South Carolina Lawyers Weekly January 31, 2022

SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 3 ■

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Bars to pay $2.5M in dram shop suit ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com

to as the “Church Property” because it was located across the street from the house of the pastor of Horrell Hill Baptist Church. The church’s pastor was the decedent’s pastor, Reverend Lester Moore. The decedent and Rev. Moore each owned half of the property.

In addition, the probate court ordered Michael to pay the estate half of the sale proceeds from a property sale. Michael and the decedent jointly purchased 334 Cypress Avenue in Garden City, with each owning half

Three bars have agreed to pay $2.5 million to six plaintiffs injured in a four-car crash caused by an intoxicated driver who for hours before the incident had been served strong, oversized beers and liquor, the plaintiffs’ attorneys report.

The plaintiffs were represented by Sam Clawson and Christy Fargnoli of Clawson Fargnoli Utsey in Charleston; James Felts of Harmon & Felts in Georgetown; and Patrick Napolski of George Sink Injury Lawyers in North Charleston. Clawson said that the plaintiffs, traveling in three vehicles, were stopped in traffic when the defendant rear-ended one vehicle, causing the destructive chain reaction.

Clawson reported that the two plaintiffs inside the vehicle struck by the defendant suffered the most serious injuries, including abdominal wall bleeding, chest wall contusion, a descending colon injury, and vertebral, sternal and rib fractures.

Medical bills for the pair topped $200,000, Clawson said.

Injuries to the remaining plaintiffs were primarily soft-tissue injuries, Clawson said.

Many details of the case, including the names of the parties and defense counsel, have been withheld pursuant to a confidentiality agreement.

Clawson said that over a fourhour period at the first bar, the defendant drank four large beers with

See Joint tenancy Page 5 ►

See Dram shop Page 3 ►

COA: Joint tenancy survives death of one party ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires A panel of the South Carolina Court of Appeals has ruled a joint tenancy with a right of survivorship was not severed by the signing of a purchase agreement, allowing one party to keep all the proceeds from a sale after the death of the other owner. The ruling reverses both the probate and circuit courts.

Thomas G. Moore passed away on Dec. 13, 2013. He was survived by five children: Michael Dennis Moore, Thomas Paul Moore, Phillip Freder-

ick Moore, Francine Laura Lawhorn and Linda Kaye Moore. The decedent left a will dated Sept. 27, 1997 which appointed Michael as the personal representative.

The will was admitted to the Florence County Probate Court on Feb. 20, 2014. In a 2016 order, the probate court ruled a document — separate from the will that was found within the decedent’s safe with the will — should be integrated into the will.

The separate document sought to devise for Thomas an interest in a five-acre piece of property located in Richland County that was referred

County, school district to pay part of $1.85M settlement ■ BY DAVID BAUGHER A student left with profound permanent brain injuries after being struck by a car will receive a $1.85 million settlement, including half a million from the county and school district.

According to Daniel Draisen of The Injury Law Firm in Anderson, the minor plaintiff, identified as V.T. was left bedridden and de-

pendent on a feeding tube unable to walk or communicate after the September 2020 accident in which she was hit by a fellow student operating a vehicle. The driver’s insurance contributed $1.3 million with another $50,000 coming from V.T.’s UIM coverage. The remainder was from Anderson County and the Anderson County School District Five.

“People have been complaining for years that students fly up and down that road cut-

ting through from other parts of the county to get to school and for kids walking there was no sidewalk, no shoulder,” Draisen said. “It is just a road and then grass.”

Draisen said the incident took place in a subdivision about 100 yards from the school where recent residential construction has increased foot traffic along the country road, which had S e e Co u n t y P a g e 3 ►

INSIDE VERDICTS & SETTLEMENTS

COMMENTARY

COMMENTARY

Fatal movement of trach tube leads to $1M settlement.

Why the OSHA emergency vaccine rule is on hold.

Three mistakes young attorneys shouldn’t repeat.

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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 Janu ar y 31, 2022

NEWS BRIEFS SC Senate votes to end state control of hospital expansions COLUMBIA (AP) — South Carolina hospitals would no longer need state permission to build new facilities, make expansions or buy expensive equipment after senators voted overwhelmingly to get rid of the requirement Tuesday.

The 35-6 vote eliminates the Certificate of Need program, long criticized by free market Republicans, and sends the bill to the House.

The issue wasn’t on many observers’ radar when the session began, but the Senate acted swiftly for its part, fending off any attempts to keep parts of the program by supporters — such as the South Carolina Hospital Association — who say it protects health care in rural areas and can prevent hospitals from overspending because of competition.

