Administrative

Rule Promulgation – Environmental – ‘Waters of the United States’

Even though the rule in question, “the Suspension Rule,” merely suspends a controversial rule that expanded the definition as to which waters can be regulated by the U.S. government, given the widespread effect of the Suspension Rule and the limited public comment allowed on it, the government violated the Administrative Procedure Act in promulgating the Suspension Rule.

The court enjoins implementation of the Suspension Rule. The injunction applies nationwide.

South Carolina Coastal Conservation League v. Pruitt (Lawyers Weekly No. 002-180-18, 18 pp.) (David Norton, J.) 2:18-cv-00330. Frank Holleman, Geoffrey Randall Gisler and J. Blanding Holman for plaintiffs; Barbara Murcier Bowens for defendant; Michael Branch Kimberly, Timothy Bishop, William Thomas Lavender and Joan Wash Hartley for intervenors. D.S.C.

Arbitration

Clickwrap/Browsewrap – Sufficient Notice – Hotel Taxes – Breach of Contract

Contrary to plaintiff’s argument, a customer on defendant’s website is indeed required to accept defendant’s “Terms of Service” as part of making a hotel reservation. In any event, defendant used an enforceable hybrid between a clickwrap and a browsewrap: by expressly agreeing to click and “Complete Reservation,” the consumer is impliedly agreeing to the Terms of Service, of which he is put on sufficient notice by the clear hyperlinked disclaimer directly adjacent to the “Complete Reservation” button. By affirmatively clicking to “Complete Reservation,” plaintiff assented to the Terms of Service, including the arbitration clause therein.

The court grants defendant’s motion to dismiss.

Church v. Hotels.com L.P. (Lawyers Weekly No. 002-134-18, 6 pp.) (Richard Mark Gergel, J.) 2:18-cv-00018; Ian Freeman, James Ward Jr. and John Phillips Linton Jr. for plaintiff; Bryan Killian, Elizabeth Herrington, Paul Collins and Stephanie Schuster for defendant. D.S.C.

Attorneys

Administrative & Civil Practice – Interlocutory Appeals – Scheduling Conflict

Where the Administrative Law Court reversed and remanded the Office of Motor Vehicle Hearings’ dismissal of plaintiff’s challenge to the suspension of her driver’s license, the ALC’s decision was not a final order and was not immediately appealable.

The court notes the scheduling conflict that led to the OMVH dismissal and recommends that – although Rule 601, SCACR, sets out the priority of hearings in various tribunals – lawyers, judges and hearing officers should work together to accommodate scheduling conflicts.

We affirm the Court of Appeals’ dismissal of the South Carolina Department of Motor Vehicles’ appeal.

Spalt v. South Carolina Department of Motor Vehicles (Lawyers Weekly No. 010-068-18, 8 pp.) (John Few, J.) Appealed from the Administrative Law Court (Harold Funderburk Jr., ALJ) Brandy Anne Duncan, Frank Valenta Jr. and Philip Porter for Petitioner; Michael Vincent Laubshire for Respondent. S.C. S. Ct.

Attorneys

Attorney-Client Privilege – Insurance – Bad Faith Claim – Claim Files – Certified Question

Because plaintiffs established a prima facie case of bad faith failure to insure, and because the defendant-insurer in its answer denied bad faith liability, the district court ruled that the insured waived the attorney-client privilege with respect to the attorney-client communications in the insurer’s claim files, to the extent such communications are relevant under Fed. R. Civ. P. 26, and the court ordered the insurer to produce the claim files for in camera review. Against this background, the court certifies to the South Carolina Supreme Court the following question:

Does South Carolina law support application of the “at issue” exception to the attorney-client privilege such that a party may waive the privilege by denying liability in its answer?

In re Mt. Hawley Insurance Co. (Lawyers Weekly No. 006-013-18, 6 pp.) (Neimeyer, J., for the panel) On writ of mandamus to the District of South Carolina (David Norton, J.) 4th Cir. Unpub.

Attorneys

Company’s agreement with feds preserved privilege

A written agreement between a corporation and the government preserved the company’s attorney-client privilege and work-product protection for information that the general counsel of a subsidiary entity disclosed to the government.

In re Grand Jury 16-3817 (Lawyers Weekly No. 006-014-18, 13 pp.) (Gregory, J.) No. 17-4183; June 27, 2018; from EDVA at Alexandria (O’Grady, J.) Peter John Romatowski for Appellant; John Alexander Romano for Appellee. 4th Cir. Unpub.

Attorneys

Discipline – ‘Another Jurisdiction’ – SEC – Client’s Ponzi Scheme

We do not find that the Securities and Exchange Commission is “another jurisdiction” within the meaning of Rule 29(e), RLDE (“[A] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct . . . shall establish conclusively the misconduct . . . for purposes of a disciplinary . . . proceeding in this state.”).

Nevertheless, where respondent (1) falsely assured his client’s Florida bankruptcy attorney that the money used to pay bankruptcy fees did not come from investors in the client’s current investment vehicle; (2) issued a false memorandum to those investors, assuring them that their funds were secure and were not part of a Ponzi scheme; (3) has a history of misconduct in South Carolina; (4) has made no effort to repay any of the funds that the SEC has ordered him to repay; and (5) did not cooperate in discovery in this disciplinary action, we find respondent has committed misconduct in violation of Rules of Professional Conduct 4.1 (truthfulness in statements to others), 8.4(d) (conduct involving dishonesty, fraud, deceit or misrepresentation), and 8.4(e) (conduct prejudicial to the administration of justice).

Respondent is suspended from the practice of law in South Carolina for 18 months and is ordered to pay the costs of these proceedings.

In re Kern (Lawyers Weekly No. 010-071-18, 7 pp.) (Per Curiam) John Nichols and Joseph Turner for Office of Disciplinary Counsel; John Kern, pro se. S.C. S. Ct.

Attorneys

Discipline – Forgery – Client’s Signature – Suspension

Where respondent signed her client’s name to an affidavit (which, though true, the client knew nothing about), respondent violated Rules of Professional Conduct 3.3(a)(3), 3.4(b), 8.4(d) and 8.4(e).

Respondent is suspended from the practice of law in this state for nine months. She shall pay the costs incurred in the investigation and prosecution of this matter.

In re Robinson (Lawyers Weekly No. 010-075-18, 2 pp.) (Per Curiam) John Nichols and Sabrina Todd for Office of Disciplinary Counsel; Gwendolyn Robinson, pro se. S.C. S. Ct.

Attorneys

Fee Dispute – Tort/Negligence – Interference with Contract – Declaratory Judgment

Where the plaintiff-lawyer alleges that (1) he had a binding contract with a former client (John Doe 10); (2) defendants Anderson and Jeff Anderson & Associates, P.A. (the Anderson defendants) were aware of this contract; (3) the Anderson defendants objected to the disbursement of the fee provided for in plaintiff’s contract with John Doe 10, which was being held in trust; (4) the Anderson defendants asserted an interest in the fee despite the fact that they were not parties to the contract between plaintiff and John Doe 10, thereby causing plaintiff damages; and (5) the Anderson defendants lacked justification for placing a lien on the fee, plaintiff has adequately stated a claim against the Anderson defendants for tortiously interfering with plaintiff’s contract with John Doe 10.

The court accepts the magistrate judge’s recommendation and denies the Anderson defendants’ motion to dismiss.

Flowers v. Anderson (Lawyers Weekly No. 002-173-18, 10 pp.) (Bruce Howe Hendricks, J.) 2:17-cv-02739. David Flowers, pro se; Barry Landy and J. Rutledge Young for the Anderson defendants; Gregg Meyers, pro se. D.S.C.

Civil Practice

Attorneys – Rule 11 Motion – Timeliness – Post-Appeal

A motion for sanctions under Rule 11, SCRCP, filed by defendant nine days after remittitur from plaintiff’s unsuccessful appeal, was timely, especially since one part of the consolidated appeal involved the same conduct at issue in the Rule 11 motion.

We affirm the Court of Appeals’ ruling that defendant’s motion under the Frivolous Civil Proceedings Sanctions Act (FCPSA) was untimely. However, we reverse the Court of Appeals’ conclusion that the Rule 11 motion was untimely. We remand for consideration of plaintiff’s arguments as to the merits of the circuit court’s imposition of Rule 11 sanctions.

