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Most Important Opinions 1Q 2018

 

Administrative

 

Social Security – Disability – Credibility – Pain

Bradshaw v. Berryhill (Lawyers Weekly No. 002-039-18, 15 pp.) (Paige Gossett, USMJ) 0:16-cv-03530; D.S.C.

Holding: Even if the administrative law judge used improper language in determining plaintiff’s residual functional capacity and assessing her credibility, this error was harmless since the ALJ properly analyzed plaintiff’s credibility elsewhere in the opinion.

The denial of Social Security disability benefits is affirmed.

 

Arbitration

 

Nursing Home – Admission Documents – Husband’s Signature – Separate Contracts

Holding: Where a patient was competent and had not executed a power of attorney, her estate is not bound by her husband’s signature on an arbitration agreement, which agreement was separate from the admission agreement the husband signed for the patient on the day before she was admitted to defendants’ nursing home.

We affirm the circuit court’s denial of defendants’ motion to compel arbitration and its denial of defendants’ motion to compel the deposition of the decedent’s husband.

Hodge v. UniHealth Post-Acute Care of Bamberg, LLC (Lawyers Weekly No. 011-027-18, 32 pp.) (Aphrodite Konduros, J.) Appealed from Bamberg County Circuit Court (Clifton Newman, J.) Monteith Powell Todd, John Michael Montgomery, and Robert Horner for Appellants. Joseph Preston Strom, Bakari Sellers, Wallace Lightsey, Meliah Bowers Jefferson, and John Carroll Moylan III for Respondents. S.C. App.

 

Attorneys

 

Discipline – Definite Suspension – Failure to Correct a False Statement – Court Reporter Invoices

Where respondent later learned that evidence he had used in a personal injury trial was false, he violated Rules of Professional Conduct 1.15(e), 3.3(a)(1) and 3.3(a)(3) when he failed to disclose the falsity to the judge in the personal injury action and failed to withhold the disputed amount of the verdict from distribution.

Respondent is suspended from the practice of law in this state for six months.

In re Whitlark (Lawyers Weekly No. 010-029-18, 4 pp.) (Per Curiam) John Nichols and Erika Williams for the Office of Disciplinary Counsel; Joshua Snow Kendrick for respondent. S.C. S. Ct.

 

Attorneys

 

Fees – Contract – Promissory Note – Post-Judgment Collection

Raynor v. Byers (Lawyers Weekly No. 011-001-18, 4 pp.) (Paula Thomas, J.) Appealed from Aiken County Circuit Court (Doyet Early III, J.) S.C. App.

Holding: Where the parties’ promissory note said, “In the event of default in the payment of this note, and if it is placed in the hands of an attorney for collection, the undersigned hereby agrees to pay all costs of collection, including a reasonable attorney’s fee,” the parties intended for the defendant-borrowers to be responsible for all costs of collection, including those incurred in post-judgment attempts at collection.

We affirm the circuit court’s order awarding post-judgment attorney’s fees to plaintiffs.

 

Bankruptcy

 

Real Property – Mortgages – Due on Sale Clause – Debtor’s Late Mother

In re Simpson (Lawyers Weekly No. 003-003-18, 6 pp.) (Helen Burris, J.) 17-05232; B.S.C.

Holding: Even though the mortgage on the debtor’s residence was in the name of his recently deceased mother, and even though the note secured by the mortgage has a “due on sale” clause, since the debtor’s plan proposes to make the payments required by the note and mortgage, the plan’s treatment of the lender complies with the requirements of the Bankruptcy Code.

The court overrules the lender’s objection to the plan.

 

Civil Practice

 

Appeals – ‘Notice’ – Email – Prospective Application

Holding: An email that provides written notice of entry of an order or judgment triggers the time for serving a notice of appeal, if the email is sent from the court, an attorney of record or party. However, given the novelty of the issue, the frequency with which the issue is likely to arise, and the inconsistent case law interpreting Rule 203, SCACR, our ruling on this issue will be applied prospectively.

We affirm as modified and remand to the Court of Appeals to allow the appeal to proceed on its merits.

Wells Fargo Bank, N.A. v. Fallon Properties South Carolina, LLC (Lawyers Weekly No. 010-021-18, 9 pp.) (Donald Beatty, C.J.) (William Keesley, Acting Justice, concurring in part & dissenting in part) Appealed from Spartanburg County (Gordon Cooper, Master-in-Equity) Robert Widener & Weyman Carter for plaintiff; Alexander Hray Jr. for defendants. S.C. S. Ct.

 

Civil Practice

 

Embassy service is a nonstarter under FSIA

Kumar v. Republic of Sudan (Lawyers Weekly No. 001-016-18, 35 pp.) (Agee, J.) No. 16-2267, Jan. 19, 2018; EDVA at Norfolk (Doumar, J.). 4th Cir.

Holding: Holding that service on an embassy was ineffective under the Foreign Sovereign Immunity Act, the court of appeals vacated judgments against the Republic of Sudan relating to the servicemembers killed aboard the U.S.S. Cole when it was bombed by al Qaeda in 2000.

 

Civil Practice

 

Judgments – IRA & 401(k) Contributions – Exempted

First Citizens Bank & Trust Co. v. Blue Ox, LLC (Lawyers Weekly No. 011-013-18, 9 pp.) (Aphrodite Konduros, J.) Appealed from Beaufort County (Marvin Dukes III, Master-in-Equity) S.C. App.

