practice
Search & Seizure – Anonymous Tip – Stop & Frisk – Tennis Ball – Cocaine Inside
State v. Taylor (Lawyers Weekly No. 010-005-13, 17 pp.) (Jean Hoefer Toal, Ch.J.) (Donald W. Beatty, J., dissenting) (John W. Kittredge, J., concurring in part & dissenting in part) Appealed from Florence County Circuit Court (Thomas A. Russo, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: Based on an anonymous tip that an African-American man on a bicycle was selling drugs in a Florence neighborhood known for drug activity, deputies had reasonable suspicion to detain defendant – an African-American man on a bicycle in the neighborhood at issue – after (1) they saw him “huddled up” with another man, (2) he ignored their demands that he stop, and (3) he tried to flee.
While a deputy was conducting a pat-down, he felt something large in defendant’s pocket and pushed it up out of his pocket without reaching inside. A tennis ball dropped to the ground. As the deputy picked it up, he saw a cut in the ball and found crack cocaine inside. This search did not violate Minnesota v. Dickerson, 508 U.S. 366 (1993).
We reverse the Court of Appeals’ decision, which overturned the trial court’s admission of the evidence.
Criminal Practice
Child Abuse – Evidence – Testimony – Forensic Interviewer & Investigator – Hearsay Objection – Preservation
State v. Kromah (Lawyers Weekly No. 010-009-13, 21 pp.) (Donald W. Beatty, J.) (Costa M. Pleicones, J., concurring in the result without separate opinion) Appealed from Richland County Circuit Court (James W. Johnson Jr, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: Allowing a forensic interviewer to testify that she reached a compelling finding of child abuse was the equivalent of allowing her to say the child-victim was telling the truth. Nevertheless, any error was harmless beyond a reasonable doubt since the interviewer merely restated what the overwhelming evidence had already indicated: that the child’s injury was the result of physical abuse.
We affirm in result the Court of Appeals’ rejection of defendant’s appeal.
Criminal Practice
Constitutional – Right to Testify – Structural Error
State v. Rivera (Lawyers Weekly No. 010-017-13, 23 pp.) (John W. Kittredge, J.) Appealed from Anderson County Circuit Court (Alexander S. Macaulay, J.) S.C. S. Ct.
Holding: Where defendant clearly asserted his right to testify, and where defense counsel and the trial court refused to call him as a witness, this was structural error, entitling defendant to a new trial.
We reverse defendant’s murder conviction and remand for a new trial.
Criminal Practice
Constitutional – Ineffective Assistance of Counsel – CSC – Evidence – Hearsay – Failure to Object
Vail v. State (Lawyers Weekly No. 011-022-13, 11 pp.) (James E. Lockemy, J.) Appealed from Charleston County Circuit Court (Kenneth G. Goode, J.) S.C. App.
Holding: Even though trial counsel said he failed to object to hearsay testimony because his strategy was to be “transparent” with the jury while allowing the jury to hear through witnesses the constant altering of the victim’s story, counsel also failed to object to some hearsay testimony that merely bolstered the victim’s credibility and some that was extremely prejudicial.
We reverse the denial post-conviction relief (PCR). Petitioner is entitled to a new trial.
Criminal Practice
Murder – Jury & Jurors – Senior Opt-Out – Jury Instruction – Inferred Malice – Constitutional – Eighth Amendment – Brain Injury
State v. Stanko (Lawyers Weekly No. 010-022-13, 29 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) Appealed from Horry County Circuit Court (Steven H. John, J.) S.C. S. Ct.
Holding: Although defendant argued that “65 is not what 65 used to be,” he failed to show that persons over the age of 65 are a distinctive group. Therefore, the excusal of potential jurors pursuant to S.C. Code Ann. § 14-7-840 did not violate defendant’s constitutional right to a jury constituting a fair cross-section of the community.
We affirm defendant’s convictions of murder and armed robbery.
Criminal Practice
Constitutional – Eighth Amendment – Proportionality – Leaving the Scene of a Fatal Accident – 20 Years
State v. Harrison (Lawyers Weekly No. 010-026-13, 19 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) Appealed from Greenwood County Circuit Court (Frank R. Addy Jr., J.) S.C. S. Ct.
Holding: Given the alarming rate of traffic accidents and accident fatalities in South Carolina, our General Assembly could rationally conclude that leaving the scene of a fatal accident poses a risk substantial enough to support a penalty of up to 25 years’ imprisonment. The penalty provision of S.C. Code Ann. § 56-5-1210 is not grossly disproportionate to the offense; therefore, § 56-5-1210 does not violate the Eighth Amendment prohibition on cruel and unusual punishment.
We affirm the trial court’s determination that § 56-5-1210 is constitutional.
Criminal Practice
Lynching – Premeditation Element – Insufficient Evidence – Conspiracy – No Agreement – Pointing a Gun
State v. Larmand (Lawyers Weekly No. 011-033-13, 8 pp.) (Per Curiam) Appealed from York County Circuit Court (William H. Seals Jr., J.) S.C. App.
Holding: Where the state showed only that (1) defendant and his brother-in-law, Leo Lemire, drove together to the victim’s house, uninvited, at midnight wearing dark clothing; (2) they parked down the street from the victim’s house; and (3) they separately approached the victim’s house on foot with Lemire carrying a loaded gun that he pointed at the victim, the state failed to prove a premeditated intent to commit an act of violence upon another person.
We reverse defendant’s convictions of second-degree lynching, conspiracy, and pointing and presenting a firearm.
Criminal Practice
Prosecutorial Vindictiveness Claim – Murder Acquittal – Accessory Charge – First Impression – ABA Standards
State v. Blakeley (Lawyers Weekly No. 011-051-13, 11 pp.) (Daniel F. Pieper, J.) Appealed from Laurens County Circuit Court (Eugene C. Griffith Jr., J.) S.C. App.
Holding: On a matter of first impression, the court holds that no presumption of prosecutorial vindictiveness arose when, after defendant was acquitted of murder, she was tried for accessory after the fact to a felony.
We affirm defendant’s conviction for accessory after the fact to a felony.
Criminal Practice
Evidence – Prior Bad Acts – No Balancing Test – First Impression – Remand – Murder & Assault
State v. Spears (Lawyers Weekly No. 011-056-13, 10 pp.) (Daniel F. Pieper, J.) Appealed from Horry County Circuit Court (Larry B. Human Jr., J.) S.C. App.
