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Most Important Opinions 2017

Administrative

APA & Mandamus – Savannah River Site – Nuclear Fuel Removal

South Carolina v. United States (Lawyers Weekly No. 002-092-17, 37 pp.) (J. Michelle Childs, J.) 1:16-cv-00391; D.S.C.

Holding: Although traditional mandamus jurisprudence gives courts discretion as to whether to grant relief, 5 U.S.C. § 706(1) of the Administrative Procedure Act does not: “The reviewing court shall … compel agency action unlawfully withheld or unreasonably delayed.”

The plaintiff-state is entitled to an order compelling the defendant Secretary of Energy, consistent with the National Environmental Policy Act (NEPA) and other applicable laws, to remove one metric ton of defense plutonium from South Carolina for storage or disposal elsewhere. The state is not entitled to an injunction prohibiting defendants from moving more plutonium into South Carolina.

Administrative

Beer & Wine Permit – Renewal Denial – Convenience Store – Unimproved Problems

Kan Enterprises, Inc. v. South Carolina Department of Revenue (Lawyers Weekly No. 011-044-17, 11 pp.) (H. Bruce Williams, J.) Appealed from the Administrative Law Court (Ralph King Anderson III, ALJ) S.C. App.

Holding: Contrary to appellant’s argument, in order for respondent to deny appellant’s application for renewal of its off-premises beer and wine permit, respondent was not required to show that circumstances had worsened in the two years since the most recent permit renewal. Testimony by neighbors about loitering and littering along with testimony by police about the drain on police resources posed by appellant’s store was sufficient to support respondent’s denial of appellant’s renewal application.

We affirm the Administrative Law Court’s order upholding the application denial.

Administrative

Medicaid – Benefits Reduction – Civil Practice – Mootness

Kobe v. Haley (Lawyers Weekly No. 006-001-17, 55 pp.) (Per Curiam) No. 15-1419; Appealed from U.S.D.C. at Columbia, S.C. (Margaret Seymour, S.J.) 4th Cir.

Holding: Even though defendants have provided the equipment plaintiff Kobe needs during the pendency of this litigation, since there is no guarantee he will continue to be provided with this equipment once the litigation is ended, his challenges to the reduction in his Medicaid benefits are not moot.

We affirm the dismissal of claims against certain individual defendants, but we vacate summary judgment for the remaining defendants. Remanded.

Administrative

No Privacy Act Claims for Data Breaches

Beck v. McDonald (Lawyers Weekly No. 001-029-17, 26 pp.) (Diaz, J.) No. 15-1395(L), Feb. 6, 2017; USDC at Columbia, S.C. (Terry Wooten, C.J.) 4th Cir.

Holding: Two veterans who were treated at a Veterans Affairs Medical Center do not have standing to sue VA officials for violations of the Privacy Act of 1974 and the Administrative Procedure Act for alleged harm from the increased risk of future identity theft and cost of protective measures arising from two data breaches at the Center that compromised their personal information; the 4th Circuit affirms judgment for defendants, on an issue that has split the federal courts of appeals.

Administrative

Nuclear Fuel Facility – Failure to Meet Deadlines – Statutory Remedies

South Carolina v. United States (Lawyers Weekly No. 002-087-16, 68 pp.) (J. Michelle Childs, J.) 1:16-cv-00391; D.S.C.

Holding: The court reads 50 U.S.C. § 2566 as urged by the state: if the U.S. Department of Energy (DOE) fails to meet deadlines for converting defense plutonium into mixed-oxide fuel at the Savannah River Site (SRS), then the DOE must both remove certain amounts of plutonium from the SRS and pay the state $1,000,000 per day, up to $100,000,000 a year until the requisite amount of fuel is removed or production objectives are met.

The court denies defendants’ motion to dismiss the state’s second cause of action but grants the motion as to the state’s first cause of action.

Administrative

SSA Claim Remanded for ‘Special Technique’ Reg

Patterson v. Comm’r of Social Security Administration (Lawyers Weekly No. 001-013-17, 17 pp.) (Duncan, J.) No. 15-2487, Jan. 19, 2017; USDC at Charleston, S.C. (Hendricks, J.) 4th Cir.

Holding: On a matter of first impression in this circuit, the 4th Circuit holds that an administrative law judge’s failure to follow the “special technique” required while evaluating a claimant’s mental impairment may constitute harmless error; however, it was not harmless error in evaluating the claim of a woman with borderline intellectual functioning and other impairments, and her case is remanded for reconsideration.

Admiralty

Contract – Choice of Law – Civil Practice – Statute of Limitations/Laches – Boat Repairs

McGowan v. Pierside Boatworks, Inc. (Lawyers Weekly No. 002-067-17, 5 pp.) (Patrick Michael Duffy, J.) 2:16-cv-03529; D.S.C.

Holding: In a contract to repair plaintiff’s sailboat, one provision invoked admiralty law while another said South Carolina law would govern. In order to give effect to both choice-of-law provisions, the court concludes that the parties intended for general maritime law to be supplemented by South Carolina state law in the absence of a conflict between the two.

The court denies plaintiff’s motion to dismiss defendant’s counterclaim.

Admiralty

Tort/Negligence – Personal Injury – Anchor Line – Transverse Myelitis — Foreseeability

Harrison v. Newman (Lawyers Weekly No. 002-168-17, 9 pp.) (Richard Mark Gergel, J.) 2:16-cv-02919; D.S.C.

Holding: Even if the windlass on defendant’s boat was an open and obvious danger, plaintiff does not allege a failure to warn; instead, plaintiff argues that defendant was negligent in activating the windlass while plaintiff was holding the anchor line or was in close proximity to the windlass. Plaintiff has raised a genuine issue of material fact regarding whether it was obvious that the anchor chain would respond as it did when plaintiff freed the anchor.

Defendant’s motion for summary judgment is granted as to plaintiff’s punitive damages claim; otherwise, the motion is denied.

Antitrust

State Action Immunity – Public Utilities – Santee Cooper – Supra-competitive Prices

Century Aluminum of South Carolina, Inc. v. South Carolina Public Service Authority (Lawyers Weekly No. 002-171-17, 20 pp.) (Richard Mark Gergel, J.) 2:17-cv-00274; D.S.C.

Holding: Where the defendant-electric utility has been granted a monopoly in a clear articulation of state policy, and where defendant is actively supervised by a state-appointed board of directors, defendant is entitled to state-action immunity from the plaintiff-customer’s antitrust claims.

The court grants defendant’s motion to dismiss.

Arbitration

Arbitrability – JAMS Rules – Arbitrator’s Decision – First Impression

Simply Wireless, Inc. v. T-Mobile US, Inc. (Lawyers Weekly No. 001-218-17, 22 pp.) (James Wynn Jr., J.) (Henry Floyd, J., dissenting) 16-1123; Dec. 13, 2017; USDC at Alexandria, Va. (Claude Hilton, S.J.) 4th Cir.

Holding: Where the arbitration clause of the parties’ contract says arbitration is to “be administered pursuant to the JAMS Comprehensive Rules and Procedures,” and where those rules provide that arbitrability disputes are to be decided by the arbitrator, then the arbitration clause’s incorporation of JAMS rules constitutes clear and unmistakable evidence of the parties’ intent to delegate questions of arbitrability to the arbitrator.

We reject the district court’s decision to rule on the arbitrability question itself, but we affirm its decision to dismiss this matter in favor of arbitration.

Arbitration

Auto Warranty – Warranty ‘Enhancement’ – Selected Arbitrator

Gibson v. Toyota Motor Sales, U.S.A., Inc. (Lawyers Weekly No. 002-148-17, 10 pp.) (Richard Mark Gergel, J.) 4:17-cv-00577; D.S.C.

Holding: The original auto manufacturer’s warranty includes an arbitration clause; however, plaintiff brings her action under an “enhancement” to the original warranty (the defendant-manufacturer unilaterally extended warranty coverage for claims regarding dashboards degraded by prolonged exposure to sunlight). Since the entity that defendant selected to administer its warranty dispute settlement program does not provide arbitration services for warranty enhancements, defendant has imposed an impossible condition precedent by selecting an unavailable arbitration administrator.

The court denies defendant’s motion to compel arbitration. Defendant’s alternative motion to dismiss is also denied.

Arbitration

Construction Subcontract – Performance & Payment Bonds – Incorporation by Reference – Venue

Developers Surety & Indemnity Co. v. Carothers Construction, Inc. (Lawyers Weekly No. 002-088-17, 8 pp.) (Richard Mark Gergel, J.) 9:17-cv-01419; D.S.C.

Holding: Where (1) the plaintiff-surety’s bonds incorporate its subcontractor-principal’s subcontract by reference, (2) the subcontract includes a broad arbitration clause, and (3) the defendant-contractor’s claims against the surety are for payment against the bonds based on the subcontractor’s alleged default and abandonment of the construction project, the surety is bound by the arbitration clause.

The court grants defendant’s motion to transfer venue to the Southern District of Mississippi, which includes the contract-specified forum for arbitration, Jackson, Mississippi.

Arbitration

Contract – Labor & Employment – ‘Not a Contract of Employment’

Patterson v. Asbury SC Lex, L.L.C. (Lawyers Weekly No. 002-016-17, 7 pp.) (Marcy Geiger Lewis, J.) 6:16-cv-01666; D.S.C.

Holding: The parties’ agreement says it is “not a contract of employment.” Whether it is a “contract of employment” or a contract between the parties involves two distinct things. It appears defendant said the agreement was “not a contract of employment” to make clear the agreement was not meant to alter the at-will status of plaintiff’s employment. This does not invalidate the agreement’s arbitration clause.

The court grants defendant’s motion to dismiss and compel arbitration.

Arbitration

Telephone Service – Termination – Failure to Port Numbers – Sufficient Relationship

Farrow Road Dental Group, P.A. v. AT&T Corp. (Lawyers Weekly No. 002-154-17, 12 pp.) (Cameron McGowan Currie, S.J.) 3:17-cv-01615; D.S.C.

Holding: The plaintiff-dental practice alleges that, when it switched phone carriers, defendant should have ported its numbers to the new carrier but instead defendant cancelled the numbers and, when patients called the numbers, they heard a recording directing them to another dentist’s number. Although plaintiff’s claims arose after the parties’ contract had ended, they have a close enough relationship to the parties’ contract to fall within the contract’s broad arbitration clause.

The court grants defendant’s motion to compel arbitration.

Arbitration

Trade Secrets Misappropriation – Civil Practice – Preliminary Injunction – Contract Covenants

T&S Brass & Bronze Works, Inc. v. Slanina (Lawyers Weekly No. 002-131-17, 33 pp.) (Mary Geiger Lewis, J.) 6:16-cv-03687; D.S.C.

Holding: Plaintiffs are suing defendant Basinger individually while the arbitration clause that Basinger seeks to enforce is in a distributorship agreement between plaintiff EnviroPure Systems, LLC, and Basinger’s company, Advantagreen. Since plaintiffs allege that “Basinger did business as ‘Advantagreen’” and refer to defendant “Basinger/Advantagreen” throughout the complaint, according to plaintiffs’ own allegations, Advantagreen and Basinger are one and the same. Therefore, Basinger can enforce the arbitration clause in the agreement between EnviroPure and Advantagreen.

Plaintiffs’ motion for a preliminary injunction is granted. Basinger’s motion to compel arbitration is granted.

Attorneys

Civil Practice – Rule 60 Motion – No Excusable Neglect – Counsel Suspended

Belfor USA Group, Inc. v. Banks (Lawyers Weekly No. 002-040-17, 10 pp.) (David Norton, J.) 2:15-cv-01818; D.S.C.

Holding: Even though former defense counsel may have engaged in sloppy lawyering in his representation of defendants in this case, since defendants suspected his neglect but elected to keep his as their attorney (until he was suspended), the court declines to set aside a dispositive order in plaintiff’s favor.

The court denies defendants’ motion under Fed. R. Civ. P. 60(b)(6).

Attorneys

Discipline – Debarment – UPL – Kentucky Lawyer

In re McKeever (Lawyers Weekly No. 010-053-17, 6 pp.) (Per Curiam) S.C. S. Ct.

Holding: Since arriving in South Carolina in 2010, respondent, a Kentucky lawyer, has engaged in the unauthorized practice of law and violated the rules of pro hac vice admission. She actively solicited Betty McMichael’s consent to represent her in foreclosure proceedings despite not being licensed to practice in South Carolina; prepared and filed a quit claim deed to 986 Governors Road, Charleston; and represented the fictitious entity Bondson Holdings and her husband’s interest in the 986 Governors Road foreclosure action without seeking pro hac vice admission. Likewise, throughout these various proceedings, respondent was not eligible to appear pro hac vice because she resided in South Carolina, was regularly engaged in the practice of law in the state, and was regularly engaged in substantial business activities in South Carolina. Respondent then used her confidential relationship with McMichael to obtain title to McMichael’s property and resided in the premises rent-free for years, all the while failing to provide any meaningful representation or protect McMichael’s legal interests. When the Office of Disciplinary Counsel initiated its investigation of respondent’s alleged misconduct by serving her with a notice of investigation in May 2013, she failed to submit a written response as required by Rule 19(b), RLDE, failed to appear to answer questions under oath, failed to produce subpoenaed documents, and made numerous false statements to mislead disciplinary counsel.

In light of respondent’s blatant disregard for this state’s regulation of the legal profession, her abuse of the judicial system, threatening and coercive behavior directed at McMichael, and her lack of candor with various courts, we declare that respondent be (1) permanently debarred, prohibiting her from seeking any form of admission to practice law (including pro hac vice admission) in South Carolina and prohibiting her from advertising or soliciting legal services in the state; (2) ordered to pay McMichael $1,500 for attorney’s fees related to actions filed in Kentucky; and (3) ordered to pay the costs of the disciplinary investigation and formal proceedings. Moreover, pending the outcome of a bankruptcy proceeding in which respondent’s husband has subjected the 986 Governors Road property, we reserve the right to void any deed through which respondent wrongfully granted title to herself and her husband in violation of our Rules of Professional Conduct.

Attorneys

Discipline – Public Reprimand – Solicitation Letters & Website – AVVO Review Response

In re Lord (Lawyers Weekly No. 010-066-17, 5 pp.) (Per Curiam) S.C. S. Ct.

Holding: Respondent’s direct solicitation letters, website, AVVO profile, and response to a negative review on AVVO violated various Rules of Professional Conduct by, for example, using the telephone number (844) FIXTICKET, claiming to have “unique insight” into South Carolina traffic laws, failing to add “clear and conspicuous” disclosures, and disclosing information related to the representation of a client.

Respondent is publicly reprimanded.

                              

Attorneys

Fees – Reasonable Rate – Intellectual Property – Contempt Proceedings – South Carolina Forum – Boston Attorneys – Intellectual Property

Nutramax Laboratories, Inc. v. Manna Pro Products, LLC (Lawyers Weekly No. 002-114-17, 27 pp.) (J. Michelle Childs, J.) 0:16-cv-01255; D.S.C.

Holding: When intellectual property lawyers litigate contempt proceedings, they are entitled to recover at the rate of general litigation attorneys, not at their regular rates. In any event, plaintiff’s attorneys have not shown what a reasonable rate would be in this case.

The court denies, without prejudice, plaintiff’s motion to recover the attorneys’ fees it incurred in prosecuting a contempt motion.

Attorneys

Motion to Disqualify – Duties to Prospective Client – Mere Consultation

Valizadeh v. Doe (Lawyers Weekly No. 002-023-17, 7 pp.) (Mary Geiger Lewis, J.) 3:16-cv-03098; D.S.C.

Holding: Plaintiff merely consulted with a lawyer to discuss the possibility of retaining her; without more, this fails to qualify plaintiff as a prospective client entitled to the protections of Rule 1.18, RPC.

The court denies plaintiff’s motion to disqualify counsel for third-party subpoena recipient Jane Gari.

Attorneys

Self-Representation – Necessary Witness – Indigent Services – Billing

Brooks v. South Carolina Commission on Indigent Defense (Lawyers Weekly No. 011-015-17, 12 pp.) (John Geathers, J.) Appealed from Richland County Circuit Court (D. Craig Brown, J.) S.C. App.

Holding: Although Rule of Professional Conduct 3.7 generally prohibits a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness, this rule does not apply to a lawyer who is appearing pro se.

We affirm the circuit court’s disqualification of appellant’s wife from representing him, but we reverse the circuit court’s disqualification of appellant from representing himself.

Attorneys

Unauthorized Practice of Law – Real Property – HOA Management Firm

Rogers Townsend & Thomas, PC v. Peck (Lawyers Weekly No. 010-016-17, 7 pp.) (Per Curiam) (Costa Pleicones, Acting Justice, not participating) S.C. S. Ct.

Holding: A limited liability company that manages homeowners’ associations engaged in the unauthorized practice of law when – without the involvement of an attorney – it prepared and recorded a notice of lien and related documents; brought an action in magistrate’s court to collect the debt; after obtaining a judgment in magistrate’s court, filed the judgment in circuit court; and advertised that it could perform these services.

In an administrative order titled In re Unauthorized Practice of Law Rules Proposed by South Carolina Bar, 309 S.C. 304, 422 S.E.2d 123 (1992), we modified prior case law to “allow a business to be represented by a non-lawyer, officer, agent or employee.” We also promulgated South Carolina Magistrate Court Rule 21, which provides, “A business … may be represented in a civil magistrates court proceeding by a non-lawyer officer, agent, or employee….”

We clarify that “agent” does not include non-lawyer third party entities or individuals. Instead, as used in Unauthorized Practice of Law and Rule 21, “agent” includes individuals who are not officers or employees of a business but who have some nexus or connection to the business arising out of its corporate structure.

Attorneys

UPL Claim – Real Property – Refinance Closings

Boone v. Quicken Loans, Inc. (Lawyers Weekly No. 010-040-17, 17 pp.) (John Kittredge, J.) S.C. S. Ct.

Holding: Respondents Quicken Loans and Title Source do not engage in the unauthorized practice of law in their home loan refinancing transactions; licensed South Carolina attorneys were involved at every crucial step of these refinancing transactions.

We declare that respondents are not engaged in the unauthorized practice of law (UPL).

Bankruptcy

Appeals – Statute of Frauds – Agency – Apparent Authority – Attorneys

Rainsford v. Apex Bank (Lawyers Weekly No. 002-108-17, 9 pp.) (Mary Geiger Lewis, J.) 8:16-cv-03521; D.S.C.

Holding: Where an attorney told plaintiff that he represented the defendant-bank and could arrange a settlement of plaintiff’s debt to the bank through various means, documents drafted by plaintiff may satisfy the statute of frauds, and plaintiff may be able to show that the attorney had authority to bind the bank to the alleged settlement agreement.

The court reverses the bankruptcy court’s grant of the bank’s motion to dismiss.

Bankruptcy

Checking-Account Deposits Were Not ‘Transfers’

Ivey v. First Citizens Bank & Trust Co. (Lawyers Weekly No. 001-031-17, 12 pp.) (Gregory, J.) No. 15-2209, Jan. 31, 2017; USDC at Greensboro, N.C. (Osteen, J.) 4th Cir.

Holding: A chapter 7 trustee cannot reach deposits or wire transfers debtor made into his own checking account as “fraudulent transfers,” the 4th Circuit says; when a debtor deposits or receives a wire transfer of funds into his own unrestricted checking account in the regular course of business, it is not a “transfer” under the Bankruptcy Code, and therefore cannot be a “fraudulent transfer.”

Bankruptcy

Court Vacates Company’s ‘Staggering Sanctions’

Blue Cross Blue Shield of North Carolina v. Jemsek Clinic (Lawyers Weekly No. 001-057-17, 17 pp.) (Motz, J.) No. 16-1030, March 3, 2017; USBC at Charlotte, N.C. (Conrad, J.) 4th Cir.

Holding: The 4th Circuit vacates a bankruptcy court’s “staggering sanctions” of $1.29 million in attorney’s fees and costs on creditor Blue Cross/Blue Shield of North Carolina and dismissal with prejudice of claims the creditor valued at over $10 million; although the creditor acted in bad faith, these sanctions were excessive and based on a faulty premise: that Blue Cross NC bore responsibility for debtor failing to preserve his claims.

Bankruptcy

Debtors May Use ‘Standard’ Amounts for Expenses

Lynch, Bankruptcy Adm’r v. Jackson (Lawyers Weekly No. 001-005-17, 12 pp.) (Thacker, J.) No. 16-1358, Jan. 4, 2017; USBC at Raleigh, N.C. (Humrickhouse, J.) 4th Cir.

Holding: Debtors may take the full National and Local Standard amounts for expenses in their chapter 7 bankruptcy proceeding even though their actual expenses are less than the Standard amounts; the 4th Circuit upholds a bankruptcy court’s refusal to dismiss the case as an abusive filing.

Bankruptcy

Discharge Denied for False Property Valuation

Robinson v. Worley (Lawyers Weekly No. 001-049-17, 17 pp.) (Wilkinson, J.) No. 15-2346, Feb. 28, 2017; USDC at Greensboro, N.C. (Schroeder, J.) 4th Cir.

Holding: A chapter 7 debtor who had two degrees in finance and a professional career as a financial advisor should have known that his lowball valuation of a minority interest in a real estate investment company at just four percent of his initial capital contribution was too low to be accurate; the 4th Circuit affirms a denial of a discharge in bankruptcy under the false oath provision of 11 U.S.C. § 727(a)(4).