Holding: Because the exemptions in the Homestead Act are to be construed in favor of the debtor, the judgment creditor must demonstrate an actual intent to defraud by the debtor in order to remove IRA contributions from the protection offered by S.C. Code Ann. § 15-41-30(A)(13). A balancing of the factors shows that the judgment creditor failed to demonstrate an actual intent to defraud in this case.

We reverse the master’s ruling that the debtor’s post-judgment contributions to his IRA were subject to execution. We affirm the master-in-equity’s ruling that the debtor’s post-judgment contributions to his 401(k) plan were not subject to execution.

 

Civil Practice

 

Motion to Alter or Amend – Set-Off Claim – Sum Certain — Error of Law

Machinery Solutions, Inc. v. Doosan Machine Tool America Corp. (Lawyers Weekly No. 002-030-18, 8 pp.) (J. Michelle Childs, J.) 3:16-cv-02718; D.S.C.

Holding: Plaintiffs filed this declaratory judgment action seeking a declaration that plaintiff Machinery Solutions, Inc., does not have to pay the $657,678 that defendant has demanded because plaintiffs have a pending lawsuit against defendant for an amount greater than $657,678. The court dismissed plaintiffs’ complaint, finding in part that a claim for set-off requires a sum certain; however, because it appears that Bryce v. Parker, 11 S.C. 337 (1879), is still good law as to set-off by contract and holds that a set-off by contract allows for claims of unliquidated damages, the court concludes that its earlier finding regarding a sum certain is clear error of law.

The court strikes from its previous order the sentence stating, “Second, because the amount of their alleged claim against Defendant is uncertain due to the still pending litigation between the parties, Plaintiffs cannot properly allege a claim for setoff even if it was available to them.” Otherwise, plaintiffs’ motion to alter or amend judgment is denied.

 

Civil Practice

 

No CAFA removal for “additional counter-defendants”

Jackson v. Home Depot USA Inc. (Lawyers Weekly No. 001-015-18, 16 pp.) (Duncan, J.) No. 17-1627, Jan. 22, 2018; WDNC at Charlotte (Mullen, J.) 4th Cir.

Holding: Where an original defendant makes counterclaims naming additional parties as counter-defendants, those additional parties are not entitled to remove the claims against them to federal court even under the permissive standards of the Class Action Fairness Act.

 

Civil Practice

 

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

Holding: A mentally disabled man’s disability did not end when his mother was appointed his guardian. Accordingly, S.C. Code Ann. § 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.

Estate of Mims v. South Carolina Department of Disabilities & Special Needs (Lawyers Weekly No. 011-025-18, 14 pp.) (D. Garrison Hill, J.) Appealed from Richland County Circuit Court (G. Thomas Cooper Jr., J.) Patricia Logan Harrison for plaintiff; William Davidson II & Kenneth Woodington for defendants. Substituted opinion; S.C. App.

 

Civil Practice

 

Students show injury from SC school-disturbance law

Students’ fear of future arrest for violating vague school-conduct statutes was sufficiently well-founded to constitute an injury-in-fact and support their standing to challenge the laws’ constitutionality.

Kenny v. Wilson (Lawyers Weekly No. 001-049-18, 18 pp.) (Diaz, J.) No. 17-1367; Mar. 15, 2018; DSC at Charleston (Houck, J.) Sarah Hinger for Appellants; James Emory Smith Jr. and Sandra J. Senn for Appellees. 4th Cir.

 

Civil Rights

 

FOIA – Attorneys – Discipline – Complaints against Solicitor

Because Rule 12(b), RLDE, indicates that lawyer disciplinary complaints do not become public until after formal charges are filed, and because no formal charges were filed against the defendant-solicitor, any disciplinary complaints against the solicitor would not be public documents, and she would not be required to disclose them pursuant to the Freedom of Information Act.

We affirm the circuit court’s refusal to compel the solicitor to produce any disciplinary complaints against her.

South Carolina Lawyers Weekly v. Wilson (Lawyers Weekly No. 011-029-18, 8 pp.) (James Lockemy, C.J.) Appealed from Charleston County Circuit Court (R. Markley Dennis Jr., J.) Desa Ballard and Harvey Watson III for appellant; Alan McCrory Wilson, Robert Cook, and J. Emory Smith Jr. for respondent. S.C. App.

 

Civil Rights

 

Invasive search of “sexting” suspect was unreasonable

Even acting pursuant to a warrant, a police detective was not entitled to qualified immunity for compelling a teenager to perform a sexual act.

Sims v. Labowitz (Lawyers Weekly No. 001-050-18, 29 pp.) (Keenan, J.) No. 16-2174; published opinion after rehearing; Mar. 14, 2018; EDVA at Alexandria (Hilton, J.) Victor M. Glasberg for Appellant; Julia Bougie Judkins for Appellee. 4th Cir.

 

Constitutional

 

Continuing “indifference” extends limitations period

When inmates sue under § 1983 for prison officials’ disregard of a serious and ongoing medical need, the statute of limitations does not begin to run until the date, if any, on which adequate treatment is provided.