Holding: Where the trial court admitted evidence that defendant had shot the same victim before, the trial court should have conducted an on-the-record balancing test under Rule 403, SCRE.
We remand for an on-the-record balancing test.
Criminal Practice
Constitutional – Confrontation Right – Prosecution Witness – Plea Bargain – Potential Sentence
State v. Pradubsri (Lawyers Weekly No. 011-059-13, 17 pp.) (Aphrodite K. Konduros, J.) (James E. Lockemy, J., concurring in part & dissenting in part) Appealed from Lexington County Circuit Court (Thomas A. Russo, J.) S.C. App.
Holding: The trial court should have allowed defendant to cross-examine a prosecution witness about the length of the sentence that she avoided by agreeing to testify against him.
Reversed and remanded.
Criminal Practice
Sentencing – Alford Plea – Sex Offense Charge – ABHAN Plea – Sex Abuse Counseling – Admission of Guilt – Sex Offender Registration
State v. Herndon (Lawyers Weekly No. 010-052-13, 12 pp.) (Jean Hoefer Toal, Ch.J.) Appealed from Beaufort County Circuit Court (D. Craig Brown, J.) S.C. S. Ct.
Holding: A defendant who enters an Alford plea is not entitled to any more notice as to the conditions of his sentence than is a defendant who enters a standard guilty plea. The circuit was not required to explain to defendant that he would be required to admit his guilt as part of sex abuse counseling.
We affirm the circuit court’s order imposing lifetime sex offender registration.
Criminal Practice
Duplicitous Indictment – Separate Verdicts – Sentencing
State v. Samuels (Lawyers Weekly No. 010-059-13, 7 pp.) (Kaye G. Hearn, J.) Appealed from Richland County Circuit Court (Clifton M. Newman, J.) S.C. S. Ct.
Holding: Even though a duplicitous indictment improperly alleged that defendant had committed “an assault with intent to kill upon the victim, Patricia Speaks and/or Carla Daniels” since (1) the trial court instructed the jury that a guilty verdict required unanimous agreement among the jurors that defendant assaulted Daniels or unanimous agreement that he assaulted Speaks, (2) the court used a special verdict form requiring the jury to make separate findings of guilt or innocence as to Daniels and Speaks, and (3) defendant was only sentenced for one offense despite the jury finding him guilty of two offenses, defendant cannot show that he was prejudiced by the duplicitous indictment.
We affirm defendant’s conviction and sentence.
Criminal Practice
Probation – SVP Act – Civil Commitment – No Tolling
State v. Miller (Lawyers Weekly No. 010-075-13, 8 pp.) (Donald W. Beatty, J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) Appealed from Lexington County Circuit Court (J. Cordell Maddox Jr., J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: Even though defendant’s civil commitment to the sexually violent predators program makes him unavailable for community supervision, a civil commitment does not give rise to the tolling of his probationary period.
We reverse the Court of Appeals’ decision, which upheld the tolling of defendant’s probation during his civil commitment in the SVP program.
Criminal Practice
Constitutional – Attorneys – Effective Assistance – Guilty Plea – Pending Charges – LWOP
Taylor v. State (Lawyers Weekly No. 010-076-13, 13 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones & Donald W. Beatty, JJ., concurring in the result only without separate opinion) Appealed from Georgetown County Circuit Court (Michael G. Nettles, J.) S.C. S. Ct.
Holding: Even if petitioner had known that, because of a recidivism statute, a guilty plea in Georgetown County could subject him to a sentence of life without the possibility of parole for charges pending against him Williamsburg County, petitioner has not shown that he would have refused to plead guilty in Georgetown County. Therefore, petitioner has not shown that he was prejudiced by the assistance of his plea counsel in Georgetown County.
We affirm the post-conviction relief (PCR) court’s rejection of petitioner’s claim that he received ineffective assistance of counsel when his plea counsel (1) failed to advise him of the recidivist consequences of his guilty plea and (2) did not adequately investigate one of the charges prior to his guilty plea.
Domestic Relations
Parent & Child – Termination of Parental Rights – Attorneys – Appointed Counsel – Time in Foster Care – Visitation
Broom v. Jennifer J. (Lawyers Weekly No. 010-053-13, 16 pp.) (Kaye G. Hearn, J.) (Costa M. Pleicones & Donald W. Beatty, JJ., concurring in the result only without separate opinion) Appealed from Greenville County Family Court (W. Marsh Robertson, J.) S.C. S. Ct.
Holding: Even though this termination of parental rights proceeding was brought by the child’s foster parents rather than by the Department of Social Services, the respondent-mother was entitled to appointed counsel. However, she was not prejudiced by the court’s failure to appoint counsel for her.
We affirm the termination of respondent’s parental rights.
Domestic Relations
Divorce – Habitual Intoxication – Preponderance of Evidence – Equitable Apportionment – Separate Contribution
Curry v. Curry (Lawyers Weekly No. 011-019-13, 11 pp.) (Cureton, A.J.) Appealed from Charleston County Family Court (Daniel E. Martin Jr., J.) S.C. App.
Holding: Although the family court was incorrect when it said it could grant a divorce based upon prima facie evidence of habitual intoxication, since the respondent-wife proved the appellant-husband’s habitual intoxication by a preponderance of the evidence, she was nevertheless entitled to a divorce.
We affirm the grant of a divorce. We modify and affirm the family court’s equitable apportionment of the marital estate.
Domestic Relations
Parent & Child – Termination of Parental Rights – 15 of 22 Months in Foster Care
South Carolina Department of Social Services v. Sarah W. (Lawyers Weekly No. 010-033-13, 29 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones & Donald W. Beatty, JJ., dissenting separately) Appealed from Saluda County Family Court (Richard W. Chewning III, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: According to Charleston County Department of Social Services v. Marccuci, 396 S.C. 218, 721 S.E.2d 768 (2011), S.C. Code Ann. § 63-7-2570(8) may not be used to sever parental rights based solely on the fact that the child has spent 15 of the past 22 months in foster care. The family court must find that severance is in the best interests of the child and that the delay in reunification of the family unit is attributable not to mistakes by the government, but to the parent’s inability to provide an environment where the child will be nourished and protected. Therefore, § 63-7-2570(8) provides the requisite level of due process to preserve a parent’s fundamental rights in a termination of parental rights proceeding while at the same time recognizing the state’s compelling interest in providing for the health and welfare of children who face abuse, neglect, or abandonment.