The repeal’s most enthusiastic supporters came from rapidly growing areas like Horry County and the suburbs just south of Charlotte, North Carolina. Groups there have been unable to convince state regulators and the courts that a hospital is needed to serve the area.

“Eighteen years, no hospital.

Eighteen years, no medical care.

Broken bones, ruptured spleens, heart attacks, births — all of it came and went,” said state Sen. Michael Johnson, a Republican from Fort Mill.

The Certificate of Need law requires permission from the state Department of Health and Environmental Control to build or expand hospitals or to buy expensive equipment like MRI machines.

Supporters, including hospital systems across the state, said the rules save money by avoiding costly duplication of services, encourage health care to locate or stay in rural areas and assures care offered is the highest quality. Fifteen states have repealed their programs, which were mandated by the federal government in the 1970s.

The six senators who voted against the repeal said they were worried that already dismal health care options in rural areas would get worse.

“I hope I’m wrong about what this repeal will do,” said Sen. Kevin Johnson, D-Manning, who said he was asked to vote no by his local McLeod Health Clarendon hospital, which fears a glut of competition will run the hospital out of business and those competitors would then leave rural areas themselves.

But the bill did get some Democratic support. “It is impossible for it to get worse when you have no hospitals,” said Sen. Mike Fanning, who represents rural Fairfield and Chester counties.

The bill’s main sponsor, Sen. Wes Climer, R-Rock Hill, said the mergers of hospital systems across South Carolina and the COVID-19 pandemic turned the tide on repealing the law.

Before, any medical business had to hire a consultant to help go through the Certificate of Need process, plus a lawyer to read over the paperwork, and — if they won a certificate — even more lawyers

to fight the inevitable appeal of the decision, Climer said.

“All you have to do now is raise the money and go build,” he said.

If the repeal becomes law, 28 projects worth more than $1 billion that are currently tied up after initial approval would be free to be built. They range from a 98-bed hospital in rapidly growing Lancaster County to nine new bassinettes in a newborn intensive care unit in Charleston, according to information Climer gave senators.

Thirty-four projects awaiting permission wouldn’t need it anymore, including 10 different businesses that want to be able to spend $70,000 each to give intravenous drugs to people in their homes in the state’s most rural counties.

“There is a widespread desire for competition in medicine,” Climer said.

Certificate of Need nearly died in 2013 when then-Gov. Nikki Haley vetoed from the state budget the $2 million officials used to run the program. Hospitals sued, saying lawmakers never voted to end the program, and the state Supreme Court ruled in 2014 that it should continue.

The House has passed bills that curtail the program before, but never one that ended it outright.

Democrat Kevin Johnson said he wishes some of the Republicans so enthusiastic about ending Certificate of Need would join them in a different health care proposal.

“If you really want to improve health care for South Carolinians, the best thing you can do is expand Medicaid,” Kevin Johnson said.

Columbia attorney waited 10 years to be on ‘Jeopardy!’

COLUMBIA (AP) — Columbia lawyer Clark Dawson waited a decade to be on “Jeopardy!,” a game show she had watched with her family since she was a young girl.

Finally, the call came. But when she arrived at Sony Pictures in Culver City, California, on that early, early morning in November, Dawson had no idea she would “run into the buzz saw that is Amy,” to use her own words.

Dawson was referring to Amy Schneider, a historic champion who has won for six weeks running now, accumulating more than $1 million in winnings. Schneider has the third most wins in show history and is fourth in money won.

Schneider is formidable, Dawson said. And genuinely kind.

Dawson’s episode aired last Thursday.

“Jeopardy!” films a week’s worth of shows on Mondays and the next week on Tuesdays, then takes a break.

Contestants pay for their own transportation to California as well as hotel and other expenses. The show does feed them lunch during a day that starts very early and sometimes goes to the evening.

All contestants for that particular week are there while all the shows are taped, and they all take part in a rehearsal to get used to the pace of the game and the all-powerful buzzer that allows a contestant to ring in and provide the answer to the clue.

LAWYERS IN THE NEWS Collins & Lacy has announced the elections and promotions of several attorneys. Christian Stegmaier has been elected as the firm’s president.

Stegmaier was also recently named as Staff Judge Advocate of the South Carolina State Guard. Claude Prevost has been elected vice president.

Chris Adams was elected as secretary/treasurer. Workers’ compensation attorney Jennifer Newman and professional liability practice leader Robert Peele have been promoted to shareholder.

Ashley Cuttino has been named office managing shareholder of the Greenville office of Ogletree Deakins.

