South Carolina Lawyers Weekly December 20, 2021

SCLAWYERSWEEKLY.COM Part of the

VOLUME 19 NUMBER 26 ■

network

DECEMBER 20, 2021 ■ $8.50

Jury awards $10 million to woman injured in Walmart

dinate a mere “European-style consolatory cheek kiss” while the two were in the backseat of a car together, sued both UBS and the other employee for damages resulting from his sacking.

U.S. District Judge Timothy M. Cain certified three questions for the Supreme Court, the first one being whether terminable-at-will employment relationships are contractual in nature as a matter of law in South Carolina. Justice George C. James Jr., writing for the court in a Dec. 1 opinion, ruled that they are, but emphasized that this answer didn’t “light a path to a viable breach of contract action by the terminated employee against the employer.”

James began by noting that both South Carolina’s

■ BY DAVID BAUGHER A Florence County jury has awarded $10 million in damages to a woman who lost most of her leg after stepping on a rusty nail while shopping at Walmart.

Roy Willey IV, Lane Jeffries, and Eric Poulin of Anastopoulo Law Firm in Charleston represented April Jones, who lost her limb through a series of amputations performed in an effort to fight an infection that she told jurors she acquired from a puncture wound she sustained during a June 2015 visit to one of the company’s locations in Florence.

According to her complaint, Jones was passing by some pallets that were on the shop floor when she heard a scraping sound under her shoe and began to feel pain in her right foot.

She looked through her right shoe and found that a rusty nail had pierced through both shoe and foot, creating a wound. Jones went to the hospital, where she had to have a hole cut in her foot to treat the wound. Surgeons initially removed Jones’s toe, followed by the front of her foot and, ultimately, her right leg up to just above her knee.

Willey said that the key to Jones’s case was the contention that the store had failed to do regular safety sweeps that Walmart’s internal policies indicate are supposed to take place every one to two hours.

“There was no evidence they had occurred,” Willey said.

Willey said that Walmart claimed that the sweeps had taken place and questioned whether the injury had even occurred in their store.

“They said they didn’t think the nail came from their store and that, if

S e e At- w i l l P a g e 6 ►

S e e Wa l m a r t P a g e 3 ►

At-will employment contractual, third-party suit OK ■ BY DAVID DONOVAN david.donovan@sclawyersweekly.com A former bank executive who was fired from his job will be able to move forward with a federal lawsuit against the co-worker who accused him of sexual harassment after the South Carolina Supreme Court ruled that at-will employment relationships are contractual relationships and South Carolina law recognizes a valid claim for third-party tortious interference with a terminable-at-will employment contract, in response to a series of certified questions from the U.S. District Court.

Curt Hall was the manager of the Greenville branch of UBS Financial Services until he was fired after a subordinate accused him of sexually harassing her. Hall, who alleged in his complaint that he’d given his subor-

Tire maker defeats multi-million-dollar products liability suit ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A Dorchester County jury has found a tire maker not liable for the injuries suffered by a couple that was seriously hurt in a 2017 motorcycle crash after one of their tires blew and was seeking at least $17 million in damages from the company.

Ronald and Rose Nash were traveling on Highway 78 in rural Dorchester County when the Michelin tire on their Kawasaki motorcycle suddenly

blew. Ronald was permanently paralyzed, and Rose suffered multiple injuries including a crushed arm, broken ribs, disc injuries. She now suffers from posttraumatic stress disorder, her attorneys say.

The Nashes alleged that the tire, purchased in 2013, was manufactured with a defective interliner, which can cause separation of the tread from the belts, weakening the entire tire. One of their attorneys, William Applegate of Yarborough Applegate in Charleston, said that the Nashes contended that there was clear evidence of a manufacturing defect, and discov-

ery uncovered internal documents from Michelin that showed that the problem existed in other tires.

Michael O’Donnell, Edward Stewart, and Shawn Neal of Wheeler Trigg O’Donnell in Denver, Colorado, and Christopher Daniels of Nelson Mullins in Columbia represented Michelin.

O’Donnell said that Michelin was able to refute the Nashes’ argument that a defective interliner splice allowed air to escape from the tire, and the See Liability Page 5 ►

INSIDE NEWS IN BRIEF

VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

8th Circuit prosecutor lets people trade toys for community service

$1.225M med-mal settlement after dentist drops crown in throat

Injured motorcyclist settles suit for $4.45M

Page 2

Page 3

Page 3

2 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

NEWS IN BRIEF Charleston Housing Court expanded The South Carolina Supreme Court has authorized the expansion of Charleston’s housing court pilot project to all magistrate courts in the Charleston area.

In May 2019, after a petition from the South Carolina Access to Justice Commission, the Supreme Court authorized the creation of the pilot project to create an eviction docket on specific days in three specific magistrate courts in Charleston County.

At the time, the court recognized that there was a significant need to provide legal representation to tenants in Charleston County facing eviction, and increased representation could ensure that evictions were lawful and defenses were effectively asserted while helping to secure other relief that might help prevent homelessness.

In a Dec. 8 order, which is effective immediately, the court recognized “the importance and need of the program in the Charleston area” and authorized the expansion of the program to all magistrate courts in the Charleston area as requested by the project’s coordinators.

Staff reports

Murdaugh blamed some problems on addiction; bond set at $7M COLUMBIA (AP) — Speaking publicly for the first time in months, the prominent South Carolina attorney accused of a slew of mostly financial crimes after his wife and son were found shot dead outside their home blamed some of his problems on a 20-year-long opiate addiction shortly before a judge set bond at $7 million Dec. 13.

The entire $7 million must be posted for Alex Murdaugh to go on house arrest with electronic monitoring, get counseling and be randomly drug tested, said Circuit Judge Alison Renee Lee in the virtual hearing.

The hearing marked the first time Murdaugh has spoken publicly at length since the deaths.

“My head is on straighter, I’m thinking clearer than I have in a long, long time,” Murdaugh said. “I want to deal with these charges appropriately and head-on. I want to repair as much of the damage that I’ve done as I can. I want to repair as many of the relationships as I can.”

The 53-year-old heir to a legal dynasty in Hampton County, South Carolina, faces nearly 50 counts for what prosecutors said were schemes to steal more than $6.2 million in settlement and other money from about a dozen clients.

He faces a separate set of charges for what police say was an attempt to have himself shot and killed Sept.

4 so his surviving son could collect a $10 million life insurance policy.

Murdaugh described to the judge his frame of mind leading up to the events of that day. He said he had met with his brother and another law firm partner to confess a 20-year-long hidden addiction and to “discuss my actions” in the 24 hours before the attempted killing, and was going through opiate withdrawal at the time.

The firm announced its own investigation into missing funds

shortly after Murdaugh said he was going into rehab in September.

Murdaugh said he knew he had tarnished his family’s legacy, but that he had improved since September and had not used opiates in more than three months.

The bond hearing centered on charges handed down by a grand jury totaling 48 counts of breach of trust with fraudulent intent; computer crimes; money laundering and forgery. Prosecutors said that among Murdaugh’s victims in the schemes dating back to 2015 were family friends, an undocumented immigrant and a car wreck victim.

Investigators say Murdaugh used a fraudulent bank account he created with a similar name to a company that handles legal settlements.

According to indictments, he then used the money to pay bank overdraft fees, credit card payments, checks written to friends and family and other items.

Murdaugh’s father, grandfather and great-grandfather were prosecutors in tiny Hampton County, where every road leading to the county seat is two lanes. The family’s law firm, located in the most impressive building in town after the courthouse, has spent a century winning multimillion-dollar verdicts.

His legal troubles began after his wife, Maggie, 52, and son Paul, 22, were found shot to death at the family’s estate in June. No one has been charged in their deaths and Murdaugh’s lawyers said he has denied having anything to do with their killings.

Running parallel to the criminal court saga is a growing number of lawsuits. Murdaugh’s former law firm has sued him, as have the sons of his dead housekeeper, who died after a fall at one of the family’s homes in 2018. The Murdaugh family also faces lawsuits surrounding a 2019 boat crash in which Paul Murdaugh was charged with boating under the influence causing death.

Attorneys for both Murdaugh and deceased housekeeper Gloria Satterfield’s sons announced during the bond hearing that some victims were nearing resolution with Murdaugh, who is also accused of stealing insurance money meant for Satterfield’s sons.

The lawyers for both Murdaugh and Satterfield’s family said Murdaugh had agreed to a $4.3 million judgment in the case, subject to the approval of court-appointed receivers who now control his assets.

“The family is pleased that Mr. Murdaugh has finally expressed his apologies and has taken a positive step toward resolution by agreeing to confess judgment to Gloria’s sons,” Satterfield lawyer Ronnie Richter said in a statement.

Lee’s bond order surpassed amounts recommended by prosecutors, who had recommended the judge either set bond at the $6.2 million Murdaugh was accused of stealing or a lesser figure of $4.7 million — about $100,000 for each count.

Defense attorneys had asked the judge to set bond at a maximum of $200,000 and indicated they would ask Lee reconsider her decision.

“He can’t post a $7 million. He couldn’t post a $700,000,” Dick Harpootlian, an attorney for Murdaugh, said. “He has no money.”

Harpootlian declined to comment further on Murdaugh’s finances to

BAR DISCIPLINE

ROUNDUP Attorney: David J. Gundling Location: Pawleys Island Bar membership: Member since 1984 Disciplinary action: Suspended from the practice of law until further order on Dec. 13 B a c kg r o u n d : T h e O f f i c e o f Disciplinary Counsel asked the Supreme Court to place Gundling on interim suspension pursuant to Rule 17(b) of the Rules for Law yer Disciplinary Enforcement, and the court ordered that Gundling’s license to practice law in the state be suspended until further order.

Previous discipline: None

Attorney: Tara E. Trantham Location: Greenville Bar membership: Member since 2006 Disciplinary action: Suspended from the practice of law until further order on Dec. 14 B a c kg r o u n d : T h e O f f i c e o f Disciplinary Counsel asked the Supreme Court to place Trantham on interim suspension pursuant to Rule 17 of the Rules for Lawyer Disciplinary Enforcement, and the court ordered that Trantham’s license to practice law in the state be suspended until further order.

Previous discipline: None

All information contained in the Bar Discipline Roundup is compiled and edited by Lawyers Weekly editor in chief David Donovan. He can be reached at david. donovan@sclawyersweekly.com.

LAWYERS IN THE NEWS J. Boone Aiken IV, Katherine V. “Katie” Busbee and Sara A. Sykes have joined Haynsworth Sinkler Boyd. Aiken joins the firm’s corporate law team in its Florence office.

Busbee joins its Greenville office and focuses her practice on economic development and employment law matters. Sykes, also in Greenville, works with the firm’s litigation practice groups.

John Dodds and Alexandra Heaton have joined Yarborough Applegate in Charleston, where they join the firm’s practice representing plaintiffs in personal injury cases.

Katherine Myers has joined Burnette Shutt & McDaniel in Columbia,

where her practice will focus on criminal defense. Myers is a former prosecutor who worked in the First Circuit Court Solicitor’s Office.

Devin J. Cummins has joined Shumaker as an associate in the firm’s Greenville office as a member of its intellectual property and technology service line.

Guy M. Dabbs IV has joined Haynsworth Sinkler Boyd in the firm’s Charleston office as special counsel. Dabbs represents clients in a variety of transactional matters, and his practice focuses on commercial real estate, including acquisition and development, title review, leasing and lender financing.

The Associated Press.

Murdaugh has been jailed since October on charges of stealing insurance money from Satterfield’s sons.

Circuit Judge Clifton Newman again denied bond in November, citing Murdaugh’s considerable financial resources and mental instability. A spokesperson for the state Attorney General’s Office said although the new grand jury indictments now supersede the arrest warrants that Newman denied bond on, Murdaugh will remain at a Richland County detention center unless he posts the $7 million bond.

His attorneys have appealed that decision to the state Supreme Court.

He could face more than 500 years in prison if convicted of all the charges, which are all felonies.

Stumbo told The Index-Journal of Greenwood.

“When we have these folks in our diversion programs, part of it is learning how to be a giver and not a taker,” Stumbo said.

Bicycles, action figures, board games, sports equipment and stuffed animals crowded offices before the toys were distributed through community organizations like the Abbeville Angel Tree program, the Salvation Army of Greenwood, the state Department of Social Services in Laurens, and the sheriff’s office in Newberry County.

The offer was extended to people in programs such as pre-trial intervention, drug court and veterans court.

“It’s a myth that prosecutors and cops just want to lock people up and throw away the key,” Stumbo said.

“This is about balancing justice with mercy.”

8th Circuit prosecutor lets people trade toys for community service GREENWOOD (AP) — A South Carolina prosecutor is continuing a program that gives people a chance to get out of a little trouble during the Christmas season by donating a new toy to needy children.

The program by the 8th Circuit Solicitor’s Office knocks off some community service time for people in programs mostly designed for first-time offenders, Solicitor David

Lawmaker charged with multiple crimes NEWBERRY (AP) — A South Carolina lawmaker has been charged with giving alcohol to a teenage girl and using his position to try to influence a Social Services investigation.

State Rep. Rick Martin was indicted on Dec. 10 by a Newberry County See News in Brief Page 5 ►

NEWS / 3

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

Injured motorcyclist settles suit for $4.45M ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A motorcyclist who was injured after crashing into a construction company’s pickup truck has settled his negligence claims for $4.45 million, the plaintiff’s attorneys report.

Kenneth Berger and Brad Lanford of the Law Office of Kenneth E. Berger in Columbia report that in 2019 their client ran into the rear of the truck when the driver turned left in front of him, apparently oblivious to oncoming traffic.

Many of the details of the case, including the names of the parties and the identities of the defense counsel, were withheld due to a confidentiality agreement.

The plaintiff suffered a broken clavicle, femur, tibia, and fibula, but avoided even further injury by taking evasive actions, Berger said. The plaintiff was taken by helicopter to the hospital and underwent intramedullary nailing—a procedure to repair and stabilize broken bones—and in-patient rehabilitation. The patient later required two more surgeries.

Berger said that the at-fault driver looked in the plaintiff’s direction before turning, but the driver had undergone surgery on his left eye and had a history of laser treatments and proliferative diabetic retinopathy, a progressive condition that had been largely untreated for almost two years before the crash.

The plaintiff filed suit in Sumter County Circuit Court. Berger said that Dr. Ilya Leyngold, an ophthalmologist at Duke University, opined that the at-fault driver suffered visual impairments that likely contributed to his not seeing oncoming traffic.

Berger said that the defense Kenneth retained collision reconstruction, Berger motorcycle safety, orthopedic surgery, and ophthalmology experts, but the plaintiff benefited from a recent wrongful death settlement involving the defense ophthalmologist, court rulings limiting the reconstruction expert’s opinions, and a history of misleading testimony by the orthopedic surgeon.

“The excess carrier had proBrad Lanford claimed they would never pay $2 million or more on top of the $1 million primary policy,” Berger said. “After being provided with documentation related to their experts’ potential vulnerabilities, they resolved the case for a total of $4,450,000.”

Berger said that his client isn’t angry with the defendant, but feels as though his life’s work has been taken from him.

“A proud grandfather and community leader was reduced to chronic pain and close to two years in a

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $4.45 million Injuries alleged: Broken clavicle, femur, tibia, and fibula Case name: Withheld Court: Sumter County Circuit Court Date of settlement: Dec. 8 Special damages: $374,000 Most helpful experts: Thomas Langley (collision reconstruction) and Dr. Ilya Leyngold (ophthalmology) Insurance carrier: Withheld Attorneys for plaintiff: Kenneth Berger and Brad Lanford of the Law Office of Kenneth E. Berger in Columbia Attorneys for defendants: Withheld wheelchair,” Berger said. “He is now able to walk but remains physically limited, which in turn limits what he can do with friends and family, especially the grandchildren.”

The case settled on Dec. 8. Berger said that the plaintiff will use part of his settlement to pay for his grandchildren’s college education so that they can enter the workforce debt-free.

$1.225M med-mal settlement after dentist drops crown in throat ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A plaintiff who suffered a host of injuries after her dentist dropped a dental crown down her throat and failed to remove it has settled her medical malpractice suit for $1.225 million, the plaintiff’s attorneys report.

Brink Hinson of Hinson, Hiller, & Padget and Steven Price of the Finkel Law Firm, both in Columbia, report that in May 2018, their 72-year-old client was undergoing a routine crown procedure when the dentist dropped the crown into the client’s trachea. The dentist believed that the crown fell into the patient’s esophagus, so he forewent X-rays and advised the plaintiff to drink a glass of water and eat crackers.

Due to a confidentiality agreement, many of the case’s details, including the names of the parties and venue, were withheld.

The patient later developed respiratory problems and went to a hospital, where a CT scan revealed a foreign object. Radiologists noted the object’s presence in their radiology report, but not in the report’s summary/impression section, and failed to make other efforts to alert the physician who ordered the study, the attorneys said.