DePaola v. Clarke (Lawyers Weekly No. 001-043-18, 15 pp.) (Keenan, J.) No. 16-7360; Mar. 9, 2018; WDVA at Roanoke (Jones, J.) Charles Christopher Moore for Appellant; Trevor Stephen Cox, John Thomas Jessee, and Carlene Booth Johnson for Appellees. 4th Cir.

 

Constitutional

 

Handcuffing student was excessive force

E.W. v. Dolgos (Lawyers Weekly No. 001-026-18, 50 pp.) (Gregory, J.) No. 16-1608, Feb. 12, 2018; DMD at Baltimore (Motz, J.) 4th Cir.

Holding: A school safety officer used excessive force in handcuffing an elementary student who posed no objective threat, but the officer was still entitled to qualified immunity for the constitutional violation.

 

Constitutional

 

Insufficient evidence that former DA retaliated

Biers v. Cline (Lawyers Weekly No. 006-004-18, 7 pp.) (Per Curiam) No. 17-1619, Feb. 9, 2018; MDNC at Greensboro (Eagles, J.) 4th Cir.

Holding: Appellant Samuel Biers appeals the district court’s entry of judgment as a matter of law in favor of Appellee Tracey Cline during a jury trial on Biers’s First Amendment retaliation claim. Biers claimed that, in 2011, Cline – then the District Attorney of Durham County – conspired to remove Biers from his magistrate position and publicly humiliate him in retaliation for Biers’s exposure of Cline’s misconduct. On appeal, Biers claims that the district court abused its discretion by excluding extrinsic evidence of Cline’s retaliatory intent and that the district court erred in finding that no reasonable juror could find retaliation.

 

Constitutional

 

Travel ban’s third iteration likely unconstitutional

Int’l Refugee Assistance Project v. Trump (Lawyers Weekly No. 001-029-18, 285 pp.) (Gregory, J.) No. 17-2231; Feb. 15, 2018; DMD at Greenbelt (Chuang, J.) 4th Cir.

Holding: The appellate court affirmed a nationwide preliminary injunction on the Trump administration’s travel ban, which the district court held was a likely violation of the First Amendment’s guarantee of religious freedoms.

 

Consumer Protection

 

Free-offer fax was unsolicited fax under TCPA

Holding: The district court lacked jurisdiction to consider the validity of an FCC rule regarding unsolicited faxes, and it erred in concluding that the rule applied only to faxes with a facially commercial aim.

Carlton & Harris Chiropractic Inc. v. PDR Network LLC (Lawyers Weekly No. 001-033-18, 30 pp.) (Diaz, J.) No. 16-2185; Feb. 23, 2018; SDWV at Huntington (Chambers, J.) Glenn Lorne Hara for Appellant. Jeffrey N. Rosenthal from Appellees. 4th Cir.

 

Contract

 

Arbitration waived by merits-based litigation

Degidio v. Crazy Horse Saloon & Rest. Inc. (Lawyers Weekly No. 001-019-18, 16 pp.) (Wilkinson, J.) No. 17-1145, Jan. 18, 2018; DSC at Florence (Hendricks, J.) 4th Cir.

Holding: An exotic dance club could not enforce arbitration agreements it obtained from its entertainers when it used those agreements as an “insurance policy” for merits-based litigation, the court of appeals said.

 

Contract

 

Indemnification Clause – Violation of Public Policy

D.R. Horton, Inc. v. Builders First Source – Southeast Group, LLC (Lawyers Weekly No. 001-004-18, 8 pp.) (James Lockemy, C.J.) Appealed from Charleston County Circuit Court (R. Markley Dennis Jr., J.)

Holding: The appellant-homebuilder and respondent-subcontractor entered into a contract that included a clause that would require the subcontractor to indemnify the homebuilder for damages caused by the homebuilder’s negligence. A homeowner filed a claim against the homebuilder. The indemnification clause violated public policy, indemnification is inappropriate in this case, and we cannot require the subcontractor to pay for damages caused by the homebuilder.

 

Contract

 

Real Property Listing – Commission Earned – Deferment

Justin Winter & Associates, LLC v. McIver (Lawyers Weekly No. 002-001-18, 12 pp.) (Mary Geiger Lewis, J.) 8:17-cv-01620; D.S.C.

Holding: According to the parties’ listing agreement, once the plaintiff-agency found a buyer and the defendant-sellers signed the purchase agreement, the agency’s commission was earned. Although the sellers eventually had to sue for specific performance, the agency’s commission had already been earned, and the sellers breached the listing agreement when they failed to pay the full amount of the commission.

The court grants plaintiff’s motion for partial judgment on the pleadings.

 

Criminal Practice

 

Appeals – Untimely – First Impression – Sua Sponte Dismissal

United States v. Oliver (Lawyers Weekly No. 001-002-18, 17 pp.) (Roger Gregory, C.J.) 15-4376; Dec. 20, 2017; USDC at Orangeburg, S.C. (Margaret Seymour, S.J.) 4th Cir.

Holding: It is the government’s responsibility to raise the issue of the untimeliness of a defendant’s appeal; however, the defendant in this case had already pursued collateral review before he filed his direct appeal more than three years late. This is one of the rare situations in which the court should consider invoking Fed. R. Crim. P. 4(b)(1)(A) sua sponte. We do so and dismiss defendant’s appeal.

 

Criminal Practice

 

Attempted Murder – Transferred Intent – Single Intended Victim – Three Victims

Holding: Even though defendant intended to shoot at only one victim in a mobile home, there were actually three people near the door of the mobile home when defendant fired shots at the door. The trial court properly instructed the jury on the doctrine of transferred intent.