Cuttino focuses her practice on a wide range of labor and employment law

issues and various state leave laws and multi-state compliance.

Kilpatrick Townsend & Stockton announced the election of Kate McCurry to its partnership in Winston-Salem and the elevation of Beth Winters to counsel in Winston-Salem.

McCurry focuses her practice on investment management, with an emphasis on advising registered investment companies and their boards, and registered investment advisers with respect to formation, registration, and ongoing governance and compliance.

Winters litigates complex commercial, trade secret, securities, Native American, and other legal issues for both plaintiffs and defendants.

BAR DISCIPLINE

ROUNDUP Attorney: Debra Barry Moore Location: Lexington Bar membership: Member since 2004 Disciplinary action: Suspended from the practice of law until further order on Jan. 7 Background: The Office of Disciplinary Counsel asked the Supreme Court to place Moore on interim suspension pursuant to Rule 17(a) of the Rules for

Dawson said mastering the buzzer was the hardest part of it all.

She suspects all three contestants on her show knew most of the answers, but buzzer timing was key.

Contestants cannot ring it before the host — in this case, the winningest Jeopardy champion of all time, Ken Jennings — finishes reading the clue. Lights on the sides of the game board tell contestants when they can ring in.

If they ring in too soon, their buzzer is locked for .25 seconds, more than enough time for someone else to answer, Dawson said.

Dawson felt that Schneider, after so many wins, was hardwired to know when to buzz.

Other behind-the-scenes observations Dawson made were the game board is closer to the contestants than appears on television, and the floor behind the podium moves up and down so no player appears taller than another.

And, Dawson said, Jennings is as nice in person as he is on television.

When Dawson says she’s been wanting to be on “Jeopardy!” for 10 years, she means that quite literally. She took the test each year and waited. Waited some more. Waited even longer.

When the call came, she missed it. She returned the call, got an answering machine. She thought it was probably just a call for more information. But no. It was the real deal.

Walking onto the Sony Pictures lot was strange, she said. Heavy security, mask requirements, few people. She took a COVID-19 test sitting in an empty parking garage.

Dawson, who works as a real es-

Lawyer Disciplinary Enforcement, and the court ordered that Moore’s license to practice law in the state be suspended until further order.

Previous discipline: None Information contained in the Bar Discipline Roundup was compiled by Lawyers Weekly reporter Heath Hamacher. He can be reached at hhamacher@sclawyersweekly. com.

tate attorney for Rogers Townsend in Columbia, is married to Nathan Dawson, a state procurement officer, and they have three children.

She is a graduate of Wofford College and the University of South Carolina School of Law. They all watched the show at Clark Dawson’s parents’ house in Columbia, connected via Zoom to other family members in Woodruff and Spartanburg. Her grandmother, who has watched “Jeopardy!” since it began 50 years ago, was particularly proud.

Dawson’s mother is commercial real estate broker Mary Winters Teaster, and father Tom works for Dominion Energy.

Dawson said she didn’t do as well as she hoped, and that stings.

She came in third with $3,995 after getting the final Jeopardy question about a Victor Hugo quote wrong.

Schneider ended that game with $32,800 after betting $4,000 and getting the answer correct. Schneider’s total winnings as of Thursday were $1,101,600. She won again on Friday.

Dawson has heard from many people since the show aired — some she knew and others she didn’t — that she did well.

“It was a really big bucket list for me,” she said. Now, she’ll plan some vacations, including returning to her husband’s native Australia, and ride horses with one of her daughters. She’s pleased to have been on the show despite Schneider “steamrolling all of us.”

“I had a front-row seat to history in my nerdy world,” she said. “It was my 15 minutes of fame.”

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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 Ja nuary 31, 2022

VERDICTS & SETTLEMENTS / 3

Botched trach leads to child’s death, $1M settlement ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com The estate of a child who died after a chief ENT resident attempted to reposition her tracheostomy tube has settled its medical malpractice suit for $1 million, its attorneys report.

Monica Wooten Yates and Bradley Yates of the Yates Firm in Myrtle Beach report that on June 23, 2019, 2-year-old Allie was being treated post-op in a Charleston County pediatric intensive care unit after undergoing successful airway reconstruction. Allie and her twin brother, Daxton, were born premature. Daxton died 14 hours after birth and Allie was diagnosed with subglottic stenosis (narrowed airway).

The firm said that while Allie’s surgery was supposed to enable her to breathe independently for the first time in her life, the unnecessary manipulation of her trach, especially without proper supervision by the surgeon or attending physician, led to her death.

Many details of the case were withheld due to a confidentiality agreement.