Pee Dee Health Care, P.A. v. Estate of Thompson (Lawyers Weekly No. 010-091-18, 18 pp.) (John Few, J.) (John Kittredge, J., joined by Acting Justice John Geathers, concurring) Appealed from the Circuit Court in Darlington County (J. Michael Baxley, J.) Jon Rene Josey and John James for petitioner; James Mixon Griffin and Ariail Elizabeth King for respondent. S.C. S. Ct.

Constitutional

Expression not chilled by school’s initial inquiry

A university did not restrict or chill students’ speech by seeking their response to complaints that they had harassed others. The students, who’d sought and obtained university approval for a campus “Free Speech Event,” met with an official to discuss allegations of sexism and racism at the event. After the meeting, the University concluded no further action was warranted.

Abbott v. Pastides (Lawyers Weekly No. 001-140-18, 36 pp.) (Harris, J.) No. 17-1853; Aug. 16, 2018; from DSC at Columbia (Seymour, J.). Robert Corn-Revere for Appellants; Carl Frederick Muller for Appellees. 4th Cir.

Constitutional

Vets’ tort claims against contractor not justiciable

Waste and water management systems in Iraq and Afghanistan were operationally controlled by the military, not its contractor. Thus, mass tort claims for harms caused by the contractors’ alleged environmental mismanagement were barred by the political question doctrine.

In re KBR Inc. Burn Pit Litigation (Lawyers Weekly No. 001-111-18, 37 pp.) (Floyd, J.) No. 17-1960; June 20, 2018; from DMD at Greenbelt (Titus, J.) Susan L. Burke for Appellants; Warren W. Harris for Appellees. 4th Cir.

Consumer Protection

Attorneys – Debt Collection Letters – Possibility of Litigation – Confession of Judgment

The defendant-law firm’s original debt collection letter didn’t violate 15 U.S.C. § 1692g of the Fair Debt Collection Practices Act just because it mentioned that litigation could be commenced during the same period in which the plaintiff-debtor could contest the debt. However, the law firm may have violated 15 U.S.C. § 1692e in follow-up letters that allegedly overstated what plaintiff had agreed to do and that would have suggested to the least sophisticated consumer that a lawsuit had already been filed.

Defendant’s motion to dismiss is granted as to plaintiff’s § 1692g claim but denied as to her § 1692e claims.

Erekson v. Clarkson & Hale, LLC (Lawyers Weekly No. 002-193-18, 27 pp.) (Cameron McGowan Currie, S.J.) 3:18-cv-00032. Holly Elizabeth Dowd and David McDevitt for plaintiff; Martin Driggers and Richard Edward McLawhorn for defendant. D.S.C.

Consumer Protection

FDCPA – Collection Letter – Identification of Creditor

Where (1) defendant’s collection letter’s first line reads, “Re: GEORGIA EMERGENCY ASSOCIATES”; (2) the letter says the debt has been placed with defendant for collection and that plaintiff can send defendant a written request to be provided “the name and address of the original creditor, if different from the current creditor”; and (3) the only other entities identified in the letter are plaintiff and Georgia Emergency Associates, the court finds that the “least sophisticated consumer” could only reasonably interpret the letter to mean that Georgia Emergency Associates was the current creditor. No more is required by the Fair Debt Collection Practices Act.

The court grants defendant’s motion to dismiss.

Baker v. Lanier Collection Agency & Services Inc. (Lawyers Weekly No. 002-133-18, 8 pp.) (Donald Coggins Jr., J.) 0:17-cv-02364; Kenneth Edward Norsworthy Jr. and Yitzchak Zelman for plaintiff; Chad Vinson Echols for defendant. D.S.C.

Consumer Protection

FDCPA – Collection Letter – Old Debt – Statute of Limitations Revival

Defendant’s collection letters to plaintiffs said defendant wouldn’t sue because of the age of the debt, but the letters didn’t tell plaintiffs that making payments on their debts could restart the statute of limitations on the debts. There is no binding precedent as to whether plaintiffs can state a claim under the Fair Debt Collection Practices Act when defendant did not threaten litigation in attempting to collect the time-barred debts.

Plaintiffs stipulated to the dismissal of their claim under 15 U.S.C. § 1692f, so the court grants defendant’s motion to dismiss as to that claim. Otherwise, defendant’s motion to dismiss is denied.

Alston v. Midland Credit Management, Inc. (Lawyers Weekly No. 002-147-18, 10 pp.) (A. Marvin Quattlebaum Jr., J.) 8:18-cv-00014. Chauntel Demetrius Bland and Matthew Taylor Sheffield for plaintiffs; Robert Lesley Brown and Jason Brent Tompkins for defendant. D.S.C.

Consumer Protection

FDCPA – Real Property – HOA Dues & Fines – Attorneys’ Fees – Collection Letters

Although a subdivision’s covenants and restrictions (C&R) provided for attorney’s fees when a homeowner failed to pay assessments, the C&R only provided for such fees once a judgment had been obtained or when the entity enforcing the C&R “prevails.” Therefore, the defendant-law firm violated the Fair Debt Collection Practices Act when its collection letters included attorneys’ fees in the amount they said the plaintiff-homeowners owed.

The court grants plaintiffs’ motion for summary judgment as to liability and denies defendant’s motion for summary judgment.

Park v. McCabe Trotter & Beverly, P.C. (Lawyers Weekly No. 002-172-18, 12 pp.) (Richard Mark Gergel, J.) 2:17-cv-00657. Justin Simon Kahn and Mary Leigh Arnold for plaintiffs; Andrew Wesley Countryman and Robert Wood for defendant; Paul James for intervenor. D.S.C.

Contract

Business Sale – Covenant Not to Compete – Reasonable Restrictions – Mortuary Transport & Body Bags

Where the covenant not compete in question was part of the sale of a business, and where the buyer reasonably anticipated expanding the geographical footprint of the business, the fact that the seller’s business operated mainly in Richland and Lexington Counties did not render a 300-mile diameter territory restriction unreasonable.

We reverse the Court of Appeals’ decision in favor of the defendant-sellers and reinstate the special master’s decision in favor of the plaintiff-buyer.

Palmetto Mortuary Transport, Inc. v. Knight Systems, Inc. (Lawyers Weekly No. 010-085-18, 15 pp.) (George James, J.) Appealed from Lexington County (James Randall Davis, Special Referee) On writ of certiorari to the Court of Appeals. John Julius Pringle and Lyndey Ritz Zwingelberg for petitioner; Reginald Lloyd and James Edward Bradley for respondents. S.C. S. Ct.

Contract

Church’s Payments – Pastor’s Widow – Bylaws – Laches – Constitutional – First Amendment

Where the defendant-church’s board of directors was appointed by a late pastor rather than being elected by the congregation, a board-executed contract promising to pay the plaintiff-widow the pastor’s salary for the rest of her life was not valid.

We reverse the circuit court’s judgment in favor of the widow.

Jenkins v. Refuge Temple Church of God in Christ, Inc. (Lawyers Weekly No. 011-068-18, 11 pp.) (Paul Short Jr., J.) Appealed from the Circuit Court in Richland County (L. Casey Manning, J.) Timothy Newton and Peter Farr for Appellant; Kenneth Hanson and Walter Marion Riggs for Respondent. S.C. App.

Contract

Unfair Trade Practices – Damages – Filing Suit

Defendants’ expert opined that defendants lost the opportunity to sell their business for $60 million because plaintiff filed this lawsuit; therefore, the $60 million in damages are not attributable to any unfair trade practice by plaintiff.

The court grants plaintiff’s motion for summary judgment as to defendants’ unfair trade practices counterclaim.

Poly-Med, Inc. v. Novus Scientific Pte. Ltd. (Lawyers Weekly No. 002-190-18, 7 pp.) (J. Michelle Childs, J.) 8:15-cv-01964. Bernie Ellis, Marwan Zubi and Paul Peter Nicolai for plaintiff; Jennifer Mallory, Mark Dukes, Samuel Outten, Robert Hall McWilliams and Joseph Calhoun Watson for defendants. D.S.C.

Corporate

Asset Purchase – ‘Mere Continuation’ – Same Directors – Not Enough

When a company’s assets are purchased, the fact that the buyer continues the predecessor company’s operations with the same officers is not enough to hold the successor corporation liable for the predecessor company’s liabilities.

We reverse the Court of Appeals’ decision, which upheld the trial court’s ruling that plaintiffs could recover from the successor corporation.