We affirm defendant’s convictions for attempted murder.

State v. Williams (Lawyers Weekly No. 011-026-18, 15 pp.) (H. Bruce Williams, J.) Appealed from Saluda County Circuit Court (J. Michael Baxley, J.) Alan McCrory Wilson, Frederick Schumacher IV & Joshua Thomas for the state; David Alexander for the defense. S.C. App.

 

Criminal Practice

 

Attorneys – Removal of Defense Counsel – Jury & Jurors – Murder of a Police Officer

State v. Cottrell (Lawyers Weekly No.010-001-18, 24 pp.) (Kaye Hearn, J.) (John Few, J., concurring in the result only) Appealed from Horry County Circuit Court (Larry Hyman Jr., J.) S.C. S. Ct.

Holding: When the first chair defense attorney accused the second chair of dishonesty and unethical conduct while the second chair challenged the first chair’s competence, work ethic, and personal life, the trial judge did not abuse his discretion when he removed appointed counsel and appointed new counsel for defendant.

We affirm defendant’s conviction of murder.

 

Criminal Practice

 

Burglary – Dwelling – First Impression – Move to Nursing Home – Upkeep – Joinder – Meth Possession

State v. Davis (Lawyers Weekly No. 011-017-18, 12 pp.) (Paul Short Jr., J.) Appealed from Oconee County Circuit Court (R. Lawton McIntosh, J.) S.C. App.

Holding: Even though the owner of the burgled dwelling had moved into a nursing home six months before the burglary, since her possessions remained there, her family hoped she would be able to return home, and her son/attorney-in-fact kept the utilities on and checked on the house several times a week, the house still qualified as a dwelling for purposes of the burglary statute.

We affirm defendant’s convictions for first-degree burglary and possession with intent to distribute methamphetamine.

 

Criminal Practice

 

Computer use satisfies interstate commerce nexus

United States v. Miltier (Lawyers Weekly No. 001-027-18, 24 pp.) (Floyd, J.) No. 16-4729, Feb. 7, 2018; EDVA at Norfolk (Doumar, J.) 4th Cir.

Holding: The court of appeals upholds convictions arising from child pornography files that were not proven to be shared interstate, but were proven to be received on a computer that had been moved between states and between countries.

 

Criminal Practice

 

Constitutional – Ineffective Assistance – Plain Error Standard – Sentencing

United States v. Carthorne (Lawyers Weekly No. 001-003-18, 20 pp.) (Barbara Milano Keenan, J.) 16-6515; Dec. 21, 2017; USDC at Greensboro, N.C. (William Osteen Jr., J.) 4th Cir.

Holding: On direct appeal, this court found no plain error in defendant’s sentencing as a career offender; however, trial counsel’s failure to do research or to object led to a much longer sentence than defendant would otherwise have received. The standards of review for plain error and for ineffective assistance of counsel are different. While there was no plain error in this case, there was ineffective assistance of counsel.

We vacate defendant’s sentence and remand for resentencing.

 

Criminal Practice

 

Constitutional – Sixth Amendment – Skype Testimony – Harmless Error

State v. Johnson (Lawyers Weekly No. 011-014-18, 18 pp.) (Aphrodite Konduros, J.) (Paul Short Jr., J., dissenting) Appealed from Clarendon County Circuit Court (W. Jeffrey Young, J.) S.C. App.

Holding: In the absence of an important public policy or at least an exceptional circumstance, a defendant has the right to an in-person confrontation of witnesses against him. Nevertheless, the Skype testimony in this case was harmless error since the witness’s testimony was largely cumulative to what was already before the jury.

We affirm defendant’s convictions for two counts of murder, kidnapping, first-degree burglary, and possession of a firearm during the commission of a violent crime.

 

Criminal Practice

 

Dark web search warrant issued in good faith

United States v. McLamb (Lawyers Weekly No. 001-022-18, 10 pp.) (Thacker, J.) No. 17-4299, Jan. 25, 2018; EDVA (Smith, J.) 4th Cir.

Holding: A warrant executed in good faith, even if unconstitutional, did not render resulting evidence of child-pornography crimes inadmissible.

 

Criminal Practice

 

Despite conviction vacatur, civil commitment stands

United States v. Welsh (Lawyers Weekly No. 001-012-18, 22 pp.) (Diaz, J.) No. 17-6355; Jan. 12, 2018; USDC at Raleigh, N.C. (Dever, J.) 4th Cir.

Holding: Under the Adam Walsh Child Protection & Safety Act, appellant Welsh’s civil commitment – which was based on his confinement for a prior offense – was not voided by vacatur of his sentence for that prior offense, the court of appeals held.

 

Criminal Practice

 

Evidence – Hearsay – Credit Card Bill – No Prejudice

State v. Osborne (Lawyers Weekly No. 011-020-18, 7 pp.) (Per Curiam) Appealed from Lexington County Circuit Court (Thomas Russo, J.) S.C. App. Unpub.