We reverse our Court of Appeals’ decision and reinstate the family court’s termination of defendant’s parental rights.
Domestic Relations
Parent & Child – Support – Modification Motion – Reduced Income
Hawkins v. Hawkins (Lawyers Weekly No. 011-053-13, 14 pp.) (James E. Lockemy, J.) (John C. Few, Ch.J., concurring in the result) Appealed from Charleston County Family Court (Judy L. McMahon, J.) S.C. App.
Holding: The parties’ original settlement agreement said that, once the marital home was sold, they would calculate child support based on the shared Child Support Guidelines, and they would recalculate child support when the defendant-mother began full-time work. These statements were followed by the sentence, “Child support will be revisited on an annual basis thereafter.” In context, this sentence does not relieve the plaintiff-father of the burden of proving an unforeseen, substantial change of circumstances in order to obtain a child support modification. The sentence simply leaves open the possibility of future recalculations should they be necessary.
We affirm the family court’s denial of the father’s motion to modify child support.
Domestic Relations
Equitable Division – Trust Income – First Impression – Disability Retirement – Inherited Property – Transmutation
Wilburn v. Wilburn (Lawyers Weekly No. 010-044-13, 17 pp.) (Kaye G. Hearn, J.) Appealed from Greenville County Family Court (Billy A. Tunstall Jr., J.) On petition for rehearing. S.C. S. Ct.
Holding: Where neither spouse owns the irrevocable Paul Wilburn III Charitable Remainder Unitrust, the trust is not marital property. Nonetheless, the trust distributions are a marital asset subject to equitable division.
We affirm in part and reverse in part the family court’s equitable division order. We reverse the reservation of alimony. We modify the award of attorney’s fees to the plaintiff-wife.
Domestic Relations
Equitable Division & Alimony – Alabama Judgment – Civil Practice – Personal Jurisdiction – Limited Appearance – Res Judicata – Constitutional – Full Faith & Credit
Ware v. Ware (Lawyers Weekly No. 010-071-13, 15 pp.) (Donald W. Beatty, J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) Appealed from Berkeley County Family Court (Jocelyn B. Cate, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: Even though an Alabama trial court wrongly decided that it had personal jurisdiction over the respondent-wife, since she made a limited appearance through counsel to contest personal jurisdiction but then failed to appeal the trial court’s ruling, that ruling is res judicata and is entitled to full faith and credit from S.C. courts.
We reverse the Court of Appeals’ decision, which upheld the family court’s denial of the petitioner-husband’s motion for relief from the family court’s equitable division and alimony award.
Environmental
Administrative – Coastal Zone – Real Property – Erosion Control
Kiawah Development Partners, II v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 010-020-13, 34 pp.) (Jean Hoefer Toal, Ch.J.) (John W. Kittredge, J., concurring in the result) (Costa M. Pleicones, J., dissenting) Appealed from the Administrative Law Court (Ralph K. Anderson III, ALJ) S.C. S. Ct.
Holding: In the context of the Coastal Zone Management Act and related regulations, “area” refers to the “critical area” that is the subject of the legislation. The Administrative Law Court did not err in refusing to consider impacts outside the critical area.
We affirm the ALC’s decision to allow the respondent-developer to build a bulkhead and revetment on Captain Sam’s Spit on Kiawah Island.
Environmental
Administrative – Application Review – Timeliness – Suspension
Duke Energy Carolinas, LLC v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 011-057-13, 17 pp.) (James E. Lockemy, J.) (Paula H. Thomas, J., dissenting) Appealed from the Administrative Law Court (Ralph King Anderson III, ALJ) Refiled opinion. S.C. App.
Holding: The S.C. Department of Health & Environmental Control (DHEC) could suspend review of Duke Energy’s water quality certification application pursuant to both S.C. Code Ann. Regs. 61-101 and 61-30 while DHEC was awaiting Duke Energy Carolinas LLC’s application fee and information that DHEC had requested from Duke. DHEC did not waive review of Duke’s application by failing to timely review Duke’s application.
We reverse the Administrative Law Court’s grant of summary judgment in favor of Duke.
Insurance
Auto – Exclusion – Named Driver Endorsement
Lincoln General Insurance Co. v. Progressive Northern Insurance Co. (Lawyers Weekly No. 011-004-13, 12 pp.) (Paula H. Thomas, J.) Appealed from Berkeley County Circuit Court (Roger M. Young, J.) S.C. App.
Holding: The General Assembly has determined that, for all vehicles registered in South Carolina, at least minimal liability coverage is necessary to protect the public. However, the General Assembly has also approved the named driver endorsement. As used here, this endorsement allowed an insured to exclude coverage for her husband, whose license was revoked, and who was driving the insured’s car with her permission when he caused the accident at issue. The insured’s policy does not provide even the statutory minimum coverage for the accident.
We reverse summary judgment for plaintiffs.
Insurance
Life – Application – Misrepresentations – Intent to Defraud – Directed Verdict
Shenandoah Life Insurance Co. v. Smallwood (Lawyers Weekly No. 011-010-13, 10 pp.) (John C. Few, Ch.J.) (H. Bruce Williams, J., dissenting) Appealed from Sumter County Circuit Court (W. Jeffrey Young, J.) S.C. App.
Holding: The evidence would have supported several explanations for why the decedent gave false answers to questions on his life insurance application about his alcohol and drug use. Therefore, the plaintiff-insurer was not entitled to a directed verdict on its claim to void the decedent’s life insurance policy.
Reversed and remanded.
Insurance
Motorcycle – UIM – No Reformation – Offer & Rejection – Fact Inquiry
Cohen v. Progressive Northern Insurance Co. (Lawyers Weekly No. 011-018-13, 9 pp.) (John C. Few, Ch.J.) Appealed from Anderson County Circuit Court (J. Cordell Maddox Jr., J.) S.C. App.