Nationwide Mutual Insurance Co. v. Eagle Window & Door, Inc. (Lawyers Weekly No. 010-082-18, 13 pp.) (Kaye Hearn, J.) Appealed from the Circuit Court in Spartanburg County (J. Mark Hayes, J.) On writ of certiorari to the Court of Appeals. G. Dana Sinkler and Ainsley Fisher Tillman for petitioner; Jason Imhoff and Ginger Goforth for respondents. S.C. S. Ct.

Corporate

Nonprofit – Membership Dues – Resignation

The plaintiff-country club’s membership documents – both at the time defendants joined and at the time they resigned – required resigning members to continue paying dues and other amounts until their membership was reassigned. Since the Nonprofit Corporation Act also provides, “The resignation of a member does not relieve the member from any obligations the member may have to the corporation as a result of obligations incurred or commitments made before resignation,” defendants were required to keep paying their dues and other charges after their resignation from the club.

We reverse the Court of Appeals’ ruling to the contrary and reinstate summary judgment for the club.

Callawassie Island Members Club, Inc. v. Dennis (Lawyers Weekly No. 010-087-18, 17 pp.) (John Few, J.) (Kaye Hearn, J., joined by Donald Beatty, C.J., dissenting) Appealed from the Circuit Court in Beaufort County (Carmen Mullen, J.) On writ of certiorari to the Court of Appeals. Andrew Lindemann, M. Dawes Cooke, John Fletcher and Stephen Hughes for petitioner; Ian Ford and Neil Thomson for respondents. S.C. S. Ct.

Corporate

Piercing the Veil – Amalgamation of Interests – Manager’s Ownership Accrual

The court formally recognizes the amalgamation of interests, or single business enterprise, theory for piercing the corporate veil. However, (1) the trial court overlooked the fact that the corporations in question were S-corporations, which are allowed to overlook corporate formalities; (2) the trial court failed to assign the burden of proof to plaintiff, as the party seeking amalgamation, and (3) the record reveals no evidence of bad faith by the individual defendants. Thus, it was error to consider the three corporate defendants as a single business enterprise.

We reverse the Court of Appeals’ findings as to amalgamation, “de facto partnership,” and the award of 7.2 percent ownership interest in defendant Front Roe Restaurants, Inc., to plaintiff. We affirm as modified the Court of Appeals’ finding that plaintiff is entitled to unpaid shareholder distributions. We vacate the Court of Appeals’ opinion to the extent it makes any findings as to defendants Beachfront Foods, Inc., and LakePoint Restaurants, Inc., the two North Carolina corporations, and we affirm the balance of the judgment of the Court of Appeals pursuant to Rule 220, SCACR.

Pertuis v. Front Roe Restaurants, Inc. (Lawyers Weekly No. 010-074-18, 18 pp.) (John Kittredge, Acting Chief Justice) (Kaye Hearn, J., concurring in part & dissenting in part) Appealed from the Circuit Court in Greenville County (Edward Miller, J.) On writ of certiorari to the Court of Appeals. Blake Hewitt and Curtis Stodghill for Petitioners; Robert Wilson Jr. for Respondent. S.C. S. Ct.

Corporate

Shareholders’ Derivative Complaint – Demand on Directors – Futility – Directors’ Liability

Where the plaintiff-shareholders allege that the defendant-directors (1) caused nominal defendant SCANA Corp. to make misleading statements, (2) approved “incentive award” pay for SCANA’s officers despite SCANA’s nuclear project being in jeopardy, and (3) failed to ensure that SCANA’s filings with the Securities and Exchange Commission were accurate, plaintiffs have sufficiently alleged that it would have been futile to demand action from the directors.

The court denies defendants’ motions to dismiss under Rules 23.1(b)(3) and 12(b)(6), FRCP.

In re SCANA Corp. Derivative Litigation (Lawyers Weekly No. 002-136-18, 13 pp.) (Margaret Seymour, S.J.) 3:17-cv-03166; William Hopkins Jr., James Ficaro, Eric Bland, Ronald Richter Jr., Scott Mongillo, Joseph Seidman Jr. and Uri Seth Ottensoser for plaintiffs; William Alexander Coates, Anne Magee Tompkins, Jonathan Michael Watkins, Benjamin Palmer Carlton, George Craig Johnson, I.S. Leevy Johnson, Steven Pugh, Alexandra Peurach, Lisa Bugni, Michael Smith, James Wyatt III, Robert Adams Blake Jr., John Allen Jordak Jr., Meredith Jones Kingsley and William Mitchelson Jr. for defendants. D.S.C.

Criminal Practice

Attorneys – Conflict of Interest – Adequate Screening

Only a week before trial, the state disclosed a witness who was represented by an attorney in the public defender’s office in obtaining a deal for his testimony against defendant. Although no explicit screening mechanism was in place between that attorney and defense counsel, who also worked in the public defender’s office, no confidential information was disseminated or received by defense counsel; therefore, defense counsel did not have to be relieved.

We affirm the trial court’s finding that no actual conflict of interest existed.

State v. Wright (Lawyers Weekly No. 011-070-18, 5 pp.) (James Lockemy, C.J.) (H. Bruce Williams, J., concurring in the result only without separate opinion) Appealed from the Circuit Court in Jasper County (Michael Nettles, J.) Kathrine Haggard Hudgins for Appellant; Alan McCrory Wilson, Megan Harrigan Jameson, Joshua Abraham Edwards and Isaac McDuffie Stone III for Respondent. S.C. App.

Criminal Practice

Closing Arguments – Improper Statement – Mistrial Motion – Attempted Murder – Intent to Kill

In the state’s summation, the prosecutor laid out how the state had proven attempted murder. The prosecutor then said, “And if you don’t think that we’ve done it, . . . [w]e will give him back all of his stuff and put him back out on the street.” Simultaneously, prosecutor tossed defendant’s gun on top of the clothing he wore on the night of the shooting.

Since the circuit court sustained defendant’s objection and immediately instructed the jury to “disregard the last statement,” the circuit court did not abuse its discretion when it denied defendant’s motion for a mistrial.

We affirm defendant’s conviction of attempted murder.

State v. Smith (Lawyers Weekly No. 011-082-18, 24 pp.) (John Geathers, J.) Appealed from the Circuit Court in Richland County (Robert Hood, J.) David Alexander for Appellant; Alan McCrory Wilson, William Blitch Jr. and Daniel Edward Johnson for Respondent. S.C. App.

Criminal Practice

Evidence – Expert Testimony – Child Abuse – Delayed Disclosure & Caregiver Response

The trial court did not abuse its discretion when it allowed an expert in child sex abuse dynamics to testify about both delayed disclosure from sex abuse victims and the behavior of non-offending caregivers.

We modify and affirm the Court of Appeals’ decision upholding defendant’s convictions for first-degree criminal sexual conduct (CSC) with a minor, second-degree CSC with a minor, and two counts of committing a lewd act on a minor.

State v. Jones (Lawyers Weekly No. 010-073-18, 7 pp.) (Kaye Hearn, J.) Appealed from the Circuit Court in Greenville County (Robin Stilwell, J.) David Alexander and Lara Caudy for Petitioner; Alan McCrory Wilson, Deborah Shupe and W. Walter Wilkins III for Respondent. S.C. S. Ct.

Criminal Practice

Expert Testimony – Meth Calculation – First Impression

Pickens County Sheriff’s Captain Chad Brooks testified that (1) he had attended a “clandestine meth lab training school”; (2) he was “certified through the [Drug Enforcement Agency] as what they call a site safety officer at labs sites and also clandestine lab certified”; (3) he had been involved in thousands of methamphetamine investigations, as well as “[h]igh level trafficking conspiracies surrounded by methamphetamine”; (4) he had “been involved in the seizure of probably close to 200 methamphetamine labs”; (5) he had manufactured methamphetamine in a controlled setting; (6) he had been trained about the various methods by which one can make methamphetamine; and (7) he was trained how to determine the yield of methamphetamine from the amount of precursor elements. He explained, “It’s, basically, a mathematical equation. By taking the grams of [p]seudoephedrine that are introduced into the lab. . . .” The trial court did not abuse its discretion in qualifying Captain Brooks as an expert and allowing him to testify as to the possible yield of methamphetamine from the pseudoephedrine available.

We affirm defendant’s conviction of trafficking methamphetamine in the amount of 28 grams or more but less than 100 grams.

