Holding: Even though, during defendant’s trial, a juror engaged in misconduct by talking to her mother about the trial, (1) the juror did not tell other members of the jury that she discussed the case with her mother; (2) the trial court instructed the jury to determine defendant’s guilt or innocence based on the evidence presented at trial; and (3) the mother told the juror that defendant was not guilty, but the juror voted to convict, indicating that the mother’s statement did not influence her verdict. Defendant was not prejudiced by the juror’s misconduct.

We affirm the circuit court’s denial of defendant’s request for a new trial.

Holding: In ruling on petitioner’s demonstration-of-need request, respondent S.C. Department of Health and Environmental Control (DHEC) made a determination that there was a geographical need for petitioner’s proposed construction, demolition and land-clearing debris landfill. This was separate from DHEC’s determination that the proposed landfill was not consistent with the local solid waste management plan.

We affirm the administrative law court’s determination that DHEC properly denied petitioner’s permit application.

This case is distinguishable from Southeast Resource Recovery, Inc. v. South Carolina Department of Health & Environmental Control, 358 S.C. 402, 595 S.E.2d 468 (2004) (SSRI) and York County v. South Carolina Department of Health & Environmental Control, 723 S.E.2d 255, 256-57 (Ct. App. 2012). Unlike the emergency ordinance in York County and the letters of consistency in SRRI, the local solid waste management plan in this case did not directly make a consistency determination by expressly declaring the proposed landfill inconsistent with the local solid waste management plan.

Even if we were to assume that the plan was an effort by York County to usurp DHEC’s authority by indirectly controlling DHEC’s permitting decision, substantial evidence exists that DHEC, not the county, determined the proposed landfill was inconsistent with the local solid waste management plan.

Holding: Where the special referee ordered plaintiff to name two corporations as defendants in place of the individual that the plaintiff named as a defendant in its complaint, the special referee’s order affects a substantial right – the right of a plaintiff to choose its defendant – and it effectively discontinues plaintiff’s suit against the individual defendant, thus making it immediately appealable under S.C. Code Ann. § 14-3-330(2)(a).

We reverse the Court of Appeals’ dismissal of plaintiff’s appeal as interlocutory.

In addition to § 14-3-330, Watts v. Copeland, 170 S.C. 449, 170 S.E.780 (1933), holds that a party who does not immediately appeal an order of substitution may not appeal this interlocutory order after final judgment.

The Court of Appeals and respondent rely on the portion of the special referee’s order conditionally allowing plaintiff to file an amended complaint naming defendant Long individually as a co-conspirator with his companies. Leaving aside the validity of such a claim, the judge’s suggestion that he might permit the plaintiff to sue the original defendant on a legal theory of the referee’s choosing is irrelevant to the appealablility of the order of substitution.

Holding: The master in equity found for the plaintiff-tenant on three causes of action – negligent misrepresentation, breach of contract, and unjust enrichment – but the defendant-landlord appealed only the findings of liability for negligent misrepresentation and breach of contract and not the finding of liability for unjust enrichment. Therefore, the unappealed ground is the law of the case, and our consideration of the landlord’s arguments is barred by the two-issue rule.

We affirm the Court of Appeals as to the entry of judgment against the landlord for negligent misrepresentation and unjust enrichment. However, we reverse the Court of Appeals’ conclusion that the landlord’s entitlement to the security deposit is not preserved for review. On the merits of that issue, we reverse the master and reduce the tenant’s award by $3,500 (the amount of the security deposit) to $6,660.79.

In its complaint, the tenant requested a return of its security deposit, which the landlord denied in her answer. Furthermore, the landlord’s property manager testified that the landlord kept the security deposit because the tenant remained on the property for two months after it breached the lease by failing to pay rent.

Accordingly, this issue was raised to the master, and the Court of Appeals erred in finding otherwise. Then, when prompted by the tenant’s Rule 59(e) motion after he candidly forgot to do so, the master ruled on this issue. Our core preservation requirements have been met, and there is no procedural bar to us considering this question.

The master found that the landlord would be unjustly enriched if she kept the security deposit, but we cannot find any evidence to support this finding. While the landlord may have been unjustly enriched by receiving the benefits of the improvements the tenant made to the premises, nothing suggests she was similarly unjustly enriched when she kept the security deposit she was wholly entitled to under the lease because the tenant failed to pay rent.