Bankruptcy

Partial Dirt-for-Debt – Valuation – Appeals – Post-Petition Interest Adjustment

Bate Land Co. LP v. Bate Land & Timber LLC (Lawyers Weekly No. 001-214-17, 21 pp.) (Allyson Duncan, J.) 16-2037; Dec. 6, 2017; USDC at Wilmington, N.C. (Terrence Boyle, J.) 4th Cir.

Holding: The bankruptcy court has specialized expertise in valuing property, and the bankruptcy court in this case developed an exhaustive record as to the value of the tracts that would be surrendered to the creditor as payment of most of its secured claim. The bankruptcy court did not err in approving this partial dirt-for-debt surrender.

We reverse the district court’s dismissal of creditor Bate Land Co. LP’s (BLC’s) appeal, but we affirm the bankruptcy court’s order.

Banks & Banking

Unfair Trade Practices – Regulated Industry Exemption – Consumer Protection Code – Real Property

Cantrell v. New Penn Financial, LLC (Lawyers Weekly No. 002-167-17, 10 pp.) (Mary Geiger Lewis, J.) 7:17-cv-01078; D.S.C.

Holding: Although the South Carolina Supreme Court has recognized that financial institutions are subject to a robust regulatory regime, it has not strayed from its holding that the regulated-industry exemption from the Unfair Trade Practices Act “is intended to exclude those actions or transactions which are allowed or authorized by regulatory agencies or other statutes,” Ward v. Dick Dyer & Assocs., Inc., 403 S.E.2d 301 (S.C. 1991), rather than all regulated activity. Because there is no suggestion that defendants’ alleged behavior during the refinancing of plaintiffs’ home was allowed or authorized by a statute or federal regulatory agency, S.C. Code Ann. § 39-5-40(a) fails to bar plaintiffs’ UTPA claims against defendants as a matter of law.

Defendants’ motion to dismiss is granted in part, denied in part, and denied without prejudice in part. Plaintiffs are permitted to file an amended complaint.

Civil Practice

Affirmative Defenses – Twombly/Iqbal Inapplicable – Untimely Motion to Strike – Judgment on the Pleadings

Cohen v. SunTrust Mortgage, Inc. (Lawyers Weekly No. 002-113-17, 7 pp.) (Cameron McGowan Currie, J.) 3:16-cv-02513; D.S.C.

Holding: Even if plaintiff’s motion to strike defendant’s affirmative defenses had been timely filed, the court would deny the motion. The court joins the recent trend in finding that the pleading standards of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), do not apply to affirmative defenses.

Plaintiff’s motion for judgment on the pleadings is granted in part and denied in part.

Civil Practice

Appeals – Interlocutory – Multiple ADA Claims – Medicaid

Stogsdill v. South Carolina Department of Health & Human Services (Lawyers Weekly No. 006-002-17, 7 pp.) (Per Curiam) No. 15-1986; Appealed from U.S.D.C. at Columbia, S.C. (Joseph Anderson Jr., S.J.) 4th Cir.

Holding: Although the district court rejected some of plaintiff Levin’s claims under the Americans with Disabilities Act, the district court did not consider or rule on plaintiffs’ request for an order prohibiting defendants from retaliating against them for exposing abuse or neglect of recipients of Medicaid waiver program benefits. Therefore, the district court’s order was not final.

Appeal dismissed.

                                

Civil Practice

Contractor’s Pretrial Removal Was Too Late

Northrop Grumman Technical Services Inc. v. DynCorp Int’l LLC (Lawyers Weekly No. 001-159-17, 13 pp.) (Keenan, J.) No. 16-1644, July 28, 2017; USDC at Alexandria, Va. (Cacheris, J.) 4th Cir.

Holding: In this contract dispute between Northrop Grumman and DynCorp, a subcontractor providing support personnel for a DoD contract, Northrop Grumman’s notice of removal to federal court, filed shortly before trial and after the case had been pending in state court for over a year, was untimely; the 4th Circuit affirms remand of the case to state court.

Civil Practice

Discovery – Tort/Negligence – Insurance – Bad Faith Claim – Attorneys

Graham v. National Union Fire Insurance Co. of Pittsburgh, PA (Lawyers Weekly No. 002-025-17, 9 pp.) (Margaret Seymour, S.J.) 0:16-cv-01153; D.S.C.

Holding: Where the defendant-insurer asserts as an affirmative defense that it “did not act unreasonably or in bad-faith,” defendant has implicitly waived attorney-client privilege. To the extent defendant relied on its attorneys’ investigation to determine the denials of plaintiff’s claim, defendant has waived attorney-client privilege and must provide the information defendant relied upon in making its decision to deny the claims.

Plaintiff’s motion to compel discovery is granted (except as to information already provided by defendant).

Civil Practice

Diversity Jurisdiction – Amount in Controversy – Homeowners Insurance – Dog Bite

Lighthouse Property Insurance Corp. v. Rogers (Lawyers Weekly No. 002-120-17, 5 pp.) (Richard Mark Gergel, J.) 9:17-cv-01553; D.S.C.

Holding: Defendant Norwood’s offer to settle for less than $75,000 in her underlying personal injury action against defendant Rogers is not the same as a stipulation that the amount in controversy is less than $75,000. In fact, since Norwood is seeking punitive damages, it is virtually impossible to say her claim is for less than the jurisdictional amount. The court finds that the amount-in-controversy requirement for diversity jurisdiction is met.

The court denies Norwood’s motion to dismiss.

Civil Practice

Diversity Jurisdiction – Fraudulent Joinder – Statute of Limitations – Mediation

Moore v. Draughn (Lawyers Weekly No. 002-132-17, 8 pp.) (J. Michelle Childs, J.) 1:16-cv-03651; D.S.C.

Holding: The South Carolina plaintiff asserts that he has a valid claim against defendant South Carolina Department of Transportation, arguing that the South Carolina Tort Claims Act’s statute of limitations should be tolled due to the latent discovery of a claim against SCDOT, which he allegedly learned during mediation. Plaintiff contends that the question of when a party discovers a cause of action is one for the jury; however, a fact-finder could not ascertain what information plaintiff discovered in mediation since plaintiff is contractually and judicially estopped from discussing anything he learned at the mediation.

Plaintiff’s claim against SCDOT is time-barred; accordingly, the court finds that SCDOT was fraudulently joined to defeat diversity jurisdiction. Plaintiff’s motion to remand to state court is denied. SCDOT’s motion to dismiss is granted.

Civil Practice

Dueling Bishops Sue for ‘False Advertising’

Right Rev. Charles G. vonRosenberg v. Right Rev. Mark J. Lawrence (Lawyers Weekly No. 001-043-17, 10 pp.) (Motz, J.) No. 15-2284, Feb. 21, 2017; USDC at Charleston, S.C. (Houck, J.) 4th Cir.

Holding: In this dispute between two clergymen, each of whom claims to be the Bishop of The Protestant Episcopal Church in the Diocese of South Carolina, the 4th Circuit vacates a district court abstention order and stay of the action pending the conclusion of state proceedings, and remands the case for a second time.

Civil Practice

Evidence – Hearsay – Business Records Exception – Real Property – Mortgages – Banks & Banking

FV-I, Inc. v. Dolan (Lawyers Weekly No. 011-009-17, 6 pp.) (Per Curiam) Appealed from Lexington County Circuit Court (R. Keith Kelly, J.) S.C. App. Unpub.

Holding: Even though plaintiff’s witness did not work for defendants’ previous mortgage servicer, Saxon Servicing Group (Saxon), the witness could testify about defendants’ loan history with Saxon pursuant to the business records exception to the rule against hearsay.

We affirm the circuit court’s denial of defendants’ motion for a new trial.

Civil Practice

Incompetent Adult – Auto Accident – Guardian Ad Litem Appointment – Insurer’s Duty – Res Judicata

Fowler v. State Farm Mutual Automobile Insurance Co. (Lawyers Weekly No. 002-182-17, 11 pp) (Richard Mark Gergel, J.) 4:17-cv-01081; D.S.C.

Holding: An auto insurer had no duty to inquire into the competence of an injured party who was making a claim against its insureds.

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

Civil Practice

Intervention – Intellectual Property – Trademark Infringement Claims – Episcopal Church

vonRosenberg v. Lawrence (Lawyers Weekly No. 002-124-17, 8 pp.) (Richard Mark Gergel, J.) 2:13-cv-00587; D.S.C.

Holding: Because this case involves defendants’ use of trademarks that the Episcopal Church claims to own, the Episcopal Church clearly has an interest in this litigation.

The court grants the Episcopal Church’s motion to intervene.

Civil Practice

Pleadings Amendment – New Claims & Counterclaims – First Impression – Supplemental Pleading

Poly-Med, Inc. v. Novus Scientific Pte Ltd. (Lawyers Weekly No. 002-074-17, 11 pp.) (J. Michelle Childs, J.) 8:15-cv-01964; D.S.C.

Holding: With no precedent from this court or the Fourth Circuit as to the issue of whether a party requires leave of court to amend counterclaims in response to an amended complaint, the court chooses the “moderate approach” from among the three approaches followed by other district courts. Plaintiff’s amended complaint broadened the scope of the case by adding two new causes of action – one under the Defend Trade Secrets Act of 2016 and one under the Lanham Act – and defendants broadened the scope or theory of the case by alleging a new manner in which plaintiff breached the parties’ “Sale of Materials and License Agreement.” The court finds that the amendments in the amended counterclaims are proportional to the changes in the amended complaint, so defendants did not require leave of court to file the amended counterclaims.

The court denies plaintiff’s motion to strike defendants’ amended counterclaims. The court grants plaintiff’s motion to withdraw its new claims with prejudice. The court also grants plaintiff’s motion to supplement the amended complaint.

Civil Practice

Removal – Diversity – Fraudulent Joinder Claim – Insurance Adjuster

Aung v. GEICO (Lawyers Weekly No. 002-153-17, 8 pp.) (Patrick Michael Duffy, J.) 9:17-cv-00856; D.S.C.

Holding: Under South Carolina law (1) generally, employees may be held personally liable for torts they commit in the scope of their employment, even if the employer is also liable by virtue of respondeat superior, and (2) no South Carolina case clearly carves out an exception to that rule for in-house insurance adjusters (Charleston Dry Cleaners & Laundry, Inc. v. Zurich Am. Ins. Co., 586 S.E.2d 586 (S.C. 2003), involved an independent adjuster). Defendants have not met their enormous burden of showing there is no glimmer of hope that plaintiff could prove her negligence claim against defendant Cogdill, an insurance adjuster who lives in South Carolina. Since diversity of citizenship is not complete, this court lacks subject matter jurisdiction.

The court grants plaintiff’s motion to remand to state court.

Civil Practice

Removal Jurisdiction – Fraudulent Joinder Claim – Store Manager – Tort/Negligence

Jones v. Ringer (Lawyers Weekly No. 002-196-17, 10 pp.) (R. Bryan Harwell, J.) 4:17-cv-02182; D.S.C.

Holding: Contrary to defendants’ arguments, this court has not misinterpreted South Carolina law. Under South Carolina law, a store manager can be held personally and jointly liable with the store itself for an alleged act of negligence.

The court grants plaintiff’s motion to remand to state court.

Civil Practice

Rooker-Feldman Doctrine – Domestic Relations – Support Order – Income Withholding Notices – Personal Jurisdiction – Venue

Strickland v. County Council of Beaufort County, SC (Lawyers Weekly No. 002-020-17, 15 pp.) (Joan Ericksen, J.) 9:17-cv-00067; D.S.C.

Holding: The Rooker-Feldman doctrine does not prevent federal courts from determining whether income withholding notices – issued after a state court dismissed the case – were valid. Nevertheless, venue is not proper in Minnesota.

The South Carolina defendants’ motion to dismiss is denied, and this case is transferred to the District of South Carolina.

                

Civil Practice

Service of Process – UPS Mailbox – Contract – Piercing the Corporate Veil – Attorneys’ Communication

Rational Spirits, LLC v. Rattleback, LLC (Lawyers Weekly No. 002-098-17, 10 pp.) (Patrick Michael Duffy, J.) 2:16-cv-03406; D.S.C.

Holding: Even though plaintiff’s process server mentioned the wrong mailbox number in his service affidavit after delivering defendant Sanders’ summons and complaint to the UPS store where Sanders rented a mailbox, since plaintiff’s process server handed the summons and complaint to a UPS employee, such service of process fell within the broad authorization that Sanders had given UPS to accept service for him.

The court denies Sanders’ motion to dismiss under Rule 12(b)(5), FRCP. The court denies plaintiff’s request for default judgment as a sanction against Sanders. The court denies defendants’ motion to dismiss plaintiff’s breach of contract claim and grants the motion as to plaintiff’s misrepresentation, constructive fraud, and civil conspiracy claims; however, the court grants plaintiff leave to amend its complaint.

Civil Practice

Statute of Limitations – Tolling – Guardian Appointment – Mental Incompetence – First Impression – Tort/Negligence – DDSN Commitment

Estate of Mims v. South Carolina Department of Disabilities & Special Needs (Lawyers Weekly No. 011-076-17, 12 pp.) (Per Curiam) Appealed from Richland County Circuit Court (G. Thomas Cooper Jr., J.) S.C. App. Unpub.

Holding: We hold that a mentally disabled man’s disability did not end when his mother was appointed guardian. Accordingly, § 15-3-40 extended the time allowed for the commencement of each of his causes of action by five years.

The circuit court’s grant of summary judgment for defendants is affirmed in part, reversed in part, and remanded.

Civil Practice

Subpoenas – FCA – Nationwide Service – Rule Amendment

United States ex rel. Lutz v. Berkeley Heartlab, Inc. (Lawyers Weekly No. 002-205-17, 7 pp.) (Richard Mark Gergel, J.) 9:14-cv-00230; D.S.C.

Holding: Even though the new Rule 45, FRCP, no longer has language allowing a broader (more than 100 miles) geographic scope if permitted by statute, Rule 81, FRCP, expressly allows that federal statutes may grant district courts nationwide subpoena power. 31 U.S.C. § 3731(a) authorizes this court to compel attendance at this False Claims Act trial from witnesses located anywhere in the United States.

Accordingly, the non-party movants’ motions to quash trial subpoenas are denied as to arguments based on noncompliance with the geographic limitations of Rule 45(d)(d)(A)(ii).

Civil Rights

Applicant Had No ‘Free Speech’ Right

Buxton v. Kurtinitis (Lawyers Weekly No. 001-151-17, 20 pp.) (Floyd, J.) No. 16-1826, July 7, 2017; USDC at Baltimore, Md. (Motz, J.) 4th Cir.

Holding: Although the director of admissions for a community college radiation therapist program said plaintiff applicant “brought up religion a great deal during the interview” for admission to the program, plaintiff does not have a First Amendment retaliation claim arising from his rejection based on a multi-factor analysis of applicants; the 4th Circuit affirms dismissal of the suit.

Civil Rights

Court Revives Officer Shooting Claim

Lee v. Town of Seaboard (Lawyers Weekly No. 001-155-17, 14 pp.) (Wynn, J.) No. 16-1447, July 14, 2017; USDC at Raleigh, N.C. (Dever, J.) 4th Cir.

Holding: A plaintiff whose excessive force suit alleges defendant police officer shot plaintiff as he attempted to escape a mob of local people chasing him after attacking plaintiff and his car in a parking lot can sue the officer under North Carolina tort law; the 4th Circuit reverses summary judgment for defendant officer.

Civil Rights

Court Upholds Maryland Assault-Weapon Ban

Kolbe v. Hogan (Lawyers Weekly No. 001-050-17, 116 pp.) (King, J.) No. 14-1945, Feb. 21, 2017; USDC at Baltimore, Md. (Blake, J.) 4th Cir.

Holding: The en banc 4th Circuit upholds Maryland’s Firearm Safety Act of 2013, which bans the AR-15 and other military-style rifles, as well as shotguns and detachable large-capacity magazines.

Civil Rights

Deaf Detainee Seeks Accommodations

Heyer v. U.S. Bureau of Prisons (Lawyers Weekly No. 001-051-17, 43 pp.) (Traxler, J.) No. 15-6826, Feb. 23, 2017; USDC at Raleigh, N.C. (Dever, J.) 4rh Cir.

Holding: A profoundly deaf plaintiff detained as a sexually dangerous person wins remand of his suit alleging the federal Bureau of Prisons violated his civil rights by failing to provide him with an American Sign Language interpreter during medical treatment and for mental health treatment and religious services, and by unreasonably denying access to TTY services or use of a videophone; the 4th Circuit vacates summary judgment for defendant prison officials.

Civil Rights

En Banc Court Strikes Legislative Prayer Practice

Lund v. Rowan County, N.C. (Lawyers Weekly No. 001-154-17, 108 pp.) (Wilkinson, J.) No. 15-1591, July 14, 2017; USDC at Greensboro, N.C. (Beaty, J.) 4th Cir.

Holding: A divided 4th Circuit upholds a decision declaring unconstitutional North Carolina county commissioners’ delivery of pointedly sectarian invocations, composed by individual commissioners, prior to commission meetings; the lawmakers’ prayer practices violate the First Amendment, the court says on rehearing en banc.

                     

Civil Rights

Invasion of Privacy – Teen Sexting – Warrant – Forced Masturbation

Sims v. Labowitz (Lawyers Weekly No. 001-212-17, 30 pp.) (Barbara Milano Keenan, J.) (Robert King, J., dissenting) 16-2174; USDC at Alexandria, Va. (Claude Hilton, S.J.) 4th Cir.

Holding: In a child pornography case involving teen sexting, a police detective consulted with an assistant prosecutor and obtained a warrant from a magistrate to obtain photos of, among other things, the 17-year-old plaintiff’s erect penis. Nevertheless, the detective is not entitled to qualified immunity from plaintiff’s civil rights claim after the detective forced plaintiff to masturbate in a locker room surrounded by three armed men.

We affirm in part and reverse in part the district court’s grant of summary judgment for defendant.

Civil Rights

Medicaid Benefits Reduction – Statute of Limitations – Governor’s Objections

Timpson v. Haley (Lawyers Weekly No. 002-127-17, 11 pp.) (Mary Geiger Lewis, J.) 6:16-cv-01174; D.S.C.

Holding: Even though there is a two-year statute of limitations applicable to claims under the South Carolina Tort Claims Act, and even though plaintiffs filed suit three years after plaintiff Johnny Timpson’s injuries arose, since S.C. Code Ann. § 15-3-40 gives one with a mental disability up to an additional five years beyond the statute of limitations to file an action, and since Timpson suffers from mental disabilities that require constant care, plaintiffs’ complaint is timely with the five-year extension of the statute of limitations.

The court grants in part and denies in part defendant Haley’s motion to dismiss.

Civil Rights

Police Chief Immune from Officers’ Suit

Crouse v. Town of Moncks Corner (Lawyers Weekly No. 001-045-17, 24 pp.) (Wilkinson, J.) No. 16-1039, Feb. 15, 2017; USDC at Charleston, S.C. (Houck, J.) 4th Cir.

Holding: A police chief has qualified immunity from this civil rights suit filed by two police officers who claim their First Amendment rights were violated when they allegedly were fired in retaliation for visiting a recent arrestee on their lunch hour to give him a police department form and encourage him to complain about their supervisor’s alleged use of excessive force in the arrest; the 4th Circuit upholds summary judgment for the police chief.  

Civil Rights

Police Shooting – Qualified Immunity – Civil Practice – Discovery Sanction – Dash Cam

Brown v. Elliott (Lawyers Weekly No. 001-205-17, 16 pp.) (Diana Gribbon Motz, J.) 16-2214; Nov. 21, 2017; USDC at Columbia, S.C. (J. Michelle Childs, J.) 4th Cir.

Holding: Even if Deputy Elliott was not being dragged by a truck when the truck’s passenger (suspected of transporting cocaine) reached over to the driver’s side to put the truck in motion, there is no dispute that Deputy Elliott’s torso was inside the truck at that time. Plaintiff does not cite, nor have we found, any controlling authority clearly establishing that an officer must abstain from employing deadly force when a suspect puts a vehicle in motion while the officer is leaning into it.

We affirm the district court’s conclusion that the deputy was entitled to qualified immunity. We affirm the district court’s imposition of a discovery sanction.

Civil Rights

Wikimedia Challenge to NSA’s ‘Upstream’ Revived

Wikimedia Foundation v. National Security Agency (Lawyers Weekly No. 001-115-17, 46 pp.) (Diaz, J.) No. 15-2560, May 23, 2017; USDC at Baltimore, Md. (Ellis, J.) 4th Cir.

Holding: A split 4th Circuit panel vacates dismissal of plaintiff Wikimedia Foundation’s lawsuit challenging defendant National Security Agency’s “Upstream” electronic surveillance program; contrary to the district court’s conclusion, Wikimedia’s allegations are not speculative and are sufficient to survive a facial challenge to standing.

Constitutional

Administrative – Licenses & Permits – Number of Liquor Licenses

Retail Services & Systems, Inc. v. South Carolina Department of Revenue (Lawyers Weekly No. 010-020-17, 20 pp.) (Jean Hoefer Toal, Acting Justice) (Donald Beatty, C.J. & Costa Pleicones, Acting Justice, concurring in the result only without separate opinion) (John Kittredge, J., dissenting) Appealed from Aiken County Circuit Court (Doyet Early III, J.) S.C. S. Ct.