Holding: Where the defendant-insurance company’s agent filled out the insurance application, the insurer was not entitled to the presumption provided in S.C. Code Ann. § 38-77-350(b) (i.e., that the offer of underinsured motorist coverage complied with S.C. Code Ann. § 38-77-160); however, the trial court could still – and did — make the factual determination that the insurer made a meaningful offer of UIM coverage, which plaintiff rejected.
We affirm the trial court’s refusal to reform plaintiff’s policy to include UIM coverage.
Insurance
Auto – UM – Personal Injury – Attempt to Stop Car Theft – John Doe Statute
Morris v. Doe (Lawyers Weekly No. 002-034-13, 8 pp.) (Timothy M. Cain, J.) 6:12-cv-02236; D.S.C.
Holding: Where plaintiff was injured while trying (unsuccessfully) to stop a thief from stealing her car, her uninsured motorist claim is not automatically barred by the John Doe Statute or her auto insurance policy’s UM provision.
The defendant-insurer’s motion to dismiss is denied.
Insurance
No Consent to Tax on Flood Insurance Premiums
Municipal Ass’n of South Carolina v. USAA General Indemnity Co. (Lawyers Weekly No. 001-065-13, 19 pp.) (Gregory, J.) No. 11-2220, March 1, 2013; USDC at Columbia, S.C. (Seymour, J.) 4th Cir.
Holding: In this dispute between insurance companies that offer flood insurance under a federal program in South Carolina, and a group of South Carolina municipalities that want to assess a business license tax on the carriers based on the flood insurance premiums collected in the municipalities under an arrangement with FEMA, the district court erred in granting partial summary judgment to the municipalities on their affirmative defense of preemption; the 4th Circuit says the flood insurance premiums are federal property that cannot be taxed without government consent.
Insurance
CGL – Duty to Defend – Contractor – Progressive Property Damage – Different Insurers – Contribution Claim
Assurance Co. of America v. Penn-America Insurance Co. (Lawyers Weekly No. 002-059-13, 7 pp.) (R. Bryan Harwell, J.) 4:11-cv-03425; D.S.C.
Holding: Even though both parties insured a contractor during different years when progressive property damage was allegedly resulting from his work, when the plaintiff-insurer undertook the defense of the insured contractor, it did no more than what it believed it was obligated to do under the terms of its contract and acted, not for the defendant-insurer, but for the insured. Plaintiff has not been damaged because, in funding the insured’s defense, it is fulfilling a contractual obligation owed to the insured. Absent any damage, there is no right of recovery from the defendant-insurer.
The court grants defendant’s motion for summary judgment. The court denies plaintiff’s motion to certify a question to the S.C. Supreme Court.
Insurance
CGL – Contractor – Large Project – Different Insurers – Corporate Merger
Cincinnati Insurance Co. v. Crossmann Communities of North Carolina, Inc. (Lawyers Weekly No. 002-060-13, 23 pp.) (R. Bryan Harwell, J.) 4:09-cv-01379; D.S.C.
Holding: Although Harleysville Mutual Insurance Co. only insured the contractor for the beginning — only 13 of 84 buildings — of a building project, Harleysville must defend the contractor in an underlying lawsuit that alleges water intrusion in all of the project’s buildings.
In addition, despite the policy’s non-assignment clause, Harleysville’s duty to defend is not affected by the insured’s merger with another company.
The contractor’s motion for partial summary judgment on duty-to-defend claims against Harleysville is granted. Harleysville’s motion for summary judgment is denied. Harleysville has an immediate duty to defend the contractor against all claims in the underlying lawsuit. Harleysville has a duty to reimburse the contractor for reasonable defense costs incurred in the underlying lawsuit. The request for an award of prejudgment interest on the defense costs paid by the contractor is denied.
Insurance
CGL – Multiple Insurers – Defense Costs – No Contribution – Primary & Excess Insurers
Cincinnati Insurance Co. v. Crossmann Communities of North Carolina, Inc. (Lawyers Weekly No. 002-061-13, 16 pp.) (R. Bryan Harwell, J.) 4:09-cv-01379; D.S.C.
Holding: In an underlying lawsuit filed by a homeowners’ association against the contractor who built a resort, multiple insurers may be responsible for different damages, depending on their coverage periods. However, each insurer has a duty to defend the entire underlying lawsuit and is not entitled to seek contribution from the other insurers.
Fourth-party plaintiff Harleysville Mutual Insurance Co.’s motion for summary judgment is denied. Fourth-party defendant Indiana Insurance Co.’s motion for summary judgment is granted.
Insurance
Title – Real Property – Easement Endorsement – Damages – Attorney’s Fees
First American Title Insurance Co. v. Columbia Harbison LLC (Lawyers Weekly No. 002-068-13, 21 pp.) (Joseph F. Anderson Jr., J.) 3:12-cv-00800; D.S.C.
Holding: In Endorsement 3 to the parties’ title insurance policy, the plaintiff-insurer agreed, with regard to a parking easement, to insure “against loss or damage resulting from an Order of a Court of competent jurisdiction requiring the removal of all or a portion of the structures” designated in the defendant-insured’s “Plans.” When a state court ordered the removal of structures the insured had constructed in the easement, the insurer was required to provide coverage.
The insurer’s motion for summary judgment is denied. The insured’s motion for summary judgment is granted in part.
Insurance
Mortgage Life Policy – Exclusion – ‘Narcotic’ – Methamphetamine – Ambiguity
Hutchinson v. Liberty Life Insurance Co. (Lawyers Weekly No. 010-068-13, 4 pp.) (Costa M. Pleicones, J.) Appealed from Spartanburg County Circuit Court (Roger L. Couch, J.) On writ of certiorari to the Court of Appeals. S. C. S. Ct.
Holding: Where the mortgage life insurance policy at issue excluded benefits for an injury resulting from the insured’s being “under the influence of any narcotic,” the exclusion does not apply in this case in which the insured was under the influence of methamphetamine at the time of his accidental death.
We reverse the Court of Appeals’ decision, which reversed summary judgment for petitioner.
Labor & Employment
Tort/Negligence – Wrongful Termination Claim – Background Check – Expunged Conviction
Cervantes v. Wells Fargo Bank, N.A. (Lawyers Weekly No. 002-001-13, 7 pp.) (Cameron McGowan Currie, J.) 0:12-cv-02966; D.S.C.
