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Tag Archives: First Impression

Civil Practice – Appeals – Interlocutory – Motion to Dismiss – Forum Non Conveniens – First Impression (access required)

Burkey v. Noce On a matter of first impression, we rule that the denial of a motion to dismiss based on forum non conveniens is not immediately appealable. Appeal dismissed. While no S.C. case law concerns the immediate appealability of a denial of dismissal based specifically on forum non conveniens, the denial of a motion to dismiss under Rule 12(b)(6) is not generally appealable. An order denying a motion to dismiss for lack of subject matter jurisdiction is also not directly appealable. Additionally, an order denying a motion to change venue is not immediately appealable.

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Insurance – Attorney’s Fees – Declaratory Judgment Action – Duty to Defend – Appeals – First Impression (access required)

Jessco, Inc. v. Builders Mutual Insurance Co. S.C. law permits an insured to recover attorney’s fees when the insured wins a declaratory judgment stating that its insurer breached its duty to defend. The court logically extends this case law to encompass attorney’s fees incurred by the insured when it successfully defends such a judgment on appeal.

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Real Property – ILSFDA – Rescission – First Impression — Prejudgment Interest – Developer’s Exemption Inapplicable (access required)

Nahigian v. Juno-Loudoun LLC A Northern Virginia couple can get back their $1.674 million purchase price for a lot in a residential community affiliated with the Ritz-Carlton Hotel company; the 4th Circuit says the buyers can rescind the deal under the Interstate Land Sales Full Disclosure Act and get more prejudgment interest because the developer is not protected by an ILSFDA exemption for developments with less than 100 lots.

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Banks & Banking – Negotiable Instruments – Promissory Note & Mortgage – First Impression – Former Version of UCC – Early Payment Option — Holder — Pooling & Servicing Agreement (access required)

Kain v. Bank of New York Mellon Even though the debtors’ adjustable rate mortgage requires one to look outside the four corners of the note and mortgage to determine the amount to be paid, the note is nevertheless negotiable under the 2003 version of the Uniform Commercial Code. The claimant’s motion for summary judgment is granted.

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Labor & Employment – FLSA – Retaliation – Protected Activity — Intracompany Complaints – First Impression — Time-Sheet Alterations (access required)

Minor v. Bostwick Laboratories Inc. A medical technologist’s complaints within her company about time-sheet alterations that allegedly violated the Fair Labor Standards Act are protected activity, and she may sue under the FLSA’s antiretaliation provision, 29 U.S.C. § 215(a)(3), on a complaint that she was terminated for her intracompany complaints.

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Tort/Negligence – Dog Attack – Landlord/Tenant – Common Area – Strict Liability -Common Law – Attractive Nuisance – First Impression (access required)

Clea v. Odom Where the respondent-landlord knew a tenant’s dog was chained to a tree in the common area over which the landlord had control, there was a genuine issue of material fact as to whether the landlord had the dog in his keeping - within the meaning of our “dog bite statute” — when it attacked a two-year-old. Moreover, the landlord may be liable under the Residential Landlord Tenant Act. We reverse summary judgment for the landlord on the issues of strict liability and common law negligence. We affirm summary judgment for the landlord on the claim of attractive nuisance.

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Criminal Practice – CSC – Internet Arrangement – Fictitious 14-Year-Old – Meeting Set Up – Showing Up – Attempt – Jury Question – First Impression (access required)

State v. Reid Given defendant’s express desire for a sexual encounter with a 14-year-old girl, coupled with his designation of a vacant parking lot in the middle of the night as a clandestine meeting place - and his travel to that place - a jury question was presented on whether defendant had the specific intent to commit criminal sexual conduct with a minor and whether his conduct constituted an overt act. We affirm our Court of Appeals’ decision to uphold the trial court’s denial of defendant’s motion to dismiss.

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