Holding: Respondents’ only justification for the three-liquor license restriction on corporations is that the restriction supports small businesses; without any other supportable police power justification, economic protectionism for a certain class of retailers is not a constitutionally sound basis for regulating liquor sales. S.C. Code Ann. §§ 61-2-10 and -20 are unconstitutional because they exceed the scope of the General Assembly’s police powers.

We reverse the circuit court’s grant of summary judgment for respondents.

Constitutional

DOT Inspection – Private Bridge – Civil Practice – Standing & Mootness

South Carolina Public Interest Foundation v. South Carolina Department of Transportation (Lawyers Weekly No. 010-052-17, 17 pp.) (Donald Beatty, C.J.) (John Kittredge, J., joined by Costa Pleicones, Acting Justice, dissenting) (Costa Pleicones, Acting Justice, joined by John Kittredge, J., dissenting) Appealed from Richland County Circuit Court (L. Casey Manning, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: It is not the public’s responsibility to pay the maintenance costs of bridges located within a gated community that seeks to exclude the public from enjoying the use of the bridges. Thus, because it did not serve a public purpose, it was unconstitutional for the South Carolina Department of Transportation to conduct an inspection of private bridges.

We reverse the lower courts’ ruling that petitioners lacked standing, that the issue is moot, and that SCDOT’s actions were lawful.

Constitutional

Due Process & Access to Courts – Crime Investigation – Drunk Driving Incident

Hart v. City of Santee (Lawyers Weekly No. 002-097-17, 16 pp.) (J. Michelle Childs, J.) 5:16-cv-03338; D.S.C.

Holding: There is no federal right to an adequate criminal investigation; therefore, plaintiff’s allegations – that defendants failed to investigate a drunk driving incident as such – fail to state a claim under 42 U.S.C. § 1983.

The court grants defendants’ motion to dismiss.

Constitutional

Equal Protection – Domestic Relations – Former Same-Sex Unmarried Couple – Domestic Violence Protection

Doe v. State (Lawyers Weekly No. 010-068-17, 24 pp.) (Donald Beatty, C.J.) (Costa Pleicones, Acting Justice, concurring in the result only without separate opinion) (John Few, J., dissenting) S.C. S. Ct.

Holding: Where the Domestic Violence Reform Act and the Protection from Domestic Abuse Act (the Acts) define “household member” to include a spouse, a former spouse, persons who have a child in common, and “a male and female who are cohabiting or formerly have cohabited,” the Acts are unconstitutional as applied to petitioner, who contends that her former female fiancée has assaulted and intimidated her.

S.C. Code Ann. §§ 16-25-10(3) and 20-4-20(b) are unconstitutional as applied to petitioner.

Constitutional

First Amendment – Establishment Clause – War Memorial – 40-Foot Cross

American Humanist Association v. Maryland-National Capital Park & Planning Commission (Lawyers Weekly No. 001-188-17, 48 pp.) (Stephanie Thacker, J.) (Roger Gregory, C.J., concurring in part & dissenting in part) No. 15-2597; Oct. 18, 2017; U.S.D.C. at Greenbelt, Md. 4th Cir.

Holding: A 40-foot tall Latin cross that is maintained with state funds at a busy intersection has a secular purpose as a war memorial; however, it also advances Christianity, and the state’s maintenance of the display fosters an excessive entanglement between government and religion. Therefore, the state’s maintenance of the cross violates the Establishment Clause of the First Amendment.

We reverse the district court’s ruling to the contrary. Remanded.

Constitutional

First Amendment – Real Property – Church Schism – Trusts & Estates

The Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church (Lawyers Weekly No. 010-045-17, 77 pp.) (Costa Pleicones, Acting Justice) (Kaye Hearn, J., concurring) (Donald Beatty, C.J., concurring in part & dissenting in part) (John Kittredge, J., concurring in part & dissenting in part) (Jean Hoefer Toal, Acting Justice, dissenting) Appealed from Dorchester County Circuit Court (Diane Schafer Goodstein, J.) S.C. S. Ct.

Holding: In 1979, the defendant-national church added to its constitution the “Dennis Canon,” which says that all real and personal property held by parishes and congregations “is held in trust for this Church,” and 28 (or 29) of the plaintiff-parishes acceded to the Dennis Canon in writing. Those 28 (or 29) parishes’ real and personal property remain the property of the national church, despite those parishes’ separation from the national church.

We reverse the trial court’s judgment in favor of plaintiffs as to the 28 (or 29) parishes that documented their accession to the Dennis Canon. As to the seven (or eight) remaining parishes, the trial court’s judgment is affirmed.

Constitutional

Free Speech – Charleston Tour Guides – Tourist Protection

Billups v. City of Charleston (Lawyers Weekly No. 002-147-17, 28 pp.) (David Norton, J.) 2:16-cv-00264; D.S.C.

Holding: Even though a jury could find that Charleston’s requirement that tour guides pass a test and be licensed is the city’s way of ensuring that its preferred version of history is passed on to tourists, a jury could also find that forcing prospective tour guides to learn the information in the 490-page Charleston Tour Guide Training Manual would help ensure that the city’s tour guides are knowledgeable enough to provide the services that their customers expect.

The parties’ cross-motions for summary judgment are denied.

Constitutional

Fourth Amendment – Seizure – Qualified Immunity – Police Shooting

Hensley v. Price (Lawyers Weekly No. 001-201-17, 40 pp.) (G. Steven Agee, J.) (Dennis Shedd, J., dissenting) 16-1294; Nov. 17, 2017; USDC at Asheville, N.C. (Martin Reidinger, J.) 4th Cir.

Holding: Viewing the facts in the light most favorable to plaintiffs, the defendant-deputies shot plaintiffs’ decedent without warning, as the decedent was walking toward the deputies with a gun at his side, not pointed at anyone. If a jury credited plaintiffs’ evidence, the deputies’ actions would be objectively unreasonable.

We affirm the district court’s denial of qualified immunity for the deputies as to plaintiffs’ 42 U.S.C. § 1983 claim and of public official immunity as to plaintiffs’ state-law claims.

Constitutional

Procedural Due Process – Civil Rights – Section 8 Housing – Landlord/Tenant

Jackson v. City of Aiken Housing Authority (Lawyers Weekly No. 002-157-17, 10 pp.) (Richard Mark Gergel, J.) 1:16-cv-02831; D.S.C.

Holding: Although defendant denied plaintiff the benefits of the Section 8 Housing Choice Voucher (HCV) program when her prior landlord refused to sign a “blue form” indicating that her tenancy was terminated, defendant made no official determination to terminate plaintiff from the HCV program, plaintiff received no notice of a termination, and plaintiff was not offered a hearing. Thus, defendant denied plaintiff’s procedural due process rights.

The court grants summary judgment for plaintiff on her claim under 42 U.S.C. § 1983. The court grants summary judgment for defendant on plaintiff’s unfair trade practices claim.

Constitutional

Right to Counsel – Civil Commitment – SVP – Habeas Corpus

In re Chapman (Lawyers Weekly No. 010-014-17, 16 pp.) (Kaye Hearn, J.) (John Few, J., dissenting) Appealed from Greenville County Circuit Court (Robin Stilwell, J.) S.C. S. Ct.

Holding: Under the Sexually Violent Predator Act, a person committed as a sexually violent predator (SVP) has the right to assistance of counsel during all stages of SVP proceedings; we hold that such a person necessarily has a right to effective assistance of counsel during the proceedings. Since there is no statutory process for challenging the effectiveness of counsel’s assistance, a person committed as an SVP must contest counsel’s effectiveness via a habeas corpus proceeding; however, (1) the committed person is entitled to counsel during the habeas proceeding and (2) the standard for determining the SVP proceeding counsel’s effectiveness will be judged pursuant to Strickland v. Washington, 466 U.S. 668 (1984).

We affirm appellant’s commitment as an SVP without prejudice to his filing a future habeas corpus petition.

Constitutional

Right to Marriage – Birth Certificate – Artificial Insemination

Carson v. Heigel (Lawyers Weekly No. 002-062-17, 6 pp.) (Mary Geiger Lewis, J.) 3:16-cv-00045; D.S.C.

Holding: If a woman in an opposite-sex couple has a baby as a result of artificial insemination, her husband is listed as a parent on the child’s birth certificate; however, when a woman in a same-sex couple gave birth as a result of artificial insemination, defendant refused to list her spouse as a parent on the twins’ birth certificate. Defendant’s failure to treat same-sex spouses in the same manner in which she treats opposite-sex spouses in the issuance of birth certificates violates plaintiffs’ rights under the Fourteenth Amendment to the U.S. Constitution.

The court grants plaintiffs’ motion for summary judgment on the merits of their constitutional and declaratory judgment claims. An agreement between the parties renders moot plaintiffs’ motion for summary judgment seeking injunctive relief.

Consumer Protection

Army Enlistment Can’t Save Home Loan

Sibert v. Wells Fargo Bank NA (Lawyers Weekly No. 001-156-17, 15 pp.) (Niemeyer, J.) No. 16-1568, July 17, 2017; USDC at Richmond, Va. (Hudson, J.) 4th Cir.

Holding: A plaintiff who took out a home mortgage while he was serving in the U.S. Navy and defaulted on the mortgage loan after his discharge from the Navy, but joined the U.S. Army after notification of foreclosure proceedings, is not protected by the Servicemembers Civil Relief Act; the 4th Circuit affirms the district court judgment for the lender.

Consumer Protection

Citizenship Evidence Questioned for Removal

Scott v. Cricket Communications LLC (Lawyers Weekly No. 001-160-17, 14 pp.) (Duncan, J.) No. 16-2300, July 28, 2017; USDC at Baltimore, Md. (Russell, J.) 4th Cir.

Holding: In this class action suit alleging plaintiff purchased two Samsung Galaxy S4 cell phones that could only operate on a Code Division Multiple Access network, which defendant Cricket Communications was shutting down, the district court erred in remanding the case under the Class Action Fairness Act; the 4th Circuit orders reconsideration of the issue of purchasers’ citizenship under CAFA.

Consumer Protection

FDCPA – Civil Practice – Statute of Limitations – Arbitration – Car Loan & Repossession

Soberanis v. City Title Loan, LLC (Lawyers Weekly No. 002-120-17, 15 pp.) (Richard Mark Gergel, J.) 2:16-cv-04034; D.S.C.

Holding: Plaintiff alleges that defendant City Title Loan, LLC, insisted on enforcement of the mandatory arbitration clause in the parties’ promissory note but then, after plaintiff filed an arbitration action, refused to participate, causing the arbitration association to refuse to administer the arbitration. Assuming these allegations are true, it would be inequitable to allow defendants now to argue that this action was untimely filed.

The court grants defendants’ motion to dismiss plaintiff’s unfair trade practices claim in part. Otherwise, the motion is denied.

Consumer Protection

Unsolicited Fax – Civil Practice – Standing – Insufficient Allegations

Career Counseling, Inc. v. Amerifactors Financial Group, LLC (Lawyers Weekly No. 002-150-17, 11 pp.) (J. Michelle Childs, J.) 3:16-cv-03013; D.S.C.

Holding: Even though plaintiff attached a copy of an allegedly unsolicited facsimile to the complaint, plaintiff failed to allege facts connecting itself to either the stated recipient of the fax (Gina McCuen) or the fax number.

The court grants defendants’ motion to dismiss and dismisses the complaint without prejudice.

Contract

Admiralty – Cruise Ticket Contract – Evidence – Tort/Negligence – Personal Injury

Gibson-Dalton v. Carnival Corp. & PLC (Lawyers Weekly No. 002-135-17, 11 pp.) (David Norton, J.) 2:16-cv-02457; D.S.C.

Holding: In a case involving a maritime contract, the parol evidence rule does not bar defendant’s proffer of an “exemplar” contract; moreover, Rule 1004(b), FRE, allows defendant to provide an exemplar when “an original cannot be obtained by any available judicial process.” Here, no “original” contract ever existed because the parties’ cruise ticket contract consisted of terms presented to the plaintiff-passenger during the online check-in process and plaintiff’s clicking “Accept Terms.”

The court (1) grants defendant’s motion to dismiss plaintiff’s outrage and unfair trade practices claims for failure to comply with the arbitration clause of the ticket contract, (2) grants defendant’s motion to transfer plaintiff’s negligence claim to the Southern District of Florida, and (3) denies without prejudice defendant’s motion to dismiss all claims as untimely.

Contract

AG Could Veto FCA Proposed Settlement

U.S. ex rel. Brianna Michaels v. Agape Senior Community Inc. v. U.S. (Lawyers Weekly No. 001-037-17, 27 pp.) (King, J.) No. 15-2145, Feb. 14, 2017; USDC at Rock Hill, S.C. (Anderson, J.) 4th Cir.

Holding: In this qui tam action alleging defendant elder care facilities fraudulently billed Medicare and other federal health care programs, the 4th Circuit affirms a district court ruling that the Attorney General, who did not intervene in the FCA suit, has unreviewable authority under 31 U.S.C. § 3730 to veto relators’ proposed settlement with the facilities; however, the relators’ appeal of the district court’s rejection of their request to use statistical sampling in their case is dismissed as improvidently granted.

Contract

Forum Selection Clause – Enforceability – Venue Transfer

Dearbury Oil & Gas, Inc. v. Lykins Companies (Lawyers Weekly No. 002-071-17, 6 pp.) (Mary Geiger Lewis, J.) 7:16-cv-00923; D.S.C.

Holding: The court agrees with plaintiff that defendants may not enforce the forum selection clauses in the parties’ contracts without establishing that the contracts themselves are enforceable. The complaint sets forth factual allegations which, if true, establish offer, acceptance and valuable consideration; therefore, for purposes of deciding this motion, the court holds that the contracts are valid and enforceable. With that holding, it necessarily follows that the forum selection clauses in the contracts are also valid and enforceable.

The court grants defendants’ motion to transfer venue to the U.S. District Court of Ohio, Columbus Division.

Contract

Professional Negligence – Business Entity – Expert Affidavit Requirement

Village Park Homes LLC v. Hancock Askew & Co LLP (Lawyers Weekly No. 002-009-17, 10 pp.) (David Norton, J.) 9:16-cv-02828; D.S.C.

Holding: Where plaintiffs have named only a business entity – no individuals – as the defendant in their professional negligence claim, S.C. Code Ann. § 15-36-100(B) of the South Carolina Frivolous Civil Proceedings Sanctions Act does not apply; therefore, plaintiffs were not required to file the affidavit of an expert witness as part of their complaint.

The court denies defendant’s motion to dismiss.

Contract

Settlement Agreement – Open Court Releases – Search Engine Rules – Defamation

Coates v. Simchon (Lawyers Weekly No. 011-011-17, 4 pp.) (Per Curiam) Appealed from Abbeville & Greenwood Counties (Eugene Griffith Jr., Circuit Court Judge) S.C. App. Unpub.

Holding: Other than appellants’ allegation, there is no evidence in the record that respondent Coates ever agreed to sign a consent order that included a finding of defamation against appellants Bay Island Sportswear, Inc., and Sam Simchon. Therefore, the circuit correctly declined to direct Coates to perform an action not contemplated in the record.

We affirm the trial court’s enforcement of the parties’ settlement agreement.

Contract

Settlement with Principal – Covenant Not to Execute – Agent’s Liability – Tort/Negligence – Auto Accident

Benjamin v. Shaw (Lawyers Weekly No. 002-124-17, 9 pp.) (R. Bryan Harwell, J.) 4:15-cv-05110; D.S.C.

Holding: Even though plaintiff has settled with the parties who employed the defendant-driver and who owned the truck involved in the accident that injured plaintiff, the covenant not to execute explicitly states that it does not affect plaintiff’s right to seek recovery from others; moreover, there is no evidence that plaintiff has been fully compensated. Therefore, the defendant-driver is not entitled to summary judgment on the ground of satisfaction.

The court denies defendant’s motion for summary judgment.

Contract

Severance – County Administrator – Disqualified Votes – Quorum – Null & Void

Anderson County v. Preston (Lawyers Weekly No. 011-056-17, 28 pp.) (H. Bruce Williams, J.) (John Few, A.J., not participating) Appealed from Anderson County Circuit Court (Roger Couch, J.) Substituted opinion. S.C. App.

Holding: Since the circuit court determined that four of seven county council members were disqualified from voting on the defendant-county administrator’s severance agreement, that agreement is null and void.

We reverse the circuit court’s decision to uphold the agreement, and we remand for further proceedings. However, we affirm the circuit court’s finding that defendant Preston owed no fiduciary duty to inform the council of improper votes and that his conduct did not constitute fraud, constructive fraud, or negligent misrepresentation. The circuit court also properly declined to apply the single tainted vote rule. We also reverse the circuit court’s findings that (1) the county had unclean hands, (2) the county had an adequate remedy at law, and (3) the county breached the terms of the severance agreement by bringing the instant action.

Contract

Software – License Agreement – Reverse Engineering – Civil Practice – Res Judicata – Injunctive Relief

SAS Institute, Inc. v. World Programming Ltd. (Lawyers Weekly No. 001-189-17, 34 pp.) (J. Harvie Wilkinson III, J.) No. 16-1808; Oct. 24, 2017; USDC at Raleigh, N.C. (Louise Flanagan, J.) 4th Cir.

Holding: A software developer can pursue its claim that defendant breached its license agreement despite a U.K. court’s ruling that E.U. law barred the claim.

We affirm the district court’s rulings, except as to plaintiff’s copyright claim. The ruling on that claim is vacated as moot and remanded for dismissal.

Contract

Voluntary Payment Doctrine – Full Knowledge Requirement – Implied Covenant of Good Faith & Fair Dealing

In & Out Welders, Inc. v. Sunbelt Rentals, Inc. (Lawyers Weekly No. 002-141-17, 7 pp.) (Mary Geiger Lewis, J.) 7:16-cv-04021; D.S.C.

Holding: Plaintiff alleges that, in connection with equipment rentals, defendant overcharged it and other customers via surcharges for pickup and delivery costs and for refueling, which defendant’s standard contract says is “designed to cover [defendant’s] direct and indirect costs of refueling the Equipment.” It is true that money voluntarily paid with full knowledge of all material facts and without any fraud, duress, or extortion cannot be recovered, although there was no legal obligation to make such payment; however, the voluntary payment doctrine is an affirmative defense, and the complaint fails to show whether plaintiff had full knowledge of defendant’s alleged wrongful conduct.

The court denies defendant’s motion to dismiss.

Criminal Practice

Attempted Murder – Specific Intent – Evidence – Hearsay – Officer Canvas – Jail Phone Call

State v. King (Lawyers Weekly No. 010-059-17, 24 pp.) (Donald Beatty, C.J.) (John Kittredge, J., concurring in the result) (Costa Pleicones, Acting Justice, concurring in the result only without separate opinion) Appealed from Charleston County Circuit Court (J. C. Nicholson Jr., J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: When the General Assembly abolished assault and battery with intent to kill (S.C. Code Ann. § 16-3-620) and codified attempted murder (§ 16-3-29), the legislature intended to require the state to prove specific intent to commit murder as an element of attempted murder; therefore, the trial court erred by instructing the jury that attempted murder is a general intent crime.

We modify and affirm the Court of Appeals’ award of a new trial on the charge of attempted murder.

Criminal Practice

Attorneys – Ineffective Assistance Claim – Failures to Object – No Prejudice – Victim Impact – Rehearing Petitions

Stone v. State (Lawyers Weekly No. 010-019-17, 34 pp.) (John Few, J.) (Kaye Hearn, J., concurring in the result only without separate opinion) (Costa Pleicones, Acting Justice, dissenting) Appealed from Sumter County (Michael Nettles, PCR Judge) S.C. S. Ct. on petitions for rehearing.

Holding: Trial counsel should have objected to several parts of the state’s victim-impact evidence, especially the widow’s testimony about her suicide attempt. However, even if the objections had been made and sustained, petitioner has not shown that they would have changed the outcome of this case.

We affirm the post-conviction relief (PCR) court’s denial of petitioner’s application for PCR from his second capital sentencing proceeding.

Criminal Practice

Bond Forfeiture – House Arrest – Repeated Breaches – Partial Remission

State v. Mitchell (Lawyers Weekly No. 010-062-17, 7 pp.) (George James Jr., J.) Appealed from Charleston County Circuit Court (Stephanie McDonald, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: Defendant’s bondsperson ensured that defendant appeared in court; however, the bondsperson was informed that defendant was staying out all night, yet she did nothing to ensure that he complied with the house arrest and electronic monitoring conditions of his bond. Consequently, the circuit court could order the bond estreated.

We affirm the Court of Appeals’ holding that the circuit court’s bond estreatment was proper and that the amount of forfeiture remitted ($75,000 of the $150,000 bond) was not arbitrary or capricious.

Criminal Practice

Child Pornography – First Impression – Peer-to-Peer Sharing – ‘Distribution’

United States v. Stitz (Lawyers Weekly No. 001-220-17, 11 pp.) (Stephanie Thacker, J.) 16-4813; Dec. 14, 2017; USDC at Charlotte, N.C. (Robert Conrad Jr., J.) 4th Cir.