According to the plaintiff’s attorneys, surgeons placed a trach in a fresh stoma (surgical opening) as a temporary airway, one that Allie’s care team knew to be the only location from which she could take in oxygen and could not be manipulated during the “fresh-trach period,” five to 10 days during which the tissue surrounding the trach becomes established.

But just two days after her surgery, when Allie began showing signs of breath-holding episodes and stomach muscle contractions, the chief resident theorized that the trach could be “backwalling,” the firm wrote. These common post-operation occurrences are typically resolved with medication or breathing treatments, the firm noted, but without notifying supervisors or attempting to administer a less invasive treatment, the resident unsuccessfully attempted to reposition the trach, according to the complaint.

Allie’s oxygen levels and vitals immediately and rapidly began to drop, and she died within the hour, the firm wrote.

“Had Allie’s care team responded to her

SETTLEMENT REPORT — MEDICAL MALPRACTICE

Amount: $1 million Injuries alleged: Death Case name: Withheld Court: Charleston County Circuit Court Mediator: Karl Folkens of Florence Date of settlement: Dec. 8 Most helpful experts: Dr. Kay Chang (pediatric otolaryngologist), Marsha Blount (pediatric nurse practitioner) Insurance carrier: Withheld Attorneys for plaintiff: Monica Wooten Yates and Bradley Yates of the Yates Firm in Myrtle Beach Attorney(s) for defendant: Withheld symptoms with appropriate, non-invasive treatment and/or by timely notifying the attending physician or surgeon on duty, she would still be alive today.

DRAM SHOP / Bars to pay $2.5M in dram shop suit C o nt inu e d f r o m 1 ►

high alcohol by volume (ABV) — the equivalent of 11 drinks — aided by a server who circumvented the drink counting function of the bar’s point of sale system by ringing up the last two beverages to a “phantom seat.”

“A typical domestic beer is 4 percent to 5 percent ABV and is served in a 12-ounce bottle or 16-ounce pint glass,” Clawson said. “Bar No. 1 served the customer beer up to 8.2 percent ABV in 24-ounce mugs. This was a dangerous combination that resulted in the intoxication of the customer.”

Clawson said that while the defendant spent fewer than 10 minutes and consumed just one drink (albeit another high ABV beer) at his second stop, the bar should’ve been aware of the man’s propensity for alcohol abuse because it had denied him service on two prior occasions because he was intoxicated.

After leaving the second bar, Clawson said, the defendant went home for about 45 minutes before venturing back out and drinking Pawley’s Island IPAs and tequila for two hours at the third establishment. The server there, Clawson said, was not certified in the responsible service of alcohol as required by the bar’s policies and procedures.

The defendant was arrested at the crash

scene for driving under the influence, and Clawson said that a blood test administered by law enforcement showed that the defendant’s blood-alcohol content was approximately .16, twice the legal driving limit.

Clawson offered further evidence from a forensic toxicoloSam Clawson gist opining that the defendant’s blood alcohol level was .20 at the time of the crash.

The first two bars visited by the defendant asserted a proximate cause defense, Clawson said, arguing that the alcohol they served the man had been metabolized and eliminated at the time of the collision and that the causal chain was broken Christy when the man safely made it Fargnoli home before heading out again.

But after mediation by Karl Folkens of Florence, those bars agreed to pay $1 million and $500,000, respectively. The third bar settled for $1 million.

Fargnoli said that while plaintiffs’ attorneys are pleased with the dollar amount obtained for their clients, another settlement term will provide “concrete and meaningful” change.

COUNTY / school district to pay C o nt inu e d f r o m 1 ►

briars on the other side that prevented individuals from walking while facing traffic.

Despite complaints from the public, Draisen said the district and the county had been in dispute over the details of who would pay to install a sidewalk in the area. Since the accident, an asphalt path has been put in place.

He said that, in the event of a tragedy such as this, it can be useful for attorneys to explore creative avenues to get a fair recovery for the incident.

“Unfortunately, we a lot of times are stuck with just the automobile coverage but it is always worth checking to see if there are other potentially culpable parties,” he noted.

Draisen listed Allison Hanna of Halligan Mahoney Williams as representing the district and Steven Pruitt of McDonald Patrick as representing the county. The former declined comment and the latter did not return a request for comment.

Draisen said there was no attorney for the at-fault driver.