The tenant’s remaining claims of negligent misrepresentation and breach of contract similarly are not avenues to justify it getting the security deposit back; the tenant lost it not because of any statements the landlord made or her alleged breach of the lease, but rather because it failed to surrender possession and stayed on the premises without paying rent. Accordingly, none of the tenant’s theories of recovery encompasses a return of the security deposit under these facts, and the master erred in including it in his calculation of damages.

Affirmed in part and reversed in part.

Concurrence & Dissent

(Toal, Ch.J.) Where the question of issue preservation is subject to multiple interpretations, any doubt should be resolved in favor of preservation.

Other than the security deposit, the master’s damages award was based only on the tenant’s actual pecuniary loss, which is the appropriate measure of damages for negligent misrepresentation and breach of contract. The proper measure of damages for unjust enrichment is the amount of increase in the value of the subject property due to the improvements made by the plaintiff.

The record contains no evidence that the value of the subject property increased as a result of improvements made by the tenant, and the master based damages only on the improvement costs expended by the tenant. The landlord broadly asked both the Court of Appeals and this court to reverse the master’s award of damages. Therefore, it was unnecessary for the landlord to argue unjust enrichment on appeal because it had no bearing on the award of damages that she prayed to have reversed.

The “two-issue” rule was spotted by neither the Court of Appeals nor the tenant. The existence of this preservation bar is questionable, and I elect to resolve that question in favor of preservation.

On the merits, this lease was an illegal contract and therefore void and wholly unenforceable. As such, the parties were not entitled to relief under any legal theory, and the court must leave the parties as we found them.

The lease states, “Lessee shall use and occupy the premises for Building and Constr. Office. The premises shall be used for no other purpose….”

The premises were not zoned for use as a commercial office; therefore, the lease had no lawful purpose.

A contract to do an act which is prohibited by statute, or which is contrary to public policy, is void and cannot be enforced in a court of justice. This court has never addressed the validity of a lease whose sole purpose is contrary to local zoning regulations. However, I believe where the only contemplated use of a lease is for a purpose prohibited by the applicable zoning regulations, the lease is illegal and wholly unenforceable.

A court’s authority to declare a contract void ab initio is impervious to our issue-preservation rules.

Leaving the parties as they were when litigation ensued, I would not compel the landlord to reimburse the tenant for its improvement costs or return the security deposit. I would vacate and dismiss.

Concurrence & Dissent

(Pleicones, J.) I agree that the two issue rule precludes our review of the landlord’s appeal of the judgment in the tenant’s favor.

However, I disagree that the landlord preserved the issue of the return of the security deposit for our review. I would affirm the Court of Appeals.

Holding: The circuit court’s order granting leave for plaintiffs to deposit funds did not establish a post-judgment interest rate; in fact, the order noted that this court would ultimately determine the rate of post-judgment interest.

However, the only issue before this court on the parties’ prior appeal was that of pre-judgment interest. Therefore, contrary to its determination, the circuit had the authority to rule on the issue of post-judgment interest.

We reverse the circuit court’s determination that it lacked jurisdiction. We remand for reconsideration of the issue of post-judgment interest.

Holding: In 1997, defendant was sentenced under the Youthful Offender Act (YOA) to an indeterminate sentence not to exceed six years, and on Dec. 19, 1997, he was released on YOA parole. The sentencing judge’s order simply stated, “Probation to begin after sentence now serving.” Based on the plain language of the order, and pursuant to Thompson v. S.C. Dep’t of Pub. Safety, 335 S.C. 52, 515 S.E.2d 761 (1999), and Crooks v. Sanders, Superintendent of State Penitentiary, 123 S.C. 28, 115 S.E. 760 (1922), defendant’s sentence ended following the conclusion of his parole and entire YOA sentence on Oct. 19, 2004. The probation term set to begin following a “sentence now serving” began at that time and would end no earlier than Oct. 19, 2009. The Department of Probation, Parole, and Pardon Services issued a citation alleging defendant violated his probation on Feb. 15, 2008, followed by a probation revocation warrant on April 28, 2008. Since defendant was still on probation, both of these documents granted the circuit court the authority to revoke defendant’s probation.

We affirm the circuit court order revoking defendant’s probation.

According to defendant, his probation should have begun following his release from actual incarceration in 1997, and thus his five year term of probation would have expired in 2002, six years prior to the circuit court obtaining the authority to revoke his probation. However, a defendant’s release from a sentence does not mean his mere release from physical custody. Thus, a term of probation set to begin upon completion of a term of imprisonment cannot begin simply due to a defendant’s parole or supervised release from incarceration absent a specific and valid order from the sentencing court that the term of probation is to run concurrently with the defendant’s parole.