Holding: The Fourth Circuit joins its sister circuits in holding that, where files have been downloaded from a defendant’s collection of child pornography images, use of a file-sharing program constitutes distribution under 18 U.S.C. § 2252A.

We affirm the district court’s determination that a factual basis existed for defendant’s plea of guilty to distribution of child pornography.

Criminal Practice

Closing Arguments – Last Summation – New Matters – Judge’s Remarks – Burden of Proof

State v. Beaty (Lawyers Weekly No. 010-002-17, 9 pp.) (Costa Pleicones, C.J.) (John Few, J., concurring in part & dissenting in part) Appealed from Laruens County Circuit Court (W. Jeffrey Young, J.) S.C. S. Ct.

Holding: In a criminal trial where the party with the “middle” argument asks, the party with the right to the first and last closing argument must open in full on the law and the facts, and in reply may respond in full to the other party’s argument but may not raise new matter. In this case, any error in the trial court’s denial of defendant’s motion to require the state to open in full and limit its reply was harmless beyond a reasonable doubt.

Defendant’s murder conviction and life sentence are affirmed.

Criminal Practice

College Trustee’s RICO Conviction Reversed

U.S. v. Pinson (Lawyers Weekly No. 001-137-17, 40 pp.) (Per Curiam) No. 15-4311, June 19, 2017; USDC at Columbia, S.C. (Norton, J.) 4th Cir.

Holding: The 4th Circuit reverses RICO conspiracy and government program theft convictions for defendant, a former member of the South Carolina State University board of trustees who was engaged in fraud involving multiple private business ventures, but affirms his convictions for honest services fraud, mail and wire fraud, money laundering and making false statements to federal agencies.

Criminal Practice

Constitutional – Confrontation Clause – Hearsay Evidence – Controlled Drug Buy

State v. Davis (Lawyers Weekly No. 011-023-17, 16 pp.) (H. Bruce Williams, J.) Appealed from Greenville County Circuit Court (Letitia Verdin, J.) S.C. App.

Holding: Since the state’s confidential informant (CI) didn’t testify, the trial court should not have allowed a South Carolina Law Enforcement Division agent to testify about what the CI did while the CI was out of the agent’s sight and hearing. However, given the co-conspirators’ testimony, the error was harmless.

We affirm defendant’s conviction of conspiracy to traffic 100 grams or more but less than 200 grams of methamphetamine.

Criminal Practice

Constitutional – Confrontation Right — 911 Call – Burglary – Trespass Letter

State v. Thompson (Lawyers Weekly No. 011-039-17, 12 pp.) (Lee, A.J.) Appealed from Lancaster County Circuit Court (Brian Gibbons, J.) S.C. App.

Holding: Even though the 911 caller did not testify at trial, her statements on the 911 call were made to obtain police assistance, and questions asked during the call were to elicit more information to enable police to assist her. Defendant’s right to confront the witnesses against him was not violated.

We affirm defendant’s conviction of first-degree burglary and third-degree assault and battery.

Criminal Practice

Constitutional – Ineffective Assistance of Counsel – Conflict of Interest – Unrecognized

Gonzales v. State (Lawyers Weekly No. 010-004-17, 9 pp.) (Costa Pleicones, Acting Justice) Appealed from Spartanburg County (Roger Couch, PCR Judge) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: Regardless of whether or not petitioner’s trial counsel recognized the existence of a conflict of interest, since petitioner showed that the conflict adversely affected his attorney’s performance, he is entitled to relief.

We reverse the Court of Appeals’ ruling that, because trial counsel failed to recognize the actual conflict of interest, petitioner could not show he was adversely affected.

Criminal Practice

Court Could Consider Statements to Therapist

U.S. v. Lara (Lawyers Weekly No. 001-069-17, 12 pp.) (Keenan, J.) No. 15-4767, March 14, 2017; USDC at Abingdon, Va. (Jones, J.) 4th Cir.

Holding: Although defendant contends he was forced to waive a psychotherapist-patient privilege as part of a program of sex-offender treatment that was a condition of his supervised probation, the district court was entitled to rely on his statements to a therapist about sexual contacts with minors, forcible sexual assaults and his involvement in two murders, in sentencing defendant for violation of the Sex Offender Registration and Notification Act; the 4th Circuit upholds imposition of the statutory maximum penalty of 120 months in prison.

                                 

Criminal Practice

Court Sets Standard for Civil Detainee Motion

U.S. v. Maclaren (Lawyers Weekly No. 001-165-17, 13 pp.) (Diaz, J.) No. 16-6291, Aug. 2, 2017; USDC at Raleigh, N.C. (Howard, J.) 4th Cir.

Holding: A motion for a discharge hearing filed by a pedophile civilly detained under the Adam Walsh Act must be assessed under the same standard as a civil complaint judged under Fed. R. Civ. 12(b)(6): does the motion contain sufficient factual matter, accepted as true, to state a plausible claim for discharge; under this standard, the 4th Circuit vacates denial of a detainee’s motion and remands.

Criminal Practice

Delayed Trial as Adult for Juvenile Offense

U.S. v. Lopez (Lawyers Weekly No. 001-138-17, 29 pp.) (Harris, J.) No. 15-4573, June 19, 2017; USDC at Greenbelt, Md. (Grimm, J.) 4th Cir.

Holding: A defendant who was 17 years old when he and another young man robbed a brothel, raping one victim and killing another, was properly tried as an adult when he was charged six years later after DNA testing identified him as a suspect; the 4th Circuit affirms defendant’ conviction under the Hobbs Act, 18 U.S.C. § 1951(a), the federal robbery statute.

Criminal Practice

Drug Trafficking – Knowledge – Type of Drug – First Impression

State v. Miles (Lawyers Weekly No. 011-061-17, 10 pp.) (D. Garrison Hill, J.) Appealed from Lexington County Circuit Court (Thomas Russo, J.) S.C. App.

Holding: As applied to this case, our drug trafficking statute’s use of “knowingly” applies to defendant’s being “in actual or constructive possession”; the adverb does not apply to the types of drugs listed in the statute. Accordingly, the trial court correctly instructed the jury that the state did not have to prove that defendant knew the drugs in the package he was carrying were oxycodone, just that he knew that the package contained illegal drugs.

We affirm defendant’s conviction of trafficking in illegal drugs.

Criminal Practice

Enticement of a Minor – Knowledge of Age – Sex Trafficking

United States v. Banker (Lawyers Weekly No. 001-197-17, 20 pp.) (G. Steven Agee, J.) 16-4413; Nov. 14, 2017; USDC at Roanoke, Va. (Glen Conrad, J.) 4th Cir.

Holding: 18 U.S.C. § 2422(b) makes it a crime to knowingly persuade, induce, entice or coerce “any individual who has not attained the age of 18 years to engage in prostitution. . . .” Despite the U.S. Supreme Court’s contrary reading of similar language in an identity theft case, we hold that enticement of a minor is one of the special contexts that the Supreme Court contemplated could lead to a different interpretation. The government was not required to prove that defendant knew the age of the girl he was prostituting.

We affirm defendant’s convictions for conspiracy to engage in sex trafficking of a minor, sex trafficking of a minor, and enticement of a minor for illegal sexual activity.

Criminal Practice

Evidence – Coroner – Lay Witness – Opinion Testimony – Accidental or Intentional Killing – Hit & Run

State v. Westmoreland (Lawyers Weekly No. 011-045-17, 13 pp.) (Paula Thomas, J.) Appealed from Spartanburg County Circuit Court (Roger Couch, J.) S.C. App.

Holding: Where the critical issue for the jury to decide was whether the victim’s death was intentional or accidental, the trial court abused its discretion when it allowed the coroner – testifying as a lay witness – to testify that the victim’s death was a homicide, which he had defined as an intentional killing.

We reverse defendant’s murder conviction but affirm his conviction for hit and run.

Criminal Practice

Evidence – Hearsay – Dying Declaration – Improving Condition – Unexpected Death

State v. Brown (Lawyers Weekly No. 011-053-17, 10 pp.) (Aphrodite Konduros, J.) Appealed from Charleston County Circuit Court (Stephanie McDonald, J.) S.C. App.

Holding: Even though the victim had been shot and undergone two operations when he identified defendant as his assailant, since his medical records indicate that he was improving and was not in imminent danger of death at the time the statements were made and that he subsequently died unexpectedly from a pulmonary embolism, the circuit court did not err when it declined to admit the victim’s identification as a dying declaration.

We affirm the circuit court’s exclusion of the identification.

Criminal Practice

Grand Jury Queries Defense Team on Phony Document

In re: Grand Jury Subpoena Under Seal 1, 2 and 3 (Lawyers Weekly No. 001-176-17, 8 pp.) (Per Curiam) No. 16-4096, Aug. 18, 2017; USDC at Charlotte, N.C. (Conrad, J.) 4th Cir.

Holding: A grand jury investigating defendant’s provision of a fraudulent document may not ask a criminal defense team “what did the witness tell you,” as the government did not show that the crime-fraud exception allowed it to obtain this protected attorney opinion work-product; however, the 4th Circuit upholds the district court order allowing the grand jury to ask the defense team who gave it the fraudulent documents and how, specifically, did they give them to the team.

Criminal Practice

Habeas Petition – Withheld Evidence – Brady Violation – Materiality – Evidentiary Hearing

Juniper v. Zook (Lawyers Weekly No. 001-199-17, 34 pp.) (James Wynn Jr., J.) 13-7; Nov. 16, 2017; USDC at Richmond, Va. (John Gibney Jr., J.) 4th Cir.

Holding: Where the state withheld evidence that called into question not only the time of the victims’ deaths, but also the identity of the perpetrator, the withheld evidence was material, and the district court abused its discretion when it refused to hold an evidentiary hearing on petitioner’s habeas petition.

Vacated in part and remanded.

Criminal Practice

Health Care Fraud – Materiality – Unnecessary Tests

United States v. Palin (Lawyers Weekly No. 001-193-17, 13 pp.) (Diana Gribbon Motz, J.) 16-4522; Oct. 30, 2017; USDC at Abingdon, Va. (James Jones, J.) 4th Cir.

Holding: Even if the district court failed to consider materiality when finding defendants guilty of health care fraud, the error was harmless. The record conclusively establishes that insurers would not have paid for a second, more sophisticated weekly drug test for their insureds had they known that those tests were not medically necessary.

We affirm defendants’ convictions of health care fraud and conspiracy to commit health care fraud.

Criminal Practice

Incompetency – Involuntary Commitment – Intellectual Disability – Late Onset

State v. Linkhorn (Ex parte South Carolina Department of Disabilities & Special Needs) (Lawyers Weekly No. 010-028-17, 8 pp.) (Donald Beatty, C.J.) Appealed from Lexington County Circuit Court (J. Michael Baxley, J.) S.C. S. Ct. Substituted opinion.

Holding: Since defendant’s numerous cognitive and intellectual deficits did not manifest until he was 23 years old, after he attempted to hang himself, he may not be involuntarily committed to the Department of Disabilities and Special Needs.

We reverse the circuit court’s order (1) requiring DDSN to take custody of defendant and house him in a secure facility until the probate court determines whether he is intellectually disabled and (2) prohibiting DDSN from refusing involuntary commitment of similarly situated individuals.

Criminal Practice

Jury Instructions – Reasonable Doubt – Search & Seizure – Reasonable Suspicion – Confidential Informant

State v. Pradubsri (Lawyers Weekly No. 011-046-17, 11 pp.) (Stephanie McDonald, J.) Appealed from Lexington County Circuit Court (Clifton Newman, J.) S.C. App.

Holding: Even though the trial court instructed the jury that reasonable doubt “is doubt which makes an honest, sincere, conscientious juror in search of the truth hesitate to act,” the court also said, “The Defendant is not required to prove his innocence. The burden of proof remains on the State to prove guilt beyond a reasonable doubt.” Additionally, the court instructed, “The presumption of innocence is like a robe of righteousness placed upon the shoulders of the Defendant which remains with the Defendant until it has been stripped from the Defendant by evidence satisfying you of the Defendant’s guilt beyond a reasonable doubt.” Our review of the record and the entire charge reveals no prejudice sufficient to warrant reversal.

We affirm defendant’s convictions of trafficking in crack cocaine, possession with intent to distribute crack cocaine within the proximity of a school, and unlawful carrying of a pistol.

Criminal Practice

Juvenile – CSC – Sex Offender Registry – Electronic Monitor

In re Justin B. (Lawyers Weekly No. 010-027-17, 10 pp.) (John Few, J.) (Donald Beatty, C.J. & Kaye Hearn, J., concurring in the result only without separate opinion) Appealed from Spartanburg County Family Court (Phillip Sinclair, J.) S.C. S. Ct.

Holding: The U.S. Supreme Court held in Roper v. Simmons, 543 U.S. 551 (2005), that the execution of juveniles is unconstitutional. This does not affect our determination that it is constitutional to require a juvenile sex offender to register and wear a monitor for life. The registry and monitoring rationally relate to the Legislature’s purpose of protecting the public and assisting law enforcement.

The court upholds the constitutionality of the requirement that the juvenile offender register as a sex offender and wear an electronic monitor, both for life.

Criminal Practice

Lawyer Did Not Challenge Juror’s Cryptic Comment

U.S. v. Powell (Lawyers Weekly No. 001-058-17, 10 pp.) (Niemeyer, J.) No. 15-6232, March 1, 2017; USDC at Raleigh, N.C. (Fox, J.) 4th Cir.

Holding: A defendant convicted on federal drug and firearms charges is not entitled to habeas relief on a claim that his counsel was constitutionally ineffective when she failed to tell the trial court that, before trial began, a juror approached defendant’s father and told him “everything would be alright” and he needed to give his son “a good kick in the butt.”

Criminal Practice

Lesser Included Offense – Stalking & Harassment – Intrusion & Emotional Distress

State v. Brandenburg (Lawyers Weekly No. 011-017-17, 10 pp.) (H. Bruce Williams, J.) Appealed from Abbeville County Circuit Court (Thomas Hughston Jr., J.) S.C. App.

Holding: The definition of harassment in S.C. Code Ann. § 16-3-1700(A) includes the elements of intrusion into the private life of a targeted person and the causing of mental or emotional distress, but the definition of stalking in S.C. Code Ann. § 16-3-1700(C) does not. Nevertheless, harassment is a lesser included offense of stalking because (1) “intrusion” in the harassment statute equates to the “words … or conduct” element in the stalking statute, (2) the “fear” element of stalking satisfies the “mental or emotional distress” element of harassment, and (3) harassment has traditionally been considered a lesser included offense of stalking.

We affirm the circuit court’s decision to charge the jury on first-degree harassment as a lesser included offense of stalking.

Criminal Practice

Murder – Death Penalty – Constitutional – Confrontation Right – First Impression – Witness’s Mental Health Records – Intellectual Disability

State v. Blackwell (Lawyers Weekly No. 010-034-17, 46 pp.) (Donald Beatty, C.J.) (John Few, J., concurring) (Costa Pleicones, Acting Justice, dissenting) Appealed from Spartanburg County Circuit Court (Roger Couch, J.) S.C. S. Ct.

Holding: Even though the trial court followed a flawed procedure in excluding a prosecution witness’s mental health records, since the records were neither material nor exculpatory, and since defense counsel was able to thoroughly cross-examine the witness and attack her credibility, the trial court’s decision not to review the records in camera was harmless error.

We affirm defendant’s conviction of murder and the sentence of death.

Criminal Practice

Murder – Rebuttal Evidence – Excessive Scope – Crime Scene Analysis

State v. Prather (Lawyers Weekly No. 011-064-17, 20 pp.) (Aphrodite Konduros, J.) (H. Bruce Williams, J., dissenting) Appealed from Lexington County Circuit Court (Clifton Newman, J.) S.C. App.

Holding: In rebuttal to defendant’s testimony that he and co-defendant Phillips left the victim alive but then Phillips went back inside the victim’s home for about 10 minutes, the trial court should not have allowed the state to present the testimony of a crime scene analyst who said that two individuals were involved in leaving the scene the way it was found: with staging by one person (carving “rapist” on the victim’s back and leaving a dildo under his arm) and “undoing” by another (covering the victim with a blanket and pillow “symbolically erasing what has occurred in the scene”).

We reverse defendant’s convictions of murder and armed robbery. Remanded for a new trial.

Criminal Practice

No Credit for Premature Prison Release

U.S. v. Grant (Lawyers Weekly No. 001-152-17, 11 pp.) (Motz, J.) No. 16-4258, July 6, 2017; USDC at Alexandria, Va. (Ellis, J.) 4th Cir.

Holding: A defendant who was prematurely released from federal prison is not entitled to credit on his sentence for the time he erroneously spent at liberty; assuming federal common law offers such relief, the district court did not improperly deny defendant this credit, the 4th Circuit says.

Criminal Practice

No Johnson Challenge to Sentencing Guidelines

U.S. v. Mack (Lawyers Weekly No. 001-098-17, 10 pp.) (Niemeyer, J.) No. 15-4684, May 1, 2017; USDC at Greensboro, N.C. (Eagles, J.) 4th Cir.

Holding: A defendant convicted of possessing a stolen firearm knowing it was stolen loses his challenge to his 70-month sentence based on his claim that Johnson v. U.S.’s invalidation of the residual clause in the Armed Career Criminal Act meant the residual clause in USSG § 4B1.2(a)(2), applied to him, likewise is invalid; the U.S. Supreme Court decided in Beckles v. U.S. that the federal sentencing guidelines are not subject to due process vagueness challenges, the 4th Circuit says.

Criminal Practice

No More Pretrial Seizure of ‘Innocent’ Assets

U.S. v. Chamberlain (Lawyers Weekly No. 001-175-17, 15 pp.) (Wynn, J.) No. 16-4313, Aug. 18, 2017; USDC at Raleigh, N.C. (Howard, J.) 4th Cir.

Holding: The en banc 4th Circuit overrules its prior precedent permitting pretrial restraint of a defendant’s innocent property under the federal criminal forfeiture statute, and joins other federal courts of appeal in holding that 21 U.S.C. § 853 does not authorize such restraint; Section 853(e) permits the government a pretrial restraining order over only those assets directly subject to forfeiture as property traceable to a charged offense.

Criminal Practice

No Resentencing Based on USSG Residual Clause

U.S. v. Brown (Lawyers Weekly No. 001-177-17, 27 pp.) (Duncan, J.) No. 16-7056, Aug 21, 2017; USDC at Charleston, S.C. (Duffy, J.) 4th Cir.

Holding: A drug defendant sentenced as a career offender under the federal sentencing guidelines cannot show his motion for resentencing under Johnson v. U.S. is timely, as the Supreme Court has not recognized that Johnson and its progeny can be applied to career offender status under the sentencing guidelines; the 4th Circuit affirms dismissal of defendant’s 28 U.S.C. § 2255.

Criminal Practice

PCR – Attorneys – Ineffective Assistance – Child Abuse Expert – Failure to Object – Cross-Examination

Briggs v. State (Lawyers Weekly No. 010-060-17, 15 pp.) (John Cannon Few, J.) (Donald Beatty, C.J., concurring in the result only without separate opinion) Appealed from Spartanburg County (J. Derham Cole, Trial Judge & Robin Stilwell, PCR Judge) S.C. S. Ct.

Holding: Although some areas of our law regarding forensic interviewer bolstering have been clarified since petitioner’s 2010 trial, in general, it has been clear since 1989 that a forensic interviewer may not improperly bolster the credibility of a victim. In this case, trial counsel’s failure to object to the forensic interviewer’s testimony and the questions he put to her on cross-examination actually worked against his theory of the case that no one believed the victim; therefore, counsel’s performance was deficient.

We affirm the post-conviction review (PCR) court’s finding of deficiency and of prejudice. We remand for a new trial.

Criminal Practice

PCR – Statute of Limitations – Prisons & Jails – Prison Mail

Mose v. State (Lawyers Weekly No. 010-046-17, 9 pp.) (Donald Beatty, C.J.) (Costa Pleicones, Acting Justice, not participating) Appealed from Williamsburg County Circuit Court (R. Ferrell Cochran Jr., J.) S.C. S. Ct.

Holding: Petitioner presented evidence that he placed his post-conviction review application into the prison mail system 17 days before the filing deadline; however, it was not stamped “filed” by the clerk of court until three days after the deadline. Petitioner was prevented from timely filing for PCR due to circumstances beyond his control; therefore, the one-year statute of limitations should have been tolled, and the PCR judge erred in summarily dismissing petitioner’s PCR application as untimely.

Reversed and remanded for a hearing on the merits.

Criminal Practice

Post-Resentencing Habeas Petition Not ‘Successive’

In re: William Robert Gray Jr. (Lawyers Weekly No. 001-054-17, 11 pp.) (Gregory, J.) No. 16-433, Feb. 28, 2017; On Motion for Authorization; 4th Cir.

Holding: A habeas petition filed after defendant was resentenced for a 1993 murder conviction counts as his first petition under 28 U.S.C. § 2254 to challenge the new judgment; the 4th Circuit says the petition is not second or successive and denies petitioner’s motion seeking leave to file a successive petition, as unnecessary.

Criminal Practice

Prior Drug Crime Evidence Was Error

U.S. v. Hall (Lawyers Weekly No. 001-124-17, 72 pp.) (Wynn, J.) No. 15-4720, June 1, 2017; USDC at Columbia, S.C. (Anderson, J.) 4th Cir.