SETTLEMENT REPORT – MOTOR VEHICLE ACCIDENT

Amount: $1.85 million Injuries alleged: Profound permanent brain injury, loss of ability to walk, communicate or perform ADL, bedridden, dependence on a feeding tube, seizures Case name: To Anh Tran, conservator for V.T., a minor, v. Anderson County; Anderson County School District Five Court: Anderson County Circuit Court Case No.: 2021-CP-04-00412 Judge: J. Cordell Maddox, Jr. Date of settlement: Dec. 2, 2021 Attorney for plaintiff: Daniel Draisen of The Injury Law Firm in Anderson Attorneys for defendant: Allison Hanna of Halligan Mahoney & Williams in Columbia (for the district); Steven Pruitt of McDonald Patrick in Greenwood (for the county)

SETTLEMENT REPORT — DRAM SHOP

Amount: $2.5 million Injuries alleged: Numerous orthopedic and gastrointestinal injuries Case name: Withheld Venue: Withheld Mediator: Karl Folkens of Florence Date of settlement: Dec. 2 Special damages: $315,000 Most helpful experts: Dr. David Eagerton (forensic toxicologist) Attorneys for plaintiffs: Sam Clawson and Christy Fargnoli of Clawson Fargnoli Utsey in Charleston, James Felts of Harmon & Felts in Georgetown, and Patrick Napolski of George Sink Injury Lawyers in North Charleston Attorney(s) for defendants: Withheld

“The fact that Bar No. 1 will no longer serve high-alcohol beer in 24-ounce mugs acknowledges the danger that this practice posed and serves to make the roadways safer for the entire community,” Fargnoli said.

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Prosecutor: Alex Murdaugh now faces 75 charges; $8.5M stolen COLUMBIA (AP) — A once prominent South Carolina lawyer now faces 75 charges he stole nearly $8.5 million in wrongful death and wreck settlements from more than a dozen people after another round of indictments against Alex Murdaugh were handed up Friday.

The 23 new charges issued by the state grand jury covered new victims, but similar schemes, prosecutors said.

Murdaugh, 53, would negotiate settlement money for his clients without telling them what they earned, then deposit the checks meant to pay for their pain and suffering or the anguish of the death of a loved one into his own personal accounts — paying off loans or debts or in ways prosecutors have not detailed.

The new indictments extend Murdaugh’s crimes back more than a decade to 2011 and add a new mystery. Several of them said Murdaugh used money orders given to an unnamed famS e e P a g e 16 ►

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 Janu ar y 31, 2022

Young attorneys: You can learn some lessons from my mistakes. Here are three of them.

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

■ BY PAUL MARK SANDLER BridgeTower Media Newswires

■ PUBLISHER

BALTIMORE, MD -- I shake my head and smile, now at the Bar 50 years, at the many humiliating mistakes I have made, particularly as a young lawyer. For me, the saving graces are the lessons I have learned along the way. I would like to share three of them with you.

Don’t believe everything that your client tells you.

Decades ago, a senior partner said to me, “So you think you are Clarence Darrow?” My response is, “Well, I am going to be.” “Here’s a case for you,” he says. “Our client has a speeding ticket. Represent her. Win the case.”

I meet Selma Jones in my closetlike office and know enough to ask about her driving record. She assures me it is perfect, and that she has never received any tickets, particularly speeding.

“Great, I am going to get you off, Mrs. Jones!” I say, enthusiastically.

The day arrives. The courtroom is packed. Finally, our case is called. As we walk forward, Mrs. Jones grabs me by the shoulders. “Honey, we have a problem.”

“What’s wrong,” I ask. “Are you ill?”

“No, but that is the same judge I had last month, who smacked me hard with many points, and said that if he ever saw me again, he would yank my license!”

Sure enough, her license is revoked.

I return to the office, humbled and disappointed that I cannot share a great victory with the senior partner who assigned me the case. Remember: Independently verify the facts of your case, or seek corroboration.

Prepare thoroughly.

Long ago, I was trying a nonjury case. While questioning a witness on direct examination, I suddenly raise my hand. The judge looks at me and firmly states, “What does this mean, Mr. Sandler?”

“Your Honor, I have a question.”

“Counsel, this is not a classroom,” the judge says, sternly. “This is a courtroom. If you have a question, you say, ‘Excuse me, Your Honor, may I approach the bench?’”

Meekly, I say, “Excuse me, Your Honor, may I please approach the bench?”

“You may not,” he says, bluntly.

“But, Your Honor, I don’t know what to do. I have this document in my hand and forgot how to move it into evidence.”

The judge hits himself gently on the head with the palm of his hand.

“I have seen it all,” he says, turning to opposing counsel. “I am going to take a 15-minute recess. Please show Mr. Sandler how to introduce and authenticate an exhibit in court.”

Before he closes the door to his chambers, he says, “And let Mr. Sandler practice. Take the witness stand, and let him practice authenticating the exhibit.”