State v. Mealor (Lawyers Weekly No. 011-081-18, 23 pp.) (Aphrodite Konduros, J.) Appealed from the Circuit Court in Pickens County (Robin Stilwell, J.) Ryan Christopher Andrews and Robert Michael Dudek for Appellant; Alan McCrory Wilson, Deborah Shupe and William Walter Wilkins III for Respondent. S.C. App.

Criminal Practice

Juvenile D.C. sniper to be resentenced under Miller

The younger “D.C. sniper,” who was a teenager when he was convicted of several murders and related crimes, must be resentenced following retroactive constitutional standards for juvenile punishment, established subsequent to his sentencing.

Malvo v. Mathena (Lawyers Weekly No. 001-109-18, 25 pp.) (Niemeyer, J.) No. 17-6746; June 21, 2018; from EDVA at Norfolk (Jackson, J.) Matthew Robert McGuire for Appellant; Craig Stover Cooley for Appellee. 4th Cir.

Criminal Practice

MS-13 murder convictions upheld

Six defendants tried together were properly convicted of murder and attempted murder offenses related to their gang membership. Their convictions were upheld despite challenges to prosecutorial conduct, jury instructions, evidence admitted at trial, joint trial, access to counsel, warrantless cell record access, and sentencing of young defendants without consideration of mitigating factors.

United States v. Chavez (Lawyers Weekly No. 001-115-18, 26 pp.) (Wilkinson, J.) No. 16-4499; July 2, 2018; from EDVA at Alexandria (Lee, J.) Jerome Patrick Aquino and Christopher Bryan Amolsch for Appellants; Tobias Douglas Tobler for Appellee. 4th Cir.

Criminal Practice

Murder – Evidence – Other Bad Acts – No Balancing Test

Where the evidence could support a finding that defendant accidentally shot the victim, it was not harmless error for the trial court to admit evidence of defendant’s alleged involvement in another murder.

As to defendant’s convictions of murder and possession of a weapon during the commission of a violent crime, we reverse and remand for a new trial.

State v. King (Lawyers Weekly No. 010-077-18, 16 pp.) (George James Jr., J.) (Kaye Hearn, Acting Chief Justice, joined by Acting Justice Jan Benature Bromell Holmes, J., dissenting) Appealed from the Circuit Court in Marlboro County (Edward Cottingham, J.) On writ of certiorari to the Court of Appeals.  Alan McCrory Wilson, Alphonso Simon Jr. and William Rogers Jr. for Petitioner; Howard Anderson III and Robert Michael Dudek for Respondent. S.C. S. Ct.

Criminal Practice

Murder – Expert Testimony – Victim’s Location – Self-Defense

The location of the victim when he was shot was crucial to defendant’s claim of immunity under the Protection of Persons and Property Act, so it was not harmless error when the trial court allowed a paramedic to testify – outside her area of expertise – that the victim was on defendant’s porch when he was shot.

We affirm in part but reverse defendant’s murder conviction and remand for a new trial as to this issue.

State v. Andrews (Lawyers Weekly No. 011-065-18, 13 pp.) (H. Bruce Williams, J.) Appealed from the Circuit Court in Sumter County (W. Jeffrey Young, J.) Robert Michael Dudek for Appellant; Alan McCrory Wilson, Jonathan Scott Matthews and Ernest Adolphus Finney III for Respondent. S.C. App.

Criminal Practice

Murder – Self-Defense – Defense of Others – Offensive Use

Where defendant struck a lethal blow to the head of a person who tried to intervene in an argument between defendant and his girlfriend, the state – at least in this case – was not entitled to use “defense of others” to counteract defendant’s assertion of self-defense.

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

State v. Otts (Lawyers Weekly No. 011-063-18, 10 pp.) (Stephanie McDonald, J.) (H. Bruce Williams, J., concurring in the result only without separate opinion) Appealed from the Circuit Court in Saluda County (Thomas Russo, J.) Susan Barber Hackett for Appellant; Alan McCrory Wilson, Donald Zelenka, J. Anthony Mabry and Samual Hubbard III for Respondent. S.C. App.

Criminal Practice

Mutual Combat Theory – Transferred Intent – Gun Battle

Even though Tyrone Robinson fired the shot that killed the child victim, since Robinson and defendant were engaged in a gun battle, defendant could be found guilty of the murder pursuant to the mutual combat theory and transferred intent.

We affirm defendant’s convictions of murder and attempted murder.

State v. Young (Lawyers Weekly No. 011-084-18, 11 pp.) (Thomas Huff, J.) Appealed from the Circuit Court in Beaufort County (Thomas Cooper. J.) Jennifer Kirk Dunlap, Frederick Elliotte Quinn, and Robert Michael Dudek for appellant; Alan McCrory Wilson, Donald Zelenka, Anthony Mabry, and Isaac McDuffie Stone for respondent. S.C. App.

Criminal Practice

Search & Seizure – Warrant Application – Possible Meth Lab – Insufficient Information

An affidavit did not give a magistrate sufficient information to find probable cause to issue a search warrant when the affidavit (1) asserted that the sheriff’s office had received information – with no indication from whom – that a methamphetamine laboratory was in operation at defendant’s home and (2) said a confidential information had been at the location and seen numerous items that are used in the manufacture of methamphetamine.

We reverse defendant’s conviction of manufacturing methamphetamine.

State v. Dill (Lawyers Weekly No. 010-067-18, 10 pp.) (George James Jr., J.) Appealed from the Circuit Court in Laurens County (Eugene Griffith Jr., J.) Taylor Davis Gilliam for Petitioner; Alan McCrory Wilson, David Spencer and David Matthew Stumbo for Respondent. S.C. S. Ct.

Criminal Practice

Stand Your Ground – Immunity – Self-Defense – Shots Fired – Follow Vehicle

Even though the record before the court does not indicate a threat from the Honda that was driving by Shannon Scott’s house, from Scott’s perspective at the time of the incident, he reasonably perceived a threat both from the SUV that had chased his daughter home from a nightclub and from the Honda in which the victim was following the SUV.

We modify and affirm the Court of Appeals’ decision upholding the circuit court’s finding of immunity under the Protection of Persons and Property Act (PPPA).

State v. Scott (Lawyers Weekly No. 020-086-18, 14 pp.) (John Few, J.) (John Kittredge, J., concurring) (Kaye Hearn, J., dissenting) Appealed from the Circuit Court in Richland County (Maité Murphy, J.) Alan Wilson, Donald Zelenka, Melody Brown, Alphonso Simon, Daniel Johnson and April Woodard Sampson for petitioner-respondent; Robert Dudek for respondent-petitioner. S.C. S. Ct.

Criminal Practice

To trigger Simmons, state argument must look forward

A serial killer, sentenced to death under North Carolina law, had no constitutional right to inform his sentencing jury that he was already ineligible for parole and, thus, did not pose a continuing danger to society.

Warren v. Thomas (Lawyers Weekly No. 001-124-18, 12 pp.) (Harris, J.) No. 17-4; July 10, 2018; from MDNC at Greensboro (Eagles, J.) Kristin Davis Parks for Appellant; Jess D. Mekeel for Appellee. 4th Cir.

Domestic Relations

Civil Practice – Intervention – Equitable Distribution – Husband’s Income – Alimony & Child Support

While the family court could allow the husband’s brother to intervene, based on his interest in some of the marital property, the court never should have allowed the brother to be involved in the matters of custody, child support, alimony, and fault.

And where the family court failed to consider evidence regarding the defendant-husband’s true income, as well as the ownership interests and debts of the parties’ businesses, the court’s rulings as to equitable distribution, alimony, child support and attorney’s fees must be reversed and remanded.

We grant the wife a divorce on the grounds of adultery. Otherwise, we must reverse and remand.

Stoney v. Stoney (Lawyers Weekly No. 011-085-18, 25 pp.) (Stephanie McDonald, J.) Appealed from the Family Court in Orangeburg County (Peter Nuessle, J.) J. Michael Taylor and Peter George Currence for appellant; Charles Williams, Donald Bruce Clark and James Richardson for respondents. S.C. App.

Environmental

District court couldn’t hear pipeline challengers’ suit

Congress stripped district courts’ jurisdiction to hear the claims of landowners challenging provisions of the Natural Gas Act, under which Mountain Valley Pipeline obtained administrative approval to begin construction. The district court properly dismissed their suit.

Berkley v. Mountain Valley Pipeline LLC (Lawyers Weekly No. 001-130-18, 16 pp.) (Wynn, J.) No. 18-1042; July 25, 2018; from WDVA at Roanoke (Dillon, J.) Justin Michael Lugar for Appellants; Susanna Y. Chu and Wade Wallihan Massie for Appellees. 4th Cir.