Holding: Although plaintiff alleges that the purpose of the S.C. expungement statute is thwarted if the defendant-employer is allowed to consider plaintiff’s expunged conviction in deciding whether to fire her, plaintiff has not cited any S.C. statute that criminalizes or prohibits employers from considering expunged convictions in employment decisions. Neither has plaintiff cited any legislative history that supports her contention that the purpose of the expungement statute is “to allow a convicted person to live free from the stigma associated with such a conviction.” Plaintiff has also failed to cite any case law in which the S.C. courts have recognized a claim for wrongful termination in violation of public policy under the present circumstances.
Plaintiff has failed to state a claim for wrongful termination in violation of public policy.
Labor & Employment
Public Employees – Municipal Retirees – Health Insurance – Contract – Estoppel
Bishop v. City of Columbia (Lawyers Weekly No. 011-011-13, 14 pp.) (H. Bruce Williams, J.) Appealed from Richland County Circuit Court (James R. Barber III, J.) S.C. App.
Holding: Although neither the defendant-city’s employee handbook nor an insurance benefits booklet formed a contract with the plaintiffs – retired police officers and firefighters – the plaintiff-retirees may have been entitled to rely on statements made by their supervisors and city human resources personnel about free health insurance after retirement.
We affirm in part and reverse in part the circuit court’s grant of summary judgment to the city.
Labor & Employment
Public Employees – Municipal – Administrator – Void Contract – Tort/Negligence – Wrongful Discharge Claim
Cunningham v. Anderson County (Lawyers Weekly No. 011-027-13, 21 pp.) (John D. Geathers, J.) Appealed from Anderson County Circuit Court (Alexander S. Macaulay, J.) S.C. App.
Holding: A lame-duck county council could not bind the newly elected council to an employment contract with a county administrator. Since the employment contract is void, plaintiff may go forward with his claim that the county wrongfully discharged him – as an at-will employee – for reasons that violate public policy.
We affirm summary judgment for the county.
Labor & Employment
Tort/Negligence – Wrongful Discharge Claim – Public Policy – Public Employees – Scapegoat
McNeil v. South Carolina Department of Corrections (Lawyers Weekly No. 011-060-13, 10 pp.) (Paul E. Short Jr., J.) (James E. Lockemy, J.) Appealed from Richland County Circuit Court (G. Thomas Cooper Jr., J.) S.C. App.
Holding: Plaintiff alleges she was fired as a scapegoat after a prisoner committed suicide and his family sued. These allegations do not state a claim for wrongful termination in violation of public policy.
We affirm the circuit court’s grant of defendants’ motion to dismiss.
Labor & Employment
Tort/Negligence – Wrongful Discharge – Public Policy – Hospice LPN – Vulnerable Adult – Internal Report
Riley v. Southern Care, Inc. (Lawyers Weekly No. 002-076-13, 10 pp.) (Cameron McGowan Currie, J.) 3:13-cv-00357; D.S.C.
Holding: Assuming that S.C. Code Ann. § 43-35-25 requires nurses working for hospices to report abuse of vulnerable adults, abuse is to be reported to the Adult Protective Services Program. Plaintiff only alleges that she made internal reports; she does not allege that she even threatened to report the alleged abuse to the Adult Protective Services Program or any other public entity. Therefore, under Barron v. Labor Finders of S.C., 713 S.E.2d 634 (S.C. 2011), plaintiff has failed to state a claim for wrongful termination in violation of public policy.
The court grants defendant’s motion to dismiss plaintiff’s wrongful termination claim.
Labor & Employment
Unemployment Compensation – Hospital – Flu Shot Requirement – Refusal
AnMed Health v. South Carolina Department of Employment & Workforce (Lawyers Weekly No. 011-075-13, 7 pp.) (John C. Few, Ch.J.) Appealed from the Administrative Law Court (John D. McLeod, ALJ) S.C. App.
Holding: While it was reasonable for a hospital to require its employees to get a flu shot, it was also reasonable for the respondent-employee to refuse, given that she has no direct contact with patients and that her daughter had died from possibly genetically-based complications from a flu shot.
We affirm the Administrative Law Court’s ruling that respondent is entitled to unemployment benefits.
Labor & Employment
NLRB’s Notice-Posting Rule Invalidated
Chamber of Commerce of the U.S. v. NLRB (Lawyers Weekly No. 001-140-13, 35 pp.) (Duncan, J.) No. 12-1757, June 14, 2013;USDC at Charleston, S.C. (Norton, J.) 4th Cir.
Holding: The National Labor Relations Board did not have authority to promulgate a rule requiring employers to post a notice of employee rights under the National Labor Relations Act, and the 4th Circuit upholds summary judgment for the U.S. Chamber of Commerce and other business groups that challenged the rule.
Municipal
Constitutional – Dual Office-Holding Ban – County Council – Hospital Board of Trustees – Justiciable
Alexander v. Houston (Lawyers Weekly No. 010-064-13, 6 pp.) (John W. Kittredge, J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) Appealed from Barnwell County Circuit Court (Edgar W. Dickson, J.) S.C. S. Ct.
Holding: Holding seats on both the county council and the board of trustees of the county hospital violates the constitutional prohibition on dual office-holding.
We reverse the circuit court’s ruling that plaintiffs’ claim was not justiciable. Remanded.
Real Property
Mortgages – Entireties Property – Only Husband’s Signature – Equitable Remedies Inapplicable
Chase Home Finance, LLC v. Risher (Lawyers Weekly No. 011-077-13, 9 pp.) (Paula H. Thomas, J.) Appealed from Lexington County (James O. Spence, Master-in-Equity) S.C. App.
Holding: Although defendant Cassandra Risher’s name was on several closing documents, including the deed, only her (now deceased) husband was asked to sign the purchase money note and mortgage; now that the loan is in default, equity does not allow the holder of the note and mortgage to recover from Mrs. Risher or her one-half undivided interest in the property.
We affirm the master-in-equity’s ruling in Mrs. Risher’s favor.
Real Property
Constitutional – Due Process – Takings Clause – Zoning – Golf Course
Dunes West Golf Club, LLC v. Town of Mount Pleasant (Lawyers Weekly No. 010-004-13, 34 pp.) (John W. Kittredge, J.) Appealed from Charleston County Circuit Court (R. Markley Dennis Jr., J.) S.C. S. Ct.