Holding: A 4th Circuit panel splits over admission of evidence of defendant’s prior drug crimes in a case in which the government could not prove defendant’s connection to a locked room in the house witnesses said he owned, that contained six kilograms of marijuana and two weapons; the panel reverses, vacates and remands defendant’s conviction for possession with intent to distribute.

Criminal Practice

Residual Clause Still Good for ‘Career Offender’

U.S. v. Riley (Lawyers Weekly No. 001-103-17, 6 pp.) (Wilkinson, J.) No. 15-4317, May 9, 2017; USDC at Baltimore, Md. (Quarles, J.) 4th Cir.

Holding: The 4th Circuit rejects a bid for resentencing on drug charges from a defendant designated as a career offender for a Maryland robbery with a dangerous weapon; the court concludes this offense was a crime of violence under the residual clause of the career offender guideline in effect when defendant was sentenced.

Criminal Practice

Rule 403, SCRE – Criminal Profiling Testimony – Harmless Error

State v. Huckabee (Lawyers Weekly No. 011-020-17, 16 pp.) (John Geathers, J.) Appealed from Marlboro County Circuit Court (Michael Baxley, J.) S.C. App.

Holding: Testimony that was not expressly offered to identify defendant as the perpetrator but that included criminal profiling testimony that could lead a reasonable juror to no other inference than that defendant inflicted burns on a child and therefore had a propensity to commit sexual battery resulting in injury had no probative value, and the danger of unfair prejudice was high due to the testimony’s tendency to suggest defendant’s guilt on an improper basis. The testimony should have been excluded under Rule 403, SCRE.

We reverse defendant’s convictions for first-degree criminal sexual conduct (SCS) with a minor, inflicting great bodily injury upon a child, and homicide by child abuse (HCA) and remand for a new trial on these charges. We affirm defendant’s conviction for unlawful conduct toward a child.

                                

Criminal Practice

Search & Seizure – Cell Phone – SIM Card Search – Inevitable Discovery

State v. Moore (Lawyers Weekly No. 011-062-17, 15 pp.) (Stephanie McDonald, J., lead opinion) (James Lockemy, C.J., concurring in part & dissenting in part) (Aphrodite Konduros, J., dissenting) Appealed from Spartanburg County Circuit Court (R. Keith Kelly, J.) S.C. App.

Holding: Police found a cell phone at the scene of an attempted murder and, without a warrant, examined the flip phone’s SIM card to determine the phone’s number and owner. Given that the same information would inevitably have been discovered (either from information found on the victim’s cell phone or via a subsequently obtained warrant), the trial court did not err in denying defendant’s motion to suppress.

We affirm defendant’s conviction of attempted murder.

Criminal Practice

Search & Seizure – Curtilage Entry – Officers’ Purpose – Drug Search

State v. Bash (Lawyers Weekly No. 010-001-17, 14 pp.) (John Few, J.) Appealed from Berkeley County Circuit Court (Stephanie McDonald, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: After receiving an anonymous tip about “drug activity” at a home near Moncks Corner, officers entered the home’s curtilage in order to investigate the complaint; in doing so, the officers were conducting a warrantless search within the meaning of the Fourth Amendment, and their search did not fall within a recognized exception to the Fourth Amendment’s warrant requirement.

We reverse the Court of Appeals’ decision and reinstate the circuit court’s grant of defendant’s motion to suppress evidence obtained as a result of the warrantless search.

Criminal Practice

Sentencing – Prior Conviction – AISBI – Crime of Violence

United States v. Thompson (Lawyers Weekly No. 001-192-17, 10 pp.) (Diana Gribbon Motz, J.) 15-4685; Oct. 26, 2017; USDC at Raleigh, N.C. (W. Earl Britt, S.J.) 4th Cir.

Holding: Under Johnson v. United States, 135 S. Ct. 2551 (2015), when considering whether a prior crime constitutes a crime of violence under the residual clause of USSG § 4B1.2, courts must look to the ordinary case not only in assessing the degree of risk posed by the prior crime, but also in assessing whether the crime is similar in kind to the offenses enumerated in § 4B1.2.

We affirm the increase in defendant’s sentence based on his previous state conviction for assault inflicting serious bodily injury (AISBI).

Criminal Practice

Sixth Amendment – Right to Counsel – Untainted Substitute Asset Forfeiture Postconviction

U.S. v. Marshall (Lawyers Weekly No. 001-182-17, 18 pp.) (Agee, J.) No. 16-4494, Sept. 25, 2017. Appeal from the U.S. District Court for the District of Maryland, at Greenbelt. (Chasanow, S.J.) 4th Cir.

Holding: Where the defendant-offender’s substitute assets were forfeited to the plaintiff-government following his conviction and there is no constitutional entitlement to use substitute assets post-conviction to hire counsel of choice, title to the assets vested in the government and the offender’s right to counsel of his choice for the appeal of his conviction does not outweigh the government’s interest in the funds he no longer owns. The offender’s motion to use his untainted funds to hire appellate counsel is denied.

Criminal Practice

Stand Your Ground – Drive-By Shooting – Victim in Trailing Car

State v. Scott (Lawyers Weekly No. 011-030-17, 11 pp.) (Aphrodite Konduros, J.) (Stephanie McDonald, J., concurring in the result) Appealed from Richland County Circuit Court (Maité Murphy, J.) S.C. App.

Holding: An SUV followed defendant’s daughter home from a club and drove by defendant’s house. After a shot was fired from the SUV, defendant went into his driveway and fired a gun, striking and killing the driver of a Honda that had been following the SUV. Defendant is immune from prosecution under the Stand Your Ground law.

We affirm the circuit court’s finding of immunity.

Criminal Practice

Successor Bank Wins Restitution for Loan Lie

U.S. v. Ritchie (Lawyers Weekly No. 001-119-17, 35 pp.) (Diaz, J.) No. 16-4036, May 30, 2017; USDC at Baltimore, Md. (Bennett, J.) 4th Cir.

Holding: A defendant convicted of making a false statement in 2005 on a HUD-1 form about a $1.1 million cash payment he was making to obtain a real estate loan from Countrywide Bank must pay restitution for the loan balance remaining when a successor bank, Bank of America, sold the property in 2015, says the 4th Circuit; but a dissenting judge would join other circuits and hold defendant liable for a lesser amount.

Criminal Practice

Traffic Stop Not Unduly Extended

U.S. v. Hill (Lawyers Weekly No. 001-081-17, 15 pp.) (Keenan, J.) No. 15-4639, March 30, 2017; USDC at Richmond, Va. (Payne, J.) 4th Cir.

Holding: A traffic stop that began with observations that a driver was speeding slightly and had crossed a double-yellow line, and ended about 20 minutes later when a passenger acknowledged that he had a gun, was not unduly extended in violation of Rodriguez v. U.S., says a 4th Circuit panel majority.

Criminal Practice

Two Charges Violated Double Jeopardy

U.S. v. Jones (Lawyers Weekly No. 001-122-17, 17 pp.) (Thacker, J.) No. 15-4763, June 1, 2017; USDC at Lynchburg, Va. (Moon, J.) 4th Cir.

Holding: A defendant who pleaded guilty to a drug conspiracy count in the Eastern District of Virginia cannot be prosecuted in the Western District for a drug conspiracy involving the same two people from the first conspiracy conviction, the 4th Circuit says; in considering successive conspiracy prosecutions, the court must look at the characteristics of the conspiracy – substantive violation, personnel, location, time span and nature and scope – to apply the double jeopardy bar.

Criminal Practice

Weapons Frisk Upheld, Despite Open Carry Law

U.S. v. Robinson (Lawyers Weekly No. 001-015-17, 58 pp.) (Niemeyer, J.) No. 14-4902, Jan. 23, 2017; USDC at Martinsburg, W.Va. (Groh, J.) 4th Cir.

Holding: An anonymous tip that a black man had loaded a gun in a 7-Eleven parking lot and then concealed it in his pocket before leaving in a car provided an objective basis for inferring danger, despite West Virginia gun ownership laws, and an officer who followed up and made a lawful traffic stop had reasonable suspicion to justify a weapons frisk; on rehearing en banc, the 4th Circuit panel affirms defendant’s conviction for possession of a gun as a convicted felon.

Criminal Practice

Within-Policy-Statement-Range Sentence – Nonfrivolous Arguments – Court’s Failure to Explain Reasons

U.S. v. Slappy (Lawyers Weekly No. 001-181-17, 19 pp.) (Gregory, C.J.) (Shedd, J., dissenting) No. 16-4010, Sept. 22, 2017. Appeal from the U.S. District Court for the Eastern District of North Carolina, at Wilmington. (Fox, S.J.) 4th Cir.

Holding: Where the defendant-offender presented arguments in favor of a within-policy-statement-range sentence and the district court entirely failed to mention the offender’s nonfrivolous arguments in favor of a particular sentence or at least provide some reason why those arguments are unpersuasive, compounded by its failure to explain why it was necessary to impose the statutory maximum sentence, we find the offender’s revocation sentence is both procedurally and plainly unreasonable.

We vacate the offender’s revocation sentence and remand for resentencing.

Domestic Relations

Common Law Marriage – Same-Sex Couple – Obergefell’s Retroactivity

Parks v. Lee (Lawyers Weekly No. 008-001-17, 9 pp.) (Thomas White IV, J.) York County Family Court 2016-DR-45-1061

Holding: Ignoring South Carolina’s past unconstitutional law prohibiting same-sex marriage, the court finds that a same-sex couple who lived together in South Carolina for 28 years had a common-law marriage.

                                 

Domestic Relations

Parent & Child – Paternity – Civil Practice – Rule 60(b) Motion – DNA Test

Ashburn v. Rogers (Lawyers Weekly No. 011-052-17, 10 pp.) (John Geathers, J.) Appealed from Beaufort County Family Court (Jerry Vinson Jr., J.) S.C. App.

Holding: Even though plaintiff originally declined DNA testing and acknowledged paternity of the defendant-mother’s child in 2001, since plaintiff has paid child support throughout the child’s life but otherwise has no relationship with her or her mother, and since DNA testing conducted in 2013 excluded plaintiff as the child’s father, the family court should have granted plaintiff’s motion for relief under Rule 60(b)(5), SCRCP.

We reverse the family court’s denial of plaintiff’s Rule 60(b)(5) motion.

Domestic Relations

Parent & Child – Termination of Parental Rights – Incarcerated Parent

South Carolina Department of Social Services v. Smith (Lawyers Weekly No. 011-019-17, 13 pp.) (Per Curiam) Appealed from Union County Family Court (Rochelle Conits, J.) S.C. App.

Holding: Even though the defendant-father was incarcerated as the result of his own lawless conduct, since he committed his criminal actions before the mother became pregnant with his child and he surrendered after learning of the pregnancy so he could begin his sentence immediately, the father’s lawless conduct is not highly probative of willfulness.

The trial court erred by terminating the father’s parental rights based on abandonment, willful failure to visit, and willful failure to support. Vacated in part, reversed in part, and remanded.

Environmental

Civil Practice – Preliminary Injunction – Endangered Species Act – Beach Erosion Control

Sierra Club v. Von Kolnitz (Lawyers Weekly No. 002-113-17, 20 pp.) (David Norton, J.) 2:16-cv-03815; D.S.C.

Holding: Defendants’ own studies have shown that their sea walls are interfering with the nesting of endangered sea turtles and that the sea walls – which are by their very design temporary – do not address erosion. Plaintiffs have shown that it is in the public interest for sea turtles to be able to nest. Accordingly, plaintiffs are entitled to a preliminary injunction requiring the immediate removal of all sea walls from Harbor Island and Isle of Palms; these temporary sea walls are to remain removed during the sea turtle nesting period while this action proceeds.

The court denies defendants’ motion to dismiss and grants plaintiffs’ motion for a preliminary injunction.                            

Immigration

Asylum Application – Untimely – Changed Circumstances

Romero Zambrano v. Sessions (Lawyers Weekly No. 001-211-17, 9 pp.) (John Gibney Jr., D.J.) 16-2131; Dec. 5, 2017; on petition for review from the Board of Immigration Appeals. 4th Cir.

Holding: Even though the Honduran petitioner failed to seek asylum within one year of arriving in the U.S., since his arrest by immigration authorities led to more violence against his family and threats against his associates in more Honduran cities, petitioner may be able to show that he sought asylum within a reasonable period if he can show an intensification of the threat of persecution or new instances of persecution of the same kind suffered in the past.

The 4th Circuit remands to the Board of Immigration Appeals and leaves the determination of whether the facts on record constitute changed circumstances which materially affect petitioner’s eligibility for asylum to the BIA’s sound discretion.

Immigration

Asylum Protection Lost Through Status Change

Mahmood v. Sessions (Lawyers Weekly No. 001-055-17, 16 pp.) (Niemeyer, J.) No. 16-1438, Feb. 22, 2017; On Petition for Review; 4th Cir.

Holding: A Pakistani citizen initially granted asylum, who voluntarily adjusted his status to lawful permanent resident, is not entitled to additional protections that would have been available to an asylee prior to his removal for misrepresenting facts in order to obtain travel documents; the 4th Circuit affirms the decision of the Board of Immigration Appeals.

Immigration

Court Upholds Injunction Against Travel Order

Int’l Refugee Assistance Project v. Trump (Lawyers Weekly No. 001-120-17, 205 pp.) (Gregory, J.) No. 17-1351, May 25, 2017; USDC at Greenbelt, Md. (Chuang, J.) 4th Cir.

Holding: The 4th Circuit upholds the district court’s imposition of a nationwide preliminary injunction against enforcement of Section 2(c) of Executive Order 2 issued by President Trump as in the interests of national security, imposing a 90-day halt to immigration from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen.

Immigration

First-Offender Drug Plea Was ‘Conviction’

Jaquez v. Sessions (Lawyers Weekly No. 001-131-17, 12 pp.) (Gregory, J.) No. 16-1147, June 8, 2017; On Petition for Review; 4th Cir.

Holding: Petitioner’s 2005 criminal proceedings under a first-offender statute for cocaine possession, Va. Code § 18.2-251, constituted a “conviction” as defined in 8 U.S.C. § 1101(a)(48)(A), making petitioner, a Mexican citizen, ineligible for cancellation of removal; the 4th Circuit denies his petition for review of the BIA order.

Immigration

Judge’s Improper Comments Were ‘Plain Error’

U.S. v. Lefsih (Lawyers Weekly No. 001-171-17, 22 pp.) (Harris, J.) No. 16-4345, Aug. 14, 2017; USDC at Raleigh, N.C. (Boyle, J.) 4th Cir.

Holding: The 4th Circuit vacates the immigration fraud conviction of an Algerian native who entered the U.S. through the Diversity Immigrant Visa Program, because the district judge’s “persistent and repeated” improper comments on the Program and its participants, all to the benefit of the government’s weak case, were plain error; this judicial intervention was improper and denied defendant a fair and impartial trial.

Immigration

Visa Waiver Program – Presumption of Regularity – No Prejudice

Nardea v. Sessions (Lawyers Weekly No. 001-208-17, 12 pp.) (Albert Diaz, J.) 16-1274; Nov. 29, 2017; On petition for review from the Department of Homeland Security. 4th Cir.

Holding: A visa stamp, a part of a visa waiver form, and the presumption of regularity of government agency actions combine to prove that the Argentinian petitioner waived his right to contest removal from the United States.

We deny the petition for review.

Insurance

Auto – ‘Accident’ – Multi-Vehicle – Coverage Limit

Travelers Home & Marine Insurance Co. v. Grainger (Lawyers Weekly No. 002-038-17, 5 pp.) (Richard Mark Gergel, J.) 4:15-cv-03260 D.S.C.

Holding: Although South Carolina’s appellate courts have not directly addressed the issue of whether two motorcycles colliding with a truck in quick succession constitutes a single accident or two accidents, the South Carolina Supreme Court has characterized a multiple collision incident as a single accident. Therefore, defendants’ accident would be commonly described as a “multi-vehicle accident,” and since there was only one accident, plaintiff’s policy provides only $500,000 of coverage.

The court grants plaintiff’s motion for summary judgment.

Insurance

Auto – Civil Rights – Racial Discrimination Claim – Right to Make a Contract

Garrett v. Bromell (Lawyers Weekly No. 002-149-17, 19 pp.) (J. Michelle Childs, J.) 5:16-cv-02888; D.S.C.

Holding: The defendant-insurer denied plaintiff’s claim that he was injured in an auto accident with a driver (defendant Bromell) insured by the defendant-insurer. Since 42 U.S.C. § 1981 protects not only the right to enforce a contract but also the right to make a contract, plaintiff has stated a claim under § 1981 by alleging that the defendant-insurance claims adjuster told plaintiff’s counsel that, because plaintiff was Caucasian and Bromell was African-American, such racial considerations were favorable and a factor for the insurer’s denial of plaintiff’s claim.

The court grants defendants’ motion to dismiss plaintiff’s civil conspiracy claim without prejudice. The court denies defendants’ motion to dismiss plaintiff’s claims for outrage, negligence, gross negligence, and negligence per se. The court denies defendants’ motion to dismiss plaintiff’s § 1981 claim but strikes the Fifth and Fourteenth Amendment claims because defendants are not state actors.

Insurance

Auto – Personal Injury Protection – Setoff – Workers’ Compensation

Cothran v. State Farm Mutual Automobile Insurance Co. (Lawyers Weekly No. 011-079-17, 10 pp.) (Paula Thomas, J.) Appealed from Spartanburg County Circuit Court (L. Casey Manning, J.) S.C. App.

Holding: Despite language in S.C. Code Ann. § 38-77-144 appearing to prohibit any setoff of personal injury protection (PIP) paid pursuant to an auto insurance policy, our courts have held that, by enacting § 38-77-144, the legislature attempted to ensure that the tortfeasor paid the full amount of damages suffered by the injured party. Thus, the circuit court erred by finding that § 38-77-144 prohibited the parties (an auto insurer and its insureds) from contracting to setoff PIP benefits by the amount plaintiffs received under workers’ compensation law.

We reverse the circuit court’s grant of summary judgment for plaintiffs.

Insurance

Auto – UIM – Meaningful Offer – Online Form – Electronic Signature – Prepopulated – Discovery Violations

Moultrie v. Progressive Direct Insurance Co. (Lawyers Weekly No. 002-178-17, 12 pp.) (David Norton, J.) 2:16-cv-03174; D.S.C.

Holding: The parties dispute whether plaintiff electronically signed the underinsured motorist coverage provision of defendant’s online insurance application. Plaintiff’s reliance on disputed screenshots creates a genuine issue of material fact as to whether plaintiff declined UIM coverage or whether defendant’s software prepopulated his signature onto the UIM form.

The court denies the parties’ cross-motions for summary judgment.

Insurance

Auto – UM – Prejudgment Interest – Bad Faith Claim – Tyger River

Tucker v. Peerless Insurance Co. (Lawyers Weekly No. 002-081-17, 17 pp.) (Bruce Howe Hendricks, J.) 4:13-cv-01809; D.S.C.

Holding: Even though the uninsured motorist (UM) coverage in the parties’ insurance policy does not specifically provide for prejudgment interest, and even though UM statute makes no mention of the right to recover prejudgment interest, since the policy limit was a sum certain at the time it was originally demanded by plaintiff, prejudgment interest is potentially recoverable should plaintiff prove his breach of contract claim.

Plaintiff’s motion to amend his complaint is granted. Defendant’s motion to dismiss is denied.

Insurance

Auto – UM – Unidentified Driver – Plaintiff’s Efforts

Jordan v. Doe (Lawyers Weekly No. 011-086-17, 7 pp.) (James Lockemy, C.J.) Appealed from Richland County Circuit Court (W. Jeffrey Young, J.) S.C. App.

Holding: S.C. Code Ann. § 38-77-170(3) only requires that a party injured by an unidentified driver not be negligent in trying to learn the driver’s identity. Although plaintiff could have done more, he questioned witnesses and drove around looking for the van that hit him. This creates a question of fact with regard to his negligence in failing to determine the identity of the unknown driver at the time of the accident.

We reverse summary judgment for defendant Doe.

Insurance

Bad Faith Win Reversed in Flood Insurance Claim

Woodson v. Allstate Ins. Co. (Lawyers Weekly No. 001-105-17, 20 pp.) (Niemeyer, J.) No. 16-1935, May 3, 2017; USDC at Elizabeth City, N.C. (Boyle, J.) 4th Cir.

Holding: In a dispute over denial of homeowners’ claim under a National Flood Insurance Program for damage by Hurricane Irene to the foundation of their waterfront home, the 4th Circuit reverses the district court’s award of $700,194 in treble damages and $63,963 in attorney’s’ fees for Allstate’s breach of contract and bad-faith handling of the claim; plaintiffs’ timely filing of their suit in state court did not toll the NFIP statute, and their claims are time-barred.

Insurance

CGL – Construction Inspection – Negligently Conducted – Professional Services Exclusion

State Farm Fire & Casualty Co. v. Morningstar Consultants, Inc. (Lawyers Weekly No. 002-143-17, 11 pp.) (Mary Geiger Lewis, J.) 6:16-cv-01685; D.S.C.

Holding: The insurance that plaintiff issued to defendant excluded coverage for “bodily injury, property damage or personal injury due to rendering or failure to render any professional services or treatments. This includes … supervisory or inspection services….” This exclusion bars coverage for defendant in underlying lawsuits that accuse defendant of negligence in its rendering or failing to provide inspections of certain building units.