Immigration

U-Visa Status – Waiting List – Administrative – Constitutional – Due Process

Plaintiffs’ application for a U-Visa (a nonimmigrant visa for victims of crimes committed in the U.S.) has been pending for more than three years, and plaintiffs sought adjudication of their application within a reasonable time; therefore, plaintiffs have stated a claim under the Administrative Procedure Act.

The court grants in part and denies in part defendants’ motion to dismiss.

Solis v. Cissna (Lawyers Weekly No. 002-176-18, 11 pp.) (Margaret Seymour, S.J.) 9:18-cv-00083. Anna Strandberg, Bradley Bruce Banias and Stephanie Elizabeth Nodine for plaintiffs; Julian Michael Kurz and Matthew Modica for defendants.

Insurance

Auto – Guaranty Association – Statutory Maximum – Setoff

Where (1) plaintiff suffered damages of $800,000 as the result of an accident caused by a lumber truck; (2) the lumber truck’s insurer was insolvent; (3) plaintiff recovered $376,622 from others involved in the accident; (4) the South Carolina Property and Casualty Insurance Guaranty Association has a per-claim cap of $300,000; and (5) the Property and Casualty Insurance Guaranty Association Act’s provisions about setoff are ambiguous, the court construes the act’s provisions to mean that plaintiff’s $376,622 recovery is to be set off against his $800,000 in damages rather than against the Guaranty Association’s $300,000 cap.

We modify and affirm the Court of Appeals’ decision, which affirmed summary judgment for plaintiff.

Buchanan v. South Carolina Property & Casualty Insurance Guaranty Association (Lawyers Weekly No. 010-092-18, 11 pp.) (John Kittredge, J.) (John Few, J., joined by George James, J., concurring) Appealed from the Circuit Court in Bamberg County (Doyet Early, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Insurance

Auto – Named Driver Exclusion – New Licensee

Even though plaintiff Vang never turned in a driver’s license to the Department of Motor Vehicles or obtained other auto insurance, since plaintiff Thao signed an endorsement excluding Vang from his policy, the policy did not provide coverage when Vang had an accident while she was taking the DMV driving test.

The court grants the defendant-insurer’s motion for judgment on the pleadings.

Thao v. Nationwide Affinity Insurance Co. of America (Lawyers Weekly No. 002-122-18, 10 pp.) (A. Marvin Quattlebaum Jr., J.) 7:17-cv-02403; Charles Preston Edwards for plaintiffs; Wesley Brian Sawyer and John Robert Murphy for defendant. D.S.C.

Insurance

Auto – UIM – Punitive Damages – Split Limits Policy – No Allocation Required

Where (1) an underinsured motorist is expected to be held liable for punitive damages, (2) the injured insureds have a split limit policy ($100,000 per person and $50,000 for property damage), and (3) the insureds suffered minimal property damage (they were riding in someone else’s car) while suffering serious bodily injuries in the accident, the punitive damages don’t have to be apportioned between those sustained for bodily injury and those sustained for property damage.

The answer to the federal district court’s apportionment question is “No.”

Government Employees Insurance Co. v. Poole (Lawyers Weekly No. 010-072-18, 7 pp.) (Kaye Hearn, J.) On certification from the U.S. District Court for the District of South Carolina (Joseph Anderson Jr., J.) J.R. Murphy and Wesley Sawyer for plaintiff; Angela Christy Turner and Ronald Maxwell Sr. for defendant; Bert Glenn Utsey, III, Samuel Clawson Jr., Christy Fargnoli, Frank Eppes, Kathleen Chewning Barnes, and Carmelo Barnes Sammataro for Amici Curiae. S.C. S. Ct.

Insurance

Auto – UM – ‘Witness’ – Certified Question

Where a sheriff’s department officer investigated what appeared to be a drive-by shooting after the fact, he did not witness the accident as required by S.C. Code Ann. § 38-77-170.

We answer, “No” to the federal district court’s certified question: Can a law enforcement officer who conducts an official investigation of an accident that was not contemporaneously observed by any identified, surviving person be a “witness” under S.C. Code Ann. § 38-77-170?

Silva v. Allstate Property & Casualty Insurance Co. (Lawyers Weekly No. 010-090-18, 7 pp.) (Kaye Hearn, J.) On certification from the U.S. District Court for the District of South Carolina. Edward Pritchard for plaintiff; R. Hawthorne Barrett, Robert Kneece and John Wilkerson for defendant. S.C. S. Ct.

Insurance

CGL – Bars – Assault & Battery Exclusions – Tort/Negligence – Wrongful Death – Drunk Driver

The underlying state-court complaint alleges that an intoxicated bar patron drove her SUV over the decedent in the bar parking lot, killing him. However, that complaint also alleges that the decedent was lying unconscious in the parking lot after being struck while trying to stop a bar brawl that had spilled out into the parking lot; moreover, the driver’s passenger was allegedly one of the brawlers. These allegations fall within the “assault and/or battery” exclusions in the policies that the plaintiff-insurer issued to the two defendant-bars.

The court grants summary judgment for the insurer on its claim for a declaratory judgment that it has no responsibility to defend or indemnify the bars in the underlying action.

Scottsdale Insurance Co. v. GS Thadius LLC (Lawyers Weekly No. 002-143-18, 19 pp.) (A. Marvin Quattlebaum Jr., J.) 4:18-cv-00099. Robert Mills Kennedy Jr. for plaintiff; Joseph Stanley Sandefur, Chelsea Lane Monroe, Douglas Charles Baxter, Raymond Carl Fischer, William Stuart Duncan and Eric Gillespie Armstrong for defendants. D.S.C.

Insurance

Homeowners – Arson – Intent – Mental Illness

After setting fire to the home he shared with defendants, defendants’ adult son pleaded guilty but mentally ill to second-degree arson. Since the son intended to set the fire, the plaintiff-insurer is not liable to pay for the damage caused by the fire.

The court grants plaintiff’s motion for summary judgment and dismisses defendants’ counterclaims.

Auto-Owners Insurance Co. v. Taylor (Lawyers Weekly No. 002-186-18, 11 pp.) (J. Michelle Childs, J.) 1:17-cv-02632. Morgan Templeton for plaintiff; Kent Clinton Kirkland for defendants. D.S.C.

Insurance

Homeowners – S.C. Code Ann. § 38-57-70 – Bad Faith

Plaintiff’s second cause of action specifically alleges a violation of S.C. Code Ann. § 38-57-70 and is explicitly brought under that statute. The statute does not create a private right of action, so plaintiff’s claim is dismissed.

The court’s dismissal of the claim does not prevent plaintiff from seeking to hold defendant liable for bad faith; rather, it prevents plaintiff from seeking to hold defendant liable under a statute that fails to create a private cause of action.

The court grants defendant’s partial motion to dismiss.

Flood v. Safeco Insurance Co. of America (Lawyers Weekly No. 002-170-18, 5 pp.) (Mary Geiger Lewis, J.) 5:18-cv-00878. Lawrence Keitt for plaintiff; Morgan Templeton and Stephanie Paige Brown for defendant. D.S.C.

Insurance

Life – Beneficiary Designation – Divorced Spouse – Policy Owner

There is a genuine issue of fact as to whether defendant LeClaire was a co-owner of her now-deceased ex-husband’s life insurance policy, which named her as sole beneficiary. If that is the case, LeClaire might qualify as an irrevocable beneficiary under S.C. Code Ann. § 62-2-507.

The court denies the defendant-administratrix’s motion to dismiss or for judgment on the pleadings. The court also denies LeClaire’s motion for summary judgment.

Protective Life Insurance Co. v. LeClaire (Lawyers Weekly No. 002-146-18, 12 pp.) (A. Marvin Quattlebaum Jr., J.) 7:17-cv-00628. Rita Bolt Barker and Troy Alan Tessier for plaintiff; John Shannon Nichols, John Peace, Patrick Eugene Knie and Charles Preston Edwards for defendants. D.S.C.

Insurance

Under policy, each wrongly fired officer was a distinct claim

The district court erred in finding that three police officers, fired in retaliation for a joint action, represented a single claim for municipal insurance purposes. Thus, the per-claim policy limit applied to each officer individually, rather than the trio as a whole.