Holding: Where the only foundation the state laid for admission into evidence of a robbery victim’s credit card statement was the victim’s testimony as to the regularity and correctness of her credit card statement – except for the charges incurred after she was robbed – but where the victim was neither a custodian of the credit card statement nor a qualified witness familiar with how the statement was generated in the regular course of business, the trial court erred in allowing the credit card statement into evidence. However, defendant was not prejudiced by admission of the statement as it did not identify defendant as the individual who used the card at a McDonald’s and a gas station after the robbery; in addition, defendant’s confederate testified without objection that he and defendant used the victim’s credit card at the McDonald’s and the gas station.

We affirm defendant’s convictions for strong armed robbery and first-degree assault and battery.

 

Criminal Practice

 

Felony DUI – Evidence – Meth – Toxicologist, Accident Reconstructionist & Police – Appeals

State v. Reece (Lawyers Weekly No. 011-009-18, 5 pp.) (Per Curiam) Appealed from Pickens County Circuit Court (Letitia Verdin, J.) S.C. App. Unpub.

Holding: The state’s evidence from a forensic toxicologist, an accident reconstructionist, and law enforcement showed that defendant had taken far more than the therapeutic amount of methamphetamine and that it affected her driving ability, leading to a motor vehicle accident.

We affirm defendant’s conviction of felony driving under the influence.

 

Criminal Practice

 

Immigration – Plea Negotiation – Deportation – Attorneys – PCR

Holding: Petitioner’s drug charge was a categorically deportable offense, but plea counsel made it clear that he considered petitioner’s immigration status a collateral issue and that it was petitioner’s duty to know the deportation consequences of his plea. Counsel’s failure to correctly advise petitioner was deficient as a matter of law, leaving us with petitioner’s assertion that he was dependent on his attorney to advise him and that, if he had known he would face deportation, he would not have pled guilty but would have gone to trial.

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

Taylor v. State (Lawyers Weekly No. 010-017-18, 10 pp.) (John Kittredge, J.) Appealed from Berkeley County (J. C. Nicholson Jr., Post-Conviction Relief Judge) Mark Devine for petitioner; Alan Wilson & Justin Hunter for the state. S.C. S. Ct.

 

Criminal Practice

 

SC involuntary manslaughter can be non-violent

Holding: The defendant’s prior conviction for involuntary manslaughter in South Carolina did not qualify as a “violent felony” under the Armed Career Criminal Act.

United States v. Middleton (Lawyers Weekly No. 001-032-18, 29 pp.) (Gregory, J.) No. 16-7556; Feb. 26, 2018; DSC at Charleston (Duffy, J.) Emily Deck Harrill for Appellant; William Jacob Watkins Jr. for Appellee. 4th Cir.

 

Criminal Practice

 

Search & Seizure – Extended Traffic Stop – Suspicious Circumstances

Holding: The extension of a traffic stop was justified by suspicious circumstances, such as the discrepancy between defendant’s stated travel plans and the travel that was allowed by his rental car agreement.

We modify and affirm our Court of Appeals’ decision upholding defendant’s conviction of trafficking in cocaine.

State v. Alston (Lawyers Weekly No. 010-022-18, 18 pp.) (Donald Beatty, C.J.) (John Few, J., joined by John Kittredge, J., concurring) (Costa Pleicones, Acting Justice, concurring in the result only without separate opinion) Appealed from Spartanburg County Circuit Court (J. Derham Cole, J.) On writ of certiorari to the Court of Appeals. Alan McCrory Wilson, Mark Reynolds Farthing & Barry Joe Barnette for the state; Lara Mary Candy for defendant. S.C. S. Ct.

 

Criminal Practice

 

Sentencing – Death Penalty – Deficiency of Counsel – Admissibility of Mitigating Evidence

Bowman v. State (Lawyers Weekly No. 010-008-18, 21 pp.) (Donald Beatty, C.J.) Appealed from Dorchester County (James Lockemy, Post-Conviction Relief Judge) S.C. S. Ct.

Holding: This court has long held that evidence in the sentencing phase of a capital trial must be relevant to the character of the defendant or the circumstances of the crime; however, this rule is not without exception. Where there is evidence that defense counsel articulated a valid reason for opening the door to evidence regarding general prison conditions, and where the state’s response was proportional and confined to the topics to which counsel had opened the door, defense counsel was not deficient in failing to object to the state’s line of questioning.

 

Criminal Practice

 

Song lyric as Facebook status was party admission

In a firearms-possession case, the defendant’s Facebook post adopted the admission: “It’s Always Tucked, Kuz I’ll B Damn If My Life Get Took!!” The phrase closely mirrored a song lyric, but contained no attribution and was probative of the conduct charged.

United States v. Recio (Lawyers Weekly No. 001-044-18, 15 pp.) (Motz, J.) No. 17-4005; Mar. 7, 2018; DMD at Greenbelt (Hazel, J.) Lesley Whitcomb Fierst for Appellant; Francesca Anne Liquori for Appellee. 4th Cir.

 

Domestic Relations

 

Adoption – Civil Practice – Standing – Foster Parents

South Carolina Department of Social Services v. Boulware (Lawyers Weekly No. 010-006-18, 12 pp.) (George James Jr., J.) (Kaye Hearn, J., joined by John Kittredge, J., concurring) Appealed from Union County Family Court (Coreen Khoury, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct.

Holding: The petitioner-foster parents are citizens of South Carolina, and the child in question has not been placed for adoption by the Department of Social Services; therefore, the foster parents have standing to petition to adopt the child.