The embarrassment of the time has faded, but the lesson learned has stayed: Prepare, prepare, prepare. I should have anticipated the need to work with exhibits in court. I should have appreciated the problem and resolved the issue before trial.

Know the judge.

It was my first criminal case, a murder trial in 1972. A plea of guilty is entered, and the day arrives for the disposition of the case. I approach the bench, as my client is led into the courtroom by the U.S. Marshal. The judge begins to sentence.

As I listen, I say, “Excuse me, Your

Honor.”

The judge leans forward and hollers at me. “Excuse me! What do you mean by interrupting me?” “I am sorry, Your Honor,” I respond. “Shouldn’t we read my client his rights before we sentence him?”

“We are not sentencing him. I am sentencing him!” the judge responds in an angry tone, intimidating me.

“Furthermore, “look at your client.”

I am stunned. He repeats, “Look at your client, do you see him?”

“Yes, Your Honor, I do.”

“Well he knows more about the law than you, and he also has been in court more than you. May I please proceed without any further interruptions?”

The judge completes the sentencing. Looking at me standing there, nervous and embarrassed, he says, “Now this concludes the case. Go with the U.S. marshal.”

I then proceed to walk toward the U.S. marshal. The judge screams at the top of his voice — to my dismay, but to the pure delight of the room full of lawyers. “Not you, Mr. Sandler, you don’t go with the U.S. marshal.

Your client goes to jail with the U.S. marshal. You, I hope, go back to your office, and study more law.”

With my head down, I walk quickly to exit the court, as laughter erupts in the courtroom. The valuable lesson I learned that day was, before going to court, learn about the judge’s style, and likes and dislikes, particular courtroom policies.

This article is derived from “The Fine Art of Trial Advocacy: The Young Lawyer’s Resource for Success” (American Bar Association, 2021). Paul Mark Sandler, trial lawyer and author, can be reached at pms@shapirosher.com.

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Why the OSHA ETS was placed on “stay” cation ■ BY MARY KATHERINE CAMPION AND ASHLEY MEREDITH STRITTMATTER BridgeTower Media Newswires NEW ORLEANS, LA — On January 13, 2022, in a per curiam opinion, the Supreme Court granted the application for a stay of Occupational Safety and Health Administration’s (OSHA) ability to implement and enforce the “Vaccine or Test” Emergency Temporary Standard (ETS). The Supreme Court held that the applicants are likely to succeed on the merits of their claim that the Secretary of Labor lacked authority to impose the ETS. The Supreme Court’s decision was based on the following reasons: OSHA’s authority is created by a clear expression from Congress, and the Supreme Court “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The Court determined that the OSH Act does not “plainly authorize” the Secretary of Labor to impose a mandate like the ETS. Instead, the OSH Act “empowers the Secretary to set workplace safety standards, not broad public health measures.” The Court determined that because the ETS would be a “significant encroachment into

the lives — and health — of a vast number of employees,” it must be founded on explicit Congressional approval.

The Court determined that while COVID-19 “is a risk that occurs in many workplaces, it is not an occupational hazard in most.” The Supreme Court distinguished “occupational risk” from the “universal risks” and everyday dangers that people face in daily life, such as “crime, air pollution, or any number of communicable diseases.” The Court identified COVID-19 as a universal risk because it spreads, not just in the workplace, but also “at home, in schools, during sporting events, and everywhere else that people gather.” Permitting OSHA to regulate the hazards of daily life, the Court held, would unjustly expand OSHA’s statutory authority.

The majority disagreed with the dissent that the ETS is comparable to a fire or sanitation regulation imposed by OSHA. Unlike the requirements of a fire and sanitation regulation in the workplace, said the Court, “[a] vaccination . . .cannot be undone at the end of a workday.”

The Court did not go so far as to say that OSHA can never regulate COVID-19 risks. Instead, the

Court recognized that OSHA does have the power to regulate specific occupational risks associated with COVID-19, such as when a particular function of a job would place employees in a special danger (e.g., researchers who work with the COVID–19 virus or employees “working in particularly crowded or cramped environments”). However, the broad application of the ETS to all industries, without distinction, “takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

Finally, the Court noted OSHA lacked any historical precedent for implementing a broad public health regulation like the ETS. The Court interpreted this lack of precedent to be a “telling indication” that the ETS exceeds the agency’s authority.