Hunter v. Town of Mocksville, N.C. (Lawyers Weekly No. 001-129-18, 49 pp.) (Wynn, J.) No. 17-1374; July 26, 2018; from MDNC at Greensboro (Schroeder, J.) Reynolds Michael Elliot & Robert Mauldin Elliott for Appellants; Cathryn MacDonald Little & Patrick Houghton Flanagan for Appellees. 4th Cir.

Intellectual Property

Sovereign-immunity waiver for infringement not valid

The federal Copyright Remedy Clarification Act’s broad abrogation of states’ sovereign immunity for copyright infringement was not a valid exercise of Congressional authority, either under Article I’s Copyright Clause or § 5 of the Fourteenth Amendment.

Allen v. Cooper (Lawyers Weekly No. 001-113-18, 35 pp.) (Niemeyer, J.) No. 17-1522; July 10, 2018; from EDNC at Raleigh (Boyle, J.) Ryan Y. Park for Appellants/Cross-Appellees; Susan Freya Olive for Appellees/Cross-Appellants. 4th Cir.

Judges

Discipline – Public Reprimand – Financial Dealings – Inappropriate Comments

In one instance, the respondent-probate judge used the probate court bank account for his own purposes and, in more than one instance, he made inappropriate comments to court personnel. Because respondent has resigned and agreed never to seek or accept judicial office in this state without first obtaining permission from this court, after providing notice to the Office of Disciplinary Counsel, the strongest punishment we can give is a public reprimand.

Respondent is publicly reprimanded.

In re Peeler (Lawyers Weekly No. 010-084-18, 3 pp.) (Per Curiam) Re-filed opinion. John Nichols and Julie Kay Martino for Office of Disciplinary Counsel; Robert Peeler, pro se. S.C. S. Ct.

Labor & Employment

Arbitration Agreement – Title VII Exclusion – Government Contractor

The defendant-employer’s arbitration agreement expressly does not apply to Title VII claims “unless and until federal law no longer prohibits the Firm from mandating arbitration of such claims.” Despite the agreement’s failure to reference any particular “federal law,” defendant now says (1) the clause refers to a law (the Franken Amendment) that prohibits the government from entering into certain contracts with employers who require arbitration of Title VII claims and (2) defendant no longer does the type of work to which that law applies. The court rejects defendant’s interpretation, reads the clause as written, and finds that defendant has not shown that the clause applies to plaintiff’s claim; therefore, plaintiff’s Title VII claim is not subject to the arbitration agreement.

The court adopts the magistrate judge’s recommendation, grants defendant’s motion to compel arbitration of plaintiff’s 42 U.S.C. § 1981 claim but denies defendant’s motion to compel arbitration of plaintiff’s Title VII claim. The Title VII claim is stayed pending arbitration of plaintiff’s § 1981 claim.

Ashford v. PricewaterhouseCoopers, LLP (Lawyers Weekly No. 002-160-18, 22 pp.) (Cameron McGowan Currie, S.J.) 3:18-cv-00904. Shannon Ashford, pro se; Jason Craig Schwartz and Stacy Wood for defendant. D.S.C.

Labor & Employment

Arbitration – Arbitrability – Unsigned Agreement – Arbitrator’s Decision

The defendant-employers contend that, during plaintiff Brumfield’s employment, they sent her a notification of an arbitration agreement, which informed her that it became binding if she continued her employment with them and chose not to opt out within 30 days. Although Brumfield argues that she was not made aware of the notification’s terms, under the terms of the arbitration agreement, the arbitrator is the one who must decide whether the agreement between Brumfield and defendants is valid and enforceable.

The court (1) strikes the collective action; (2) compels plaintiff Tyler to arbitrate his claims; (3) transfers plaintiffs Scoon and Jackson’s cases to the U.S. District Court for the Southern District of Alabama; (4) transfers Brumfield’s case to the U.S. District Court for the Eastern District of Texas; and (5) transfers plaintiff Harris’s case to the U.S. District Court for the Northern District of Georgia.

Brumfield v. Kindred Healthcare Inc. (Lawyers Weekly No. 002-141-18, 13 pp.) (David Norton, J.) 2:18-cv-00591; David Wilson Garrison, Jerry Edward Martin, Joshua Art Frank and William Norman Nettles for plaintiffs; Amy Mariko Palesch, Edward Fouad Berbarie and Jerry H Walters Jr. for defendants. D.S.C.

Labor & Employment

Injunctive relief fails on one Winter factor

A district court did not err in denying preliminary injunctive relief to preserve the National Labor Relations Board’s ability to award relief following its adjudication of unfair labor practice charges against two hospitals. Because the Board did not show irreparable harm, the court was not required to consider the other factors supporting such relief.

Henderson v. Bluefield Hosp. Co. (Lawyers Weekly No. 001-143-18, 26 pp.) (Niemeyer, J.)No. 16-2331; Aug. 28, 2018; from SDWV at Bluefield/Beckley (Faber, J.) Jeffrey William Burritt for Appellants; Kaitlin Ann Kaseta for Appellees. 4th Cir.

Labor & Employment

Mass Layoff – Civil Practice – Class Action Certification

Even though defendants assert that plaintiffs were employed by different employers, worked in different positions, and performed different tasks than the putative class members at the V.C. Summer Nuclear Station project, since (1) there are an estimated 5,000 putative class members; (2) there are at least three common questions of fact and law (whether defendants are subject to the requirements of the Worker Adjustment and Retraining Notification Act, whether the appropriate WARN notice was given, and whether defendants are legally liable for the alleged WARN violation as a single employer); (3) all class members, including plaintiffs, must eventually establish that defendants acted as a single employer in order to hold them liable for the WARN violation; (4) the named plaintiffs have no conflicts of interest, and they and their counsel have vigorously pursued this action; and (5) it would be judicially inefficient and economically unfeasible for individual plaintiffs to bring their cases independently, the proposed class satisfies the requirements of Rule 23(a) and (b)(3), FRCP.

The court grants plaintiffs’ motion for class certification.

Pennington v. Fluor Corp. (Lawyers Weekly No. 002-156-18, 11 pp.) (J. Michelle Childs, J.) Lucy Clark Sanders, Jack Raisner, Nancy Bloodgood and Rene Roupinian for plaintiffs; John Hagood Tighe, David Kresser, Kathleen McLeod Caminiti, Charles Speth II, D. Michael Henthorne, James Fowles III and Christopher Ray Thomas for defendants. D.S.C.

Labor & Employment

Mass Layoffs – WARN Act – Attorney’s Statements – Single Employer Enterprise – UBC Exception

Plaintiffs allege that defendants Fluor Daniel Maintenance Services, Inc. and SCANA Corp. constituted a single employer enterprise in the construction of the V.C. Summer Nuclear Station; however, during a hearing, plaintiffs’ counsel made remarks that Fluor contends were judicial admissions that Fluor did not order the closing of VC Summer.

A plain reading of counsel’s statements shows that they are not deliberate, clear and unambiguous admissions, as would be required to find them to be judicial admissions.

The court denies Fluor’s motion for judgment on the pleadings.

Pennington v. Fluor Corp. (Lawyers Weekly No. 002-154-18, 15 pp.) (J. Michelle Childs, J.) 0:17-cv-02094. Lucy Clark Sanders, Jack Raisner, Nancy Bloodgood and Rene Roupinian for plaintiffs; John Hagood Tighe, David Kresser, Kathleen McLeod Caminiti, Charles Speth II, D. Michael Henthorne, James Fowles III and Christopher Ray Thomas for defendants. D.S.C.

Labor & Employment

Public Employees – Tort/Negligence – Wrongful Discharge – Public Policy – Defamation – ‘Malice’

Plaintiff claims that his handling of an altercation with an allegedly recalcitrant high school student was permissible under the defendant-sheriff’s department policy, and he argues that the department’s termination of his employment for his handling of the situation was a wrongful discharge in violation of public policy. However, a deputy serves at the sheriff’s pleasure, and a “sheriff may not compromise his statutory authority to discharge deputies at his discretion.” Therefore, even if plaintiff could show that his termination offended public policy, he still could not overcome the fact that he serves at the sheriff’s pleasure.

The court adopts the magistrate judge’s recommendation and grants the motions to dismiss filed by the sheriff’s department and the defendant-school district.

Fields v. Richland County Sheriff’s Department (Lawyers Weekly No. 002-161-18, 7 pp.) (Mary Geiger Lewis, J.) 3:17-cv-00443. James Lewis Cromer and Ryan Kyle Hicks for plaintiff; Vance Bettis, Jasmine Rogers Drain, Kathryn Long Mahoney and Thomas Kennedy Barlow for defendants. D.S.C.