We reverse the Court of Appeals’ decision, which affirmed the family court’s dismissal of petitioners’ adoption action.

 

Domestic Relations

 

Parent & Child – Child Support – Social Security Disability – Arrearage – First Impression

Scott v. Scott (Lawyers Weekly No. 011-005-18, 6 pp.) (Paula Thomas, J.) Appealed from Richland County Family Court (Dale Moore Gable, J.) S.C. App.

Holding: Although the disabled father gets child support credit for Social Security benefits paid to his minor child, and although the child’s Social Security benefits exceed the father’s monthly child support obligation, the court declines to apply the excess benefits against the child support arrearage that accrued before the father’s disability adjudication.

We affirm the family court’s order, which credited the child’s Social Security benefits against the father’s ongoing child support obligation, credited a lump sum Social Security payment against the arrearage that had accrued after the father’s disability adjudication, and refused to credit the Social Security benefits against the father’s pre-disability adjudication arrearage.

 

Insurance

 

Adjuster’s File – Civil Practice – Diversity – Amount in Controversy – Injunctive Relief

James River Insurance Co. v. William Kramer & Associates, LLC (Lawyers Weekly No. 002-040-18, 8 pp.) (R. Bryan Harwell, J.) 4:17-cv-01738; D.S.C.

Holding: The plaintiff-insurance company alleges that the defendant-adjuster squandered $10 million in primary coverage, leading plaintiff to pay $6.7 million in excess coverage. Nevertheless, in this action, plaintiff merely seeks production of the adjuster’s files; the only monetary benefit or detriment that a judgment in this lawsuit will have is the negligible cost of producing the file.

Because the amount in controversy is less than the jurisdictional amount, the court remands this matter to state court.

 

Insurance

 

Auto – UIM – Workers’ Compensation – Subrogation – North Carolina Industrial Commission Proceeding

Walker v. Liberty Mutual Insurance Co. (Lawyers Weekly No. 002-027-18, 16 pp.) (R. Bryan Harwell, J.) 4:16-cv-01388; D.S.C.

Holding: The issue before this court – whether underinsured motorist benefits paid in South Carolina are subject to subrogation in a North Carolina workers’ compensation proceeding – is also pending before the North Carolina Industrial Commission. Given North Carolina’s interest in deciding this question and the fact that the North Carolina proceeding is further advanced than this action, the court, sua sponte, decides to abstain.

The parties’ cross-motions for summary judgment are denied as moot. This declaratory judgment action is dismissed without prejudice.

 

Insurance

 

CGL – Declaratory Judgment Action – Other Insurance – Duty to Defend

Holding: The plaintiff-insurer has contracted to defend its insured (a general contractor) if “no other insurer defends.” Therefore, the court cannot compel the insurers of the general contractor’s subcontractors to defend the general contractor in an underlying defective construction action.

The court grants the subcontractors’ insurers’ motions to dismiss.

FCCI Insurance Co. v. Island Pointe, LLC (Lawyers Weekly No. 002-046-18, 10 pp.) (Richard Mark Gergel, J.) 2:17-cv-01976; Grayson Mead Shephard & William James Flynn for plaintiff; Allen Leland DuPre, Howard Michael Bowers, Mary Barnwell Ramsay, David Brown, David Grant Harris II, Joshua Shaw & Lee Dixon for defendants; D.S.C.

 

Insurance

 

Life – Civil Practice – Removal – Federal Question – Ordinary Preemption

Messinger v. Rodriguez (Lawyers Weekly No. 002-037-18, 10 pp.) (Patrick Michael Duffy, J.) 2:17-cv-02412; D.S.C.

Holding: Although the life insurance policy underlying this dispute is a Federal Employees’ Group Life Insurance policy, the preemption provision of the Federal Employees’ Group Life Insurance Act, 5 U.S.C. § 8709(d)(1), sets out only ordinary conflict preemption, not complete preemption. Ordinary preemption is a defense, and a case may not be removed to federal court on the basis of a federal defense.

The court grants plaintiffs’ motion to remand to state court.

 

Intellectual Property

 

Negligence can’t sustain contributory infringement

BMG Rights Mgm’t LLC v. Cox Commc’ns Inc. (Lawyers Weekly No. 001-024-18, 37 pp.) (Motz, J.) No. 16-1972, Feb. 1, 2018; EDVA at Alexandria (O’Grady, J.) 4th Cir.

Holding: Although an ISP’s “13-strike policy” did not qualify for safe harbor in a music copyright infringement suit, the court of appeals remanded for a new trial due to a jury instruction that suggested contributory liability could be based on a “should have known” standard.

 

Intellectual Property

 

Trademark Infringement – Karaoke Brand – Consumer Confusion – Civil Practice

Holding: Plaintiff alleges that defendants not only pirated plaintiff’s karaoke recordings, but also copied plaintiff’s trademark and displayed it while playing the pirated songs. The display of plaintiff’s mark on the screen where the karaoke lyrics appear throughout an entire evening of karaoke performances could cause confusion among customers that the holder of the trademark approves of defendants’ use of its product in their services. This is exactly the type of situation that 15 U.S.C. § 1125(a) addresses: when someone uses a mark in connection with services that is likely to cause confusion about the affiliation or approval of those services.

The court denies defendant Kohn’s motion for summary judgment but grants his motion to exclude two witnesses. The court denies plaintiff’s motion to compel discovery.