Hinson said that in September 2018, sepsis and

two collapsed lungs sent the patient to an Upstate hospital’s emergency room and that the crown was removed three days later at a larger hospital. But respiratory illness and infection required a lengthy hospital stay and more than a month of in-patient rehabilitation.

The patient and her husband Brink Hinson filed a lawsuit against the dentist, dental practice group, and the hospital that performed the radiology, claiming that the dentist had fallen below the standard of care by failing to use a dental guard to prevent objects from falling into her throat.

The patient further asserted negligence because the dentist failed to arrange X-rays to confirm the Steven Price crown’s location.

In separate claims, the patient asserted that the hospital employing the radiologists had breached the standard of care when it failed to promptly contact the ordering physician about the crown’s presence and note the crown’s presence in the impressions section of its radiology report.

The patient settled her claims against the den-

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $1.225 million Injuries alleged: Respiratory illness, sepsis, collapsed lungs Case name: Confidential Venue: Confidential Date of settlement: Sept. 20 Special damages: $423,636.23 Attorneys for plaintiff: Brink Hinson of Hinson, Hiller, & Padget in Columbia and Steven Price of the Finkel Law Firm in Columbia Attorneys for defendants: Withheld tist and his practice group, and the hospital, for $675,000, and $550,000, respectively.

“We were able to show through the depositions of those two radiologists that their improper documentation of the dental fragment, coupled with their failure to report their finding directly to our client’s attending physician—known as non-routine communication—was a significant deviation from the acceptable standard of care,” Price said.

WALMART / Jurors needed less than two hours for verdict C o nt inu e d f r o m 1 ►

it did come from their store, they had no way of knowing that it was there,” he noted.

He said that Walmart also disputed causation since Jones had additional health concerns, including diabetes, renal failure, and vascular issues, which might have worsened the gangrenous infection.

Willey said there was video evidence showing that Jones tried to remove something from her shoe during the visit, and Jones introduced testimony from her treating surgeon to link the incident to the amputations.

“People are entitled to be compensated even if they have preexisting injuries as long as the ultimate damage is a result of that first event,” Willey said.

He did not specify a figure in closing arguments but said that neither the nature nor size of the verdict surprised him.

“We didn’t give the jury a number,” Willey said. “We gave the jury a methodology in terms of how to think about the number and just asked them to use their

common sense and good judgement.”

Jurors deliberated for less than two hours before returning their verdict on Nov. 12, the firm said.

Regina Hollins Roy Willey IV Lane Jeffries Lewis, Nashiba Boyd, and Robert Blain of Gaffney Lewis in Columbia represented Walmart. They deferred comment to Walmart, which issued a statement saying that it did not believe that the verdict was supported by the evidence.

Court documents show that Walmart has filed motions for a new trial and for judgment notwithstanding the verdict.

Jones also sued the manager of the store where the incident took place. The jury returned a verdict in favor of the manager, awarding no damages.

VERDICT REPORT – PREMISES LIABILITY

Amount: $10 million Injuries alleged: Puncture wound, three amputations leading to loss of leg up to just above the knee Case name: April Jones v. Tim Ringer; WalMart Stores, Inc.; and Wal-Mart Stores East. L.P. Court: Florence County Circuit Court Case No.: 2017-CP-21-01375 Judge: Michael Nettles Date of verdict: Nov. 12 Highest offer: $75,000 Attorneys for plaintiff: Roy Willey IV, Lane Jeffries, and Eric Poulin of Anastopoulo Law Firm in Charleston Attorneys for defendants: Regina Hollins Lewis, Nashiba Boyd, and Robert Blain of Gaffney Lewis in Columbia

4 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

Hazards of informal advice: friends, family and holiday parties ■ BY ERIN K. HIGGINS AND J.P. CHRISTIAN MILDE There is a well-worn joke about a lawyer who runs into an old acquaintance on the street. “I’m so glad to see you!” the friend exclaims. “I’m in terrible trouble—can I ask you a couple of questions?” “Of course,” replies the lawyer. “What’s your second question?”

Underlying this old chestnut is a kernel of truth, because most lawyers recognize the dangers of dispensing informal legal advice. For newer lawyers, it may seem only polite to give a friend or family member a few minutes of advice, or to chat casually with a current client about an unrelated issue, but there is peril in such informal exchanges, and lawyers should be mindful of the risks.

Conflicts and disqualification

The most cited risk is that a lawyer at a firm will unwittingly create a conflict. The classic example is the young associate whose friend asks for guidance about a dispute with a third party, such as a landlord, employer or service provider. The associate, eager to be helpful, does not run a conflict check but points the friend to the relevant statute and explains its meaning.

As luck would have it, the friend turns out to be adverse to a current client of the firm. This scenario is sure to end poorly for the associate, and it may also injure an existing client relationship at the firm or scuttle a contemplated representation.

Now suppose that the advice the associate provides to her friend concerns an employment issue, and, unbeknownst to the associate, the friend’s new employer is a client of the firm. Thereafter, the friend retains counsel and sues the employer. When the employer asks its own counsel (the associate’s firm) to mount a defense, the plaintiff’s lawyer successfully moves to disqualify the firm from representing its longtime client because the associate (and thus the firm) previously advised the plaintiff about the matter.

The possibility of a conflict is magnified by situations involving entities, associations and agency relationships. An attorney might chat with a friend whose tech startup is at odds with the management company that runs the startup’s rented office space.

Even knowing the name of the management company, the attorney could easily miss that the building is owned by a client of the firm.

Bad advice

Friends asking for free, off-the-cuff legal advice are likely to get what they have paid for. Well-intentioned lawyers may do their best to qualify informal advice with statements like “you should ask a specialist, but...” or “without the benefit of research, I would think that...”

But even sophisticated laypeople are unlikely to fully appreciate such caveats. A lawyer advising a friend or family member also may lack the objectivity necessary to give good counsel. Further, even if a lawyer manages to give advice that is correct and complete at the moment, without the lawyer’s continued involvement, that advice may become bad advice as the situation develops or new facts are discovered.

The danger of off-the-cuff advice is not constrained to friends and family.

When a client calls and asks a pressing question at an inopportune time, or throws out an unrelated inquiry during a scheduled call, it invites a lawyer to respond immediately without getting the whole story or doing the necessary research.

Answering a pressing question with “the answer is probably X, but we should meet and discuss,” may be an invitation for clients who want immediate answers to assume that they have received definitive advice.

For this reason, lawyers should never provide partial advice or educated guesses. Instead, schedule time with the client to discuss the new issue, and make sure you have all the facts.

Unintended clients

Informally advising non-clients may lead them to believe that an attorney-client relationship has been formed, or that one may be formed in the future.

Generally, a person’s reasonable, subjective belief that he or she has formed a relationship with a lawyer is adequate to create an attorney-client relationship for purposes of legal ethics, and ambiguous circumstances will usually be interpreted in favor of a putative client.

Consider a hypothetical lawyer who chats at a dinner party with an acquaintance who recently slipped and fell at a garage and is considering a lawsuit against the garage’s owner and management company. The lawyer cautions the acquaintance to seek representation soon, commenting that the limitation period for personal injury actions is three years.

The acquaintance relies on that statement in delaying the retention of counsel and ultimately discovered that the suit is time-barred because the property in question was owned and managed by the federal government and a notice of claim was not timely presented.

The initial lawyer was not intending to provide legal advice but could have exposure to a malpractice suit.

Confidentiality problems

Model Rule of Professional Conduct 1.6 requires that lawyers keep clients’ confidences, and Model Rule 1.18 requires that lawyers do the same for prospective clients (meaning any person who consults the lawyer about the possibility of forming an attorney-client relationship).

When advising friends informally, it can be difficult to draw the line on when an attorney-client relationship is formed, and when confidential information is being received.

Imagine, for example, a lawyer commiserates with a friend about the friend’s marital difficulties, and the friend admits to having an affair. The friend also asks the lawyer for advice about how to protect her assets.

The lawyer, distraught by the revelation of an affair, confides in a mutual acquaintance. The mutual acquaintance discloses the information to the friend’s spouse, who immediately files for divorce.

The friend later may contend that she went to the first lawyer for legal advice and that the lawyer breached her obligation to maintain their conversation in confidence.

Unauthorized practice of law

A final concern is that lawyers giving informal advice to friends in other states may inadvertently engage in the unauthorized practice of law in violation of Model Rule 5.5.

Rule 5.5(c) does allow lawyers to provide services outside of their jurisdictions on a temporary basis, but—in the absence of local co-counsel or a relationship to an ongoing matter—such services are only permissible if “reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”

As such, advice given outside of a regular client relationship to a friend in another state could pose a hazard, especially when the advice is also outside the lawyer’s regular practice area.

What should a careful lawyer do?

Warnings against dispensing informal legal advice are nothing new, but the reality is that declining to discuss a friend’s legal issues can be hard. To handle inquiries without being seen as rude or unhelpful, lawyers should consider the following maxims when asked for advice, opinions or information about the law: Explain that you would never want to give incomplete or incorrect guidance.

If appropriate, offer to arrange a formal intake meeting at your firm (after a conflict check) so that you can dedicate the necessary time and resources to the inquiry.

If the asker insists that they do not need a lawyer but “just a little information,” offer resources instead of specific information. For example, if asked about eviction procedures, do not explain the timing of an eviction action, but instead send a link to a resource on tenants’ rights.

If you are in a situation in which you decide that you cannot avoid providing some advice, provide it only in a generalized fashion. For example, instead of telling a friend that they have three years to file a tort claim, tell them that generally the statute of limitations on tort claims is three years, but specific circumstances could involve shorter notice periods, and you cannot advise them specifically.

If the questions continue, send the asker an email clarifying that you are not their lawyer, reinforcing that nothing you have said is legal advice, and offering to schedule a formal consultation or make a referral, as appropriate.

Promptly send letters declining all explicit requests for representation that you do not wish to accept, even if the requests are informal.

Conclusion

Next time someone wants to “ask you a couple of questions,” resist the urge to jump in and start trying to help. Remind yourself that both you and the asker will be better served if you take a step back and make a referral or suggest a scheduled call or meeting to thoroughly vet the issue.

Erin K. Higgins is a partner, and J.P. Christian Milde is an associate, at Boston’s Conn, Kavanaugh, Rosenthal, Peisch & Ford, where they advise and defend lawyers and law firms as to liability and ethics issues.

"Helping lawyers practice better, more efficiently, and more profitably."

■ PUBLISHER Liz Irwin lirwin@bridgetowermedia.com ■ EXECUTIVE EDITOR Andy Owens aowens@scbiznews.com ■ EDITOR IN CHIEF David Donovan ddonovan@sclawyersweekly.com ■ EDITORIAL Heath Hamacher, Reporter hhamacher@sclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive sbatie-jones@sclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ CIRCULATION Disa Ehrler, Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Jason Reckamp, Designer jreckamp@molawyersmedia.com ©2021 BridgeTower Media. Material published in South Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers.

The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress.

South Carolina Lawyers Weekly (USPS #020216) is published biweekly every other Monday with General Statewide Circulation by South Carolina Lawyers Weekly at 130 N. McDowell St. Unit B, Charlotte NC 28204-2411. (919)829-9333, (800)-876-5297. Periodicals postage paid at Charlotte, NC 28228-9998. Subscriptions Rates: $369 per year.

Website: www.sclawyersweekly.com POSTMASTER: Electronic Service Requested, send address changes to South Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051 Williamsport, PA, 17703-9940 service@bridgetowermedia.com The South Carolina Lawyers Weekly is a publication of BridgeTower Media 222 South Ninth Street Suite 900, Minneapolis, MN 55402.

NEWS / 5

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

4th Circuit: No private right to injunctive relief under RICO ■ BY DAVID DONOVAN david.donovan@sclawyersweekly.com The Racketeer Influenced and Corrupt Organizations Act doesn’t give private plaintiffs a right to sue for injunctive relief, the 4th U.S. Circuit Court of Appeals has unanimously ruled in an issue of first impression that has divided other circuits courts, deepening a circuit split that may ultimately require resolution from the U.S. Supreme Court.

A group of Virginia consumers who defaulted on short-term, high-interest loans issued by online lenders affiliated with the Habematolel Pomo of Upper Lake, a federally recognized Native American tribe in northern California, brought a putative class action against tribal officials, alleging that the loans violated Virginia and federal law. U.S. District Judge David Novak denied the tribal officials’ motions to compel arbitration and to dismiss the suit on the grounds of tribal sovereignty and choice-of-law provisions.

Novak did, however, dismiss the RICO Act claims brought against the officials, finding that the statute didn’t

authorize private plaintiffs to sue for injunctive relief. In a Nov. 16 opinion written by Allison Jones Rushing, the 4th Circuit affirmed each of these rulings, including the dismissal of the RICO Act claims, which presented a novel question for the 4th Circuit.

The other circuits that have considered this question had been evenly split, with the 2nd and 7th Circuits finding that equitable relief is available to private plaintiffs and the 5th and 9th Circuits finding the opposite.

Rushing noted that the RICO Act, also known as Section 1964, empowers district courts to employ a wide range of equitable remedies to prevent violations of its substantive provisions. The subsection that authorizes the Attorney General to institute proceedings under this statute references these remedial powers, but—crucially, in Rushing’s reading of the statute—the subsection allowing private litigants to sue for monetary relief under the statute makes no such mention of injunctive or declaratory relief.

“By authorizing the government to ‘institute proceedings under’ Section 1964 and not giving private plaintiffs the same authority, Congress

LIABILITY / Plaintiffs sought $17 million in economic loss C o nt inu e d f r o m 1 ►

company doesn’t believe that a separated splice was to blame for the crash, but if it was, it was only due to improper inflation and maintenance.

“We believe Mr. Nash was running the tire at low pressure, which can cause the splice to separate,” O’Donnell said.

“But our main thing was that it was a damaged tire, not a defective tire.”

Applegate said that Michelin also contended that Ronald Nash was overweight and that a defect in the four-year old tire would have manifested sooner.

The jury deliberated approximately four hours before returning its verdict for Michelin on Nov. 18.

A Michelin press release states that the company regrets the “tragic accident” and its effect on the Nashes, but that evidence in the eight-day trial shows that the company is not to blame.

O’Donnell also expressed sympathy and said that he wishes the case could have been settled pre-trial.

“It’s a very sad case … Mrs. Nash was very seriously injured, too, but Mr. Nash is in a wheelchair for the rest of his life,” O’Donnell said. “We do not think that our tire caused the injuries, but we wish them well.”

Applegate said that his clients had sought $17 million in economic loss and an unspecified amount in non-economic damages, and he posed a hypothetical to the jury arguing that even $50 million would not have been sufficient compensation for the injuries they suffered.

Court records show that the Nashes have requested a new trial, arguing, among other things, that the court failed to give a charge consistent with its pretrial ruling that running a tire underinflated or overdeflected is a foreseeable use of a tire. They are also seeking a judgment notwithstanding the verdict, arguing that the only factual issue that the jury should’ve considered on the verdict form was whether the tire contained a manufacturing defect.

“If the tire was, in fact, defective,

VERDICT REPORT — PRODUCT LIABILITY

Amount: $0 (Defense verdict) Injuries alleged: Paralysis to one plaintiff, and serious injuries to another, including a crushed arm, broken ribs, disc injuries, and posttraumatic stress disorder Case name: Ronald Nash and Rose Nash v. Michelin North America and M.R. Cycles, Inc. Court: Dorchester County Circuit Court Case No.: 2019-CP-18-00080 Date of verdict: Nov. 18 Judge: Maite Murphy Attorneys for plaintiff: William Applegate, Liam Duffy, and Perry Buckner of Yarborough Applegate in Charleston Attorneys for defendant: Michael O’Donnell, Edward Stewart, and Shawn Neal of Wheeler Trigg O’Donnell in Denver, Colorado, and Christopher Daniels of Nelson Mullins in Columbia then that defect was at least a cause of the tire failure and accident,” the motion reads. “The only other alternative would be that the subject tire failed because of underinflation/overdeflection, which the Court previously held was a foreseeable and attendant use of a tire.”

“We feel strongly about the defect in this product and feel that errors were made with regards to the evidence and charges which made plaintiffs burden untenable,” Applegate said. “The tire was under a six-year warranty and was marketed to last over 20,000 miles. We had a weekend rider and the tire had 8,000 miles on it when it failed.”

Applegate said that claims against North Carolina-based M.R. Cycles, Inc., which sold and installed the tire, were settled last year for $5.5 million.

expressed its intent to withhold from private plaintiffs the ability to invoke the injunctive power granted to the courts in Section 1964(a),” Rushing wrote.