Holding: The respondent-town changed its zoning ordinance so that golf course owners must submit to the town’s oversight before developing their golf courses for any purpose other than recreation or conservation uses. This did not constitute a taking of the appellant-golf course owner’s property.
We affirm summary judgment for the town.
Real Property
Mortgages – Lien Priority – Equitable Subrogation – Knowledge of Prior Mortgage – Borrower’s Attorney
Independence National Bank v. Buncombe Professional Park, LLC (Lawyers Weekly No. 011-021-13, 9 pp.) (James E. Lockemy, J.) Appealed from Greenville County (Charles B. Simmons Jr., Master-in-Equity) S.C. App.
Holding: Even though the defendant-borrower hired the closing attorney, the loan commitment letter required it to do so, and the borrower’s attorney was the only attorney involved in the closing of the loan. Therefore, the closing attorney was the plaintiff-lender’s agent, and the attorney’s knowledge of a prior mortgage on the real property at issue is imputed to the lender. As a result, the lender is not entitled to equitable subrogation.
We reverse the master-in-equity’s reformation of the lender’s mortgage, which placed it in a superior position to defendant DeCarlis’s mortgage. We also reverse the master’s finding that, pursuant to the doctrine of equitable subrogation, the lender was entitled to a first and superior mortgage.
Real Property
Statute of Elizabeth – Past Conveyances – New Creditors
Judy v. Judy (Lawyers Weekly No. 011-037-13, 7 pp.) (Aphrodite K. Konduros, J.) Appealed from Dorchester County (Martin Rast Banks, Special Referee) S.C. App.
Holding: Although land conveyances that defendant made in the 1990’s were an attempt to defraud different creditors, under the Statute of Elizabeth, his current creditors can reach back and void those conveyances, in addition to more recent fraudulent conveyances.
We affirm the special referee’s ruling as to the conveyances. We reverse the referee’s award of attorney’s fees.
Real Property
Mortgages – Foreclosure – Civil Practice – Standing – Mortgage Servicer – Holder – Amount
Bank of America, N.A. v. Draper (Lawyers Weekly No. 011-079-13, 9 pp.) (Aphrodite K. Konduros, J.) Appealed from Greenville County (Charles B. Simmons Jr., Master-in-Equity) S.C. App.
Holding: Where the plaintiff bank is the servicer of the defendant-borrower’s loan, the bank has standing to foreclose on the mortgage.
We affirm summary judgment for the bank, except as to $545 in charges. There is a dispute of fact as to those charges.
Real Property
Mortgages – Loan Modification – Attorneys – First Impression
Crawford v. Central Mortgage Co. (Lawyers Weekly No. 010-077-13, 8 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) S.C. S. Ct.
Holding: Since a loan modification is merely an adjustment to an existing loan made to accommodate homeowners who have defaulted, it does not implicate the public policy that requires attorney supervision for home purchases and refinancing.
We hold that modifying a loan without attorney supervision does not constitute the unauthorized practice of law.
Taxation
Real Property – Civil Practice – Standing – Fair Market Value
Taylor v. Aiken County Assessor (Lawyers Weekly No. 011-044-13, 5 pp.) (H. Bruce Williams, J.) Appealed from the Administrative Law Court (Carolyn C. Matthews, ALJ) S.C. App.
Holding: Although plaintiff did not buy the real property at issue until a foreclosure sale on Sept. 7, 2010 and so did not own it when the 2010 tax was assessed as of Dec. 31, 2009, plaintiff has standing to challenge the 2010 property tax assessment as a person whose property is subject to the property tax under S.C .Code Ann. §§ 12-60-30(22) and 12-60-2510(A)(4).
We reverse the Administrative Law Court’s ruling that plaintiff lacks standing.
Tort/Negligence
Voluntary Undertaking – Accountant – Criminal Investigation – Assisting Police
Johnson v. Robert E. Lee Academy, Inc. (Lawyers Weekly No. 011-001-13, 7 pp.) (Aphrodite K. Konduros, J.) Appealed from Lee County Circuit Court (W. Jeffrey Young, J.) S.C. App.
Holding: When it assisted the police in investigating funds missing from a school, the defendant-accounting firm did not engage in a voluntary undertaking that gave rise to a duty of care to plaintiff, the school’s bookkeeper.
We affirm summary judgment for the accounting firm.
Tort/Negligence
Workers’ Compensation – Exclusivity Provision – Dual Persona Doctrine – Corporate Mergers
Mendenall v. Anderson Hardwood Floors, LLC (Lawyers Weekly No. 010-013-13, 6 pp.) (John W. Kittredge, J.) On certification from the U.S. District Court for South Carolina. S.C. S. Ct.
Holding: South Carolina recognizes the “dual persona” doctrine as an exception to the exclusivity provision of the Workers’ Compensation Act. Under this doctrine, an injured employee may sue his employer in tort only if the employer possesses a second persona so completely independent from and unrelated to its status an employer that the law recognizes that persona as a separate legal person.
In response to a question certified from the U.S. District Court for South Carolina, we reply that South Carolina recognizes the doctrine. Whether the doctrine applies in this case is a question for the federal court to answer.
Tort/Negligence
Banks & Banking – Misprinted Checks – Mailed to Wrong Address – Fraudulent Check Charges
Simons v. Wal-Mart Stores East, L.P. (Lawyers Weekly No. 002-023-13, 11 pp.) (J. Michelle Childs, J.) 8:11-cv-03180; D.S.C.
Holding: At the motion-to-dismiss stage, the court cannot rule out the defendant-bank’s negligence as a proximate cause of plaintiff’s injuries after the bank misprinted plaintiff’s checks, sent them to the wrong address, and failed to notify Wal-Mart that the misprinted checks Wal-Mart accepted were forgeries. Plaintiff was arrested (from a hospital bed), jailed, tried for check fraud, and found not guilty.
The bank’s motion to dismiss is denied.
Tort/Negligence
Unfair Trade Practices – Civil Practice – Party Defendant – Corporate Officer
Neeltec Enterprises, Inc. v. Long (Lawyers Weekly No. 011-029-13, 5 pp.) (Aphrodite K. Konduros, J.) Appealed from Colleton County (A Victor Rawl, Special Referee) On remand from the S.C. Supreme Court. S.C. App.