Phoenix Entertainment Partners, LLC v. Dr. Fofo LLC (Lawyers Weekly No. 002-044-18, 20 pp.) (David Norton, J.) 2:17-cv-01270; Michael Cogen Cerrati for plaintiff; Robert Joseph Lowe Jr. for defendant; D.S.C.

 

Labor & Employment

 

Civil Practice – Federal Question – FMLA References

Darrah v. Horry County (Lawyers Weekly No. 002-038-18, 8 pp.) (R. Bryan Harwell, J.) 4:17-cv-01331; D.S.C.

Holding: In support of his claims that defendant violated (1) the implied covenant of good faith and fair dealing and (2) S.C. Code Ann. § 41-1-80, which prohibits an employer from discriminating against an employee for filing a workers’ compensation claim, plaintiff made references to the Family Medical Leave Act. These references to a federal statute are insufficient to give this court federal question jurisdiction.

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

 

Labor & Employment

 

FMLA – Exhausted Leave – Failure to Communicate – Termination

Holding: After plaintiff’s Family Medical Leave Act leave expired, he waited approximately two weeks to contact the defendant-employer about returning to work. He was unable to reach his manager by phone, yet he did not try to communicate with the employer for another two months, when he spoke to his assistant manager but did not discuss returning to work. Plaintiff clearly failed to comply with the employer’s leave of absence police, which requires employees to maintain contact with a manager while on leave.

The court adopts the magistrate judge’s recommendation and grants summary judgment for the employer.

Blackwell v. Publix Super Markets, Inc. (Lawyers Weekly No. 002-045-18, 20 pp.) (Henry Herlong Jr., S.J.) 6:16-cv-02992; Jeffrey P Dunlaevy for plaintiff; Christopher Evan Parker & R. Taylor Speer for defendant; D.S.C.

 

Labor & Employment

 

Lodging-as-wages issue remanded for factfinding

Balbed v. Eden Park Guest House LLC (Lawyers Weekly No. 001-021-18, 14 pp.) (Motz, J.) No. 17-1187, Jan. 25, 2018; DMD (Messitte, J.) 4th Cir.

Holding: Where a live-in innkeeper’s employment terms were subject to an agreement, her FLSA claims required thorough factfinding by the trial court to determine whether the agreement terms were reasonable.

 

Labor & Employment

 

Public Employees – Tort/Negligence – Wrongful Termination – Public Policy – Building Official – Municipal

Holding: As the defendant-town’s “building official,” it was plaintiff’s mandatory responsibility to enforce the provisions of the state building code by issuing a stop work order when she discovered unpermitted construction work. When the town fired her for doing so, the town violated a clear mandate of public policy.

We affirm our Court of Appeals’ decision upholding judgment for plaintiff.

Donevant v. Town of Surfside Beach (Lawyers Weekly No. 010-019-18, 5 pp.) (John Few, J.) Appealed from Horry County (Deadra Jefferson, J.) On writ of certiorari to the Court of Appeals. Henrietta Golding & James Gilliam for plaintiff; Charles Franklin Thompson Jr. for defendant. S.C. S. Ct.

 

Labor & Employment

 

Race and Sex Discrimination Claims – Failure to Promote – Retaliation Claim

Coleman v. Schneider Electric USA, Inc. (Lawyers Weekly No. 002-031-18, 19 pp.) (Henry Herlong Jr., S.J.) 8:15-cv-02466; D.S.C.

Holding: Company records said the requisition for a position was cancelled because of an “internal promotion to strategize and reduce base costs.” In fact, someone of the same level took over the position’s responsibilities, at first temporarily, and then permanently, but he did not receive a pay increase. No candidates were interviewed for the position. These facts do not raise an inference of race and/or sex discrimination.

The court agrees with the magistrate judge’s recommendation and grants summary judgment for the defendant-employer.

 

Real Property

 

Mortgage Refinance – Attorney Preference – First Impression – Prepopulated Form

Boone v. Quicken Loans, Inc. (Lawyers Weekly No. 002-035-18, 11 pp.) (J. Michelle Childs, J.) 5:15-cv-04772; D.S.C.

Holding: Even though plaintiffs complain that defendant sent them a mortgage refinance form prepopulated with “I/we will not use the services of legal counsel,” since (1) that was based on plaintiff Thelma Boone’s responses to defendant’s questions, (2) plaintiffs signed the form, (3) plaintiffs did not protest during the five weeks between signing the form and the closing, and (4) Thelma met with counsel chosen by defendant the day before the closing and did not voice any displeasure with his performance, the court holds that plaintiffs’ assertion of “no preference” is their preference. On this issue of first impression, the court predicts that the South Carolina Supreme Court would conclude that defendant did “ascertain . . . the preference of the borrower as to [] legal counsel . . . relating to the closing . . .” in compliance with the South Carolina Attorney Preference Statute.

The court grants defendant’s motion for summary judgment.

 

Tort/Negligence

 

Medical Malpractice – Civil Practice – Expert Affidavit – Different Fields

Holding: Even though plaintiffs’ expert is a vascular and critical care surgeon while the defendant-doctors practice in the areas of emergency medicine and primary care, plaintiffs’ expert is nevertheless qualified to provide the expert witness affidavit required by S.C. Code Ann. § 15-35-100(A).