Defendant’s sentence of probation for his attempted burglary in the second degree conviction began after his parole concluded for his conviction for burglary in the second degree, and not following his release from incarceration.  Thus, the circuit court did not abuse its discretion in revoking defendant’s probation.

Holding: Even though plea counsel provided ineffective assistance in failing to properly advise defendant on the law regarding whether a motel owner can freely admit police into a rented room, defendant has failed to prove that this advice was his reason for electing not to go to trial and has thus failed to establish prejudice.

We affirm the circuit court’s order denying defendant’s application for post-conviction relief.

The PCR court found that defendant “chose to plead guilty after the State offered to dismiss two charges and recommend a ten year sentence,” and we find this conclusion well-supported by evidence in the record. Counsel testified at the PCR hearing the reason defendant became interested in negotiating a plea was the state’s offer to drop the cocaine distribution charges — not because he feared a negative result at the suppression hearing. There is evidence to support the PCR court’s finding that defendant failed to prove he was prejudiced by counsel’s ineffective assistance because he has not demonstrated he would have gone to trial absent the erroneous advice.

Holding: This lawsuit arose after the defendant-seller granted an easement to defendant TIAA Timberlands, II, LLC around the same time she sold the land at issue to the plaintiff-buyer. After mediation, the parties entered into an “agreement in principle” which relocated the easement “express grant superseding and canceling the 66’ grant, son’s parcel included.” The “son” was the buyer’s son, who was not a party and who refused to agree to the proposed settlement. The son’s refusal to agree to the settlement did not release the buyer himself from the agreement.

We affirm the trial court’s order finding the agreement enforceable.

The trial court found the subsequent actions of the attorneys show the parties’ intent to settle the case: (1) the attorneys’ emails “demonstrate[d] that [the buyer’s] attorney believed the settlement to be binding but had apparently run into problems getting his own client to sign the documents,” and [the buyer’s] attorney asked to be relieved as his counsel; (2) “counsel’s lack of compliance with the Scheduling Order in the case also strongly indicates that everyone believed the case to be settled”; (3) the buyer’s attorney withdrew a pending motion; (4) the parties obtained and recorded a new survey as contemplated by the Nov. 23, 2009 agreement; and (5) the buyer paid his one-third share of the cost of the survey as contemplated by the Nov. 23, 2009 agreement. Therefore, the trial court found it was “impossible to reconcile these actions by [the buyer] and his attorney with [the buyer’s] current position that he did not intend to be bound.” We find no error in the trial court’s determination that the subsequent conduct of the parties and attorneys established the parties had a meeting of the minds and intended to be bound by the agreement.

Finally, we agree with the trial court that the three-word mention of the buyer’s son was not a condition precedent to the buyer’s obligation under the agreement.

Affirmed.

Holding: In a dispute over a personal relationship, a co-worker shot the defendant-employee while they were in the defendant-employer’s break room. When the injured employee sued the employer for negligence, the “employer’s liability” exclusion in the plaintiff-insurer’s commercial general liability policy did not relieve the insurer of its duty to defend and indemnify the employer.

Defendants’ motion for summary judgment is granted as to the employer’s liability and workers’ compensation exclusions in the CGL policy.

The underlying complaint alleges that the employer failed to take adequate steps to make the workplace safe and to protect the defendant-employee, Burton Thorne, after learning of threats by the co-worker.

The CGL policy at issue excludes coverage for bodily injury to an “‘employee’ of the insured arising out of and in the course of … employment by the insured.” The only dispute is whether Thorne’s injuries arose out of his employment.

In South Carolina, the term “arising out of”, when used in an insurance policy exclusion, is narrowly construed to mean “caused by.”

The insurer has not shown that the alleged injury was “caused by” Thorne’s employment. Thorne was employed as a grocery store bagger. Thorne and others testified that he was shot because of the shooter’s jealousy over Thorne’s friendship with a female employee, not because of a work-related dispute. The assault simply happened to take place on the employer’s premises. Viewing the evidence in the light most favorable to the insurer, the court cannot find that the alleged assault was “caused by” and “arose out of” the employment. Rather, the evidence shows that the incident was caused by a personal dispute. Therefore, the employer’s liability exclusion does not apply.