“Of course, that subsection also does not expressly limit private plaintiffs to the treble damages and costs authorized there. But Congress’s use of significantly different language to create the governmental right of action in Section 1964(b) and the private right of action in Section 1964(c) compels us to conclude by negative implication that, although the government may sue for prospective relief, private plaintiffs may sue only for treble damages and costs.”

Rushing rejected the plaintiffs’ invitation to draw an analogy between the RICO Act and the Clayton Act, a federal antitrust statute upon which the RICO Act was modeled. The U.S. Supreme Court regularly treats the remedial sections of the two statutes identically, regardless of “superficial differences” in language.

But Rushing said that, in this instance, the differences between the two statutes were far from superficial since the Clayton Act explicitly pro-

vides that private parties “shall be entitled to sue for and have injunctive relief” against loss or damage threatened by a violation of the antitrust laws, a provision that has no analogue in the RICO Act. The analogy thus weakened the plaintiffs’ argument rather than strengthened it.

“That Congress provided private antitrust plaintiffs a separate right to prospective injunctive relief under a materially similar remedial structure confirms that RICO, by lacking that separate provision, also lacks the separate right,” Rushing wrote.

Rakesh Kilaru of Wilkinson Stekloff in Washington, D.C. and Matthew E. Price of Jenner & Block in Washington, D.C. represented the tribal officials. Matt Wessler of Gupta Wessler in Washington, D.C. represented the borrowers. None of the attorneys responded to calls seeking comment on the court’s ruling.

The 57-page opinion is Hengle v.

Treppa (Lawyers Weekly No. 001190-21). The full text of the opinion is available online at nclawyersweekly. com.

Follow David Donovan on Twitter @SCLWDonovan

BRIEFS / Grand Jury on charges of contributing to the delinquency of a minor and misconduct in office, according to state Attorney General Alan Wilson. The Republican has served in the state House since 2017, representing Newberry.

In January 2019, Martin allegedly gave alcohol to a then15-year-old girl. About a year later, prosecutors allege, he attempted to use his position as a state lawmaker to influence an investigation at the Department of Social Services.

Authorities did not say if the two charges were related. According to his bio on the Legislature’s website, Martin has four children and has been a foster parent since 2010.

House Speaker Jay Lucas suspended Martin minutes after the charges were announced, a move that will stay in effect until either he’s cleared and reinstated, or the seat is declared vacant.

Ex-deputy, sheriff face 2nd lawsuit over excessive force LUGOFF (AP) — A sheriff and a fired deputy in South Carolina are facing a second lawsuit over the officer’s conduct during an arrest.

The lawsuit said ex-Kershaw County deputy Johnathan Goldsmith threw the man against a car and then on the ground after he was handcuffed and hit him until a state trooper at the scene broke up the confrontation in November 2019.

The man was stopped at a traffic checkpoint when he was cuffed, according to the lawsuit obtained by WIS-TV. The man is also suing Kershaw County Sheriff Lee Boan saying he knew Goldsmith had problems before he was hired

and didn’t properly supervise the officer.

Goldsmith was fired in November 2020 and arrested three months later after investigators said he repeatedly hit a man he was trying to arrest while he was on the ground, later shocking him, using pepper spray, and closing the patrol car door on his leg. The encounter was captured on Goldsmith’s body camera, WIS-TV said.

Goldsmith said he saw an empty holster in the man’s car and feared he might have a gun.

Goldsmith is charged with misconduct in office and second-degree assault. His lawyer didn’t return messages from the TV station.

Boan was also named in the first lawsuit.

Training chief: SC officers cheated by speeding up videos FLORENCE (AP) — Officers in about 20 police agencies across South Carolina cheated on mandatory training by watching sped up videos on handling criminal domestic violence cases, the head of the state’s criminal justice academy told a Florence TV station.

The academy discovered the deception from a Facebook group where officers discussed how the video could be watched at a much faster speed than normal, South Carolina Criminal Justice Academy Director Jackie Swindler told WPDE-TV. Swindler said it is a safety risk because the officers could miss key procedures or legal information. And it’s an ethical problem because officers need to do the right thing even when they think no one is watching.

“Well, I guess these people assumed no one was watching.

But, we are. Because everything we have is computerized … and it showed what they did,” Swindler said.

6 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

AT-WILL / No viable suit against employer, though C o nt inu e d f r o m 1 ►

state appellate courts and federal courts in South Carolina have repeatedly referred to at-will employment relationships as contractual in nature, and many federal courts have found the same in allowing at-will employees to bring lawsuits against their employer under the Civil Rights Act. That same conclusion was warranted in other contexts as well, the court reasoned.

“All at-will employment relationships, whether they are memorialized in a written contract stipulating the atwill nature of the employment or orally formed simply out of circumstance, are contractual relationships,” James wrote. “When an employer offers to pay an employee to perform a service for a price and the employee performs that service, a contract is formed.”

Crucially, however, this contract doesn’t alter the established rule allowing an employer to discharge an at-will employee for any reason without incurring liability, because this prerogative is itself an integral term of the contract. That, in turn, informed the answer to Cain’s second question, which came in two parts—whether the covenant of good faith and fair dealing is implied in this contract, and whether a terminated at-will employee can sue their former employer for allegedly breaching this covenant.

James said that the answer to the first half of this question was yes, because the covenant of good faith and

fair dealing is implied in every contract. This ruling overturned some precedent from the state’s appellate courts suggesting the opposite. The practical impact of this clarification is likely to be small, however, since all atwill employment contracts contain a provision allowing the employer to discharge the at-will employee for “good reason, no reason, or bad reason” without incurring liability.

“It follows then that the implied covenant of good faith and fair dealing, while it exists in the at-will employment contract, does not infringe upon the employer’s right to do what the contract allows him to do—terminate the employee for any reason,” James wrote. “The employer’s motive for firing the employee is immaterial, and the employer may fire the employee—even for a bad reason— without incurring liability for breach of the implied covenant of good faith and fair dealing.”

The court’s answer to this second question would thus appear to preclude Hall from continuing with his suit against UBS once the case returns to the federal court. But Cain’s third question dealt with Hall’s suit against his former subordinate—whether the termination of an at-will employee resulting from a third party employee’s report to the employer can give rise to a claim for tortious interference with a contractual relationship.

Cain focused his inquiry on employees specifically, but James noted that the majority view across the

“When an employer offers to pay an employee to perform a service for a price and the employee performs that service, a contract is formed.”

Justice George C. James Jr.

country extends liability not just to third-party employees but to any third party who intentionally and unjustifiably interferes with the at-will relationship. And in 1984 the South Carolina Court of Appeals recognized the viability of a discharged employee’s claim against a third party for interference with a terminable-at-will employment contract in Todd v. S.C. Farm Bureau Mut. Ins. Co. The Supreme Court set aside that ruling on other grounds and had never since had cause to revisit the question.

But finally getting the chance to do so, it endorsed the majority view that a third party’s intentional interference with a terminable-at-will contract gives rise to a cause of action, even if the termination of the contract isn’t a

breach of the contract.

“We now endorse the Todd court’s recognition of the validity of a claim for third-party tortious interference with a terminable-at-will employment contract, and we hold the absence of an underlying breach by the terminating employer does not shield the third party from liability when she intentionally and unjustifiably procures the termination of an at-will employee,” James wrote.

Justice John Cannon Few was the lone dissenter from the court’s ruling. Few reasoned that there can be no breach of contract for firing an atwill employee, and when there is no breach of a contract, there can be no recovery for tortious interference with contractual relations. Few would have required an employee who is fired from an at-will position as a result of a false report to the employer to rely on a claim of defamation instead.

Townes B. Johnson III of Greenville represented Hall. Johnson did not respond to a phone call seeking comment on the case.

Ashley Prickett Cuttino and Evelyn Norton of Ogletree Deakins in Greenville represented UBS and Reid. Cuttino declined to comment on the case since the litigation remains ongoing.

The 17-page decision is Hall v.

UBS Financial Services Inc. (Lawyers Weekly No. 010-067-21).The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @ SCLWDonovan

SOUTH CAROLINA CHAPTER Check AVAILABLE DATES for the State’s Top-Rated Mediators at www.SCMEDIATORS.org

Ellen Adams Columbia (803) 255-0426

Jon Austen Charleston (843) 727-2271

Sam Clawson Charleston (800) 774-8242

Theron Cochran Greenville (864) 298-2721

Danny Crowe Columbia (803) 888-3936

Anne Culbreath Greenville (864) 672-3713

Vernon Dunbar Greenville (864) 239-6735

Earl Ellis Columbia (803) 260-0235

Eric Englebardt Greenville (864) 232-2329

Karl Folkens Florence (843) 665-0100

Amy Gaffney Columbia (803) 790-8838

Mills Gallivan Greenville (864) 271-5341

Harry Goldberg Columbia (803) 765-2935

Jack Griffeth Greenville (864) 349-2600

Mitch Griffith Beaufort (843) 521-4242

Rob Hassold Greenville (864) 325-7467

Richard Hinson Florence (843) 799-5599

Regina H. Lewis Columbia (803) 790-8838

Bill Lyles Charleston (843) 696-6294

Stuart Mauney Greenville (864) 271-5356

David McCormack Charleston (843) 789-9153

Ben McCoy Columbia (803) 758-6000

Lee Plumblee Greenville (864) 235-2600

Franklin Shuler Columbia (803) 227-4242

Lana Sims, Jr. Columbia (803) 995-4342

Ronald Stanley Columbia (803) 799-4700

Tom Stephenson Greenville (864) 370-9400

John Tiller Charleston (843) 722-3366

Walter B. Todd, Jr. Columbia (803) 753-7952

Ned Tupper Beaufort (843) 524-1116

Brad Waring Charleston (843) 277-3700

Derrick Williams Columbia (803) 929-0029

Thomas Wills Charleston (843) 727-1144

Check your preferred available dates online or schedule appointments directly with Academy Members, for free.

www.SCMediators.org

Need a top rated mediator or arbitrator outside of South Carolina? Please visit NADN’s free National Directory at www.NADN.org

OPINION DIGESTS / 7

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

Opinions SOUTH CAROLINA SUPREME COURT 7 S.C. COURT OF APPEALS 9 S.C. COURT OF APPEALS UNPUBLISHED U.S. DISTRICT COURT 12 4TH U.S. CIRCUIT COURT OF APPEALS 13 S.C. SUPREME COURT

Labor & Employment At Will – Contract – Implied Covenant of Good Faith – Tortious Interference In response to questions certified by the federal district court, we hold that (1) terminable-at-will employment relationships are contractual in nature as a matter of law, (2) the implied covenant of good faith and fair dealing arises in the context of terminable-at-will employment relationships, (3) an employer’s termination of an at-will employee cannot give rise to a claim by the former employee against the employer for breach of the implied covenant of good faith and fair dealing, and (3) when an employer’s termination of an at-will employee results from a third-party’s report to the employer, the former employee may have a claim against the third-party for tortious interference with a contractual relationship.

According to the complaint, defendant Reid falsely reported to their employer that plaintiff had sexually harassed Reid, leading to plaintiff’s termination. Plaintiff sued the defendant-employer for breach of the implied covenant of good faith and fair dealing, and he sued Reid for tortious interference with contract.

The federal district court certified the following questions to this court: First, are terminable-at-will employment relationships contractual in nature as a matter of law?

Second, does the implied covenant of good faith and fair dealing arise in the context of terminable-at-will employment relationships, and can an employer’s termination of an at-will employee constitute a breach of the relationship such that it may give rise to a claim by the former employee against the employer for breach of the implied covenant of good faith and fair dealing?

Third, can an employer’s termination of an at-will employee, which results from a third-party employee’s report to the employer, constitute a breach of the relationship such that it may give rise to a claim by the former employee against the third-party employee for tortious interference with a contractual relationship?

Question One The decisions of our appellate courts have seemingly contradicted each other on the issue of whether terminable-at-will employment relationships are contractual in nature when discussing the viability of claims for breach of the implied covenant of good faith and fair dealing and tortious interference with contractual relations—the subjects of the second and third certified questions.

However, at least six federal circuit courts have held the at-will employ-

ment relationship is contractual. And Sellers v. South Carolina Autism Society, Inc., 861 F. Supp. 2d 692 (D.S.C. 2012), undertook a well-reasoned examination of South Carolina law and determined “at-will employment in South Carolina is contractual in nature and may support a claim under [42 U.S.C.] Section 1981.”

The same result is warranted outside the context of § 1981. All at-will employment relationships, whether they are memorialized in a written contract stipulating the at-will nature of the employment or orally formed simply out of circumstance, are contractual relationships. We answer the first certified question “yes.”

Question Two Although some of our state’s appellate decisions have held that the implied covenant of good faith and fair dealing does not arise in at-will employment relationships, those holdings were based on the assumption that there was no contract involved in such relationships. Given our answer to Question One, that rationale is no longer valid.

The implied covenant of good faith and fair dealing exists in at-will employment contracts.

However, there is no breach of an implied covenant of good faith where a party to a contract has done what provisions of the contract expressly gave him the right to do. All at-will employment contracts contain a provision allowing the employer to discharge the at-will employee for good reason, no reason, or bad reason without incurring liability.

It follows then that the implied covenant of good faith and fair dealing, while it exists in the at-will employment contract, does not infringe upon the employer’s right to do what the contract allows him to do: terminate the employee for any reason.

The employer’s motive for firing the employee is immaterial, and the employer may fire the employee—even for a bad reason—without incurring liability for breach of the implied covenant of good faith and fair dealing.

Accordingly, we answer Question Two in its entirety as follows: The implied covenant of good faith and fair dealing exists in an at-will employment contract; however, the employer’s termination of the employee cannot form the basis of a claim that the employer breached the covenant of good faith and fair dealing.

Question Three The district court has presented the narrow question of whether a third-party employee’s interference can be actionable. The majority view across the country extends liability not only to third-party employees but also to any third party who intentionally and unjustifiably interferes with the at-will relationship.

As we answer the district court’s narrow question, we will also answer the broader question.

Todd v. S.C. Farm Bureau Mut. Ins. Co., 283 S.C. 155, 163, 321 S.E.2d

602, 607 (Ct. App. 1984), held that an at-will employee’s intentional interference claim was viable. Until now, we have not had occasion to address this holding.

Even though an element of tortious interference with contractual relations is the intentional procurement of a contract’s breach, and even though there is no breach of contract when an employer fires an at-will employee, the absence of an underlying breach does not shield a third party from liability when she intentionally and unjustifiably procures the termination of an at-will employee.

We endorse the Todd court’s recognition of the validity of a claim for third-party tortious interference with a terminable-at-will employment contract, and we hold the absence of an underlying breach by the terminating employer does not shield the third party from liability when she intentionally and unjustifiably procures the termination of an at-will employee. Therefore, we answer Question Three, as modified, “yes.”

Dissent (Few, J.): There can be no breach of contract for firing an at-will employee. When there is no breach of a contract, there can be no recovery for tortious interference with contractual relations. I would require an employee who is fired from an at-will position as a result of a false report to the employer to rely on a claim of defamation.

Hall v. UBS Financial Services Inc. (Lawyers Weekly No. 010-06721, 17 pp.) (George James, J.) (John Few, J., concurring in part & dissenting in part) On certification from the U.S. District Court for the District of South Carolina (Timothy Cain, J.) Townes Johnson for plaintiff; Ashley Cuttino and Evelyn Norton for defendants. S.C. S. Ct.

Criminal Practice Murder – Hand of One – Shooter’s Acquittal The state proved beyond a reasonable doubt that defendant joined with two others, Donavon and Charles, to rob the victim and that Donavon murdered the victim in the course of the robbery. Although the jury convicted defendant on the theory the “hand of one is the hand of all,” since the state met its burden in defendant’s trial, it does not matter to the validity of defendant’s conviction that, in a subsequent trial, Charles was granted a directed verdict and Donavon was acquitted of the murder.

We deny defendant’s request that we vacate his murder conviction.

State v. Butler (Lawyers Weekly No. 010-068-21, 2 pp.) (John Few, J.) Original jurisdiction. Jessica Elizabeth Kinard and Tommy Arthur Thomas for petitioner; Alan McCrory Wilson and Chelsey Faith Marto for respondent. S.C. S. Ct.

11

Civil Practice Statute of Limitations – Discovery Rule – Jury Issue Considering both the three-year statute of limitations and the discovery rule, under the facts of this case, there was a jury issue as to whether the statute of limitations had expired by the time the action was commenced against defendant Bostic Brothers Construction, Inc. We affirm the Court of Appeals’ decision to uphold the trial court’s denial of Bostic’s motion for a directed verdict.

Stoneledge at Lake Keowee Owners’ Association, Inc. v. IMK Development Co. (Lawyers Weekly No. 010-069-21, 4 pp.) (George James, J.) Appealed from the Circuit Court in Oconee County (Alexander Macauley, J.) On writ of certiorari to the Court of Appeals. Robert Lyles and Lee Anne Walters for petitioners-respondents; Alan Belcher, Elizabeth Wieters and Paul Trainor for respondent-petitioner. S.C. S. Ct.