The court grants plaintiff’s motion for summary judgment.

Insurance

CGL – Framing Contractor – Additional Insured – Bad Faith Claim – Indemnification

UFP Eastern Division, Inc. v. Selective Insurance Co. of South Carolina (Lawyers Weekly No. 002-049-17, 13 pp.) (Richard Mark Gergel, J.) 4:14-cv-02801; D.S.C.

Holding: Even though the plaintiff contractor is an “additional insured” rather than a “named insured” under its subcontractor’s insurance policy, plaintiff may still bring a claim for bad faith refusal to pay benefits under the policy.

The parties’ motions for summary judgment are denied.

Insurance

CGL – Hazing Exclusion – Fraternity Alumnus – Pledge’s Kidney Damage

State Farm Fire & Casualty Co. v. Admiral Insurance Co. (Lawyers Weekly No. 002-036-17, 7 pp.) (Richard Mark Gergel, J.) 4:15-cv-02745; D.S.C.

Holding: At a hazing ritual at the plaintiff-alumnus’s home, the alum did not himself participate in the paddling that caused a pledge to suffer renal failure. However, since the alum hosted the event and admittedly could have stopped it at any time, defendant’s hazing exclusion relieved defendant of the duty to defend or indemnify the alum in the underlying lawsuit brought by the pledge.

Summary judgment for defendant.

Insurance

CGL – Progressive Damage – Allocation – Time on the Risk – Compensatory & Punitive Damages

Harleysville Group Insurance v. Heritage Communities, Inc. (Lawyers Weekly No. 010-007-17, 33 pp.) (John Kittredge, J.) (Costa Pleicones, Acting Justice, dissenting) Appealed from Horry County (John Milling, Special Referee) S.C. S. Ct.

Holding: Where the plaintiff-insurer defended its insured under a reservation of rights, the insurer had a duty to inform the insured of the need for an allocated verdict as to covered versus non-covered damages.

Furthermore, in this case, the punitive damages award is not allocable since the record demonstrates that all of the insured’s reprehensible acts took place during the policies’ terms.

Affirmed in part and affirmed as modified in part.

Insurance

CGL – Reservation of Rights Letter – Standing – Compensatory Damages – Time on the Risk – Punitive Damages – First Impression

Harleysville Group Insurance v. Heritage Communities, Inc. (Lawyers Weekly No. 010-041-17, 40 pp.) (John Kittredge, J.) (Costa Pleicones, Acting Justice, dissenting) Appealed from Horry County (John Milling, Special Referee) Substituted opinion.

Holding: An insurer’s reservation-of-rights letter to its insureds was comprised of generic statements of potential non-coverage coupled with cut-and-pasted portions of the insured’s policy. Since the insurer would be controlling the litigation, it had a duty to – but failed to – inform the insured of the need for an allocated verdict as to covered versus potentially non-covered damages.

As to the novel issue of the allocability of punitive damages, since the insurer does not contend that any of the conduct which led to the punitive damage award occurred outside its policy periods, we uphold the special referee’s decision not to allocate the punitive damage award based on the insurer’s time on the risk.

We modify the special referee’s verdict slightly as to one of the underlying lawsuits but otherwise affirm the special referee’s finding as to the insurer’s duty to indemnify, including punitive damages.

Insurance

Civil Practice – Statute of Limitations – Denial Letter – Appeal Process

Davis v. Bankers Life & Casualty Co. (Lawyers Weekly No. 002-168-17, 10 pp.) (Timothy Cain, J.) 6:16-cv-03100; D.S.C.

Holding: The defendant-insurance company denied plaintiff’s claim via a July 8, 2013, letter, which also explained that plaintiff could submit additional materials “for further review” and that the company would “consider your appeal and … contact you upon conclusion of the review.” Despite the possibility of an appeal, since the letter unambiguously denied plaintiff’s claim, plaintiff’s claims for breach of insurance contract and insurance bad faith accrued upon her receipt of the letter, and her Aug. 10, 2016, complaint was not filed within the applicable three-year statute of limitations period.

The court grants summary judgment for defendant.

Insurance

Declaratory Judgment Action – Underlying Insurance Lawsuit – Rescission

QBE Insurance Corp. v. Ocean Keyes Development, LLC (Lawyers Weekly No. 002-216-17, 11 pp.) (R. Bryan Harwell, J.) 4:17-cv-01611; D.S.C.

Holding: In state court, there are several related lawsuits arising out of the construction of townhomes in North Myrtle Beach, and one of these underlying lawsuits involves questions of insurance coverage. However, plaintiff QBE Insurance Corp. is not a party to that lawsuit, and a motion to add QBE as a party was denied by the state court. If this court chose to abstain from moving forward with QBE’s lawsuit, QBE would be deprived of the opportunity to litigate its claims.

Moreover, in addition to its declaratory judgment action, QBE brings claims for rescission and reimbursement of fees and costs; thus, this federal action appears to seek relief based on different remedies than those brought forth in state court. The state and federal actions are not sufficiently parallel for this court to abstain from exercising jurisdiction.

The court denies defendants’ motion to dismiss or to stay proceedings.

Insurance

Homeowners – Duty to Defend – Hazing Lawsuit – Intentional Torts & Negligence Allegations

Allstate Insurance Co. v. Ingraham (Lawyers Weekly No. 002-086-17, 40 pp.) (Bruce Howe Hendricks, J.) 7:15-cv-03212; D.S.C.

Holding: Even though many of the allegations in the underlying hazing complaint involved intentional conduct, since the UVa upperclassmen who allegedly ordered a first-year swim team member to drink copious amounts of milk and prune juice did not necessarily intend to make the first-year vomit, the plaintiff-insurer had a duty to defend the defendant-upperclassman.

The court denies the plaintiff-insurer’s motion for summary judgment, grants defendants’ motion for partial summary judgment, and denies without prejudice defendants’ motion to compel discovery.

Insurance

Life – Application – Medical Conditions – Materiality & Intent – Evidence – Expert Witness

Ball v. USAA Life Insurance Co. (Lawyers Weekly No. 002-143-17, 34 pp.) (David Norton, J.) 2:16-cv-00041; D.S.C.

Holding: Even though an applicant for life insurance granted the insurer access to his medical records and suggested where such records could and might be found, since he denied that he had been treated for mental disorders like depression when he had actually been treated for depression and PTSD, there is a genuine issue of material fact as to whether the applicant’s answers were material and whether he intended to deceive the insurer.

The court grants in part and denies in part the insurer’s motion for summary judgment, denies plaintiff’s motion for summary judgment, and grants in part and denies in part plaintiff’s motion in limine.

Insurance

Life – Domestic Relations – Separation Agreement – Court Approval – ‘Divorce’

State Farm Life Insurance Co. v. Murphy (Lawyers Weekly No. 002-176-17, 13 pp.) (David Norton, J.) 2:15-cv-04793; D.S.C.

Holding: When a family court judge issued a “final order” in August 2010 approving the parties’ separation agreement – which required each party to maintain life insurance of $100,000 “for the benefit of the children” – and “resolving the issues of custody of the minor children, visitation and division of any remaining marital debt,” this order qualifies as a divorce under S.C. Code Ann. § 62-2-507(a)(2). Therefore, the statute, with an effective date of Jan. 1, 2014, does not disqualify plaintiff from receiving her late ex-husband’s life insurance proceeds.

The court grants summary judgment for the defendant ex-wife and denies summary judgment for the other defendant beneficiary. The court grants summary judgment for the plaintiff interpleading insurer on the ex-wife’s counterclaims and claim for attorney’s fees.

Insurance

Life – Policy Assignment – Statute of Limitations – Debtor’s Bankruptcy

Massachusetts Mutual Life Insurance Co. v. Hiller (Lawyers Weekly No. 002-165-17, 9 pp.) (J. Michelle Childs, J.) 6:16-cv-01643; D.S.C.

Holding: The decedent died in 2015, but her life insurance policy was assigned to defendant A.E. Pennebaker Co. in 1986; nevertheless, the statute of limitations does not bar Pennebaker’s claim to the policy’s proceeds. A contractual assignment of life insurance policy proceeds is the basis of Pennebaker’s claim, not the decedent’s 30-year-old loan notes and security agreements.

The court denies both defendants’ motions for partial summary judgment on their crossclaims.

Insurance

Professional Malpractice – Accountants – Coverage Amount – Claims Reporting

CAMICO Mutual Insurance Co. v. Jackson CPA Firm (Lawyers Weekly No. 002-011-17, 27 pp.) (Patrick Michael Duffy, J.) 2:15-cv-01823; D.S.C.

Holding: Although the defendant-accountants bought a $1,000,000 professional negligence policy from the plaintiff-insurer, since defendants learned of a potential claim against them during their 2010-2011 policy year but did not report it to plaintiff until the 2011-2012 policy year, the policy limits coverage to $100,000 for the client’s claim and the accountants’ defense costs. Furthermore, since multiple clients’ claims stem from the same source – a now-retired accountant’s declining performance due to his struggle with Parkinson’s disease – all clients’ claims are limited to the same $100,000.

The court declares that (1) the multiple clients’ claims constitute a single claim under the 2011-2012 policy; (2) the 2011-2012 policy provides $100,000 of coverage for indemnity and defense costs for that combined claim, less $20,600 that has already been paid to settle with one client and defense costs in the clients’ lawsuits; (3) assuming South Carolina’s substantial-prejudice doctrine applies here, plaintiff has proven such prejudice; and (4) defendant Frank Jackson does not have coverage as an innocent insured. Furthermore, plaintiff is entitled to judgment on the accountants’ counterclaims.

                 

Intellectual Property

Patent Infringement – Counterclaims – Preemption – False Statements – Affirmative Defenses – Pleading Standard

Hand Held Products, Inc. v. Code Corp. (Lawyers Weekly No. 002-157-17, 12 pp.) (Richard Mark Gergel, J.) 2:17-cv-00167; D.S.C.

Holding: Defendant’s state-law injurious falsehood and tortious interference counterclaims are not preempted by the Patent Act because defendant alleges that plaintiff went beyond informing defendant’s customers about potential infringement and warning them about possible litigation and added that plaintiff would “bury” defendant and put it “out of business.” Plaintiff’s alleged conduct exceeds the scope of preemption laid out in Globetrotter Software, Inc. v. Elan Computer Grp. Inc., 362 F.3d 1367 (Fed. Cir. 2004).

                                 

Intellectual Property

Trademark – Declaratory Judgment Action – Civil Practice – Standing – Venue

Jeffers Handbell Supply, Inc. v. Schulmerich Bells, LLC (Lawyers Weekly No. 002-119-17, 23 pp.) (J. Michelle Childs, J.) 0:16-cv-03918; D.S.C.

Holding: In a Pennsylvania lawsuit against one of Jeffers Handbell Supply’s employees, Schulmerich Bells alleged that – through Jeffers – the employee was distributing products that infringed Schulmerich’s trademarks and trade dress; therefore, Jeffers had a reasonable apprehension of a future suit against by Schulmerich. At the time the instant declaratory judgment action was filed, Jeffers manufactured, distributed and sold products that Schulmerich alleges infringe its trademarks. Jeffers has thus satisfied both prongs of the standing test that was used prior to MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118 (2007), so the court concludes that Jeffers has met its burden to show standing under the more lenient post-MedImmune test.

The court denies Schulmerich’s motion to dismiss or transfer venue.

Intellectual Property

Trademark – Subject Matter Jurisdiction

Marshall Tucker Band, Inc. v M T Industries (Lawyers Weekly No. 002-079-17, 11 pp.) (Mary Geiger Lewis, J.) 7:16-cv-00420; D.S.C.

Holding: Plaintiff-musical group does not show that defendant-corporation has used The Marshall Tucker Band mark in commerce, therefore federal actions for trademark infringement and trademark dilution are dismissed. Following this dismissal, the court no longer has the independent basis for subject matter jurisdiction over the federal claims for declaratory judgment and trademark cancellation.  The court declines to exercise supplemental jurisdiction over musical group’s remaining state law claims.

Labor & Employment

ADA – Eleventh Amendment Immunity – Federal Funding

Squires v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 002-082-17, 10 pp.) (R. Bryan Harwell, J.) 4:16-cv-02414; D.S.C.

Holding: Even though 42 U.S.C. § 2000d-7(a)(1) abrogates Eleventh Amendment immunity for states that receive federal financial assistance and violate several listed statutes “or the provisions of any other Federal statute prohibiting discrimination,” the statute does not abrogate states’ Eleventh Amendment immunity for claims brought under Title I of the Americans with Disabilities Act.

The court grants defendant’s motion to dismiss.

Labor & Employment

ADA – Failure to Accommodate – Positive Drug Test – Adderall

Gray v. BMW Manufacturing Co. (Lawyers Weekly No. 002-118-17, 27 pp.) (Bruce Howe Hendricks, J.) 7:15-cv-04133; D.S.C.

Holding: Where (1) plaintiff informed his employer that he took Adderall to control his ADD; (2) after a workplace accident, a drug test was positive for amphetamines; (3) the contracted lab said it tried to phone plaintiff to see if he had a prescription, but plaintiff says he never received the calls, and (4) when the employer told plaintiff he was being fired because of a positive drug test, plaintiff offered to bring in his prescription but the employer declined, then plaintiff has made out a claim of failure to accommodate under the Americans with Disabilities Act.

The court adopts the magistrate judge’s recommendations and grants joint-employer BMW’s motion for summary judgment and employer Management Analysis & Utilization Inc.’s (MAU’s) motion for summary judgment as to plaintiff’s discrimination claim. The court denies MAU’s motion for summary judgment as to plaintiff’s failure-to-accommodate claim.

Labor & Employment

Civil Rights – Political Views Expression – Termination – Federal & State Claims

Collins v. Charleston Place, LLC (Lawyers Weekly No. 002-100-17, 13 pp.) (Patrick Michael Duffy, J.) 2:15-cv-04465; D.S.C.

Holding: Although it does appear that the defendant-employer gave a pretextual reason for firing the white plaintiff – saying it was firing her for the rude way she expressed her political beliefs rather than firing her for expressing those beliefs at all – plaintiff has not made a showing that she was fired because of her race.

The court grants summary judgment for defendant as to plaintiff’s federal claims but declines to exercise jurisdiction over plaintiff’s state-law claim.

Labor & Employment

Civil Rights – Retaliation – Sex Discrimination Claim – Lateral Transfer

Odom v. Columbia Police Department (Lawyers Weekly No. 002-079-17, 9 pp.) (Mary Geiger Lewis, J.) 3:15-cv-04313; D.S.C.

Holding: Since the law is unsettled as to whether a lateral transfer constitutes an adverse employment action, the question of whether plaintiff Odom’s transfer amounts to an adverse employment action is better left to the jury.

The court adopts the magistrate judge’s recommendation that defendant’s motion for summary judgment be granted except as to plaintiff Odom’s retaliation claim.

Labor & Employment

Company Could Change Retiree Health Benefits

Barton v. Constellium Rolled Products-Ravenswood LLC (Lawyers Weekly No. 001-113-17, 16 pp.) (Motz, J.) No. 16-1103, May 11, 2017; USDC at Charleston, W.Va. (Goodwin, J.) 4th Cir.

Holding: The 4th Circuit upholds a district court decision denying a class of retirees’ challenge to their former employer’s unilateral alteration of their retiree health benefits; the governing collective bargaining agreement does not provide for vested retiree health benefits.

Labor & Employment

Contract – Confidentiality & Covenant Not to Compete – No Time Limit – Ohio Law

Fay v. Total Quality Logistics, LLC (Lawyers Weekly No. 011-018-17, 15 pp.) (Paula Thomas, J.) (John Geathers, J., concurring) Appealed from Charleston County Circuit Court (Roger Young Sr., J.) S.C. App.

Holding: The confidentiality provisions of the parties’ employment contract function as a covenant not to compete, but they lack any time restriction. Although the contract is governed by Ohio law, which permits blue penciling, it would violate our public policy for this court to insert a reasonable time restriction because doing so would add a term to which the parties did not agree.

We reverse the circuit court’s grant of partial summary judgment for defendant. We dismiss defendant’s appeal because a party may not appeal the denial of summary judgment.

Labor & Employment

Contract – Job Description – Wrongful Termination – Paint Fumes

Martin v. Boeing Co. (Lawyers Weekly No. 002-002-17, 14 pp.) (David Norton, J.) 2:16-cv-02797; D.S.C.

Holding: It does not appear that South Carolina courts have directly contemplated whether a job description creates an employment contract. The court is guided by Peralta v. Cendant Corp., 123 F. Supp. 2d 65 (D. Conn. 2000), in determining that plaintiff’s job description does not create a contractual obligation on the part of the defendant-employer.

Plaintiff’s motion to amend his complaint is denied as futile. Defendant’s motion to dismiss is granted.

Labor & Employment

Court Sets Test for ‘Joint Employer’

Salinas v. Commercial Interiors Inc. (Lawyers Weekly No. 001-024-17, 54 pp.) (Wynn, J.) No. 15-1915, Jan. 25, 2017; USDC at Greenbelt, Md. (Motz, J.) 4th Cir.

Holding: The 4th Circuit reverses summary judgment for defendants in this wage and overtime-pay suit under state and federal law filed by plaintiff drywall installers; the appeals court sets forth its own test for “joint employer” relationships under the FLSA, and says the district court erred in holding that defendants were not joint employers, but had a “legitimate contractor-subcontractor relationship.”  

Labor & Employment

ERISA – State-Law Counterclaims – Preemption – First Impression

Shepherd v. Community First Bank (Lawyers Weekly No. 002-193-17, 9 pp.) (Mary Geiger Lewis, J.) 8:15-cv-04337; D.S.C.

Holding: Since defendants’ state-law counterclaims relate to the parties’ ERISA plan, those counterclaims are preempted by ERISA.

The court grants plaintiff’s motion to dismiss defendants’ state-law counterclaims.

Labor & Employment

ERISA – Tort/Negligence – Breach of Fiduciary Duty – Piggly Wiggly Demise

Spires v. Schools (Lawyers Weekly No. 002-145-17, 28 pp.) (Richard Mark Gergel, J.) 2:16-cv-00616; D.S.C.

Holding: Where plaintiffs have alleged that the assets of an ERISA employee stock ownership plan were used to redeem insiders’ promissory notes at more than the value of the related shares, plaintiffs have alleged a violation of 29 U.S.C. § 1106(a)

The court grants in part and denies in part the motion to dismiss filed by defendants Edenfield, Masche, Newton, Burton Schools, David Schools, the Piggly Wiggly Carolina Co., Inc. (PWCC), and the Employee Stock Ownership Plan and Trust Committee (collectively, the Piggly Wiggly defendants). The court denies the motion to dismiss filed by defendants Ayers and Marion Schools (the noteholder defendants).

Labor & Employment

FLSA – Executive Exemption – Hiring & Firing – Union Gangs – SCPWA

Chaplin v. SSA Cooper, LLC (Lawyers Weekly No. 002-165-17, 17 pp.) (David Norton, J.) 2:15-cv-01076; D.S.C.

Holding: Although the plaintiff-stevedores have the authority to “knock off” a union worker (send him home for the day), the worker may be hired again the next day, and there is a dispute as to whether the defendant-employer gives “particular weight” to the stevedores’ recommendations as to which workers should be “knocked off.” Accordingly, there is a genuine issue as to whether the stevedores have hiring and firing authority, which is required under 29 C.F.R. § 541.100(a) before an employee can qualify for the executive exemption from the Fair Labor Standards Act’s overtime compensation requirements.

The court denies defendant’s motion for summary judgment.

                 

Labor & Employment

FLSA – Minimum Wage & Overtime – Satellite TV Installers –  § 207(i) Exemption – First Impression

Alston v. DIRECTV, Inc. (Lawyers Weekly No. 002-147-17, 51 pp.) (J. Michelle Childs, J.) 3:14-cv-04093; D.S.C.

Holding: The FLSA provides an exemption from 29 U.S.C. § 207(a)’s overtime wage requirement for qualifying employers that employ the employee in “a retail or service establishment.” Defendants have failed to prove that plaintiffs – technicians who installed and repaired satellite television service systems – worked in a retail or service “establishment,” though defendant DIRECTV may be a retail “enterprise.”

Prior to the summary judgment hearing, the court denies defendants’ summary judgment motion in part.

Labor & Employment

FLSA – Overtime – Truck Drivers – Mixed Fleet

Schilling v. Schmidt Baking Co. (Lawyers Weekly No. 001-200-17, 13 pp.) (Barbara Milano Keenan, J.) 16-2213; Nov. 17, 2013; USDC at Baltimore, Md. (J. Frederick Motz, S.J.) 4th Cir.

Holding: Employees who spent 65 to 85 percent of their time making deliveries, using a mixed fleet of vehicles, some of which weighed more than 10,000 pounds, were entitled to overtime wages when they worked more than 40 hours per week.

We vacate the district court’s order dismissing plaintiffs’ claims for overtime wages under the Fair Labor Standards Act, affirm the dismissal of plaintiffs’ state-law claims, and remand for further proceedings.