Thorne initially filed a workers’ compensation claim but voluntarily dismissed it before a ruling was issued. Thorne then brought the underlying suit in tort. The state court denied summary judgment to the employer, in which the employer argued that Thorne’s claims were barred by the workers’ compensation exclusivity doctrine. The employer currently has no “obligation … under a workers’ compensation … law.” As such, at this time, the policy’s workers’ compensation exclusion does not apply.

Motion granted.

The laws of supply and demand may apply to legal education after all.

Eight years ago, over 100,000 students applied to law school nationally, but this year, in the face of relentlessly downbeat news about the employment prospects for lawyers, applications have cratered. Only about 67,000 applicants are expected—but the number of accredited law schools is higher than ever.

Admissions deans at both of South Carolina’s law schools confirmed that they’re seeing the same trend, but were optimistic about their own ability to compete in the new environment.

At the University of South Carolina, applications are down about 10 percent this year, and the yield—the number of accepted students who enroll—may be slightly lower than in previous years, said assistant dean of admissions Lewis Hutchinson. He said that the school had already chosen to reduce class size the previous year, and that was helping the school meet its targets.

Hutchinson felt USC was better positioned than some schools because it is only one of two law schools in the state, whereas some other states are pumping out law school graduates in unsustainable numbers.

“In anything, there’s always supply and demand. I do wonder, is there enough demand to justify such a great increase in supply? I ask myself that question any time I hear about another new law school or a law school that is increasing its enrollment. Even in a good economy, where do [the graduates] go?” he said.

At Charleston School of Law, associate dean for administration and alumni development John Benfield also said that applications were down about 10 percent and that the yield might be down slightly. He said the school has not begun to discuss whether it would consider reducing class size in response to the new environment.

“I think the job situation is having an impact on individual decisions about where to apply to law school,” Benfield said. “People are thinking a little more carefully about taking on the debt load to move out into a job market when salaries are not where they used to be.”

In North Carolina, self-reported results from law schools were more mixed. Two schools, Charlotte and North Carolina Central, would not even accommodate repeated requests to discuss the situations in their admissions offices.

Law school officials who spoke to Lawyers Weekly disagreed over whether the slump was a temporary blip or the “new normal.” But some experts think the situation may actually get worse before getting better.

“There’s no reason to believe that the decline in law school applications is at an end. I don’t see what will turn this around in the short term. If the decline continues, some schools will go out of business,” said Brian Tamahana, professor of law at Washington University of St. Louis and author of the upcoming book “Failing Law Schools.”

It is clear that the market correction is hitting law schools everywhere.

“When we’re talking about a national trend, almost every other school that I talk to is facing the exact same issues and challenges. We’re in this boat together,” Hutchinson said.

Nationally, the drop in applications has been even steeper among the students with the highest LSAT scores. Applications from students with scores below the median have barely dropped. Hutchinson confirmed that the national trend is holding true at USC, with higher credentialed students not applying nearly as much as in previous years. Benfield said that Charleston had not seen a disproportionate drop in any particular pocket of the applicant pool.

Both deans also said that students are being more aggressive in price-shopping different schools for the best scholarship offer, but Benfield warned that some schools employ a bait-and-switch, offering scholarships for the first year and taking them away for the final two.

The decline of applicants would seem to be a rational response to the fact that the number of new lawyers produced each year far outstrips the number of jobs. The Bureau of Labor Statistics projects that there will be 212,000 job openings for lawyers between 2010 and 2020, with 73,600 new jobs created and 138,400 opening due to replacement. That’s slightly less than half the number of law school graduates projected during that period, based on current trends.

Tamahana says that some lower-tier schools will have to respond to the lack of strong candidates by watering down admissions standards to unprecedented levels.

“Over one-fourth of law schools nationwide accepted close to 50 percent, or more, of their applicants in 2009. This year, there will be many law schools that will accept two-thirds, or even 75 percent of their applicants. At some point, you’re basically de facto open admission,” he said. “If law schools are forced to open admission, it will force serious questions about the soundness of their operation.”

Many experts predict that some schools, especially the ones already at the bottom of the pecking order for applicants, will have to shutter their doors.

“My best guess, which is an educated guess, is that some of these lower tier schools are going to close. I don’t know whether it will be in the next year or anything, but I would be very surprised if there were as many ABA-accredited schools a decade from now as there are now,” said Paul Campos, a law professor at the University of Colorado and author of a popular blog about the challenges facing law schools.