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

Eades v. Palmetto Cardiovascular & Thoracic, PA (Lawyers Weekly No. 010-018-18, 7 pp.) (Kaye Hearn, J.) (Costa Pleicones, Acting Justice, concurring in the result only without separate opinion) Appealed from Charleston County Circuit Court (Kristi Lea Harrington, J.) On writ of certiorari to the Court of Appeals. Thomas Salane & R. Hawthorne Barrett for defendants; Gary Lane Cartee for plaintiffs. S.C. S. Ct.

 

Tort/Negligence

 

Medical Malpractice – Civil Practice – Statute of Repose – Electroconvulsive Therapy – Multiple Treatments

Johnson v. Roberts (Lawyers Weekly No. 011-018-18, 7 pp.) (James Lockemy, C.J.) Appealed from Charleston County Circuit Court (R. Markley Dennis Jr., J.) S.C. App.

Holding: On June 25, 2010, plaintiff filed a notice of intent to file suit because defendants treated her with electroconvulsive therapy on 86 separate occasions between 2003 and 2008. Because there is evidence that her injury occurred as a result of treatment within the six years prior to her lawsuit, the circuit court erred in finding as a matter of law that her claim is barred by the statute of repose.

We reverse summary judgment for defendants.

 

Tort/Negligence

 

Officers reasonably shot charging dog

Police responding to a service call did not violate the caller’s constitutional rights by shooting at his two pit bulls after they charged at officers. Police also had probable cause to arrest the caller for reckless driving on his way to the animal hospital.

Lee v. Town of Fort Mill (Lawyers Weekly No. 006-005-18, 12 pp.) (Per Curiam) No. 17-1064; Mar. 1, 2018; DSC at Rock Hill (Anderson, J.) James Elliot Field for Appellant; Andrew Lindemann for Appellees. 4th Cir. Unpub.

 

Tort/Negligence

 

Parking Lot Accident – Civil Practice – Diversity Jurisdiction – Store Manager

Paetzold v. Walgreen Co. (Lawyers Weekly No. 002-033-18, 8 pp.) (David Norton, J.) 2:17-cv-02883; D.S.C.

Holding: There is a possibility that plaintiff could recover from the defendant-store manager on her claim that he was negligent in failing to keep the defendant-store’s foliage trimmed so as to prevent it from obscuring the stop sign that the store had placed on its private property. Consequently, the store manager was not fraudulently joined, and he destroys complete diversity.

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

 

Tort/Negligence

 

Products Liability – 11-Year-Old Tire

Davenport v. Goodyear Dunlop Tires North America, Ltd. (Lawyers Weekly No. 002-025-18, 7 pp.) (J. Michelle Childs, J.) 1:15-cv-03751; D.S.C.

Holding: The tire that failed – causing the accident that injured plaintiffs – was 11 years old. This fact does not preclude recovery but may be found by a jury to be coincidental with the failure rather than the cause of it.

The court denies the defendant-tire manufacturer’s motion for summary judgment.

 

Tort/Negligence

 

Warnings expert properly excluded

Holding: A products-liability plaintiff’s proffered warnings expert could not be qualified on the basis of his own personal reasoning, and the plaintiff’s failure to read appropriate warnings defeated her design-defect allegations.

Hickerson v. Yamaha Motor Corp. USA (Lawyers Weekly No. 001-039-18, 17 pp.) (Agee, J.) No. 17-1075; Feb. 20, 2018; DSC at Anderson (Childs, J.) David G. Owen and Austin Fletcher Watts for Appellant; Richard Alan Mueller for Appellees. 4th Cir.

 

Trusts & Estates

 

Survival Action – Civil Practice – Real Party in Interest – Special Administrator

Holding: In this survival action against (among others) the decedent’s personal representative, despite defendants’ assertion that plaintiff was not the real party in interest, plaintiff never asked to have a special administrator appointed to prosecute the survival claim. As a result, the circuit court properly granted defendants’ motion for summary judgment.

We modify and affirm the Court of Appeals’ decision upholding the circuit court’s summary judgment order.

Fisher v. Huckabee (Lawyers Weekly No. 010-013-18, 9 pp.) (John Few, J.) (Kaye Hearn, J., joined by Donald Beatty, C.J., dissenting) Appealed from Charleston County Circuit Court (J. C. Nicholson Jr., J.) John Hughes & Lisa Fisher for plaintiff; Evan Smith & Warren Wills III for defendants. S.C. S. Ct.

 

Workers’ Compensation

 

Claims – Second Injury – Impairment Ratings

Harrison v. Owen Steel Company, Inc. (Lawyers Weekly No. 011-003-18, 10 pp.) (John Geathers, J.) Case No. 2015-002093. Appealed from the Workers’ Compensation Commission. S.C. App.

Holding: The appellant-employee settled a workers’ compensation claim with the respondent-employer following a second injury to a body part that had been injured in a previous workplace incident. We are unable to discover any cases similar to the unique posture of this case, but the American Medical Association’s Guides to the Evaluation of Permanent Impairment recognizes that impairment ratings can change from prior ratings, and our Supreme Court has held that, for a claimant to be entitled to additional compensation for a second injury, evidence must show the degree of disability attributable only to the second injury in order to avoid double compensation. Here, the disability rating for the second injury was lower than that of the first, so we find the employee is not entitled to any additional permanent partial disability benefits.

 

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