                                

Labor & Employment

Football Player Wins ERISA Claim for CTE Disability

Solomon v. Bert Bell/Pete Rozelle NFL Player Retirement Plan (Lawyers Weekly No. 001-150-17, 13 pp.) (Duncan, J.) No. 16-1730, June 23, 2017; USDC at Baltimore, Md. (Garbis, J.) 4th Cir.

Holding: In denying disability benefits to professional football player Jesse Solomon, who sustained more than 69,000 full-speed contact hits during his nine-year NFL career, the plan administrator for an NFL retirement and disability plan failed to follow a reasoned process, explain its determination, or even acknowledge new and uncontradicted evidence, including the plan’s own expert’s views; the 4th Circuit affirms a decision that the plan administrator abused its discretion when it arbitrarily denied benefits for Solomon’s chronic traumatic encephalopathy.

Labor & Employment

Public Employees – Administrative Remedies – Exhaustion Requirement – Form over Substance

Chapman v. South Carolina Department of Social Services (Lawyers Weekly No. 011-029-17, 7 pp.) (Paul Short Jr., J.) App0ealed from the Administrative Law Court (Carolyn Matthews, ALJ) S.C. App.

Holding: After his client was fired, a lawyer’s letter satisfied the statutory and regulatory requirements for initiating a grievance, despite the fact that the employer’s HR manual required that the same information come to them via a certain form.

We reverse the Administrative Law Court’s rejection of appellant’s grievance for failure to exhaust administrative remedies.

Labor & Employment

Public Employees – Constitutional – First Amendment – Political Activism – Schools & School Boards – Inappropriate Comments

Penley v. McDowell County Board of Education (Lawyers Weekly No. 001-206-17, 31 pp.) (Stephanie Thacker, J.) (J. Harvie Wilkinson III, J., concurring) 16-2034; Nov. 28, 2017; USDC at Asheville, N.C. (Max Cogburn Jr., J.) 4th Cir.

Holding: A state house member allegedly threatened the plaintiff-teacher – who had worked in political campaigns against him – saying he would pay plaintiff back and “beat [him] like a bad drum.” However, since plaintiff’s superintendent learned about the politician’s dislike of plaintiff eight months before plaintiff’s admittedly inappropriate classroom comment led to an investigation which revealed other inappropriate comments, plaintiff has failed to show that his termination (pre-reinstatement) was causally related to his political activity.

We affirm summary judgment for defendants.

Labor & Employment

Religious Faith Supported Hand Scanner Bias Claim

U.S. EEOC v. Consol Energy Inc. (Lawyers Weekly No. 001-133-17, 34 pp.) (Harris, J.) No. 16-1230, June 12, 2017; USDC at Clarksburg, W.Va. (Stamp, J.) 4th Cir.

Holding: A mining company discriminated in violation of Title VII against plaintiff, an evangelical Christian who had a religious objection to using a biometric hand scanner, when it refused to accommodate his beliefs, despite offering alternatives to the hand scanner to employees with hand injuries; the 4th Circuit affirms judgment for plaintiff, who involuntarily retired after 37 years as a coal miner, upholding awards of $150,000 in compensatory damages and $436,860.74 in front and back pay and lost benefits.

Labor & Employment

SCWPA – Statute of Limitations – Contract – Independent Contractors or Employees – Chargebacks & Holdbacks – Home Security Systems

Sill v. AVSX Technologies, LLC (Lawyers Weekly No. 002-091-16, 13 pp.) (Margaret Seymour, S.J.) 3:16-cv-00555; D.S.C.

Holding: There appears to be no jurisprudence holding that a failure to pay a salesperson’s “holdbacks” constitutes a continuing violation under the South Carolina Wage Payment Act; however, courts interpreting the Fair Labor Standards Act’s similar statute of limitations have found that each failure to pay proper wages begins a new limitations period. The court holds that each week or month when defendant failed to pay plaintiffs their holdbacks created a new cause of action. Since plaintiffs filed their complaint on Dec. 23, 2015, any sums due to plaintiffs before Dec. 23, 2012, falls outside the statute of limitations.

The court grants summary judgment for defendant as to any claim that accrued before Dec. 23, 2012; otherwise, defendant’s motion is denied. The parties’ cross-motions in limine are denied.

Labor & Employment

SCPWA – Tips as Wages – Taxation – Over-reported Tips – Civil Practice – Class Action

Carbone v. Zen 333 Inc. (Lawyers Weekly No. 002-008-17, 24 pp.) (David Norton, J.) 2:16-cv-00108; D.S.C.

Holding: Since tips are given as compensation for labor, they plainly fall within the scope of the phrase “all amounts at which labor is rendered [are] recompensed.” S.C. Code Ann. § 41-10-10. There is nothing in the South Carolina Payment of Wages Act definition stating that a “wage” must come from the employer. A straightforward reading of the statute indicates that tips are considered wages under the SCPWA.

The court denies defendants’ motion to dismiss plaintiffs’ SCPWA claim. The court grants defendants’ motion to dismiss plaintiffs’ claim under the Internal Revenue Code (IRC), but does so without prejudice. The court grants plaintiffs’ motion for conditional class certification.

Prisons & Jails

Civil Detainee Challenges Confinement Conditions

Matherly v. Andrews (Lawyers Weekly No. 001-134-17, 35 pp.) (Diaz, J.) No. 16-6473, June 8, 2017; USDC at Raleigh, N.C. (Britt, J.) 4th Cir.

Holding: A plaintiff committed to FCI Butner as a “sexually dangerous person” under the Adam Walsh Act loses his suit contending that he is subjected to many of the same conditions of confinement as criminal detainees in federal custody at Butner.

Prisons & Jails

Constitutional – Eighth Amendment – ‘Rough Ride’ – Excessive Force – Deliberate Indifference

Thompson v. Virginia (Lawyers Weekly No. 001-224-17, 38 pp.) (Roger Gregory, C.J.) 15-7680; Dec. 18, 2017; USDC at Norfolk, Va. (Rebecca Beach Smith, C.J.) 4th Cir.

Holding: If, as the plaintiff-prisoner forecasts, prison guards gave him a “rough ride” in a prison van in order to teach him a lesson about filing grievances, then the driver used excessive force and the other guard was deliberately indifferent.

The court reverses summary judgment for these two guards. The court affirms summary judgment for the remaining defendants. Remanded.

Prisons & Jails

Failure to Exhaust Is Affirmative Defense

Custis v. Davis, Warden (Lawyers Weekly No. 001-079-17, 10 pp.) (Gregory, J.) No. 15-7533, March 23, 2017; USDC at Norfolk, Va. (Davis, J.) 4th Cir.

Holding: The 4th Circuit reverses dismissal of a suit filed by an inmate who was assigned to a lower bunk because of missing toes on his right foot, and who fell and suffered injuries while climbing the ladder to the upper bunk he was given; the district court improperly sua sponte examined plaintiff’s administrative exhaustion requirement.

Prisons & Jails

No Qualified Immunity for Prisoner Retaliation Claim

Booker v. S.C. Dep’t of Corrections (Lawyers Weekly No. 001-102-17, 36 pp.) (Gregory, J.) No. 15-7679, April 28, 2017; USDC at Charleston, S.C. (Lewis, J.) 4th Cir.

Holding: The 4th Circuit reinstates plaintiff prisoner’s First Amendment claim against defendant correctional officials who allegedly retaliated against him by filing an “Incident Report” after he complained that the mailroom supervisor had opened his confidential legal mail; the district court erred in holding defendants had qualified immunity.

Real Property

Adverse Possession – Abandonment – Incorrect Tax Records – Tax Sale Challenge

Taylor v. Heirs of William Taylor (Lawyers Weekly No. 011-027-17, 14 pp.) (Paula Thomas, J.) Appealed from Beaufort County (Marvin Dukes III, Master-in-Equity) S.C. App.

Holding: For at least the period between 1956 and 1972, appellants and their family adversely possessed the parcel in question on Warsaw Island. Even if they abandoned the property after 1972 – and the evidence shows they did not – they had already gained title to the property, so they could not lose title by abandoning the property. Furthermore, appellants can challenge a tax sale more than two years after it occurred because – due to an inexplicable tax map switch of parcel numbers – appellants did not receive notice of the sale.

We reverse the master-in-equity’s judgment for respondents.

Real Property

Development vs. Improvement – Separate Meanings

Hanold v. Watson’s Orchard Property Owners Association, Inc. (Lawyers Weekly No. 010-011-17, 5 pp.) (Kaye Hearn, J.) (Costa Pleicones, Acting Justice, joined by John Few, J., concurring) Appealed from Greenville County Circuit Court (Edward Miller, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: We write only to clarify that the terms “developed” and “improved” may not be used interchangeably. The requirements for improved land, such as the installation of utilities or buildings, are not necessary to meet the lower threshold of developed land, which connotes conversion of raw land into an area suitable for building, residential, or business purposes.

Although the Court of Appeals should have limited its inquiry to consider only evidence as it relates to “developed” lots, any error in conflating the two terms did not affect the outcome in this case, and we agree with the Court of Appeals’ conclusion that petitioners did not “develop” their property. Affirmed.

Real Property

Easements – Improvements – Civil Practice – Statute of Limitations – Oil Spill

Lewis v. Kinder Morgan Energy Partners, L.P. (Lawyers Weekly No. 002-130-17, 12 pp.) (Henry Herlong Jr., S.J.) 8:15-cv-04792; D.S.C.

Holding: Where defendants own an easement across plaintiffs’ farm as well as the improvement – an oil pipeline – thereon, S.C. Code Ann. § 15-3-670(A) prevents defendants from taking advantage of S.C. Code Ann. § 15-3-640’s statute of repose, which applies to improvements to real property, generally by parties who do not own the real property that has been improved.

Defendants’ motion for partial summary judgment is denied.

                              

Real Property

Foreclosure – Judicial Sale – Right of Redemption – Sale & Bid Compliance – Notice – Homeowners’ Association

Wachesaw Plantation East Community Services Association, Inc. v.  Alexander (Lawyers Weekly No. 011-042-17, 9 pp.) (John Geathers, J.) Appealed from Georgetown County (Joe Crosby, Master-in-Equity) S.C. App.

Holding: Since the homeowners’ association sought no deficiency judgment in this foreclosure action, the bidding did not have to remain open for 30 days after the auction; therefore, the defaulting homeowner’s right of redemption ended with the public auction, not with the issuance of the deed. The mere possibility of discovering an irregularity before issuance of the deed does not translate into a longer redemption period.

We affirm the denial of the homeowner’s motion to vacate the judicial sale.

Real Property

Homeowners’ Insurance – Interpleader Counter- & Crossclaims – Reverse Mortgage – Destruction by Fire – Ongoing Foreclosure

Auto-Owners Insurance Co. v. Bolden (Lawyers Weekly No. 002-139-17, 24 pp.) (David Norton, J.) 9:16-cv-02961; D.S.C.

Holding: Where a reverse mortgagee had already instituted foreclosure proceedings when the mortgagor was killed by a fire that destroyed the mortgaged premises, the court has jurisdiction over the mortgagor’s estate’s counterclaims against the interpleading homeowner’s insurer as well as the estate’s crossclaims against the reverse mortgagee.

The court grants in part and denies in part the insurer’s motion for interpleader, grants in part and denies in part the insurer’s motion to dismiss the estate’s counterclaims, and grants in part and denies in part the reverse mortgagee’s motion to dismiss the estate’s crossclaims.

Real Property

Mortgages – Foreclosure – Civil Practice – Jury Trial Demand – Clerk’s Referral

South Carolina Community Bank v. Salon Proz, LLC (Lawyers Weekly No. 011-028-17, 7 pp.) (Stephanie McDonald, J.) Appealed from Richland County (Joseph Strickland, Master-in-Equity) S.C. App.

Holding: Although Rule 53(b), SCRCP, says that, in a foreclosure action, “some or all of the causes of action … may be referred to a master … by order of … the clerk of court,” the clerk does not retain this power to refer a case when a party has already made a valid jury demand.

We reverse the master-in-equity’s denial of defendant’s motion to transfer the case to the jury docket.

Real Property

Restrictive Covenants – Hilton Head Rental – Guest Suite – ‘Kitchen’

Community Services Associates, Inc. v. Wall (Lawyers Weekly No. 011-085-17, 9 pp.) (John Geathers, J.) Appealed from Beaufort County (Marvin Dukes III, Master-in-Equity) S.C. App.

Holding: Sea Pines Plantation’s restrictive covenants do not allow homeowners to rent out their guest suites, so respondents moved into their guest suite (accessible only by an outdoor staircase) and rented out the first floor of their dwelling. This did not violate the letter of the restrictive covenants. Furthermore, a hot plate, toaster oven and mini-refrigerator in the guest suite did not constitute a second kitchen, which would have been prohibited by the restrictive covenants.

We affirm the master-in-equity’s decision in favor of respondents.

       

Real Property

Settlement – No Setoff – Different Damages – Defective Construction

The Oaks at Rivers Edge Property Owners Association, Inc. v. Daniel Island Riverside Developers, LLC (Lawyers Weekly No. 011-054-17, 20 pp.) (Aphrodite Konduros, J.) (Stephanie McDonald, J., concurring in the result only without separate opinion) Appealed from Berkeley County Circuit Court (J. C. Nicholson Jr., J.) S.C. App.

Holding: Even though the plaintiff-property owners’ association (POA) received $7,702,552 in partial settlement of the amount it would cost to repair the buildings in its condominium complex, since the POA presented evidence of other repair costs not covered by the settlement payment, the trial court did not err in declining to offset its damage award with the settlement funds.

We affirm the trial court’s award of $7,934,704.06 in repair costs, $793,470.41 for engineering fees, and $641,520 for moving, storage and replacement lodging, plus $19,440 against defendant Daniel Island Riverside Developers, LLC, for failure to fund reserves as promised.

Real Property

Timeshares – Administrative – Agency Decisions – Certified Questions

Fullbright v. Spinnaker Resorts, Inc. (Lawyers Weekly No. 010-032-17, 16 pp.) (John Kittredge, J.) On certification from the U.S. District Court for the District of South Carolina.

Holding: In response to certified questions, the court holds that, despite the Real Estate Commission’s authority over timeshares, a purchaser or lessee still has the right to bring a private action to enforce the Vacation Time Sharing Plans Act (the Timeshare Act); furthermore, a determination by the Real Estate Commission (REC) of a violation of the Timeshare Act is not a condition precedent to a purchaser bringing a private action to enforce the Timeshare Act. Finally, the REC’s determinations as to whether the Timeshare Act was violated are entitled to the same deference as that accorded to other agency rulings.

Schools & School Boards

Jewish Custom Instruction Not Required Under IDEA

M.L. v. Smith (Lawyers Weekly No. 001-174-17, 22 pp.) (Agee, J.) No. 15-1977, Aug. 14, 2017; USDC at Greenbelt, Md. (Grimm, J.) 4th Cir.

Holding: The 4th Circuit upholds a decision that the Individuals with Disabilities Education Act does not require a school system to instruct a disabled student in the customs and practice of his Orthodox Judaism as part of a “free appropriate public education” under the IDEA.

Taxation

Admissions Tax – Administrative Remedies – Exhaustion Required – No Class Actions

Lightner v. Hampton Hall Club, Inc. (Lawyers Weekly No. 010-009-17, 12 pp.) (Donald Beatty, C.J.) (John Few, J., concurring) Appealed from Beaufort County Circuit Court (Perry Buckner III, J.) S.C. S. Ct.

Holding: The South Carolina Revenue Procedures Act applies not only to disputes concerning property taxes, but also to disputes with the Department of Revenue concerning other types of taxes.

We reverse the circuit court’s ruling that the SCRPA does not apply to plaintiff’s claim concerning admissions taxes. We affirm the circuit court’s determination that plaintiff may not bring a class action.

Taxation

Exec’s Stock Was Not Company ‘Expense’

Qinetiq US Holdings Inc. v. Comm’r of Internal Revenue (Lawyers Weekly No. 001-010-17, 22 pp.) (Keenan, J.) No. 15-2192, Jan. 6, 2017; USTC; 4th Cir.

Holding: The 4th Circuit upholds a U.S. Tax Court decision that appellant company was not entitled to a tax deduction for the value of stock, issued as compensation to an executive, as a trade or business expense in 2009; the IRS complied with all applicable procedural requirements in issuing a Notice of Deficiency to the company, and the tax court did not err in concluding that the stock failed to qualify as a deductible expense for the 2009 tax year because the stock was not issued subject to a substantial risk of forfeiture.

Tort/Negligence

Aiding & Abetting Breach of Fiduciary Duty – Trust’s Accountants

Bennett v. Carter (Lawyers Weekly No. 010-063-17, 8 pp.) (George James Jr., J.) Appealed from Charleston County Circuit Court (Roger Young Sr., J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: While the accountants for a trust may have aided and abetted the trustees’ breach of fiduciary duty by writing checks to the trustees, the accountants are not liable for failing to notify the trust’s residual beneficiaries of the trustees’ breach.

We modify and affirm the Court of Appeals’ decision, which reversed in part the circuit court’s grant of summary judgment for the accountants.

Taxation

Real Property – Homestead Exemption – Hilton Head Rental

Mead v. Beaufort County Assessor (Lawyers Weekly No. 011-001-17, 14 pp.) (Aphrodite Konduros, J.) Appealed from the Administrative Law Court (John McLeod, ALJ) S.C. App.

Holding: Even though the taxpayer (who is over 65) rented out his Hilton Head home for at least 138 days in 2011, he is still entitled to the homestead exemption for his home.

We modify and affirm the Administrative Law Court’s ruling in favor of the taxpayer.

Tort/Negligence

Assumption of Duty – Train Engineer – Traffic Ticket – Defense

McPherson v. CSX Transportation, Inc. (Lawyers Weekly No. 002-104-17, 15 pp.) (Bruce Howe Hendricks, J.) 4:16-cv-02725; D.S.C.

Holding: The North Charleston police cited plaintiff for obstructing a highway while plaintiff was operating one of defendant’s trains. Although plaintiff alleges that various contracts and defendant’s internal policies and procedures required defendant to defend the citation and prohibited plaintiff from doing so, plaintiff’s allegations fail to establish that defendant owed any duty to plaintiff in defending his citation.

Defendant’s motion to dismiss is granted.

Tort/Negligence

Breach of Fiduciary Duty – Agency – Bank’s Future Employee – Real Property

Gibson v. Ameris Bank (Lawyers Weekly No. 011-035-17, 9 pp.) (James Lockemy, C.J.) (Aphrodite Konduros, J., concurring in the result only without separate opinion) Appealed from Berkeley County (Robert Watson, Master-in-Equity) S.C. App.

Holding: Even though an employee of appellant Ameris Bank sent an email which expressed concerns that Ameris had mismanaged respondents’ loan and had potentially aided their real estate and financial advisor in siphoning off loan proceeds, since that email was sent more than a year after respondents fired the advisor, there is no evidence that Ameris knew about or knowingly participated in the advisor’s breach of fiduciary duty.

We reverse the master-in-equity’s award of $2,913,866 in compensatory and punitive damages to respondents.

Tort/Negligence

Breach of Fiduciary Duty Claim – Contract – Declaratory Judgment – Intellectual Property – Labor & Employment

Wired Fox Technologies, Inc. v. Estep (Lawyers Weekly No. 002-105-17, 41 pp.) (Bruce Howe Hendricks, J.) 6:15-cv-00331; D.S.C.

Holding: Plaintiff alleges that defendant Estep was plaintiff’s independent contractor. Putting aside the undisputed fact that the independent contractor agreement was never signed by either party, defendants convincingly argue that, if a traditional employer/employee agreement alone is not sufficient to give rise to a fiduciary duty, an independent contractor relationship can hardly be sufficient on that score.

The court grants summary judgment for defendants as to plaintiff’s claims. The court grants defendant Estep’s motion for partial summary judgment on his counterclaims.

Tort/Negligence

Civil Rights – DUI Arrest – Lack of Probable Cause – Partially Fabricated Tip

Watson v. Adams (Lawyers Weekly No. 002-088-16, 37 pp.) (Bruce Howe Hendricks, J.) 4:12-cv-03437; D.S.C.

Holding: Where a tip received by a state trooper indicated that a car in a Bojangles parking lot kept “backing up and going forward and backing up and going forward” and [had] been out there for a long time,” the only foreseeable criminal activity that an officer could reasonably suspect was drunk driving. However, the police officer who followed plaintiff’s decedent’s car from the parking lot to his home observed nothing to corroborate this suspicion, so the officer’s traffic stop was unlawful.

The court grants summary judgment to defendant South Carolina Department of Public Safety (SCDPS) on plaintiff’s claims for supervisory liability under § 1983, malicious prosecution, and abuse of process; the court denies SCDPS’ motion for summary judgment on plaintiff’s claims of false imprisonment, false arrest, and grossly negligent supervisor. The defendant-police officer and the defendant-police chief are not entitled to summary judgment on plaintiff’s § 1983 claims of unlawful seizure and unlawful arrest. The police chief and the defendant-town are entitled to summary judgment on plaintiff’s § 1983 claim for supervisory liability. The court grants summary judgment for the town on plaintiff’s claims of malicious prosecution, abuse of process, and grossly negligent supervision; the town’s motion is denied as to plaintiff’s claims of false imprisonment and false arrest. The defendant-state trooper is entitled to summary judgment on plaintiff’s claims of malicious prosecution and civil conspiracy but not on plaintiff’s claims of false imprisonment, false arrest, abuse of process and his § 1983 claims of unlawful seizure and unlawful arrest.