Tort/Negligence Defective Construction – Amalgamation – Damages Calculation Even though there was evidence of the intertwining of the businesses of the two members of a limited liability company, since the plaintiffhomeowners’ association (HOA) did not show bad faith, abuse, fraud, wrongdoing or injustice resulting from the blurring of the entities’ legal distinctions, the Court of Appeals erred in affirming the amalgamation of defendants IMK Development Co., LLC, Marick Home Builders and Rick Thoennes under the single business enterprise theory.

Furthermore, the single business enterprise theory is not to be used to amalgamate an individual with a company.

We affirm in part and reverse in part the Court of Appeals’ decision.

The only evidence the Court of Appeals cited with regard to “bad faith, abuse, fraud, wrongdoing, or injustice” was that Thoennes, as Marick’s principal and license holder, had at least constructive knowledge of the pervasive construction defects that plagued the project, but was nevertheless directly involved in IMK and Marick’s marketing and sale of the units. Given that Marick’s and IMK’s profits were entirely dependent on IMK’s ability to sell the units, their operations were clearly in pursuit of a common business purpose, albeit to the detriment of the HOA members.

Viewing the facts of this case with the requisite hesitancy to invade the LLC form, we do not believe these facts warrant the application of the single business enterprise theory.

The single business enterprise the-

8 / OPINION DIGESTS ory exists as an equitable remedy for plaintiffs whenever they have been wronged by business entities with blurred identities. It does not apply to individuals.

As to the issue of damages, (1) the only recovery plaintiff sought was the cost to repair the faulty construction in Phase I of their development; (2) the jury awarded plaintiff $3,000,000 for negligence against defendant Bostic Brothers Construction, Inc. and IMK/Marick (only Bostic and Marick remain), $1,000,000 for breach of the implied warrant of workmanlike service against Bostic and Marick, and $1,000,000 for breach of fiduciary duty against IMK, Integrys Keowee Development, LLC, Thoennes, William Cox and Larry Lollis (only Thoennes remains); (3) no one asked the jury for clarification before the trial court decided that the award was “cumulative”; (4) the jury found IMK/Marick 40 percent responsible and Bostic 60 percent responsible as to negligence; (5) the jury found IMK/Marick 70 percent responsible and Bostic 30 percent responsible as to breach of the implied warranty of merchantability; and (6) the HOA received $2,855,911.77 in settlements from other defendants.

The trial court reformed the jury’s verdict to $5,000,000 for each cause of action. Our Court of Appeals reversed, and plaintiff appeals.

Defendants’ silence in the face of the trial court’s statement that the verdicts were “cumulative” was of no significance because, in light of case law at the time, the term “cumulative” was subject to a different meaning from what plaintiff and the trial court intended. It was entirely reasonable for defense counsel to take the trial court’s comment as its conclusion that the verdicts would be added together.

Because no party requested the trial court resubmit the verdict forms to the jury with instructions to make the verdicts consistent, we affirm the Court of Appeals’ holding that the three verdicts must stand as delivered by the jury. This entire problem and the appellate distress it has caused could have been avoided if just one party had asked the trial court to resubmit the verdicts to the jury with instructions to make them consistent.

Because S.C. Code Ann. § 15-3820(G) of the Uniform Contribution among Tortfeasors Act provides that Chapter 38 does not apply to breaches of trust or other fiduciary obligation, the General Assembly clearly intended Chapter 38 to prohibit the application of setoff to a breach of fiduciary duty award. Therefore, the $1,000,000 breach of fiduciary duty award against Thoennes is not subject to setoff.

Although the act governs the setoff of prior settlements paid by those liable in tort, not those liable in contract, nothing in the act prohibits the application of common law setoff to a claim founded in contract. Therefore, setoff can be applied to the breach of warranty award.

Likewise, apportionment under the act does not apply to the breach of warranty verdict. However, at trial, the parties agreed the jury should apportion responsibility for the breach of warranty award between Bostic and Marick. Under S.C. Code Ann. § 1538-15(A), Bostic is liable for the entire negligence verdict of $3,000,000, and Marick is liable for its apportioned share of $1,200,000. Marick is liable for the entire $1,000,000 breach of warranty verdict, and Bostic is liable for its apportioned share of $300,000.

These amounts must be adjusted to

take into account (1) pro rata allocation between the verdicts for these two causes of action and (2) setoff of the prior settlements.

After applying the correct setoff, the apportionment percentages determined by the jury, and the apportionment statute, we hold the resulting judgments to be entered are as follows: Bostic: $858,066.17 for negligence (joint and several liability for prorated verdict after setoff) and $85,806.62 for breach of warranty (30% of prorated verdict after setoff) Marick: $286,022.06 for breach of warranty (joint and several liability for prorated verdict after setoff) and $343,226.47 for negligence (40% of prorated verdict after setoff) Thoennes: $1,000,000 for breach of fiduciary duty (no setoff applied) Affirmed in part, reversed in part and remanded.

Stoneledge at Lake Keowee Owners’ Association, Inc. v. IMK Development Co. (Lawyers Weekly No. 010-070-21, 26 pp.) (George James, J.) Appealed from the Circuit Court in Oconee County (Alexander Macaulay, J.) On writ of certiorari to the Court of Appeals. Robert Lyles and Lee Anne Walters for petitionersrespondents; Jason Imhoff for respondents-petitioners. S.C. S. Ct.

Administrative Environmental – Landfill Changes – Notice & Request for Review The 15-day period for filing a request for review of a decision of the Department of Health and Environmental Control does not start to run upon a party’s receipt of actual notice of the decision. The General Assembly chose not to include an actual notice trigger when it enacted the statutory provisions governing the procedure for bringing a contested case before the Administrative Law Court. S.C. Code Ann. § 44-1-60(A)-(J). We have no authority to inject into the statute an actual notice trigger of the 15-day limitations period, as that would disturb the legislatively prescribed procedure for appealing permitting decisions.

We affirm in part, vacate in part and remand the Court of Appeals’ decision.

The Court of Appeals correctly held the ALC should have determined whether DHEC misclassified a landfill permit modification; however, the ALC, and not the Court of Appeals, should make that determination in the first instance. We vacate the Court of Appeals’ findings of fact.

We note that counsel for the landfill’s owner has conceded that the Class Two landfill could not accept coal ash—or any other waste not listed in Appendix I to Regulation 61-107.19—without additional approval from DHEC. Counsel for the landfill owner also said the respondent-county would receive “notice of our request for a characterization of new waste,” and counsel for DHEC said the county would be notified of any decision authorizing the owner to dispose of coal ash or other wastes not listed in Appendix I in the landfill. Counsel for the owner and DHEC both acknowledged that a law passed in 2016 requires coal ash to be placed in a Class Three landfill, subject to a few exceptions.

Pickens County v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 010-071-21, 8 pp.)

S O U T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

(George James, J.) Appealed from the Administrative Law Court (Shirley Robinson, ALJ) On writ of certiorari to the Court of Appeals. Chad Johnson, Walker Humphrey, Robert Goings, Jessica Gooding, Jessica King, Etta Linen and Karen Ratigan for petitioners; Gary Poliakoff, Amy Armstrong and Michael Corley for respondent. S.C. S. Ct.

Zoning Sexually Oriented Business – Temporary Injunction – Constitutional – Appeals Although the appellant-county had appealed an order temporarily enjoining enforcement of its Ordinance No. 4869, since the county asserted that respondent was violating several other ordinances, the circuit court retained jurisdiction to determine whether to temporarily enjoin respondent’s operation of its restaurant.

Given evidence of the barely-there clothing worn by respondent’s dancers, touching, and simulations of sex, the county was entitled to the temporary injunction it sought.

We reverse the circuit court’s grant of a temporary injunction in favor of respondent and its denial of a temporary injunction in favor of the county.

Greenville County’s Ordinance No. 4869 amended Greenville County Ordinance No. 2673’s definition of an adult cabaret to include establishments that regularly feature persons appearing in a “state of semi-nudity.”

Ordinance No. 4869 also revised the definition of “semi-nude.” Given the existence of 89 zoned parcels and thousands of unzoned parcels that meet the location requirements for sexually oriented businesses in the county, Ordinance No. 4869 does not regulate sexually oriented businesses out of existence because the county provides reasonable alternative avenues of communications.

Therefore, to the extent the circuit court’s ruling was based on its conclusion that Ordinance No. 4869 is likely an unconstitutional infringement of respondent’s First Amendment rights, we hold the grant of injunctive relief was error, as respondent failed to prove it would likely succeed on the merits of its First Amendment claim.

To the extent the circuit court based its conclusion that there was a likelihood of success on the merits arising from the inequitable timing of the adoption of Ordinance No. 4869, the circuit court plainly erred in two respects. First, the circuit court mischaracterized a February 2017 order (ending a nuisance claim brought by the state against respondent’s predecessor) as binding upon the county.

That characterization is clearly erroneous as the county was not a party to the nuisance litigation.

Second, the circuit court found that “[The February 2017] Order simply allows [respondent] Greenville Bistro to open and operate a ‘similar business’ to that of [predecessor Platinum Plus].” We disagree. Nothing in the February 2017 order allows anything of the sort.

The February 2017 order merely notes that Greenville Bistro, a new tenant with no connection to Platinum Plus, “is seeking to commence operations of a similar business as Platinum Plus in the location.”

Greenville Bistro has not demonstrated that it would likely succeed on the merits of its claim that the county inequitably adopted Ordinance No. 4869. The court will not strike down

an otherwise constitutional statute on the basis of an alleged illicit legislative motive.

The fact that a sexually oriented business has prompted ensuing regulation does not mean the regulation is targeted at the eradication of any erotic message the business may convey.

The circuit court erred in concluding Greenville Bistro was entitled to a temporary injunction on the ground that the timing of the adoption of Ordinance No. 4869 was suspect. Greenville Bistro did not establish it was likely to succeed on the merits of this claim.

The circuit court’s determination of whether the county was entitled to injunctive relief for the foregoing reasons was not a matter affected by an appellate court’s resolution of the validity of Ordinance No. 4869. None of the county’s grounds for injunctive relief involve the content of Ordinance No. 4869, specifically its provisions concerning “state of semi-nudity” or “semi-nude.” The circuit court erred in ruling it did not have jurisdiction to address the merits of the county’s motion for temporary injunctive relief.

Witnesses testified to respondent’s dancers wearing pasties and thongs; performing lap dances; touching their breasts, buttocks and vaginal areas; and simulating sex with customers. Even though the county’s appeal of a ruling on Ordinance No. 4869 was pending, since the county asserted that respondent was violating several ordinances in addition to Ordinance No. 4869, the circuit had jurisdiction to address the merits of the county’s motion for temporary injunctive relief.

The record before us includes the facts relevant to whether the county is entitled to a temporary injunction, so a remand is not warranted.

The county has presented sufficient proof that respondent illegally operates as an “adult cabaret” in a prohibited location. The county is entitled to temporary injunctive relief.

Reversed and remanded.

Greenville Bistro, LLC v.

Greenville County (Lawyers Weekly No. 010-072-21, 22 pp.) (George James, J.) Appealed from the Circuit Court in Greenville County (Robin Stilwell & Perry Gravely, JJ.) John Devlin and Scott Bergthold for appellants; Oscar Bannister, Luke Burke and Luke Lirot for respondents. S.C. S. Ct.

Criminal Practice Preservation of Error – Search & Seizure – Motion to Suppress – Final Ruling After a hearing, the trial court denied defendant’s motion to suppress.

Between that ruling and the state’s presentation of evidence obtained from the contested search, nothing occurred that might have caused the trial court to change its ruling.

Although defense counsel failed to object to evidence obtained from the search, defendant’s objection to the search was nevertheless preserved for appellate review.

However, where police received a tip about short-term traffic frequenting defendant’s house and where a trash pull yielded marijuana residue and baggies indicative of narcotics resale, the magistrate’s issuance of the search warrant was supported by probable cause.

Although the Court of Appeals held that the suppression issue was

OPINION DIGESTS / 9

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

not preserved for appeal, we affirm the Court of Appeals’ ruling in result.

In order for an issue to be preserved for appellate review, a party must make a contemporaneous objection that is ruled upon by the trial court. If an evidentiary ruling is pretrial, a contemporaneous objection must be raised during trial when the evidence is admitted, whereas a party need not renew an objection if the decision is final.

However, there is a practical exception to this requirement when a judge makes an evidentiary ruling on the record immediately prior to the introduction of evidence. The rationale supporting this exception is that if no evidence is offered between the initial objection and the admission of the evidence, then there is no basis for the trial court to change its initial ruling. State v. Mueller, 319 S.C. 266, 460 S.E.2d 409 (Ct. App. 1995).

While Mueller remains good law, a different approach is warranted where a court rules after a hearing on a constitutional issue. Under those circumstances, the ruling is final and, unless something changes during trial that may reasonably cause the trial judge to alter the pretrial ruling, no further objection is required to preserve the issue for appellate review.

Here, the pretrial evidentiary ruling was rendered following a full hearing on defendant’s motion to suppress. Both sides submitted briefs, presented testimony to the court, and argued their respective positions. Just before trial, although defense counsel noted his continuing disagreement with the prior denial of his motion to suppress, no new hearing was held, and, during trial, no new facts arose which would have justified another hearing on the matter.

While there is no question the trial judge could have changed the prior ruling on the motion to suppress based upon new matter coming to light, requiring attorneys to continue to object when a ruling is clearly final would not serve the purpose of our rules of preservation; rather, it would merely foster a game of “gotcha,” where form is elevated over substance. Preservation rules are intended to ensure that appellate courts review considered decisions of our trial courts and that issues are not being raised for the first time on appeal. Their purpose is not to sabotage attorneys’ efforts to bring issues before the appellate courts, particularly where, as here, it was clear to all concerned that defense counsel continued to object to the denial of his motion to suppress.

Therefore, defendant’s objection to the denial of his motion to suppress was preserved for appellate review.

State v. Jones (Lawyers Weekly No. 010-073-21, 6 pp.) (Kaye Hearn, J.) Appealed from the Circuit Court in Aiken County (Lawton McIntosh, J.) On writ of certiorari to the Court of Appeals. Kathrine Haggard Hudgins for petitioner; Alan McCrory Wilson and William Blitch for respondent.

S.C. S. Ct.

S.C. COURT OF APPEALS

Criminal Practice Search & Seizure – Cell Phone Records – Confrontation Clause – Police Interrogation Even if cell site location information, which was initially obtained from defendant’s cell phone service

provider pursuant to an emergency disclosure form, would not have been admissible, its admission did not violate defendant’s rights under S.C. Const. art. 1, § 10 because the same information was also subsequently obtained pursuant to a valid search warrant, which police applied for at roughly the same time as the emergency disclosure form.

We affirm defendant’s convictions for murder, possession of a deadly weapon during the commission of a violent crime, and attempted armed robbery.

Only hours after the victim’s murder, officers utilized two valid warrants to search the victim’s car and cell phones. A search of one phone disclosed all of the victim’s recent phone calls and text messages with an unidentified phone number.

Using a database, officers determined the unidentified number’s service provider and contacted the provider to request the name of the individual associated with the phone number. The service provider named defendant as the subscriber.

Officers also legally obtained defendant’s address under the emergency disclosure form and had all of the text content between the victim and defendant on the night of the murder.

Finally, officers filed a proper search warrant with Verizon at roughly the same time they filed the emergency disclosure form, and Verizon provided the records a week after the murder, disclosing the same information and data as it had in response to the emergency form. Because the officers legally obtained defendant’s name and address, and his cell site location information (CSLI) data was legally obtained a week after the murder under a valid search warrant, the trial court did not err by refusing to suppress the CSLI data under Article 1, § 10.

Although the detective who interrogated defendant was unavailable to testify at trial, the detective’s absence and the admission of defendant’s recorded confession did not violate the Confrontation Clause. Custodial examinations, confessions, and statements taken by police officers in the course of interrogation are all considered testimonial in nature. Crawford v. Washington, 7 541 U.S. 36 (2004).

However, the Confrontation Clause is directed at barring the product of police interrogation.

The detective was not a witness “bearing testimony” against defendant as defined in Crawford. Although the detective was adversarial to defendant in the sense that he was part of a legal system seeking to incarcerate him, the detective was not making statements against defendant as the subject of an interrogation; the detective was conducting the interrogation.

Further, an interrogating officer’s questions or statements made during an interrogation cannot be testimonial as defined in Crawford because the nature of interrogation is inquisitive, not declaratory.

Finally, the Confrontation Clause functions to bar the product of police interrogation that asserts incriminating facts against a defendant. The product of the detective’s interrogation—defendant’s responses to the detective’s questions—is testimonial, not the detective’s questions or statements. Because the detective’s questions and statements made while interrogating defendant were not testimonial, defendant’s recorded confession was not barred by the Sixth Amendment.