Holding: An officer or controlling person in a corporation may be individually liable for unfair trade practices in which he participates or which he authorizes; therefore, plaintiff is allowed to assert an unfair trade practices claim against defendant Long individually. Plaintiff has the right to decide which party it wishes to sue for certain acts; accordingly, the special referee erred in substituting corporate defendants for Long.
Reversed and remanded.
Tort/Negligence
Products Liability – Design Defect – Feasible Alternative – Branham Ruling – Retroactive Application – Jury Interrogatory – Advisory – New Trial
Miranda C. v. Nissan Motor Co. (Lawyers Weekly No. 011-041-13, 14 pp.) (H. Bruce Williams, J.) Appealed from Florence County Circuit Court (Michael G. Nettles, J.) S.C. App.
Holding: The ruling in Branham v. Ford Motor Co., 390 S.C. 203, 701 S.E.2d 5 (2010) — that a plaintiff must prove a feasible alternative in a design defect case — is retroactively applicable to this case, and an advisory interrogatory answered by the jury is not binding.
We affirm the circuit court’s denial of defendant’s motion for judgment notwithstanding the verdict and its award of a new trial.
Tort/Negligence
Abuse of Process & Malicious Prosecution Claims – First Impression – Civil & Criminal Actions – Shoplifting Accusation – Store Employee
Thomas v. Kmart Corp. (Lawyers Weekly No. 002-057-13, 13 pp.) (Sol Blatt Jr., Sr.J.) 9:11-cv-00669; D.S.C.
Holding: Assuming defendant did “utilize” S.C. Code Ann. § 15-75-40 and sought a civil remedy against plaintiff – an alleged shoplifter and a former employee – it was prohibited from subsequently filing criminal charges against plaintiff pursuant to S.C. Code Ann. § 16-13-110. The initiation of criminal charges to gain an objective not legitimate in the use of process would support a claim of abuse of process.
The court sustains plaintiff’s objections to the magistrate’s recommendation. Defendants’ motion for summary judgment is denied as to plaintiff’s abuse of process and malicious prosecution claims.
Tort/Negligence
Libel – Falsity – Privilege – Malice – Letter to Employer
Castine v. Castine (Lawyers Weekly No. 011-058-13, 8 pp.) (James E. Lockemy, J.) (Paul E. Short Jr., J., concurring in the result only without separate opinion) Appealed from Lexington County Circuit Court (R. Knox McMahon, J.) S.C. App.
Holding: In defendant’s letters to plaintiff’s employer, at least one of the statements was false; therefore, defendant is not entitled to the defense of truth.
We affirm summary judgment for plaintiff.
Tort/Negligence
Unjust Enrichment – Unfair Trade Practices – Gambling Losses – Video Poker – In Pari Delicto – Defense Abrogated
Proctor v. Whitlark & Whitlark (Lawyers Weekly No. 011-069-13, 7 pp.) (H. Bruce Williams, J.) Appealed from Richland County Circuit Court (Alison Renee Lee, J.) S.C. App.
Holding: Based on statutes originally adopted as part of the Statutes of Anne, and an S.C. Supreme Court decision from a time when video poker gambling was legal, the court rules that the defense of in pari delicto has been abrogated with regard to losses sustained through illegal gambling.
We affirm the circuit court’s grant of summary judgment to plaintiff on defendant’s in pari delicto defense.
Tort/Negligence
Personal Injury – Real Property – S.C. Vacation Rental Act – Walkway Railing – Knowledge – ‘Tenant’
Poage v. Thomas Real Estate (Lawyers Weekly No. 002-085-13, 6 pp.) (Mary G. Lewis, J.) 4:11-cv-02615; D.S.C.
Holding: The S.C. Vacation Rental Act says, “No action may be brought against an owner or rental management company by a tenant for any damages or injuries that occur as a result of property defects of which an owner or rental management company had no actual knowledge.” S.C. Code Ann. § 27-50-250. However, plaintiff fell when the railing on an elevated walkway gave way without warning, and she has forecasted evidence that the defendant-rental management company had actual knowledge that weather causes wear and tear on boardwalks and that the company inspected the property less than five months before the walkway collapse. A construction expert also testified that the “deterioration didn’t happen overnight.” Plaintiff has presented evidence from which a jury can infer that defendants had actual knowledge of the existence of the dangerous condition of the walkway.
Defendants’ motion for summary judgment is denied.
Tort/Negligence
Family Purpose Doctrine – Punitive Damages – First Impression – Adult Son – Living at Home – Father’s Car
Gause v. Smithers (Lawyers Weekly No. 010-065-13, 26 pp.) (Kaye G. Hearn, J.) (Jean Hoefer Toal, Ch.J., joined in part by John W. Kittredge, J., dissenting) Appealed from Horry County Circuit Court (William H. Seals Jr., J.) S.C. S. Ct.
Holding: The family purpose doctrine draws a parallel between a parental relationship and an employment relationship, but that parallel cannot be stretched far enough to allow recovery of punitive damages against a parent who provides a car for his son.
We reverse the award of punitive damages against the defendant-father. Otherwise, we affirm the judgment for plaintiff.
Tort/Negligence
S.C. TCA – Sovereign Immunity – Legislative Action – Administrative – Emergency Regulation – Dental Hygienists
Health Promotion Specialists, LLC v. South Carolina Board of Dentistry (Lawyers Weekly No. 010-067-13, 15 pp.) (Donald W. Beatty, J.) (Costa M. Pleicones, J., concurring in the result only without separate opinion) Appealed from Richland County Circuit Court (William P. Keesley, J.) S.C. S. Ct.
Holding: Plaintiff seeks damages based on the defendant Board of Dentistry’s promulgation of a regulation which plaintiff alleges would have forced it out of business. However, the Board is entitled to sovereign immunity because the promulgation of the regulation was a legislative or quasi-legislative act by a governmental entity.
We affirm summary judgment for the Board.
Tort/Negligence
Products Liability – Crashworthiness – Evidence – Accident Causation
Quinton v. Toyota Motor Corp. (Lawyers Weekly No. 002-093-13, 6 pp.) (J. Michelle Childs, J.) 1:10-cv-02187; D.S.C.