Tort/Negligence

Civil Rights – False Arrest Claim – Waiver Agreement – Glider Pilot – Nuclear Power Plant

Cox v. Duke Energy Inc. (Lawyers Weekly No. 001-204-17, 23 pp.) (Paul Niemeyer, J.) 16-6625; Nov. 20, 2017; USDC at Florence, S.C. (Bruce Hendricks, J.) 4th Cir.

Holding: The plaintiff-glider pilot, who flew near a nuclear power plant, waived his false arrest claim against the defendant-sheriff in exchange for dismissal of a breach of the peace charge, after consultation with his attorney, who suggested and wrote the waiver agreement. Moreover, plaintiff added in his own handwriting that he “accept[ed] dismissal of the subject breach of peace [charge] against [him]” and “agree[d] that no legal action will be taken against Darlington County law enforcement now, or in the future.” The court rejects plaintiff’s argument that his execution of the waiver agreement was not voluntary and that the sheriff’s prosecution of him amounted to prosecutorial misconduct.

We affirm summary judgment for defendants.

Tort/Negligence

Contribution Among Joint Tortfeasors Act – First Impression – Unnamed Tortfeasor – Plaintiff Chooses Rule

Smith v. Tiffany (Lawyers Weekly No. 010-026-17, 23 pp.) (John Kittredge, J.) (Costa Pleicones, Acting Justice, dissenting) Appealed from Saluda County Circuit Court (R. Lawton McIntosh, J.) S.C. S. Ct.

Holding: Once plaintiff settled with one of the alleged tortfeasors in an auto accident, that tortfeasor was immune from suit (pursuant to a covenant not to execute), and the named defendants could not add him as a defendant or a third-party defendant.

We affirm the circuit court’s grant of Corbett Mizzell’s motion for summary judgment.

Tort/Negligence

False Claims Act – Kickback Schemes – Fraud – Medical Testing

United States ex rel. Lutz v. Berkeley Heartlab, Inc. (Lawyers Weekly No. 002-099-17, 13 pp.) (Richard Mark Gergel, J.) 9:14-cv-00230; D.S.C.

Holding: The plaintiff-relator’s complaint (1) alleges that defendant BlueWave Healthcare Consultants, Inc., and two lab companies had agreements that required the lab companies to agree not to charge patients for co-payments or deductibles; (2) alleges that BlueWave leveraged the labs’ no-balance billing practice to induce physician referrals by highlighting the practice in written pamphlets it gave to physicians; (3) identifies physicians and practices who were induced by BlueWave’s promise of co-payment and deductible waivers to refer all of their patients to BlueWave’s laboratory clients; (4) indicates that BlueWave used co-payment and deductible waivers to induce physicians to refer business in exchange for kickbacks; (5) alleges that the labs billed Medicare for patients so referred; and (6) alleges that the labs paid BlueWave commissions in excess of $218 million in connection with those referrals. The complaint alleges the fraudulent scheme in enough detail to give BlueWave adequate notice to prepare a defense for trial.

The court grants BlueWave’s motion to dismiss the relator’s amended complaint with regard to (1) claims that were previously dismissed under the first-to-file bar and (2) the reverse false claims under 31 U.S.C. § 3729(a)(1)(G). The motion is denied as to the Speakers Bureau kickback scheme, (2) the waiver of co-payments/deductibles kickback scheme, (3) claims under 31 U.S.C. § 3729(a)(1)(B) (making or using false records or statements material to payment or approval of false claims), and (4) claims under 31 U.S.C. § 3729(a)(1)(C) (conspiracy to commit False Claims Act violations).

Tort/Negligence

Fraudulent Conveyance – Contractor vs. Lender – Government Grant – Tortious Interference with Contract – Insufficient Showing

McDonald v. Nixon Energy Solutions (Lawyers Weekly No. 002-132-17, 18 pp.) (R. Bryan Harwell, J.) 4:14-cv-02589; D.S.C.

Holding: Even if the defendant-lender should have filed a “Notice of Assignment” when a construction project owner assigned to the lender the owner’s right to receive federal grant money, the Notice of Assignment is designed to protect the U.S. government and does not affect the rights of or between private contracting parties, such as the lender and the defendant-contractor in the crossclaim at issue.

The court grants summary judgment for the lender as to the contractor’s crossclaims. The court also grants summary judgment for plaintiff as to the contractor’s similar counterclaims against plaintiff.

Tort/Negligence

FTCA – Firearms Sale – Background Check – Dylan Roof

Sanders v. United States (Lawyers Weekly No. 002-096-17, 14 pp.) (Richard Mark Gergel, J.) 2:16-cv-02356; D.S.C.

Holding: An FBI error in conducting a criminal background check resulted in Dylan Roof being allowed to purchase the handgun that he used two months later to murder nine parishioners and to attempt to murder three others at Mother Emanuel AME Church in Charleston. The government asserts the discretionary function exception to the Federal Tort Claims Act’s waiver of sovereign immunity; however, whether the FBI examiner should have acted differently under the circumstances is a disputed jurisdictional fact, as is the challenge to the FBI’s maintenance of the National Instant Criminal Background Check System. The court will not decide disputed facts without a complete record developed through appropriate discovery.

The court grants plaintiffs’ motion for jurisdictional discovery. Defendant’s motion to dismiss is denied without prejudice as to the discretionary function exception and as to whether plaintiffs’ claims are not actionable under state-law theories of negligent creation of risk and negligence per se. Defendant’s motion is denied with prejudice as to the misrepresentation exception to the FTCA’s waiver of sovereign immunity.

Tort/Negligence

Medical Malpractice – Civil Practice – Real Party in Interest – Child’s Medical Expenses

Patton v. Miller (Lawyers Weekly No. 010-044-17, 24 pp.) (John Few, J.) (Kaye Hearn, J., concurring in the result) (Costa Pleicones, Acting Justice, dissenting) Appealed from York County Circuit Court (S. Jackson Kimball III, Special Judge) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: After a child was allegedly injured during childbirth and her mother sued only in her capacity as the child’s next friend, the circuit court could have allowed the mother in her individual to be joined or substituted as plaintiff with regard to the child’s past medical expenses, and the defendant-doctor and the defendant-medical practice would not have been prejudiced by defending this suit on its merits.

We reverse the circuit court’s award of partial summary judgment to the doctor and his practice. We affirm partial summary judgment to the defendant-hospital.

Tort/Negligence

Medical Malpractice – Expert Testimony – Causation – Lung Cancer Metastasis

McKaughan v. Upstate Lung & Critical Care Specialists, P.C. (Lawyers Weekly No. 011-065-17, 8 pp.) (James Lockemy, C.J.) Appealed from Spartanburg County Circuit Court (J. Mark Hayes II, J.) S.C. App.

Holding: Plaintiff’s expert in medical oncology and hematology testified to a reasonable degree of medical certainty that the defendant-pulmonologist’s failure to notice the tumor on a January 2010 x-ray of plaintiff’s decedent’s right lung led to the cancer metastasizing to the left-lung tumor that led to the decedent’s death in June 2012. The trial court imposed too high a burden when it required plaintiff to prove how the cancer spread from one lung to the other.

We reverse the trial court’s grant of a directed verdict for defendants.

Tort/Negligence

Medical Malpractice – FTCA – Pre-Suit Filing Requirements – Applicability – Statute of Limitations – Prostate Cancer Diagnosis

Grant v. United States (Lawyers Weekly No. 002-145-17, 22 pp.) (Cameron McGowan Currie, S.J.) 3:17-cv-00377; D.S.C.

Holding: S.C. Code Ann. § 15-79-125’s pre-suit requirements for medical malpractice actions at least partially duplicate the administrative claim requirements of the Federal Tort Claims Act; furthermore, such proceedings would also presumably be under control of the state court as there is no corresponding proceeding available in this court. The court is aware of no decision dismissing an FTCA claim for medical malpractice for failing to comply with § 15-79-125’s pre-suit requirements (as opposed to an obligation to file an expert affidavit with the complaint, which plaintiff did in this case). Plaintiff could not reasonably have predicted the U.S. government would not only consent to state-court jurisdiction for S.C. Code Ann. § 15-79-125’s pre-suit requirements, but also insist that they are a prerequisite to suit.

The government’s motion to dismiss or, in the alternative, for summary judgment is denied. The court seeks additional input from the government as to several issues.

Tort/Negligence

Negligent Hiring & Supervision – Truck Driver – Jug-Handle Maneuver

Holcombe v. Helena Chemical Co. (Lawyers Weekly No. 002-068-17, 13 pp.) (Patrick Michael Duffy, J.) 2:15-cv-02852; D.S.C.

Holding: Even though plaintiff does not allege that defendant’s truck driver intended any harm when he performed an unsafe turn, the court is not persuaded that South Carolina law makes intentional harm an indispensable element of every negligent supervision case.

The court grants in part and denies in part defendant’s motion for partial summary judgment. The court denies plaintiff’s motion to determine the sufficiency of defendant’s objection to a request for admission.

Tort/Negligence

Ordinary Negligence Allegations – Medical Malpractice – No Expert – Third-Person Claim

Delaney v. United States (Lawyers Weekly No. 002-142-17, 14 pp.) (David Norton, J.) 9:14-cv-03421; D.S.C.

Holding: Although plaintiff frames her complaint as one sounding in ordinary negligence, her claim is actually one for medical malpractice by caregivers who allowed an unstable patient to escape. The patient got into an unattended fire truck and drove it at high speed, colliding with several cars and striking and killing plaintiff’s decedent, a pedestrian. Since plaintiff has not produced expert testimony to show that defendant breached an established duty of care, plaintiff’s claim fails.

The court grants defendant’s motion for summary judgment.

Tort/Negligence

Pharmaceuticals – Off-Label Use – Wrongful Death – Generic Manufacturers – Preemption – Learned Intermediary Doctrine

Bean v. Upsher-Smith Pharmaceuticals, Inc. (Lawyers Weekly No. 002-166-17, 17 pp.) (R. Bryan Harwell, J.) 4:16-cv-01696; D.S.C.

Holding: Despite plaintiff’s allegations that the defendant-generic amiodarone hydrochloride manufacturers engaged in their own off-label use marketing efforts and took advantage of Wyeth Pharmaceuticals’ off-label marketing and campaigns to mislead physicians, defendants are protected by FDCA preemption and the learned intermediary doctrine.

The court grants defendants’ motions to dismiss and denies plaintiff’s request for leave to amend.

Tort/Negligence

Product Liability – Homeowners Insurance – Subrogation – Punitive Damages – First Impression – Joinder – Dryer Fires

Allstate Insurance Co. v. Electrolux Home Products, Inc. (Lawyers Weekly No. 002-139-17, 12 pp.) (R. Bryan Harwell, J.) 4:16-cv-03666; D.S.C.

Holding: The court predicts that the South Carolina Supreme Court would hold that punitive damages are not available to insurance companies who sue the manufacturer of an allegedly defective dryer that led to fires in the homes of the insurance companies’ insureds.

The court grants defendant’s motion to dismiss plaintiffs’ claim for punitive damages. The court denies defendant’s motion to sever plaintiffs’ claims.

Tort/Negligence

Products Liability – Airbag Deployment – Comparative Negligence – Strict Liability & Breach of Warranty – Suicide

Wickersham v. Ford Motor Co. (Lawyers Weekly No. 002-130-17, 36 pp.) (David Norton, J.) 9:13-cv-01192; D.S.C.

Holding: Despite the fact that Donze v. General Motors, LLC, 800 S.E.2d 479 (S.C. 2017), is distinguishable from this case, the court applies the reasoning of Donze to hold that comparative fault is not a defense to strict liability or breach of warranty.

The court denies defendant’s post-trial motions.

Tort/Negligence

Products Liability – Design Defect – Inversion Table – Reconsideration

McRee v. Dick’s Sporting Goods, Inc. (Lawyers Weekly No. 002-197-17, 9 pp.) (Richard Mark Gergel, J.) 9:15-cv-04579; D.S.C.

Holding: If plaintiff had effectively secured the ankle assembly on his inversion table, he would not have fallen. However, the alleged defect is that it is unreasonably difficult for a user to ensure that the ankle locking system is secured properly and that, while the need to secure the ankle system is adequately warned, the difficult of ensuring that it is secured is not adequately warned. The court committed a clear error of law when it granted summary judgment for defendant on plaintiff’s product defect claims.

The court grants plaintiff’s motion for reconsideration as to his product defect claims but not as to his negligence claim.

Tort/Negligence

Slip & Fall – Civil Practice – Mediation & Settlement – Confidentiality – Set-Off

Huck v. Oakland Wings, LLC (Lawyers Weekly No. 011-047-17, 6 pp.) (Alison Lee, A.J.) Appealed from Charleston County Circuit Court (Brian Gibbons, J.) S.C. App.

Holding: Rule 8, SCADR, is designed to protect communications made during mediation and to protect the process. The defendant-owner’s request for production of the settlement documents in this case does not disclose confidential information from the mediation between plaintiffs and the settling defendants (i.e., it does not disclose or discuss information the parties used to reach the settlement). Further, any confidential matters the parties do not want disclosed can be protected through court proceedings including confidentiality provisions.

We reverse the trial court’s denial of defendant Avtex Commercial Properties, Inc.’s motions to disclose settlement and for setoff. Remanded.

Tort/Negligence

Strict Liability – Crashworthiness – Certified Questions – Intoxicated Plaintiff – Comparative Negligence – Public Policy

Donze v. General Motors, LLC (Lawyers Weekly No. 010-031-17, 16 pp.) (Kaye Hearn, J.) (John Kittredge, J., concurring in the result) On certification from the U.S. District Court for the District of South Carolina.

Holding: In answer to certified questions from a federal district court judge, we hold that the defense of comparative negligence does not apply in crashworthiness cases, and that South Carolina’s public policy does not bar a plaintiff, allegedly intoxicated at the time of the accident, from bringing a crashworthiness claim against the vehicle manufacturer.

Tort/Negligence

Trip & Fall – Floor Mat ‘Ripple’

Rushton v. United States (Lawyers Weekly No. 002-206-17, 12 pp.) (J. Michelle Childs, J.) 1:15-cv-01378; D.S.C.

Holding: Although plaintiff alleges that she tripped over a ripple in a floor mat at the Wagener Post Office, she has failed to show that the Post Office’s mats had a tendency to wrinkle or that Post Office employees were on notice that the mats created a dangerous condition.

The court grants the government’s motion for summary judgment.

Tort/Negligence

Trip & Fall – Stacked Sandbags – 2015 Flood – Store Entrance

Fish v. CVS Pharmacy, Inc. (Lawyers Weekly No. 002-100-17, 8 pp.) (Cameron McGowan Currie, S.J.) 3:16-cv-00099; D.S.C.

Holding: Unsure as to whether the flooding was over in early October 2015, the defendant-merchant kept sandbags stacked up on either side of its front door, and, as the plaintiff-customer exited the store (she had seen the bags on the far side of the door as she entered but not those on the near side), plaintiff tripped and fell over the sandbags on the near side of the door. There is evidence from which a jury could find either that the risk posed by the sandbags was not open and obvious to a customer leaving the store or that defendant was on notice of a risk of harm despite the obviousness.

Defendant’s motion for summary judgment is denied.

Tort/Negligence

Workplace Injury – Third-Party Tortfeasor – Empty Chair Defense – Jury Instructions – Workers’ Compensation – Certified Questions

Machin v. Carus Corp. (Lawyers Weekly No. 010-025-17, 19 pp.) (John Kittredge, J.) (Costa Pleicones, Acting Justice, dissenting) On certification from the U.S. District court for the District of South Carolina. S.C. S. Ct.

Holding: In answer to certified questions, the court holds that, when a plaintiff seeks recovery from someone other than his employer for an on-the-job injury, (1) the jury may hear an explanation of why the employer is not part of the action, (2) the defendant may argue the empty chair defense and suggest that the plaintiff’s employer is the wrongdoer, and (3) the court may instruct the jury that an employer’s legal responsibility has been determined by another forum. However, the court may not allow the jury to apportion fault against the non-party employer by placing the employer’s name on the verdict form.

Tort/Negligence

Wrongful Death – Strict Liability – Manufacturing Defect – ‘Commissioning’ – Airplane Manufacturing – Undeployed Slider

Priester v. Futuramic Tool & Engineering Co. (Lawyers Weekly No. 002-101-17, 27 pp.) (David Norton, J.) 2:14-cv-01108; D.S.C.

Holding: An elevated work platform was delivered to the Boeing manufacturing facility in North Charleston in an incomplete condition; plaintiff may be able to prove a manufacturing defect against both the initial manufacturer and the company that did the commissioning work on the platform after it was delivered.

The court grants partial summary judgment for defendants Futuramic Tool & Engineering Co., SAR Automation, L.P., and Capital Welding, Inc. as to the issues of failure to warn and design defect. However, the motions are denied as to plaintiff’s strict liability claim based on manufacturing defect.

Trusts & Estates

Taxation – Real Property – Notice

Evans v. Richardson (Lawyers Weekly No. 002-035-17, 12 pp.) (Joseph Anderson Jr., J.) 3:16-cv-03202; D.S.C.

Holding: Where plaintiff’s sister was appointed as the personal representative of their mother’s estate, and where the sister failed to pay the taxes on the mother’s real property, plaintiff himself was not entitled to notice of the tax sale.

Defendants’ motion to dismiss is granted.

Workers’ Compensation

Causation – Ankle Injury – Stocking Merchandise – Idiopathic Exception

Foran v. Murphy USA (Lawyers Weekly No. 011-038-17, 7 pp.) (Stephanie McDonald, J.) Appealed from the Workers’ Compensation Commission. S.C. App.

Holding: Even though the claimant had undergone ankle surgery nine years before she hurt the same ankle at work, since the claimant was performing a work task when she suffered an injury by accident arising out of and in the course of her employment, the Appellate Panel of the Workers’ Compensation Commission committed an error of law in failing to strictly construe the idiopathic exception to coverage.

We reverse the Commission’s denial of compensation.

Workers’ Compensation

Change of Condition – Endogenous Depression – Res Judicata – Statute of Limitations

Wilson v. Charleston County School District (Lawyers Weekly No. 011-022-17, 14 pp.) (Stephanie McDonald, J.) Appealed from Charleston County Circuit Court (J. C. Nicholson Jr., J.) S.C. App.

Holding: Although claimant had experienced some depression in the past, since she did not suffer from endogenous depression until after her work injury and subsequent back surgery, res judicata did not bar her change of condition claim.

Furthermore, even though claimant did not seek a hearing on her change of condition claim until more than a year after the last compensation payment, she timely filed a Form 50 Notice of Claim alleging a change of condition in that her back injury was affecting her mental health. Therefore, her change of condition claim was not time-barred.

We reverse the circuit court’s order affirming the decision of the Appellate Panel of the Workers’ Compensation Commission. We remand to the Appellate Panel for consideration of claimant’s change of condition claim.

Workers’ Compensation

Compensation Rate – Average Weekly Wage – Nightclub Dancer

Lewis v. L.B. Dynasty, Inc. (Lawyers Weekly No. 010-022-17, 4 pp.) (Kaye Hearn, J.) (Costa Pleicones, Acting Justice, concurring in the result only without separate opinion) Appealed from the Workers’ Compensation Commission. On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: The Workers’ Compensation Commission summarily concluded that claimant – a nightclub dancer who was shot at work – was entitled to an award of $75 per week, without indicating what total it assigned to her average weekly wage or how it reached that figure; moreover, the commission’s finding that claimant had presented “no evidence whatsoever” as to the amount of money she earned is plainly wrong. Therefore, the commission’s order is not supported by substantial evidence.

Reversed and remanded for a de novo hearing.

Workers’ Compensation

Insurance Policy – Rescission vs. Cancellation – Procurement by Fraud

Bessinger v. R-N-M Builders & Associates, LLC (Lawyers Weekly No. 011-074-17, 12 pp.) (Paula Thomas, J.) Appealed from the Workers Compensation Commission. S.C. App.

Holding: S.C. Code Ann. § 38-75-730 applies when a party wishes to cancel a workers’ compensation policy already in existence at the time of a loss and not when, as here, an insurer seeks to rescind a policy procured by fraud to cover a preexisting loss. The defendant-insurer could rescind the defendant-employer’s policy and was not required to cancel it in accordance with § 38-75-730.

We affirm the Workers’ Compensation Commission’s ruling that the South Carolina Uninsured Employers’ Fund (UEF) is responsible for paying plaintiff’s workers’ compensation benefits.

Workers’ Compensation

Scheduled-Member Statute – Substantial Evidence – Rebuttable Presumption

Clemmons v. Lowe’s Home Centers, Inc. (Lawyers Weekly No. 010-017-17, 10 pp.) (Kaye Hearn, J.) (John Kittredge, J., concurring in the result only without separate opinion) (Costa Pleicones, Acting Justice, concurring in part & dissenting in part) Appealed from the Workers’ Compensation Commission. On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: After his on-the-job back injury, the claimant-employee returned to work with restrictions. Since the only other relevant evidence was his doctor’s assignment of a 71 percent impairment rating to his spine, employee was entitled to recover under the scheduled member statute.

We reverse the Workers’ Compensation Commission’s denial of such benefits.

 

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