Affirmed.

State v. Stewart (Lawyers Weekly No. 011-091-21, 9 pp.) (Bruce Williams, J.) Appealed from Horry County Circuit Court (Thomas Cooper, J.) Tommy Arthur Thomas for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown, William Blitch, William Frederick Schumacher and Caroline Scrantom for respondent. S.C. App.

Domestic Relations Property Settlement – Civil Contempt – Advice of Counsel – Alimony – Attorney’s Fees In the parties’ property settlement, the defendant-husband agreed to pay the plaintiff-wife up to $50,000 per year from payments he received “from patents, trademarks, and licensing agreements.” This provision was broad enough to encompass the quarterly payments defendant received from the purchaser of his intellectual property. Defendant’s claim that he stopped making payments to the plaintiff-wife in reliance on the advice of counsel does not insulate him from civil contempt.

We reverse the family court’s ruling that defendant did not willfully violate the quarterly payment provision. We affirm the family court’s rulings that (1) defendant was in contempt for switching out the beneficiary of a life insurance policy, which he was required to maintain for the benefit of plaintiff; (2) defendant was entitled to a set off for his overpay-

ment of alimony; and (3) plaintiff was entitled to an award of attorney’s fee of $60,000.

The property settlement’s quarterly payment provision covers the purchaser’s payments as they represent funds defendant continues to earn from patents. Viewing the record against the quarterly payment order, there is no fair ground to doubt the purchaser’s payments were subject to it. The payments are earnings from patents defendant owned at the time of the agreement, which comprise a fund from which he is being paid until 2023.

To be sure, defendant could have structured the 2009 sale to receive the entire sale price that same year and had that happened he would not have had to pay plaintiff from those funds beyond that date. But that is not what happened.

There is clear and convincing evidence defendant willfully violated the quarterly payments provision. The provision was a clear and unambiguous order of the court. That is likely why defendant continued to make the quarterly payments for seven years after the sale.

Defendant boasted that after he signed the provision, he never read it again until this contempt action arose. This curious admission sinks defendant’s claim that he sought the advice from patent counsel before stopping the payments and the contempt action began. It also puts to bed any idea defendant was acting in good faith.

As to defendant’s reliance on the advice of counsel, we hold even had he

Personal injury law firm is looking to expand South Carolina operations to serve more citizens of South Carolina.

Firm is interested in discussing a merger or acquisition with an existing South Carolina based personal injury law firm.

If interested, please e-mail Inquiry@PILawMerger.com to include the name of your law firm along with a name, e-mail address, and phone number of your firm’s contact.

10 / OPINION DIGESTS obtained the advice before stopping the payments, it would be no defense to a civil contempt action. We decline to permit the mere advice of counsel to immunize parties from claims of contemptuously disobeying plain and explicit court orders.

We acknowledge a party who attempts in good faith to comply with a court order should not be held in contempt. But the record discloses defendant’s road to contempt was not paved with good faith but with cunning.

For instance, defendant insisted the stream of payments he has received since the 2009 sale were not earnings from his patents but from “the note.” In the contempt context, failure to obey is not excused just because a party dons blinders and convinces himself a court order does not mean what it plainly says. We therefore reverse the family court order on this issue and hold defendant willfully violated the quarterly payment provision.

The parties’ property settlement required defendant to maintain plaintiff as beneficiary of a specified life insurance policy. Even though, when defendant switched out the beneficiary on his life insurance policy—to save on premiums and ease financial stress on his company—he also purchased a similar policy and designated plaintiff as its beneficiary, since plaintiff endured anxiety and spent needless time and energy trying to restore the financial security the property settlement’s life insurance provision was designed to provide her, plaintiff was harmed. Therefore, defendant’s removal of the wife as beneficiary of his life insurance policy constituted civil contempt.

In order to pay plaintiff $12,000 per month in alimony, defendant had his social security payments deposited directly into her account, and he made additional payments to make up the difference. As his social security payments increased, he failed to reduce his additional payments and therefore overpaid alimony.

In this respect, defendant’s conduct was more akin to inattention than intent, and estoppel does not bar his right to a refund. The family court sensibly used its equity powers to grant defendant a setoff against his quarterly payment debt.

Although plaintiff requested attorney’s fees of $110,000, this amount far exceeded the range of reasonableness for the issues tried.

The family court well analyzed the reasonableness of plaintiff’s fees and the benefits she obtained. We affirm the $60,000 award.

Affirmed in part and reversed in part.

Campione v. Best (Lawyers Weekly No. 011-092-21, 7 pp.) (Garrison Hill, J.) Appealed from Richland County Family Court (Dana Morris, J.) Victoria Eslinger and Marcus Manos for plaintiff; Suzanne Hawkins for defendant. S.C. App.

Criminal Practice Circumstantial Evidence – Logan Charge – Omitted Language – Search & Seizure At a traffic stop, defendant was arrested after a consensual search revealed heroin in a hidden compartment under the back seat of a car that defendant was in the process of buying. Where (1) prosecution witnesses admitted that there was no investigation of the seller of the vehicle or tests

(such as fingerprint tests) on the hidden compartment, (2) there was no direct evidence of defendant’s knowledge of the hidden compartment or drugs, and (3) the state spent a significant portion of its closing argument on circumstantial evidence, defendant was entitled to a Logan charge on circumstantial evidence.

The trial court’s charge neglected to include the language from State v.

Logan, 405 S.C. 83, 747 S.E.2d 444 (2013): “to the extent the State relies on circumstantial evidence, all of the circumstances must be consistent with each other, and when taken together, point conclusively to the guilt of the accused beyond a reasonable doubt.” Based on the omission of the mandatory language in Logan, and after a review of the trial court’s instructions as a whole, we agree with defendant that the trial court erred in refusing to give the Logan charge upon her request, and that defendant was prejudiced by the error.

We reverse defendant’s convictions for trafficking more than 28 grams of heroin and unlawful conduct toward a child.

State v. Sanchez (Lawyers Weekly No. 011-093-21, 7 pp.) (Paula Thomas, J.) Appealed from the Circuit Court in Greenville County (Letitia Verdin, J.) Adam Sinclair Ruffin for appellant; Alan McCrory Wilson, Mark Reynolds Farthing and William Walter Wilkins for respondent.

S.C. App.

Taxation Real Property – Homestead Exemption – Household Member – Tennessee Resident Although a verbatim reading of S.C. Code Ann. § 12-43-220(c)(2)(ii) would allow the appellant-taxpayer to claim the homestead exemption for her Beaufort County house, since her husband lives in Tennessee, we construe § 12-43-220(c)(2)(ii)(A) to disqualify appellant from claiming the exemption.

We affirm summary judgment for the respondent-county.

Appellant lives in the house in Beaufort County. Her husband lives in Tennessee. Appellant and her husband are not legally separated.

To qualify for the homestead exemption, § 12-43-220(c)(2)(ii) requires a taxpayer to validate “(A) the residence which is the subject of this application is my legal residence and where I am domiciled at the time of this application and that neither I, nor any member of my household, claim to be a legal resident of a jurisdiction other than South Carolina for any purpose; and “(B) that neither I, nor a member of my household, claim the special assessment ratio allowed by this section on another residence.”

S.C. Code Ann. § 12-43-220(c)(2) (iii)(A) provides, “For purposes of subitem (ii)(B) of this item, “a member of my household” means: (A) the owneroccupant’s spouse, except when that spouse is legally separated from the owner-occupant…”

Appellant’s argument relies on a verbatim reading of the subsection defining “member of my household” and limiting that definition to § 1243-220(c)(2)(ii)(B). However, we do not read statutes literally.

First, we cannot think of any reason the General Assembly would want “member of my household” to have two different meanings in the context of the certification a taxpayer must execute when applying for the

S O U T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

homestead exemption.

Second, the General Assembly amended these subsections in 2012.

Before those amendments, the term “member of my household” appeared only in part B, not in part A. The 2012 amendments added the phrase “member of my household” to part A. While the General Assembly did not amend the definitional subsection to specifically include the newly modified part A, the General Assembly likely did not intend different definitions for the very same term that was used elsewhere in the very same taxpayer certification.

Third, the term “member of my household” or a derivative thereof appears multiple times throughout § 12-43-220. The Administrative Law Court found the General Assembly, through its repeated use of the phrase, chose to employ a term of art and intended the term would have a consistent meaning throughout the statute.

We agree with the ALC’s reasoning, as it closely follows the normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning. This is bolstered by the fact that tax exemption statutes are strictly construed against the taxpayer.

Finally, in 2021, the General Assembly revised the definition of “member of my household” to explicitly encompass an owner occupant’s spouse for the entirety of subsection (c)(2)(ii) instead of just part B. The ALC correctly granted summary judgment for the respondentassessor.

Oakley v. Beaufort County Assessor (Lawyers Weekly No. 011094-21, 5 pp.) (Blake Hewitt, J.) Appealed from the Administrative Law Court (Phillip Lenski, ALJ) Curtis Lee Coltrane for appellant; Stephen Hughes and Catherine Laird Floeder for respondent. S.C. App.

Criminal Practice PCR – Brady Claim – Self-Representation – Experienced Defendant Petitioner asserts that the state forced him to either accept a plea offer without viewing a surveillance video, purportedly of him engaging in a drug transaction, or view it and face a sentence of life without parole at trial. However, where no evidence supports an argument that the video was in any way exculpatory, and where the state allowed defense counsel to view the video, petitioner has failed to show the state violated Brady v.

Maryland, 373 U.S. 83 (1963).

Furthermore, the plea court sufficiently warned petitioner of the dangers of proceeding pro se, especially considering petitioner’s prior experience in the criminal system.

We affirm the denial of post-conviction relief.

After dismissing two lawyers (one appointed, one retained), petitioner gave up his right to an attorney, pled guilty, and received a 14-year sentence. At his PCR hearing, petitioner claimed he decided to plead guilty because his plea offer would soon expire and after being unable to hire another attorney, he could not prepare for trial himself. However, petitioner voluntarily chose both to remove Chris Wellborn as his counsel and to take advantage of the state’s plea offer, which reduced his sentence exposure from life without parole to 14 years’ imprisonment. Consequently,

the state’s decision to seek an LWOP sentence at trial and its handling of petitioner’s discovery materials did not coerce him into waiving his right to counsel or pleading guilty.

Further, petitioner’s waiver of counsel was knowingly and intelligently made. The plea court informed petitioner of the charge against him, its potential sentence, and the consequences of the charge being classified as “serious.” It also informed petitioner he had the right “to have an attorney represent [him].” The plea court further warned petitioner, “[It’s] dangerous for you to proceed without an attorney since you’re not one and there is a benefit in having an attorney represent you.” We conclude the plea court’s warning was sufficient to satisfy the Sixth Amendment, and petitioner made an informed choice to proceed pro se with “eyes open.”

Moreover, petitioner’s background also weighs in favor of his understanding the dangers of self-representation. Petitioner was 29 years old, in college, and nothing indicates he suffered from any physical or mental health issues. He had previously been charged with murder and convicted of distribution of ecstasy within proximity of a school, distribution of cocaine within proximity of a park, and intimidating a witness.

Finally, petitioner’s plea was not coerced. Although the appendix contains no evidence of a warning to petitioner that he would be required to comply with the rules of procedure at trial or that Wellborn explained to him the dangers of self-representation, and the plea court did not appoint stand-by counsel, the majority of the above factors weigh toward a finding that petitioner’s background was sufficient for him to be aware of the dangers of self-representation.

Affirmed.

Hines v. State (Lawyers Weekly No. 011-095-21, 22 pp.) (Aphrodite Konduros, J.) Appealed from the Circuit Court in York County (Lawton McIntosh, J.) Clarence Rauch Wise for petitioner; Alan McCrory Wilson and Michael Jacob Neubauer for respondent. S.C. App.

Criminal Practice Murder – Denial of Immunity – Prosecution Testimony – Shooter’s Location In her bid for immunity from prosecution, defendant proceeded solely under S.C. Code Ann. § 16-11-440(C).

However, defendant’s statements to law enforcement indicated that she retrieved a gun and pointed at the victim, her abusive paramour, in an attempt to get the victim to leave her house before the expected arrival of her mother, who disapproved of the victim. Since only defendant’s inconsistent and self-serving testimony supported her claim that she shot the victim because she feared for her life, the circuit court did not abuse its discretion in denying defendant immunity from prosecution under the Protection of Persons and Property Act. We affirm defendant’s murder conviction.

An investigator did not give improper lay testimony when defense counsel asked him, “Is it your contention that he has to be charging at her to shoot him?” and the investigator responded, “I find it hard to believe that I was told that he was lunging at her, but he was shot in the back.”

The investigator’s answer did not offer a conclusion about either why or how defendant may have shot the

OPINION DIGESTS / 11

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

victim. Rather, it answered the solicitor’s question of why defendant’s interview statements regarding what was occurring at the time she pulled the trigger raised a concern for the investigator. The investigator simply conveyed his perception that defendant was indicating in her statement that the victim was coming toward her when he was shot, which caused the investigator concern based upon his knowledge that the victim was shot in the back. This did not require specialized knowledge, skill, experience or training.

Further, any error in the admission of this testimony was harmless, as it was cumulative to other un-objected to testimony.

SLED Agent Claycomb confusingly testified that, given the location of the fired cartridge casing, defendant could not have fired the shot from inside her bedroom (likely a result of Agent Claycomb’s misunderstanding the solicitor’s question). Any error in the admission of this testimony was harmless since it was refuted by the testimony of SLED’s expert forensic firearm examiner. He testified that, based on the specific characteristics of the firearm used to shoot the victim, there was no way to tell where the ejected cartridge case would go. In any event, the location of the shooter was not in issue.

Affirmed.

State v. Pickrell (Lawyers Weekly No. 011-096-21, 30 pp.) (Thomas Huff, J.) Appealed from the Circuit Court in Kershaw County (Alison Renee Lee & William McKinnon, JJ.) Robert Michael Dudek for appellant; Alan McCrory Wilson, Mark Reynolds Farthing and Byron Gipson for respondent. S.C. App.

Workers’ Compensation Appeals – Missed Deadline – Good Cause Determination Where a calendaring mistake by the defendant-appellant’s counsel led defendant to miss the filing deadline for its appellate brief and led the Workers’ Compensation Commission to dismiss the appeal, the commission was required to consider whether there was good cause to grant defendant’s motion to reinstate its appeal.

We reverse the dismissal of the appeal and remand so the appeal may proceed.

After defendant appealed a ruling of the commission, the commission sent defendant a notice that briefs were due from the appellant on May 12, 2019, and from the respondent

15 days later. The notice did not indicate which party was the appellant or which was the respondent, and defense counsel’s paralegal mistakenly thought defendant was the respondent and calendared that its brief was due on May 27, 2019. The commission dismissed defendant’s appeal for failure to timely file its brief and, without explanation, denied defendant’s motion to reinstate its appeal.

A tribunal cannot strictly enforce due dates but ignore good cause. A reflexive refusal to consider that a calendaring mistake could be good cause is an abuse of discretion.

Further, the commission has been less than consistent in dealing with motions to reinstated dismissed appeals. Administrative agencies may insist upon strict compliance with filing deadlines, but to survive a challenge of arbitrariness, they must act consistently and with a rationale that reflects the appropriate discretionary factors were considered and touched upon.

Reversed and remanded.

Jordan v. Hartford Financial Group, Inc. (Lawyers Weekly No. 011-097-21, 4 pp.) (Garrison Hill, J.) Appealed from the Workers’ Compensation Commission. Stephen Thomas Anderson for appellant; Richard Patton for respondent. S.C. App.

S.C. COURT OF APPEALS, UNPUBLISHED

Trusts & Estates Civil Practice – Subject Matter Jurisdiction – Will Contest – Circuit Court Although a will contest action may be removed to circuit court under certain circumstances, the Probate Code requires that a will contest action be initiated in the probate court. S.C. Code Ann. § 62-1-302(a)(1). Where the appellant-son filed an action in circuit court, seeking to invalidate his mother’s “fraudulent will” probated by his father, the circuit court lacked subject matter jurisdiction because the action was not initially filed in the probate court.

S.C. Code Ann. § 62-3-804(3) does not change this result as a will contest is not a claim against an estate.

We affirm summary judgment for respondent.