Labor & Employment

Race & Age Discrimination – Hostile Environment – N-Word – ERISA Claim

Plaintiff alleges that he “was repeatedly referred to as a ‘Nigga” by his supervisor until he filed a complaint with upper management. The relationship with his supervisor deteriorated from that time forward.” An allegation of the repeated use of such racially offensive language is certainly sufficient under the motion-to-dismiss standard; in fact, courts have held that a single use of the word in a workplace environment can constitute a hostile work environment under 42 U.S.C. § 1981.

Plaintiff has consented to the dismissal of his Title VII claim. The court adopts the magistrate judge’s recommendation that defendant’s motion to dismiss plaintiff’s remaining claims be denied.

Young v. Columbia Farms, Inc. (Lawyers Weekly No. 002-194-18, 8 pp.) (Donald Coggins, J.) 6:17-cv-01340. Candy Kern-Fuller and Sarah Meadows Gable for plaintiff; Elizabeth Kline Dorminey, J. Larry Stine and M. Lee Daniels for defendant. D.S.C.

Labor & Employment

SCPWA – Wrongful Discharge – Unpaid Bonuses

Where plaintiff alleges that he was a productive employee who was fired three weeks after his attorney requested that he be paid the bonuses he was due, plaintiff has stated a claim for wrongful discharge in violation of public policy.

Defendant’s motion for summary judgment is granted in part and denied in part.

Baker v. Response Team 1 Holdings, LLC (Lawyers Weekly No. 002-195-18, 20 pp.) (Cameron McGowan Currie, S.J.) 3:17-cv-01238. John Charles Ormond for plaintiff; D. Michael Henthorne and Sara McCreary for defendant. D.S.C.

Real Property

Breach of Contract Claim – Deed Language – Maritime Forest

The Low Country Open Land Trust’s 1991 deed of oceanfront land to the defendant-town required the town to preserve the land “in its present state.” However, reading the deed as a whole, it does not require the town to continuously remove all vegetation from the beach that was not present in 1991.

We affirm the master-in-equity’s judgment in favor of the town.

Bluestein v. Town of Sullivan’s Island (Lawyers Weekly No. 011-072-18, 10 pp.) (James Lockemy, C.J.) Appealed from Charleston County (Mikell Scarborough, Master-in-Equity) Robert Holmes Hood Jr., James Bernard Hood, A. Walker Barnes and Deborah Harrison Sheffield for Appellants; J. Brady Hair for Respondents. S.C. App.

Real Property

Taxation – Tax Sale – Property Posting – Civil Practice – Statute of Limitations

As the circuit court found, appellant proved that the Bamberg County Delinquent Tax Office did not properly post a notice of levy on her residence before the Tax Office held a tax sale of the property. We hold that this failure to provide the required statutory notice is the type of jurisdictional defect that renders the tax sale void and the statute of limitations inapplicable.

We reverse the circuit court judgment, which quieted title in the respondent-purchaser.

Forfeited Land Commission v. Beard (Lawyers Weekly No. 011-061-18, 10 pp.) (James Lockemy, C.J.) Appealed from the Circuit Court in Bamberg County (Edgar Dickson, J.) Michael Tanner, Zipporah Sumpter and Thomas Ray Sims Sr. for Appellant; James Martin Harvey Jr. for Respondent. S.C. App.

Tort/Negligence

Defamation – Labor & Employment – Schools & School Boards

The plaintiff-teacher claims that, when she threatened to go to the police after a student assaulted her, the respondent-school and its administrators defamed her by placing her on an evaluation plan. However, it is the responsibility of education administrators to continually evaluate the faculty members they supervise, and the South Carolina Tort Claims Act specifically excludes liability for this type of exercise of discretion; accordingly, the General Assembly has not waived sovereign immunity with regard to the evaluation process for teachers.

We affirm the circuit court’s grant of defendants’ motion to dismiss.

Paradis v. Charleston County School District (Lawyers Weekly No. 011-074-18, 9 pp.) (James Lockemy, C.J.) Appealed from the Circuit Court in Charleston County (J. C. Nicholson Jr., J.) J. Lewis Cromer and James Paul Porter for Appellant; Bob Conley, Emmanuel Joseph Ferguson and Rene Stuhr Dukes for Respondents. S.C. App.

Tort/Negligence

Evidence supported punitives for understaffing

In three wrongful death suits in which the jury found liability and awarded punitive damages, the district court erred in finding that the plaintiffs failed to show an “aggravating factor” under North Carolina law that would support punitives. Extensive trial testimony showed that the Defendants willfully and wantonly disregarded legal staffing requirements for nursing facilities so that they could increase profits.

Vandevender v. Blue Ridge of Raleigh LLC (Lawyers Weekly No. 001-141-18, 16 pp.) (Gergel, J.) No. 17-1900; Aug. 27, 2018; from EDNC at Raleigh (Boyle, J.) Rachel Alexis Fuerst for Appellants/Cross-Appellees; Gregory Wenzl Brown for Appellees/Cross-Appellants. 4t Cir.

Tort/Negligence

FTCA – Immunity – FBI – Gun Purchase – NICS Failure

Poor policy choices and an examiner’s strict adherence to those policies prevented the FBI from stopping the sale of a firearm to Dylann Roof, who then used that firearm to injure or kill plaintiffs or their decedents. The government is immune from suit under the Federal Tort Claims Act pursuant to the discretionary function exception and under 18 U.S.C. § 922(1)(6) of the Brady Act.

The court grants the government’s motion to dismiss.

Sanders v. United States (Lawyers Weekly No. 002-119-18, 22 pp.) (Richard Mark Gergel, J.) 2:16-cv-02350; Gedney Howe III, Gerald Malloy and Steven Randall Hood for plaintiffs; Stephen Terrell for defendant. D.S.C.

Tort/Negligence

Interference with Contract – Damages – Irreparable Harm

The South Carolina tort of intentional interference with contractual relations requires proof of damages, not merely injury. Plaintiff’s own expert says, “Since it is not possible to reliably calculate the value of [plaintiff’s] losses, monetary damages cannot adequately compensate [plaintiff] for these losses”; consequently, plaintiff has failed to make out a claim for intentional interference with contractual relations.

The court grants partial summary judgment for defendant on plaintiff’s claim of intentional interference with contractual relations. The court also grants partial summary judgment for plaintiff on defendant’s counterclaim for intentional interference with contractual relations.

Poly-Med, Inc. v. Novus Scientific Pte. Ltd. (Lawyers Weekly No. 002-184-18, 9 pp.) (J. Michelle Childs, J.) 8:15-cv-01964. Bernie Ellis, Marwan Zubi and Paul Peter Nicolai for plaintiff; Jennifer Mallory, Mark Dukes, Samuel Outten, Robert Hall McWilliams and Joseph Calhoun Watson for defendants. D.S.C.

Tort/Negligence

Medical Malpractice – Civil Practice – Statute of Limitations – Patient’s Awareness

As of May 21, 2014, plaintiff knew she had sepsis and faced amputations; however, it appears that neither she nor her doctors were clear as to the underlying cause of her injury: that failure to diagnose and/or treat her abdominal pain resulted in bowel perforation and subsequent sepsis. Because the record does not show when plaintiff was or should have been aware that the North Central Family Medical Clinic’s alleged failure to diagnose her abdominal pain/Crohn’s disease may have caused her injury, there is a genuine issue as to whether plaintiff knew the underlying cause of her injury more than two years before she filed her claim on June 14, 2016.

The court denies the government’s motion for summary judgment. However, neither equitable tolling nor the continuous treatment doctrine applies.

Knox v. United States (Lawyers Weekly No. 002-140-18, 21 pp.) (Cameron McGowan Currie, S.J.) 0:17-cv-00036; Ashley White Creech, Chad McGowan, Eve Schafer Goodstein and Jordan Christopher Calloway for plaintiff; Christie Newman, Marshall Prince, Todd Russell Flippin, William Benson Darwin Jr., Scott Sterling Addison, Kevin Lee Pratt, Tricia Morvan Derr, E. Douglas Pratt-Thomas, Steven Todd Moon, H. Spencer King III and Matthew Holmes Henrikson. D.S.C.