Justice Gorsuch penned a separate concurrence, which Justices Thomas and Alito joined, analyzing the issue under the “major questions” doctrine. The concurrence underscored that the central issue before the Court was “whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate S e e P a g e 16 ►

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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 Ja nuary 31, 2022

JOINT TENANCY / Survives death of one party C o nt inu e d f r o m 1 ►

the property. They entered into an agreement to sell the property in November 2013, prior to the decedent’s death.

The property was sold on Dec. 27, seven days after the decedent’s death. Michael signed the deed individually and received all the proceeds from the sale, despite the existence of the sales contract before the decedent’s death. The probate court ordered him to pay the estate half of the $324,500 sale price.

Michael appealed and the circuit affirmed the order. He appealed again.

In a decision authored by Judge Paula H. Thomas, the court reversed with regard to the joint tenancy issue.

“The sales contract was silent as to whether severance of the joint tenancy was intended by [Michael] and the decedent, and no extraneous circumstances indicated severance was intended by the parties,” she wrote. “Thus, we find the probate and circuit courts erred in finding the joint tenancy became a tenancy in common without rights of survivorship when [Michael] and the decedent entered into a sales contract for the sale of the property and hold the joint tenancy was not severed in this case.”

Joint tenancy stands

Michael argued that the joint tenancy with a right of survivorship was not defeated at the time the

purchase agreement was signed.

Thomas looked to Section 27-740(a), which provides: “(i) In the event of the death of a joint tenant, and in the event only one other joint tenant in the joint tenancy survives, the entire interest of the deceased joint tenant in the real estate vests in the surviving joint tenant, who is vested with the entire interest in the real estate owned by the joint tenants … “ “(iii) The fee interest in real estate held in joint tenancy may not be encumbered by a joint tenant acting alone without the joinder of the other joint tenant or tenants in the encumbrance. (iv) If all the joint tenants who own real estate held in joint tenancy join in an encumbrance, the interest in the real estate is effectively encumbered to a third party or parties.”

The probate court cited to this section to declare that the sales contract entered into prior to the decedent’s death encumbered the property, entitling the purchaser to possession of the property upon payment of the agreed price and the decedent to just one half of the proceeds at closing.

Michael countered that he was the sole owner of the property at the time it was sold because the decedent passed away before the final closing and recording of the property.

Finding no South Carolina cases that addressed the issue and noting that Section 27-7-40 does not provide that an encumbrance on real

estate severs the joint tenancy with a right to survivorship, Thomas looked to other states for guidance.

Although she found a split in authority as to whether a contract for the sale of property severs a joint tenancy with a right to survivorship, Thomas elected to follow a Florida decision, where the court held that “severance does not automatically occur upon the execution of a contract to sell that is executed by all joint tenants, unless there is an indication in the contract, or from the circumstances, that the parties intended to sever and terminate the joint tenancy.”

Finding no such indication in the contract or the circumstances in the case at hand, Thomas reversed the probate and circuit courts. The sales contract was silent as to whether the parties intended to sever the joint tenancy and no extraneous circumstances indicated that severance was intended, she said.

“Therefore, we reverse the probate and circuit courts on this issue and find the estate is not entitled to proceeds from the sale,” she wrote.

Issues not considered

Thomas rejected Michael’s other two points on appeal: prejudicial submission of evidence and allowance of new claims on the day of trial and that the separate document should not have been integrated into Thomas’s will.

As to the first issue, Michael raised it for the first time on appeal and therefore, it was not preserved

for review. At trial, Michael did not object to the introduction of the documents into evidence; nor did he object when the probate court denied his request to respond to the evidence with a summary of his own, she noted.

“Further, even if [Michael] raised any errors related to these issues in his motion to reconsider to the probate court, we cannot review that motion because [he] did not include it in the record on appeal,” she said.

Thomas declined to consider the issue of the separate document that was integrated into Thomas’s will by the probate court.

Michael did not include a copy of the will or the separate document in the record on appeal, despite the fact that it was his burden as the appellant to provide a sufficient record on appeal from which the court could make an intelligent review, she explained.

“Without the inclusion of the will or the separate document that was allegedly incorrectly integrated into the will, we decline to consider the issue,” Thomas wrote.

Michael Dennis Moore represented himself pro se.

Florence attorney C. Pierce Campbell, of Turner Padget Graham & Laney, represented Thomas Paul Moore. He declined to comment given the ongoing litigation.

The 9-page decision is Moore v.

Moore (In re Estate of Moore) (Lawyers Weekly No. 011-002-21). The full text of the opinion is available online at sclawyersweekly.com.

AP sources: Justice Breyer to retire; Biden to fill vacancy ■ BY MARK SHERMAN AND MICHAEL BALSAMO WASHINGTON (AP) — Liberal Supreme Court Justice Stephen Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court.