Son argues Rule 82, SCRCP, required the circuit court to transfer the case to the probate court rather than dismissing it. We disagree Rule 82(b) allows the circuit court to transfer a case if it is filed in the wrong county or court. However, the circuit court in this case did not have

LAWYER TO LAWYER / Directory

MEDIATIONS: Medical Services for Legal Practices

TOM MILLIGAN

• OVER 30 YEARS OF EXPERIENCE • TRIAL LAWYER WHO HAS TRIED OVER 200 JURY TRIALS • CERTIFIED ARBITRATOR SINCE 1999 • CERTIFIED MEDIATOR SINCE 2001

Workers Compensation Personal Injury Functional Restoration Program Functional Capacity Evaluations Independent Medical Evaluations Injury Consultations

PROFESSIONAL Ubylee Healthcare Group 9723 Northeast Parkway Suite 100 Matthews, NC 28105 980-262-3007 www.ubylee.com

CONVENIENT

OBJECTIVE

MILLIGAN & HERNS, PC

721 Long Point Road, Suite 401 Mt. Pleasant, SC 29464 843-971-6750 ❘ tom@milliganlawfirm.com

12 / OPINION DIGESTS the authority to transfer the case to probate court because it lacked subject matter jurisdiction.

Still v. Vaughn (Lawyers Weekly No. 012-029-21, 7 pp.) (Per curiam) Appealed from the Circuit Court in Barnwell County (Doyet Early, J.) Forrest Truett Nettles for appellant; Richard Ness, Alison Dennis Hood and Richard Aaron Ness for respondent. S.C. App. Unpub.

Tort/Negligence Unfair Trade Practices – Contract – Jet Ski Repair – Storage Fees Although it was not an unfair trade practice for defendant Velocity Powersports, LLC, to perform a tune-up on a jet ski that Velocity was then unable to repair, it was an unfair trade practice for Velocity to leave the jet ski disassembled and exposed to the elements for months and then, when Velocity was still unable to repair it, demand payment of storage fees and the signing of a full release from plaintiff in exchange for possession of the jet ski. Velocity’s adamant pursuit of accumulating repair costs and storage fees for a broken and disassembled jet ski constituted an unfair and deceptive act.

The master-in-equity’s ruling on unfair trade practices is affirmed in part and reversed in part. We affirm the award of treble damages, but we remand for a determination of reasonable attorney’s fees.

In addition to the above, Velocity also violated its own policy by tearing down the jet ski without the plaintiff-owner’s permission. It became unreasonable for Velocity to seek reimbursement for the initial tune-up service once they began the teardown.

Even assuming the jet ski was operable after the initial tune-up, those repairs became superfluous when the jet ski was left disassembled and unusable after the incomplete teardown.

Charging for services subsequently rendered useless equates to charging for services never rendered at all.

Furthermore, Velocity’s storage of the jet ski resulted in additional damage.

There is evidence supporting the master-in-equity’s finding that Velocity’s conduct and procedures are capable of repetition, and there is a potential for harm to future customers.

Velocity’s unfair actions and practices created an ascertainable loss because the jet ski is unusable in its current condition and plaintiff continued paying the outstanding balance on her loan without being able to use the jet ski.

Since Velocity committed an unfair trade practice, the master did not err in refusing to award Velocity storage costs.

The master did not err in awarding plaintiff treble damages because there was evidence Velocity willfully violated the Unfair Trade Practices Act by violating its policy of obtaining owner authorization before performing a teardown. Furthermore, Velocity left the jet ski disassembled and continued to seek reimbursement for the initial services rendered to an inoperable jet ski. Velocity knew or should have known its conduct violated the act and was well outside the bounds of reasonable conduct.

Although we affirm the award of costs, we reverse the master’s award of attorney’s fees and remand for a calculation of reasonable attorney’s fees under Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (1997).

Affirmed in part, reversed in part

S O U T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

and remanded.

Brooks v. Velocity Powersports, LLC (Lawyers Weekly No. 012-030-21, 8 pp.) (Per curiam) Mary Leigh Arnold for appellant; Edward Dennis and Donald Bruce Clark for respondent. Appealed from Berkeley County (Dale Van Slambrook, Master-in-Equity) S.C. App. Unpub.

U.S. DISTRICT COURT

Civil Practice Default – Failure to State a Claim – Tort/Negligence – Defamation – Social Media Posts Even though defendant defaulted, plaintiffs are not entitled to a default judgment because their allegations concerning defendant’s social media posts do not state cognizable claims for defamation or tortious interference.

Furthermore, determining whether plaintiffs’ defamation allegations state a cognizable claim requires analysis under the First Amendment.

As recommended by the magistrate judge, plaintiffs’ motion for default judgment is denied, and their complaint is dismissed without prejudice.

The Rule 12(b)(6), FRCP, standard is consistent with Fourth Circuit precedent requiring the court not to treat a default judgment as a confession of liability and to review the complaint to determine whether the admitted facts support a claim upon which relief can be granted. It was proper for the magistrate judge to evaluate the plaintiff’s complaint against the standards of Rule 12(b)(6) to ensure that the complaint properly states a claim.

Defamation The court’s inquiry is not only to assess whether the statements in the complaint may constitute a sufficient basis for plaintiffs’ defamation claim, but also to consider whether such a claim would comport with the First Amendment. To the extent that plaintiffs argue that it was improper for the magistrate judge to “sua sponte raise a First Amendment defense,” the court disagrees and finds the report correctly analyzed defendant’s statements under a First Amendment framework to determine if an actionable claim existed.

Plaintiffs cite the following statements as assertions of actual and verifiable facts: Plaintiffs “break the law ... over and over again,” and use “illegal practices” in their business.

Plaintiffs operate a “slave camp” and “prison camp” in Florida.

Plaintiffs’ dogs are “fried on an e collar.”

Plaintiffs tried to artificially inseminate a nine-year-old dog, who was suffering from pyometra and who had never had a litter before.

Because defendant characterizes plaintiffs in general terms as a wealthy family able to “break the law ... over and over again” and alleges that plaintiffs engage in “illegal practices” but does not provide any details about what the alleged illegal practices are or what laws are being broken, these statements are too vague to state actual facts that would give rise to a defamation claim.

The statements referring to plaintiffs’ business as a “slave camp” or “prison camp” are clear examples of loose, figurative or hyperbolic language that negate the impression that defendant was seriously main-

taining an actual fact about plaintiffs.

Defendant’s comment “[warning] all people dontbsend [sic] dogs to be fried on an e collar by assholes there” is protected by the First Amendment.

The term “fried” is imaginative and hyperbolic rhetoric about the use of e-collars, rather than a factual assertion that plaintiffs apply electric shocks to their dogs until the dogs are fried. Because no reasonable reader could interpret any of these comments as asserting actual and objectively verifiable facts about plaintiffs, the statement is protected by the First Amendment.

On May 25, 2017 (the “May 25 post”), defendant posted on Facebook, “Must admit that people’s greed for money is incredulous. Horrified to hear that a big corporation to make more money, tried to [artificially inseminate] a nine year old gun shy bitch who had never had a litter before. Thankfully for the poor bitch she was not able to be Artificially inseminated as ‘they did not know she had a pyometra. Poor poor girl all to fulfill their greed. Credibility for this corporation is non existent.”

Whether a corporation attempted to artificially inseminate a particular dog contains a factual assertion capable of being proven true or false.

However, the post refers to “a big corporation” and fails to identify plaintiffs in any way. Although some of plaintiff’s other posts provide some context from which the court could plausibly infer that plaintiffs are the intended subject of the posts, the May 25 post provides no such context.

Even assuming the statement refers to plaintiffs, the post clarifies that the corporation was unaware of the pyometra prior to attempting the artificial insemination. The court, therefore, is left to determine whether a statement about plaintiffs’ attempt to artificially inseminate a nine-year old dog who had never had a litter before to “fulfill their greed,” is defamatory per se as the meaning or message is obvious on its face.

The defamatory meaning of defendant’s statement is not obvious and appears to require outside facts and information about dog breeding practices and the age at which dogs are bred, which does not appear within the four corners of defendant’s May 25 post. For example, defendant opines that the corporation lacks credibility and is motivated by greed, but it is unclear whether this characterization is regarding the corporation’s willingness to artificially inseminate a “gun shy” dog that was unable to conceive naturally, or whether it is the about the age of the dog involved. Although plaintiffs refer to the nine-year old dog as “aged” in their objections, it is not clear to the court that attempting to artificially inseminate a nine-year old dog is such an obviously unacceptable age that the statement is capable of a defamatory per se meaning that harms plaintiffs’ reputation as dog breeders, lowers them in the estimation of the community, or deters others from associating or dealing with them.

The court does not find that the plain meaning of defendant’s statement ascribes conduct that rises to the level of animal abuse or is otherwise harmful to plaintiffs’ business reputation. Further, the court notes that this statement was posted to Facebook, a platform that encourages individuals to post their unedited, “free-wheeling” opinions and reactions.

Defendant’s May 25 Facebook post fails to rise to the level of defamation per se, and the post does not warrant

the entry of default judgment.

Dismissed without prejudice.

Rollins Ranches, LLC v. Watson (Lawyers Weekly No. 002-019-21, 28 pp.) (Sherri Lydon, J.) 18-cv-3278.

John Michael Durnovich, Harry Winograd and Robert Rigrish for plaintiffs; Rachael Watson, pro se. D.S.C.

Tort/Negligence Products Liability – Vaccine – Express Warranty – Marketing Plaintiff alleges that defendants marketed to both patients and medical providers that defendants’ cervical cancer vaccine, Gardasil, was “safe” and “effective” in preventing cancer but failed to “include the complete array of risks associated with Gardasil.” Plaintiff alleges defendants’ representations as to Gardasil’s safety, representations made through a variety of media including “the Gardasil label, publications, television advertisements, billboards, print advertisements, online advertisements and websites, and other written materials,” were not true, and that, “as a proximate result of [defendants’] wrongful acts,” plaintiff was injured.

Plaintiff alleges that defendants represented to plaintiff’s medical providers that Gardasil was safe without fully disclosing the “completely array of risks associated with Gardasil,” and that Plaintiff’s physician likely relied on those representations. Plaintiff has thus adequately pled an express warranty claim.

Defendants’ motion to dismiss is granted in part and denied in part.

To the extent that plaintiff’s negligence claim challenges the presence of HPV L1-DNA fragments, amorphous aluminum hydroxyphosphate sulfate, borax, polysorbate or yeast in Gardasil, since publicly available documents show that the FDA was aware of these components, plaintiff’s negligence claim is a veiled design-defect claim preempted by the National Childhood Vaccine Injury Act (Vaccine Act) and is dismissed.

Where plaintiff alleges that the vaccine plaintiff received reached her “without substantial change in [its] condition as designed [and] manufactured by defendants, plaintiff challenges only the design of Gardasil, something the Vaccine Act prohibits.

Plaintiff’s manufacturing defect claim is dismissed.

Plaintiff alleges that defendants failed to disclose to plaintiff’s medical providers that, inter alia, Gardasil presents “severe risks of triggering and increasing the risk of various autoimmune diseases,” including the one developed by plaintiff, postural orthostatic tachycardia syndrome (POTS).

As to defendants’ alleged failure to warn plaintiff directly, the Vaccine Act bars her claim.

However, as it concerns plaintiff’s claim that defendants failed to adequately warn plaintiff’s doctor or medical intermediaries, the claim is adequately pled.

Although plaintiff alleges that she was “exposed” to defendants’ false statements in various marketing materials, plaintiff’s claim for common law fraud in inadequately pled because she fails to allege with particularity when defendants made the allegedly false statements to her. To the extent plaintiff has alleged fraud as to her treating physician, the claim fails to allege with specificity the who, what, when, where or how of the supposedly fraudulent communication.

OPINION DIGESTS / 13

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

Motion granted in part, denied in part.

Stratton v. Merck & Co. (Lawyers Weekly No. 002-020-21, 16 pp.)

(Richard Mark Gergel, J.) 21-cv-2211.

Bijan Esfandiari, Elizabeth Middleton Burke, Harrison James, Misty Black O’Neal and Nicole Maldonado for plaintiff; Dino Santo Sangiamo and Robert Hood for defendants.

D.S.C.

Contract Software Installation – Limitation of Liability – Tort/Negligence The “Limitations on Liability” clause in the parties’ software-installation contract is enforceable since (1) the UCC does not apply to service contracts, so the UCC’s failure of essential purpose defense does not apply here and (2) plaintiff’s sophistication negates its claim of unconscionability.

The court grants in part and denies in part defendant’s motion for summary judgment.

Plaintiff contracted with defendant to install new software for plaintiff’s business. The parties’ contract included a “Limitations on Liability” clause, limiting defendant’s liability to amounts plaintiff paid under the contract.

In response to defendant’s summary judgment motion, plaintiff did not file a motion under Rule 56(d), FRCP, which would allow the nonmoving party to represent through an “affidavit or declaration that, for specified reasons, [the party] cannot present facts essential to justify its opposition.” Therefore, plaintiff cannot complain that summary judgment should be denied because of the lack of discovery.

Even though the contract says it is to be governed by New Jersey, the parties have waived this provision by making their arguments under South Carolina law. Since this action concerns defendant’s performance under the contract, and since the contract was to be performed in South Carolina, the court is satisfied that South Carolina law applies.

In Maybank v. BB&T Corp., 787 S.E.2d 498 (S.C. 2016), the South Carolina Supreme Court held that “notwithstanding our general acceptance of limitation of liability provisions and exculpatory clauses, the law disfavors such provisions.”

Despite the fact that defendant was selling software to plaintiff, the contract was primarily one for services. In fact, the contract is titled, “Master Services Agreement.” Moreover, the software at issue was available from other sellers, but plaintiff chose defendant based on its ability to complete the software configuration and customization. Furthermore, plaintiff’s chief complaints are about defendant’s implementation of the software, rather than defects in the software itself.

Even in light of the minimal discovery conducted thus far, the court is persuaded that the contract is one primarily for services, not the sale of goods. Consequently, the Uniform Commercial Code does not govern the contract.

The UCC allows parties to negotiate for an exclusive or limited remedy but provides that such a remedy must give way to other remedies if it fails in its essential purpose. Nevertheless, as argued, plaintiff’s defense only applies under the UCC. Since the court has concluded that the UCC does not govern the contract, the court rejects

plaintiff’s argument that the limitation of liability fails of its essential purpose.

The UCC provides an unconscionability defense, but so does South Carolina common law. Nevertheless, the contract here clearly sets out its warranty disclaimer and limitation on liability in their own provisions and in capital letters. Plaintiff may not be a sophisticated customer as it relates to software, but there is no dispute that the company, its president or its attorneys were sophisticated enough to review a six-page contract before signing on the dotted line.

The court grants summary judgment for defendant as to consequential damages and lost-profit damages because plaintiff has failed to demonstrate a genuine dispute of material fact as to whether the limitations on liability provision is enforceable.

However, the contract’s warranty disclaimer has no bearing on plaintiff’s fraud and negligent misrepresentation claims. To read a disclaimer of fraud and negligent misrepresentation into the warranty disclaimer would directly contravene South Carolina caselaw and be against public policy. The court denies summary judgment as to plaintiff’s fraud and negligent misrepresentation claims.

Plaintiff alleges that defendant “breached the implied covenant of good faith and fair dealing by representing that it possessed the knowledge and capability to perform the transition from Sage 500 to Acumatica” software.

In South Carolina, the implied covenant of good faith and fair dealing is a basis for contractual remedy, wholly distinct from an implied warranty for the sale of products. Therefore, the court is satisfied that the complaint does not allege a breach of any implied warranties, and defendant’s motion for partial summary judgment seeking to dismiss any claims for implied warranties is immaterial and denied.

Motion granted in part, denied in part.

Oakwood Products, Inc. v.

SWK Technologies, Inc. (Lawyers Weekly No. 002-021-21, 20 pp.) (David Norton, J.) 20-cv-4107. Benjamin Houston Joyce, Ellis Reed-Hill Lesemann and Michelle Alyce Matthews for plaintiff; Everett Augustus Kendall for defendant. D.S.C.

4TH U.S. CIRCUIT COURT OF APPEALS

Arbitration Arbitrator to decide the preclusive effect of prior court judgment Where there is no agreement to the contrary, an arbitrator, and not the court, decides the preclusive effect of a prior court judgment.

Background The crux of this case is the court’s standard for reviewing arbitration awards. The district court held that the preclusive effect of a prior judgment of this court was a question for the arbitrator in this case to decide, that the “manifest disregard” standard applied to the court’s review of the arbitrator’s determination and that the arbitrator did not manifestly disregard the law or exceed his authority in issuing the underlying award.

Preclusive effect Constellium contends that, despite its agreement to arbitrate unsettled

grievances, the district court should have decided the preclusive effect of a prior decision of this court on this dispute. The court disagrees.

Absent an agreement to the contrary, the preclusive effect of a prior court judgment is for the arbitrator to decide. Like estoppel and laches, preclusion is an affirmative defense to the claims in the underlying dispute.

It does not implicate the arbitrator’s power. Rather, it is “an ‘aspect of the controversy which called the grievance procedures into play.’” It is clear that unless an arbitration agreement stipulates otherwise, a court is empowered only to decide limited questions of arbitrability and “res judicata [is] for the arbitrator to decide in the first instance.”