Tort/Negligence

Medical Malpractice – DNA Testing Lab – Certified Question

When a genetic testing laboratory performs testing at the request of a patient’s treating physician for the purpose of assisting the treating physician in detecting an existing disease or disorder, the lab qualifies as a “licensed health care provider[]” under S.C. Code Ann. § 38-79-410.

The answer to the federal district court’s question is “Yes.”

Williams v. Quest Diagnostics, Inc. (Lawyers Weekly No. 010-069-18, 5 pp.) (John Kittredge, J.) (Kaye Hearn, J., dissenting) Certified question from the U.S. District Court for the District of South Carolina (Margaret Seymour, S.J.) Bradford Cranshaw, Trevor Hughey, G. Robert DeLoach III, Matthew McGuire, and James Ervin for Plaintiffs; John Moylan III, Alice Parham Casey, Wallace Lightsey and Wade Kolb III for Defendants. S.C. S. Ct.

Tort/Negligence

Medical Malpractice – Emergency Surgery – Vasopressor Dosage

As relevant to this case, S.C. Code Ann. § 15-32-230 provides protection from a medical malpractice claim when the alleged negligent act was (1) taken by a physician (2) during emergency surgery and (3) occurred within the surgical suite. The plaintiff-patient points to no evidence that her surgery at the defendant-hospital was not emergent or that Dr. Start’s decision to increase the dose of the vasopressor Levophed occurred when plaintiff was no longer “in immediate threat” of death or serious bodily injury; instead, she relies on Dr. Start’s inability to recall details regarding when he increased the dose and in what amount. Under these circumstances, all the requirements of § 15-32-230 are met, and the gross negligence standard applies to plaintiff’s claim against the hospital to the extent the alleged negligent act was committed by a physician during surgery.

The court denies the hospital’s motion to exclude plaintiff’s expert’s causation testimony. The hospital’s motion for summary judgment is granted to the extent it seeks a ruling that § 15-32-230 requires plaintiff to establish gross negligence in order to recover for a physician’s errors during her emergent surgery and that plaintiff has not met that standard as to her allegations regarding Dr. Start’s actions. Otherwise, the motion for summary judgment is denied.

Knox v. United States (Lawyers Weekly No. 002-150-18, 22 pp.) (Cameron McGowan Currie, S.J.) 0:17-cv-00036. Ashley White Creech, Chad McGowan, Eve Schafer Goodstein and Jordan Christopher Calloway for plaintiff; Christie Newman, Marshall Prince, Todd Russell Flippin, William Benson Darwin Jr., Scott Sterling Addison, Kevin Lee Pratt, Tricia Morvan Derr, E. Douglas Pratt-Thomas, Steven Todd Moon, H. Spencer King III and Matthew Holmes Henrikson. D.S.C.

Tort/Negligence

Medical Malpractice – Expert Testimony – ER PA – Crohn’s Disease

Plaintiff’s expert agreed that (1) the defendant-physician’s assistant’s duty was to bring plaintiff’s test results to the attention of a physician on duty and (2) the defendant-ER physician’s actions would not likely have been different had the PA brought the concern to him. Nowhere is it suggested that the PA had a duty to bring the test results to the attention of a physician other than the ER doctor. Consequently, there is no showing that the alleged failure by the PA caused plaintiff’s injuries.

The court grants the moving defendants’ motions to exclude plaintiff’s expert testimony and for summary judgment.

Knox v. United States (Lawyers Weekly No. 002-139-18, 8 pp.) (Cameron McGowan Currie, S.J.) 0:17-cv-00036; Ashley White Creech, Chad McGowan, Eve Schafer Goodstein and Jordan Christopher Calloway for plaintiff; Christie Newman, Marshall Prince, Todd Russell Flippin, William Benson Darwin Jr., Scott Sterling Addison, Kevin Lee Pratt, Tricia Morvan Derr, E. Douglas Pratt-Thomas, Steven Todd Moon, H. Spencer King III and Matthew Holmes Henrikson. D.S.C.

Tort/Negligence

Medical Malpractice – Expert Testimony – ER Visits – Crohn’s Disease

With regard to plaintiff’s September 2013 visit to an emergency room, her expert’s theory of the ER doctor’s liability boils down to the fact that – by not admitting plaintiff to the hospital – the ER doctor left plaintiff in the hands of the defendant-gastroenterologist, who allegedly diagnosed Crohn’s disease but failed to inform plaintiff or her primary physician. No expert has opined that the ER doctor deviated from the standard of care by referring plaintiff to the defendant-gastroenterologist, whom she had already seen. The court excludes the expert’s speculative opinion, which is the only expert opinion regarding the ER doctor’s liability arising from the September 2013 ER visit.

The court grants the moving defendants’ motions to exclude and for summary judgment as to plaintiff’s September 2013 ER visit. The court denies those motions as to plaintiff’s April 2014 ER visit.

Knox v. United States (Lawyers Weekly No. 002-138-18, 19 pp.) (Cameron McGowan Currie, S.J.) 0:17-cv-00036; Ashley White Creech, Chad McGowan, Eve Schafer Goodstein and Jordan Christopher Calloway for plaintiff; Christie Newman, Marshall Prince, Todd Russell Flippin, William Benson Darwin Jr., Scott Sterling Addison, Kevin Lee Pratt, Tricia Morvan Derr, E. Douglas Pratt-Thomas, Steven Todd Moon, H. Spencer King III and Matthew Holmes Henrikson. D.S.C.

Tort/Negligence

STCA – Gross Negligence Standard – Inapplicable – Real Property – Subdivision Regulations – LOC

The plaintiff-property owner bought land in a proposed subdivision, but the developer went bankrupt, and the subdivision was never completed. Plaintiff presented evidence that the defendant-county mishandled a letter of credit provided by the developer to ensure proper completion of the subdivision’s infrastructure; however, the county was entitled to sovereign immunity.

We reverse the Court of Appeals’ decision and reinstate the circuit court’s grant of a directed verdict for the county.

Repko v. County of Georgetown (Lawyers Weekly No. 010-089-18, 15 pp.) (George James, J.) (Kaye Hearn, J., dissenting) Appealed from the Circuit Court in Georgetown County (Benjamin Culbertson, J.) On writ of certiorari to the Court of Appeals. Robert Widener and David Mills for petitioner; Ryan Patrick Compton, Thomas William Winslow and Stephen Lewis Goldfinch for respondent; Robert Lyon and John DeLoach for amicus curiae. S.C. S. Ct.

Trusts & Estates

Derivative Action – Sufficient Demand – Workers’ Compensation – Mutual Fund

After the petitioner-members of the South Carolina Home Builders’ Self Insurance Fund learned of actions by the fund’s trustees that petitioners believed were in violation of the “Agreement and Declaration of Trust” that established the fund, petitioners sent the trustees’ counsel a letter detailing the steps petitioners believed needed to be taken. This letter was sufficient to fulfill Rule 23(b)(1)’s demand requirement for derivative actions.

We reverse the Court of Appeals’ decision, which upheld the circuit court’s grant of summary judgment for respondents.

Patterson v. Witter (Lawyers Weekly No. 010-093-18, 20 pp.) (John Kittredge, J.) Appealed from the Circuit Court in Richland County (G. Thomas Cooper, J.) James Edward Bradley and S. Jahue Moore for petitioners; William Wilkins, Burl Williams, James Lynn Werner, Lawrence Hershon and Poe Johnson for respondents. S.C. S. Ct.

Trusts & Estates

Domestic Relations – Marriage Annulment – Bigamy

The appellant-children of the decedent contend that respondent was not married to their father at the time of his death because she had previously married Javed Ahmed and did not end that marriage before she married the decedent. However, since Ahmed was already married at the time of the marriage ceremony between him and respondent, their marriage was void from the beginning. Therefore, there was no impediment to respondent’s marriage to the decedent.

We affirm summary judgment for respondent.

Brown v. Sojourner (In re Estate of Brown) (Lawyers Weekly No. 011-069-18, 11 pp.) (Paul Short Jr., J.) Appealed from the Circuit Court in Aiken County (Doyet Early III, J.) Robert Byrd, Alyson Smith Podris, Katon Edwards Dawson Jr., Marc Toberoff, Matthew Day Bodman, David Bell and John Andrew Donsbach Sr. for Appellants; Robert Rosen, S. Alan Medlin, Thomas Heyward Carter Jr., Andrew Chandler, M. Jean Lee, David Lawrence Michel and Arnold Goodstein for Respondent. S.C. App.



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