Holding: Although S.C. courts have not directly addressed whether evidence of the cause of a crash is admissible in a crashworthiness case – in which plaintiff alleges that a defect caused an “enhanced injury” when the accident occurred, resulting in plaintiff’s decedent’s death – the S.C. Supreme Court has embraced the Restatement (Third) of Torts: Products Liability. Since the Restatement Third says causation evidence is admissible, the court denies plaintiff’s motion in limine to exclude such evidence.
Trusts & Estates
Real Property – USDA Subsidies – Statute of Limitations – First Impression – Partition
Estate of Livingston v. Livingston (Lawyers Weekly No. 011-013-13, 12 pp.) (Aphrodite K. Konduros, J.) Appealed from Orangeburg County (Olin Davie Burgdorf, Master-in-Equity) S.C. App.
Holding: Since the application for USDA subsidies must be renewed every year, the statute of limitations begins anew for each year’s subsidies.
We affirm the master-in-equity’s rulings that USDA subsidies are property of the decedent-farmer’s estate and that the estate’s personal representative (PR) could recover USDA benefits beginning three years before she filed this action. We reverse the master’s reliance on S.C. Code Ann. § 15-61-25 rather than § 62-3-911 to partition the decedent’s real property; we also reverse the master’s decision to allow the decedent’s son to retain half of the USDA benefits.
Trusts & Estates
Wills – Charitable Trust – Attorney General’s Intervention – Settlement – Removal of Fiduciaries
Wilson v. Dallas (Lawyers Weekly No. 010-045-13, 47 pp.) (Donald W. Beatty, J.) (Jean Hoefer Toal, Ch.J., concurring) Appealed from Aiken County Circuit Court (Doyet A. Early III, J.) On motion for rehearing. S.C. S. Ct.
Holding: Even if James Brown’s family members had good faith claims against his estate, the Attorney General did not have the authority to settle those claims by giving the claimants nearly half of Mr. Brown’s estate, creating a replacement for Mr. Brown’s charitable trust, and assuming day-to-day responsibility for the replacement trust.
We affirm the circuit court’s removal of appellants from their positions as personal representatives for The Estate of James Brown and trustees of The James Brown 2000 Irrevocable Trust. We reverse the circuit court’s approval of the compromise agreement between the S.C. Attorney General (AG) and Brown’s family members. We likewise void the appointment of Russell Bauknight as personal representative and trustee. We direct the circuit court, upon proper application, to appoint fiduciaries to oversee these matters in accordance with the provisions of Brown’s estate and trust documents and to evaluate the propriety of all fees related to this case.
Workers’
Compensation
Employment Relationship – Volunteer – Educational Program – Condition of Probation
Simmons v. SC STRONG (Lawyers Weekly No. 011-020-13, 6 pp.) (James E. Lockemy, J.) Appealed from the Workers’ Compensation Commission. S.C. App.
Holding: As a condition of probation and to avoid incarceration, the claimant participated in SC STRONG – a residential, non-profit organization in which “former substance abusers, ex-convicts, and homeless adults” are provided with educational and vocational opportunities. Although the claimant was injured while working on an SC STRONG construction project, he is not entitled to workers’ compensation benefits because he was a volunteer who worked without any expectation of remuneration.
We affirm the Workers’ Compensation Commission Appellate Panel’s denial of benefits.
Workers’
Compensation
Brain Injury – Physical Brain Damage
Crisp v. SouthCo. (Lawyers Weekly No. 010-028-13, 16 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones, J., concurring in the result) Appealed from Spartanburg County Circuit Court (Roger L. Couch, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.
Holding: In this case, the Workers’ Compensation Commission left the determination of the permanency of petitioner’s injury to a later date. However, we clarify what is meant by “physical brain damage” under S.C. Code Ann. § 42-9-10(C) for guidance. Inherent in the statute’s requirement that an injury to the brain be severe is the requirement that the worker be unable to return to suitable gainful employment.
We reverse the Court of Appeals’ decision upholding the Workers’ Compensation Commission’s award and remand for further proceedings.
Workers’
Compensation
Suitable Work – Constructive Refusal Claim – Sleeping at Work – Continuing Disability
Davis v. UniHealth Post Acute Care (Lawyers Weekly No. 011-034-13, 5 pp.) (John C. Few, Ch.J.) Appealed from the Workers’ Compensation Commission. S.C. App.
Holding: Even if constructively refusing employment does allow an employer to deny an employee temporary disability compensation under S.C. Code Ann. § 42-9-190, substantial evidence supports the Workers’ Compensation Commission’s finding that the claimant did not constructively refuse employment: On the night before the claimant allegedly slept on the job, she slept only one or two hours due to a stomach virus and pain in her back, to which she had suffered a compensable injury; she took a muscle relaxer before work to alleviate back pain; she did not typically take muscle relaxers before work because they made her feel sleepy; and the time the supervisor saw the claimant asleep was during her morning break.
We affirm the Commission’s award of benefits.
Workers’
Compensation
‘Affected’ Body Part – Ankle Injury – Spinal Cord Stimulator – Successful Implantation – First Impression
Colonna v. Marlboro Park Hospital (Lawyers Weekly No. 011-054-13, 13 pp.) (H. Bruce Williams, J.) Appealed from Florence County Circuit Court (Michael G. Nettles, J.) S.C. App.
Holding: Even though the claimant’s spine was “affected” when a spinal cord stimulator was implanted, since her spine was not impaired or injured, plaintiff has not satisfied the “two-body part” rule of S.C. Code Ann. § 42-9-10.
We affirm the circuit court’s order upholding the limitation of recovery to scheduled disability under S.C. Code Ann. § 42-9-30.
Workers’
Compensation
Total Permanent Disability – Physical Brain Damage – 500-Week Limit
Sparks v. Palmetto Hardwood, Inc. (Lawyers Weekly No. 010-057-13, 9 pp.) (Costa M. Pleicones, J.) Appealed from Florence County Circuit Court (Michael G. Nettles, J.) On writ of certiorari to the Court of Appeals. Substituted opinion. S.C. S. Ct.
Holding: A worker who suffered a brain injury and is totally, permanently disabled may only be excepted from the 500-week limit on workers’ compensation benefits if he suffers severe, permanent impairment of normal brain function.
We affirm the conclusion that petitioner did not suffer “physical brain damage” within the meaning of S.C. Code Ann. § 42-9-10.