Standard Constellium urges the court to apply a standard less deferential than manifest disregard or that set by the Federal Arbitration Act, or FAA, to review arbitral decisions about the preclusive effect of prior judgments.

Under Constellium’s “plenary review” standard, a court would determine the correct application of preclusion principles to the case at hand and then weigh the arbitrator’s decision accordingly. Doing so, however, would subject an arbitrator’s award to more searching judicial scrutiny than authorized by the FAA or this court’s precedent, without any legal authority. Out of regard for the FAA, this court must decline to expand its review of legal errors in arbitral awards beyond review for manifest disregard of the law.

Merits The arbitrator did not manifestly disregard the law of res judicata or collateral estoppel. Even if Constellium were right about the meaning of this court’s prior decision and the proper application of preclusion principles to this case, at worst it has shown “a misinterpretation of law, faulty legal reasoning[,] or erroneous legal conclusion,” all of which fall short of manifest disregard.

Affirmed.

Constellium Rolled Products Ravenswood LLC v. United Steel Paper and Forestry Rubber Manufacturing Energy Allied Industrial and Service Workers International Union (Lawyers Weekly No. 001-193-21, 13 pp.) (Allison Jones Rushing, J.) Case No. 20-1759. Nov. 29, 2021. From S.D. W.Va. at Charleston (Thomas E. Johnston, C.J.) Ancil Glenn Ramey for Appellant. Maneesh Sharma for Appellees.

Civil Practice No immunity for NC health plan in transgender bias suit Where enrollees in the North Carolina State Health Plan for Teachers and State Employees, or NCSHP, alleged that NCSHP violated the Affordable Care Act by categorically denying coverage for gender dysphoria treatments, NCSHP was not entitled to sovereign immunity.

Background Several NCSHP enrollees filed a three-count complaint alleging that NCSHP discriminates against its transgender enrollees by categorically denying coverage for gender dysphoria treatments. This, plaintiffs argue, violates § 1557 of the Affordable Care Act. NCSHP filed a motion to dismiss, asserting that it was entitled to sovereign immunity under the 11th Amendment. The district court de-

nied the motion, holding that NCSHP waived its immunity against this claim by accepting federal financial assistance.

Analysis Section 1557 of the Affordable Care Act forbids “any health program or activity” receiving federal financial assistance from “subject[ing]” an individual to discrimination on a “ground prohibited under title VI of the Civil Rights Act of 1964 [], title IX of the Education Amendments of 1972 [], the Age Discrimination Act of 1975 [], or section 794 of Title 2…” NCSHP therefore waived its sovereign immunity if (1) it received federal financial assistance, (2) it is a health program or activity and (3) suits for money damages are an “enforcement mechanism” that is “provided for and available under” Title VI, Title IX, 29 U.S.C. § 794 or the Age Discrimination Act. It is undisputed that NCSHP receives federal funds. But, for the first time on appeal, NCSHP argues that it is not a health program or activity. Given NCSHP’s silence on this issue below, the district court had no reason to understand it as anything but undisputed. This court takes that same view.

This leaves the question of whether suits for money damages are an “enforcement mechanism provided for and available under” Title VI, Title IX, 29 U.S.C. § 794 or the Age Discrimination Act. There is no question that a plaintiff may enforce Title IX through a claim for money damages.

But NCSHP contends that § 1557 did not incorporate this remedy because (1) a sovereign immunity waiver is not an “enforcement mechanism” and (2) even if it were, the immunity waiver that permits Title IX damages claims is not “available under” Title IX itself. The court rejects both efforts to introduce ambiguity into a statute where it would not otherwise exist.

Were there any doubt about whether § 1557 conditioned the receipt of federal funds upon states’ waiver of sovereign immunity against suits for money damages, it is remedied by reading the provision alongside the Civil Rights Remedies Equalization Act’s, or CRREA, residual clause.

Plaintiffs argue, and the district court held, that § 1557 is a “provision[] of any other Federal statute prohibiting discrimination,” and thus falls within CRREA’s residual clause. In reaching its conclusion, the district court asked two questions: (1) whether § 1557 was a provision of a federal statute that prohibited discrimination and (2) whether § 1557 was “sufficiently similar” to the statutes that CRREA specifically listed. It answered both questions in the affirmative, finding that “[l]ike the four statutes named in CRREA, Section 1557 is a nondiscrimination provision which is directly aimed at recipients of federal funding.”

NCSHP argues that Congress could not have intended CRREA’s residual clause to cover § 1557, and that the “sufficiently similar” inquiry improperly substitutes the judicial for the legislative branch of government.

Both arguments are unpersuasive.

Affirmed.

Concurrence (Diaz, J.): Because I agree that § 1557 of the Affordable Care Act, when read in conjunction with the CRREA, constitutes a waiver of sovereign immunity for states (and state agencies) that choose to accept federal funds for a health program or activity, I’m pleased to join Chief Judge Gregory in affirming the district court’s judg-

14 / OPINION DIGESTS ment. I write separately to address some of the dissent’s contentions and highlight how § 1557 claims are categorically different from the claims in the cases our colleague relies on.

Dissent (Agee, J.): The majority holds the residual clause in a single provision of the CRREA unambiguously requires the NCSHP to waive its sovereign immunity from suits brought under “the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.” The majority further posits that § 1557 of the ACA is one such law, so that the NCSHP is liable in private discrimination suits brought under § 1557 by operation of the residual clause.

The Fifth and Tenth Circuits, the only courts of appeals to consider the residual clause, plainly held that it cannot serve as waiver of state sovereign immunity from any discrimination statute. But here, the majority fails to give respect to a fundamental aspect of our constitutional design that provides the states “a residuary and inviolable sovereignty,” and does not “relegate[] [them] to the role of mere provinces or political corporations.” Compounding that error, the majority fails to recognize that the residual clause cannot serve as the requisite textual waiver of sovereign immunity from § 1557 claims. The Supreme Court should correct the majority’s errors without delay to ensure the preservation of the integrity of the 11th Amendment and the dignity of state sovereign immunity.

Kadel v. North Carolina State Health Plan for Teachers and State Employees (Lawyers Weekly No. 001-194-21, 83 pp.) (Roger Gregory, C.J.) (Albert Diaz, J., concurring) (G. Steven Agee, J., dissenting) Case No. 20-1409, Dec. 2, 2021. From M.D.N.C. at Greensboro (Loretta C. Biggs, J.) John Guyton Knepper for Appellant. Omar Francisco GonzalezPagan for Appellees.

Civil Rights Delaying detainee’s medication isn’t deliberate indifference Where a detainee alleged that prison officials acted with deliberate indifference by delaying his receipt of medications, but none of his communications suggested that urgent intervention was required to avoid a risk of harm and there was no evidence the officials knew their efforts were inappropriate, the defendants were granted summary judgment.

Background Eric Wayne Moss filed suit under § 1983, alleging violations of his civil rights while he was a pretrial detainee. At issue on appeal are two specific claims: first, that jail officials put Moss in disciplinary confinement without a hearing, in violation of his procedural due process rights and second, that they delayed his access to urgent medical care, again violating his due process rights.

The district court granted summary judgment to the officials on both counts, finding that Moss failed to exhaust available administrative remedies for his procedural due process claim and that any delay in the provision of medical treatment did not rise to the level of deliberate indifference.

Exhaustion Moss does not contend that he submitted a timely written grievance regarding a hearing, consistent with the jail’s grievance procedure. His

position is that he was not required to exhaust that grievance procedure, because officials made it “unavailable” to him by withholding grievance forms and access to the kiosk while he was on lockdown. The court disagrees.

The Prison Litigation Reform Act, or PLRA, mandates that “no action shall be brought” in federal court by an inmate challenging prison conditions “until such administrative remedies as are available are exhausted.”

Given the PLRA’s “mandatory language,” there is no room to excuse a failure to exhaust all available remedies, even to take into account “special circumstances” that might otherwise justify noncompliance with procedural requirements.

If an administrative remedy “officially on the books” is not actually “capable of use to obtain relief,” however, then the PLRA does not require exhaustion. According to Moss, he was “thwarted” from using the jail’s grievance system while he was on lockdown, by the denial of written grievance forms and access to the kiosk, and thus relieved of his duty to exhaust under the PLRA. The problem for Moss’s argument is the undisputed record evidence establishing that he was able to take advantage of the grievance system while he was on lockdown. It is true that Moss has presented unrebutted testimony that jail officials refused his requests for forms or access to the kiosk, from which a jury might find that officials took steps to thwart his access to the grievance process. But Moss also testified that he nevertheless was able to submit grievances— during the same lockdown period and under precisely those constraints— by having other inmates use his kiosk pin number to file grievances for him. And the record evidence bears this out. This evidence of access to the grievance system conclusively refutes Moss’s allegation that the jail’s administrative remedies were not “available” to him.

Moss points to cases recognizing that an inmate able to file one grievance is not necessarily able to file others, at different times or on different topics. And if there were record evidence to indicate, for instance, that Moss was able to use the grievance system on April 22 to raise issues regarding medical treatment but not disciplinary hearings, then this would be a different case. But before the district court, Moss offered no account for why he was able to file some—indeed, many—grievances and requests while on lockdown but not the one required here.

Deliberate indifference According to Moss, the defendants acted with deliberate indifference to his serious medical needs by delaying his receipt of his medications—for his thyroid condition, attention deficit hyperactivity disorder and posttraumatic stress disorder—and thus exposing him to a substantial risk of serious harm. The district court found there was no record evidence that the defendants had known of such a risk and deliberately ignored it. The court agrees.

A request for medication does not by itself indicate an emergency, and none of Moss’s communications conveyed to the defendants that immediate intervention was required to avoid a substantial risk of harm. Moreover, even assuming that the defendants could be charged with knowledge of a substantial risk to Moss, Moss has produced no evidence that they also knew that their efforts to respond to

S O U T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

Moss’s requests were inappropriate in light of that risk.

Affirmed.

Moss v. Harwood (Lawyers Weekly No. 001-195-21, 20 pp.) (Pamela Harris, J.) Case No. 19-7340.

Dec. 2, 2021. From W.D.N.C. at Asheville (Frank D. Whitney, J.) Sarah Keller and Sierra Weingartner for Appellant. Michael A. Ingersoll for Appellees.

Criminal Practice Dark-skinned juror’s dismissal did not violate Batson Although the jury did not include any person with dark skin, because the codefendant struck two jurors with dark skin, and the prosecutor provided a non-pretextual reason for striking a third juror with dark skin, the Batson challenge failed.

Background Terrence Deandre Dennis was convicted on several drug and firearm counts arising out of a traffic stop turned high-speed chase in Virginia.

Dennis challenges the sufficiency of the evidence used to convict him. Alternatively, he requests a new trial because the district court allowed the prosecutor to peremptorily strike a Hispanic juror and instructed the jury there is no legal requirement that the government use any specific investigative techniques to prove its case.

Batson challenge Dennis centers his Batson challenge on the prosecution’s strike of Ms. Ortiz, a Hispanic juror with dark skin, which, he argues, impermissibly resulted in a jury without a single person who had dark skin. This court has long held “a showing that a [juror with dark skin] has been struck, standing alone,” “insufficient” to trigger a Batson challenge. Dennis responds that the strike did not stand alone—it resulted in a jury that lacked any persons with dark skin and that context must inform our analysis.

However there was not just one juror with dark skin, there were three.

And the prosecutor did not strike the other two—Dennis’s co-defendant did. Left with only the bare fact that the prosecutor rejected one juror with dark skin, Dennis failed to adduce sufficient prima facie evidence to trigger a Batson challenge.

Moreover, the prosecutor’s explanation was not pretextual. The prosecutor clarified the white juror happened to be “a victim of a crime” involving a “high-speed chase.” This is not a case where the trial court “failed to conduct a comparative juror analysis.” Or a case where the trial court’s conclusion cannot be defended on the record.

Rule 29 motion Dennis next challenges the district court’s denial of his Rule 29 motion because “the evidence [was] insufficient to sustain a conviction” on any of the four counts. Regarding possession of heroin with intent to distribute and being a felon in possession of a firearm, Officer McAndrew testified that he had “no doubt” Dennis was the person who jettisoned the heroin and the gun. The jury was entitled to rely on that testimony—and on the commonsense supposition that a driver fleeing through residential neighborhoods at speeds approaching 70 miles per hour was unlikely to discard two items out of the passenger’s window.

Dennis also protests his conviction for possessing a firearm in furtherance of drug trafficking. The gun was “loaded,” it was “found near

the [heroin],” the heroin had a high street value, Dennis “possessed the gun[ ] illegally” and the expert testified “that dealers carry semi-automatic pistols as protection.” Indeed, Dennis did not merely keep the gun near the heroin, he threw away the gun seconds before throwing away the heroin. And so a reasonable juror was well entitled to infer that Dennis himself perceived a connection between the gun and the heroin.

Dennis last challenges his conspiracy conviction. This conspiracy charge rests solely on the items found and conduct observed during just one interaction with Dennis and Guess. No other evidence was presented of defendants’ relationship (to each other or anyone else) or of surveillance from any other time. And the prosecution introduced no evidence of wiretaps, undercover transactions or video footage from the plaza stores.

Still, the prosecution linked each defendant to the drug trade: Dennis actually possessed a distribution amount of heroin and a gun; Guess actually possessed a distribution amount of cocaine, plastic bags and a scale. From that evidence alone, the jury could have easily inferred that the two drug traffickers did not end up in the same car fleeing from police by coincidence. The jury could have also considered the fact that Guess accelerated while Dennis disposed of the evidence. That signals a shared consciousness of guilt. Finally some of the scale residue comprised the same drug-and-cutting-agent combination (heroin plus caffeine) as the packet Dennis discarded.

Instruction Dennis last contends the district court abused its discretion when it instructed the jury that the government was not obligated to use any particular investigative techniques such as fingerprints or DNA. This court has held such instructions proper since 1992 and has reaffirmed this practice as recently as two years ago. Although Dennis invites the court to reconsider that precedent, it is not at liberty to “overrule a decision issued by another panel.”

Affirmed.

United States v. Dennis (Lawyers Weekly No. 001-196-21, 25 pp.)

(Henry Franklin Floyd, J.) Case No. 19-4494. Dec. 3, 2021. From E.D. Va. at Newport News (Mark S. Davis, C.J.) Thomas Paul DeFranco for Appellant. Peter Gail Osyf for Appellee.

Criminal Practice Bodily injury sentence enhancement applied in error Where the sentencing court never determined whether the victim’s injuries lasted for a “meaningful period” or if they were of a type for which more-than-precautionary medical attention ordinarily would be sought, it erred in imposing a sentencing enhancement for bodily injury.

Background Melvin Thomas Lewis pleaded guilty to conspiracy to commit robbery, robbery and brandishing a firearm in relation to a crime of violence.

The district court sentenced him to 130 months’ imprisonment.

Bodily injury Lewis argues that his sentence is procedurally unreasonable because the district court erroneously applied a sentencing enhancement for bodily injury. For the bodily injury enhancement to apply, the government must show a “significant injury.” This re-

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Decem ber 20, 2021

quires the government at least to demonstrate that a victim’s injuries lasted for a meaningful period and were more than wholly trivial. These conditions—and the enhancement as a whole—are necessarily satisfied if the government establishes that the victim’s injuries were either “painful and obvious” or “of a type for which medical attention ordinarily would be sought.” While the government is not required to show significant injury using the medical-attention route, if it does, purely “precautionary” medical measures do not help establish a significant injury.

After carefully parsing the district court’s statements at sentencing, the court concludes that it erred. To start, the district court did not determine whether the manager’s injuries lasted for a “meaningful period.” The court recognizes the district court did not have to expressly find this condition was met if it determined that the manager’s injuries were of a type for which more-than-precautionary medical attention ordinarily would be sought. Establishing the latter necessarily proves the former. But in this case, the court did neither.

Instead of assessing whether the manager’s injuries were of a type for which more-than-precautionary medical attention ordinarily would be sought, the court found that “this kind of an assault would ordinarily cause an injury that you would seek medical attention” for. But as the court itself noted, it is the injury that matters, not the defendant’s conduct.

Later, the court tried to correct course, declaring a victim “just has to have an injury that caused him to seek medical attention” for the enhancement to apply. But that is not the correct standard either. Purely precautionary medical measures do not qualify as “medical attention.” An “ordinarily prudent” victim must seek medical assistance on a more-thanprecautionary basis for the injury to qualify as being “of a type for which medical attention ordinarily would be sought.”

Nonetheless, the district court repeatedly stated that going to the hospital to get an injury “checked out” or “looked at” is enough for the enhancement to apply. But if that were the case, victims “who [had] sustained purely momentary injuries” could transform those injuries into significant ones just by visiting the doctor. This approach is expressly foreclosed by United States v. Lancaster, 6 F.3d 208 (4th Cir. 1993) (per curiam). Therefore, Lewis’s sentence must be vacated unless the error was harmless.

Harmless error The government gestures to a harmless error argument, but fails to fully develop it. However, the government does forcefully argue that the record in this case compels the court to uphold the district court’s application of the bodily injury enhancement. To the extent the government contends that the district court’s legal error is harmless because the enhancement would apply under the facts of this case even if the court had used the right standard, it is mistaken.

The government presented nothing that would help the district court conclude that the manager received more-than-precautionary medical attention. Nor did it otherwise provide evidence of a necessary condition: that the manager’s injuries lasted for a “meaningful period.” Therefore, the court cannot agree that the district court would have applied the enhancement if it used the right legal standard, so its

error was not harmless.

Vacated and remanded.

United States v. Lewis (Lawyers Weekly No. 001-197-21, 16 pp.)

(James A. Wynn Jr., J.) Case No. 174737. Dec. 1, 2021. From W.D.N.C. at Charlotte (Max O. Cogburn Jr., J.) Ann Loraine Hester for Appellant.

Anthony Joseph Enright for Appellee.

Criminal Practice Conclusion about cause of infant’s death was not unreasonable Where a man sentenced to death for murdering an infant challenged the state court’s factual finding that the baby died from a depressed skull fracture, it was not “objectively unreasonable” for the court to conclude that the chief of pediatric radiology and pediatric neurologist correctly interpreted the CT scan as demonstrating a fracture of the skull.

Background John Edward Burr was convicted after a 1993 trial for the 1991 murder of infant Tarissa Sue O’Daniel, known to her family as “Susie.” He was sentenced to death. In the decades since, Burr has pursued habeas remedies before the state and federal courts, including this court. But this appeal concerns a narrow question: whether the district court erred in declining to grant habeas relief on the basis of claims under Brady v. Maryland and Napue v. Illinois related to transcripts of interviews with two witnesses, Susie’s mother and brother.

Factual error Burr claims that the motion for appropriate relief, or MAR, court erred in concluding “that Susie died of a depressed skull fracture.” To satisfy 28 U.S.C. § 2254, he would have to show that “the state [MAR] court based its decision[] ‘on an objectively unreasonable factual determination in view of the evidence before it, bearing in mind that factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.’”

Burr cannot satisfy this hefty burden. As an initial matter, the MAR court did not find that Susie died of a depressed skull fracture; rather, it is clear the court was persuaded by the medical testimony at trial that Susie’s cause of death was a brain injury resulting from child abuse. However, the court did find that she had a depressed skull fracture. This court will assume that is the factual finding Burr takes issue with. Given the competing medical expert testimony on the latter fact, it was not “sufficiently against the weight of the evidence” so as to be “objectively unreasonable” for the MAR court to conclude that the chief of pediatric radiology and pediatric neurologist correctly interpreted the CT scan as demonstrating a fracture of the skull.

Section 2254(d)(1) Burr contends that the MAR court’s decision “involved an unreasonable application of” Brady, Napue and their progeny. Burr posits that Bridges and Scott’s credibility was absolutely essential to the case, because “evidence about whether the fall could have caused the injury ... was literally the entire case.” The central problem with Burr’s argument is that the state’s case was not so entirely reliant on Bridges and Scott, or on their descriptions of the fall, as he suggests.

Burr argues that the MAR court unreasonably applied Brady when it concluded that “any inconsisten-

OPINION DIGESTS / 15 cies between the trial testimony of [Bridges and Scott] and their pre-trial comments to the prosecutors are of de minimis significance.” He contends that the undisclosed tapes would have enabled trial counsel to materially undermine Bridges and Scott’s testimony on crucial points related to Scott’s fall with Susie and the incidents when Scott had previously seen Burr shake Susie. Therefore, he argues, the tapes are material because it is reasonably likely that “had the [tapes] been disclosed to the defense, the result of the [trial] would have been different.” The court disagrees as to Bridges, Scott and the evidence considered in the aggregate.

Burr’s Napue claim rests on the same undisclosed evidence that forms the basis of his Brady claim. He does not contend that the state knowingly relied on perjured testimony, but he does allege that the state denied him due process by creating false impressions of critical facts at trial. He points to three key ways in which he claims the state did this. But the court is not persuaded.

Transcript The court has concluded that the MAR court did not base its opinion on unreasonable determinations of fact or unreasonably apply clearly established federal law based on the record the court had before it in 2000. But what about the suppressed transcript of a 1992 conversation with Bridges that was not fully turned over to Burr until 2015—decades after trial and 15 years after the proceedings before the MAR court wrapped up? May this court consider this transcript, even though it was not part of the record before the MAR court?

Burr urges the court to do so. And this request raises numerous fascinating questions about how Supreme Court decisions intersect. The court need not resolve these questions because, even if it considers the transcript, it does not alter the court’s analysis.

Affirmed.

Burr v. Jackson (Lawyers Weekly No. 001-198-21, 46 pp.) (James A. Wynn Jr., J.) Case No. 20-5. Nov. 30, 2021. From M.D.N.C. at Greensboro (William L. Osteen Jr., J.) James P. Cooney III for Appellant. Kimberly Nicole Callahan for Appellee.

Labor & Employment WARN Act liability doesn’t extend to non-employer Where employees constructing a nuclear station alleged the owner violated the Worker Adjustment and Retraining Notification, or WARN, Act when it halted construction at the facility, the owner wasn’t liable because it wasn’t the plaintiffs’ employer.

Background In 2017, SCANA, an electric and natural gas public utility, halted construction at a nuclear station in South Carolina. As a result, Westinghouse Electric Company, or WEC, a contractor with SCANA, laid off its employees working at the project, as did Fluor, a subcontractor hired by WEC. Employees of both WEC and Fluor then sued SCANA and Fluor, alleging that the companies had failed to give notice of the plant closure and layoffs as required under the WARN Act. The district court granted summary judgment to both defendants, holding that SCANA was not required to give notice to the employees of contractors working on-site and that Fluor had complied with the WARN Act.

SCANA The basic premise of the WARN Act is that firms must provide their own employees with notice before closing a plant. The plaintiffs nevertheless contend that SCANA functioned as their “employer” for WARN Act purposes, even though they were employed by contracting firms entirely unaffiliated with SCANA. They contend that, by shutting down the plant without giving notice to WEC or Fluor, SCANA compelled the contractors to lay off employees without the required 60 days of notice. As a result, they suggest, SCANA should be held responsible as the “employer” of these laid-off workers.

The Department of Labor has provided a framework for determining whether independent contractors should be considered part of the contracting company for WARN Act purposes, “depending upon the degree of their independence” from the contracting company. Here, the district court carefully applied these criteria to the facts of SCANA’s relationship with WEC and Fluor and concluded that all five either favored the defendants or at least did not favor the plaintiffs. This court agrees with that analysis.

The plaintiffs rest their appeal almost exclusively on the de facto exercise of control factor. But even assuming, for the sake of argument, that this factor could somehow be dispositive on its own, the record makes clear that it is not satisfied here.

SCANA was neither parent nor lender to WEC or Fluor. All three businesses were unaffiliated, contracting with each other at arm’s length. It is not unusual for one company to make a business decision that causes unaffiliated companies to modify their own operations. Indeed, the WARN Act regulations explicitly contemplate such a scenario.

In short, the five Department of Labor factors make clear that this case does not meet the standard for singleemployer liability. Any different result would need to await the action of Congress. The district court’s grant of summary judgment to SCANA is affirmed.

Fluor Unlike SCANA, Fluor plainly employed some of the plaintiffs here.

But the district court concluded that Fluor was relieved of any obligation to provide 60 days of notice by the unforeseeable business circumstances exception. That statutory provision applies where “the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required.”

The plaintiffs do not contest the application of this provision on appeal, nor could they: it is undisputed that Fluor was taken unawares by SCANA’s sudden decision to close the plant. Instead, the plaintiffs contend that Fluor failed to provide “as much notice as is practicable,” as is required for employers who rely on the unforeseeable business circumstances exception. The plaintiffs suggest that Fluor violated this provision by giving notice belatedly and improperly.

The court is not persuaded. The record makes clear that Fluor took pains to provide the required information to its employees, even amid the unsettling circumstances of the sudden shutdown.

Affirmed.

Pennington v. Fluor Corporation (Lawyers Weekly No. 001-19921, 20 pp.) (J. Harvie Wilkinson III, J.) Case Nos. 21-1141 and 21-1143.

Nov. 30, 2021. From D.S.C. at Rock Hill (J. Michelle Childs, J.) Jack A.

16 / OPINION DIGESTS Raisner and Charles Anthony Ercole for Appellants. Charles Theodore Speth II for SCANA Appellees. John Hagood Tighe for Fluor Appellees.

Labor & Employment Equal Pay claim turns on wage rate, not total compensation Where an employee alleges she was paid less than male comparators, courts should only consider an employee’s base salary or wage rate, and not additional compensation like commissions.

Background This appeal arises from the district court’s grant of summary judgment to Tactile Systems Technology Inc. on Tracy Sempowich’s discrimination, retaliation and Equal Pay Act claims.

Discrimination The district court held that Sempowich failed to make out a prima facie case because she was not fulfilling Tactile’s legitimate expectations at the time the company reassigned her. It then held that, even if she had made out a prima facie case, Tactile had put forth a nondiscriminatory explanation for reassigning her, and no rational jury could find that Tactile’s explanation was a pretext for discrimination.

There is evidence that Tactile (1) consistently rated Sempowich’s overall performance highly (and notably, higher than the employee who it reassigned to her position); (2) repeatedly gave her awards, including one for sustained excellence three weeks before it told her that it would reassign her position; (3) told her that it would give her a salary raise three weeks before it told her that it would reassign her position and (4) gave her a discretionary equity grant 12 days before it told her that it would reassign her position. This court has previously held that similar evidence was sufficient to survive summary judgment.

The record is similarly replete with genuine issues of material fact that go to the heart of the pretext issue. The district court erred in analyzing pretext not only by failing to account for those disputes but also by incorrectly applying the same-actor inference.

Retaliation The district court assumed without deciding that Sempowich engaged in protected activity and that Tactile took an adverse action against her.

But it then held that no rational jury could find that a causal relationship existed, reasoning that (1) temporal proximity alone cannot establish a causal relationship and (2) no temporal proximity existed in Sempowich’s case. The court erred on both counts.

First, this court has made abundantly clear that temporal proximity suffices to show a causal relationship.

Second, the district court erred by holding that there was not temporal proximity in Sempowich’s case. The court reasoned that, because vicepresident Rishe told Sempowich on February 12 that Tactile would reassign her region, and Sempowich did not submit her internal discrimination complaint until February 22, Tactile’s adverse actions could not have been caused by Sempowich’s internal complaint.

But there is a genuine issue of material fact as to whether Rishe made clear on February 12 that her employment with Tactile would end if she did not accept the reassignment.

It was not until March 23 — about a month after Sempowich submitted her internal complaint — that Tactile stated that, if she did not accept the offer of reassignment, her “employment with Tactile [would] end effective March 30.”

Equal Pay To establish a prima facie case of an Equal Pay Act violation, a plaintiff must demonstrate that “(1) the defendant-employer paid different wages to an employee of the opposite sex (2) for equal work on jobs requiring equal skill, effort, and responsibility, which jobs (3) all are performed under similar working conditions.”

The district court held that Sempowich had failed to demonstrate the first factor, even though neither party disputes that, in 2015, 2016 and 2017, Tactile paid Seeling a higher annual base salary than Sempowich. The court reasoned that, in 2016 and 2017, Sempowich earned more in sales commissions than Seeling, such that when combining their salaries and commissions, Sempowich earned more in total wages than Seeling in each of those two years.

This dispute thus centers on the proper metric for determining wage discrimination under the Equal Pay Act. Sempowich and the amicus argue that the proper metric is the rate at which an employer pays the plaintiff. In contrast, Tactile argues that the proper metric is the employee’s total wages.

The text of the Equal Pay Act unambiguously states that an employer may not “discriminate ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex.” This critical portion of the statute says nothing about total wages; it places all the emphasis on wage rates.

Vacated and remanded.

Sempowich v. Tactile Systems Technology Inc. (Lawyers Weekly No. 001-200-21, 20 pp.) (Diana Gribbon Motz, J.) Case No. 20-2245. Dec. 3, 2021. From E.D.N.C. at Raleigh (James C. Dever III, J.) Kathryn F. Abernethy for Appellant. Julie Loraine Gantz for Amicus Curiae Equal Em-

S O U T H C A R O L I N A L A W Y E R S W E E K LY I D e c e m be r 20, 2021

ployment Opportunity Commission.

Kristin Berger Parker for Appellee.

Immigration BIA’s interpretation of ambiguous phrase given deference Where the term “relating to obstruction of justice” is ambiguous about whether an ongoing or a reasonably foreseeable proceeding must be obstructed, the court deferred to the reasonable interpretation of the Board of Immigration Appeals, or BIA. Background Jean Francois Pugin was found guilty of being an accessory after the fact under Virginia law. The government contends that Pugin may be deported under the Immigration and Nationality Act, or INA, for having committed an “aggravated felony,” namely one “relating to ... the obstruction of justice.” Pugin disagrees, claiming that an accessory-after-thefact conviction under Virginia law does not categorically qualify under the INA as one “relating to obstruction of justice.”

Chevron Pugin argues that Chevron deference cannot be given to the interpretation of an immigration statute when the interpretation might impact a future criminal prosecution. The court disagrees. Not every interpretation that might impact the scope of criminal liability negates Chevron. Here the INA is a civil statute, and any collateral criminal consequences are too attenuated to change the court’s analysis.

Statute Since Chevron applies, the court must determine whether the term “relating to obstruction of justice” is ambiguous about whether an ongoing proceeding or a reasonably foreseeable proceeding must be obstructed.

In Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), the Supreme Court considered the generic definition of “sexual abuse of a minor,” but did not give Chevron deference to the Board of Immigration Appeals’ interpretation because the text, dictionaries, related federal statutes, state statutes and the Model Penal Code provided a clear answer. Here, those same sources show that the term “relating to obstruction of justice” is ambiguous.

So the court must determine whether the BIA’s generic definition is a reasonable interpretation of the ambiguous phrase. To receive deference, the BIA’s generic definition of obstruction of justice must be reasonable. It is. The BIA relied on many of the sources mentioned above to come to the reasonable conclusion that an element of “an offense relating to obstruction of justice” is interference in an ongoing or reasonably foreseeable proceeding. The court therefore defers to the BIA’s definition.

Virginia law The court now must determine whether the BIA’s definition of obstruction of justice categorically matches the elements of Pugin’s crime of conviction—accessory after the fact under Virginia law. Accessory after the fact under Virginia law requires that a “felony must be completed”; the defendant “must know that the felon is guilty” and the defendant “must receive, relieve, comfort or assist him.” To Pugin, this crime does not categorically match because the generic offense requires the specific intent to interfere while Virginia law only requires the lower mens rea of knowledge. The problem with that argument is that it has been expressly rejected by the Virginia Supreme Court. Other sources also reveal that Virginia accessory after the fact requires specific intent.

Faced with this overwhelming evidence, Pugin argues that the two most recent Virginia Supreme Court cases discussing accessory after the fact do not discuss specific intent, so that element must no longer exist (if it ever did). But those cases do not stand for the proposition that specific intent is no longer required.

Pugin then marshals a handful of Virginia appellate court decisions to argue that someone could be convicted of being an accessory after the fact without specific intent. But specific intent was not raised as an issue in any of those cases. As a result, Virginia accessory after the fact categorically matches the BIA’s generic definition of obstruction of justice.

So Pugin committed an aggravated felony, and the BIA’s decision finding Pugin removable is affirmed.

Affirmed.

Dissent (Gregory, C.J.): The majority concludes that because the phrase “in relation to obstruction of justice” is ambiguous, the BIA’s renewed interpretation of this provision is due Chevron deference. The majority also concludes that the BIA’s interpretation of “reasonably foreseeable” is reasonable.

Because, in my view, the phrase is not ambiguous, the BIA is not due Chevron deference. However, even if § 1101(a)(43)(S) is ambiguous, the BIA’s conclusion that a formal nexus to an ongoing investigation is not required is unreasonable. Thus, I disagree that petitioner’s conviction of “Accessory After the Fact to a Felony” is a categorical match with the generic offense of § 1101(a)(43)(S). For these reasons, I respectfully dissent.

Pugin v. Garland (Lawyers Weekly No. 001-201-21, 63 pp.) (Julius N. Richardson, J.) (Roger Gregory, C.J., dissenting) Case No. 20-1363.

Nov. 30, 2021. From the Board of Immigration Appeals. Martha Hutton for Petitioner. Margot Pyne Kniffin for Respondent.

Your source for the latest in local legal news.

SCLAWYERSWEEKLY.COM