Breyer, 83, has been a pragmatic force on a court that has grown increasingly conservative in recent years, trying to forge majorities with more moderate justices right and left of center.

Two sources told The Associated Press the news, speaking on condition of anonymity so as not to preempt Breyer’s eventual announcement. NBC first reported the justice’s plans.

Breyer has been a justice since 1994, appointed by President Bill Clinton. Along with the late Justice Ruth Bader Ginsburg, Breyer opted not to step down the last time the Democrats controlled the White House and the Senate during Barack Obama’s presidency. Ginsburg died in September 2020, and then-President Donald Trump filled the vacancy with a conservative justice, Amy Coney Barrett.

Breyer’s departure, expected over the summer, won’t change the 6-3 conservative advantage on the court because his replacement will be nominated by Biden and almost certainly confirmed by a Senate where Democrats have the slimmest majority. It also will make conservative Justice Clarence Thomas the oldest member of the court. Thomas turns 74 in June.

Senate Majority Leader Chuck Schumer said Biden’s nominee “will

receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed.”

Republicans who changed the Senate rules during the Trump era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome.

Sen. Lindsey Graham of South Carolina, the top Republican on the Senate Judiciary Committee, said in a statement: “If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support.”

Liberal interest groups expressed relief. They had been clamoring for Breyer’s retirement for the past year, concerned about confirmation troubles if Republicans retake the Senate “Justice Breyer’s retirement is coming not a moment too soon, but now we must make sure our party remains united in support of confirming his successor,” Demand Justice Executive Director Brian Fallon said.

Among the names being circulated as potential nominees are California Supreme Court Justice Leondra Kruger, U.S. Circuit Judge Ketanji Brown Jackson, prominent civil rights lawyer Sherrilyn Ifill and U.S. District Judge Michelle Childs, whom Biden has nominated to be an appeals court judge. Childs is a favorite of Rep. James Clyburn, D-S.C., who made a crucial endorsement of Biden just before South Carolina’s presidential primary in 2020.

Biden has been focused on filling federal judicial nominations with a more diverse group of judges, and

Supreme Court Associate Justice Stephen Breyer listens during a forum at the French Cultural Center in Boston, Feb. 13, 2017. Breyer is retiring, giving President Joe Biden an opening he has pledged to fill by naming the first Black woman to the high court, two sources told The Associated Press Wednesday, Jan. 26, 2022. (AP Photo/Steven Senne, File)

the Supreme Court has not been top of mind during his first year in office, according to White House aides and allies. A decision on a nominee has not been made yet, they said, and is expected to take a few weeks. But Biden has expanded his pool of applicants by naming more Black women to the bench.

White House press secretary Jen Psaki said on Twitter: “It has always been the decision of any Supreme Court Justice if and when they decide to retire, and how they want to announce it, and that remains the case today. We have no additional details or information to share from @WhiteHouse.”

Often overshadowed by his fellow

liberal Ginsburg, Breyer authored two major opinions in support of abortion rights on a court closely divided over the issue, and he laid out his growing discomfort with the death penalty in a series of dissenting opinions in recent years.

Breyer’s views on displaying the Ten Commandments on government property illustrate his search for a middle ground. He was the only member of the court in the majority in both cases in 2005 that barred Ten Commandments displays in two Kentucky courthouses but allowed one to remain on the grounds of the state Capitol in Austin, Texas.

See Page 6 ►

6 / NEWS C o nt inu e d f r o m 5 ►

In more than 27 years on the court, Breyer has been an active and cheerful questioner during arguments, a frequent public speaker and quick with a joke, often at his own expense.

He made a good natured appearance on a humorous National Public Radio program in 2007, failing to answer obscure questions about pop stars.

He is known for his elaborate, at times far-fetched, hypothetical questions to lawyers during arguments and he sometimes has had the air of an absent-minded professor. He taught antitrust law at Harvard earlier in his professional career.

He also spent time working for the late Sen. Edward Kennedy when the Massachusetts Democrat was chairman of the Senate Judiciary Committee. That experience, Breyer said, made him a firm believer in compromise.

Still, he could write fierce dissents,

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 Janu ar y 31, 2022

as he did in the Bush v. Gore case that effectively decided the 2000 election in favor of Republican George W. Bush. Breyer unsuccessfully urged his colleagues to return the case to the Florida courts so they could create “a constitutionally proper contest” by which to decide the winner.

And at the end of a trying term in June 2007 in which he found himself on the losing end of roughly two dozen 5-4 rulings, his frustrations bubbled over as he summarized his dissent from a decision that invalidated public school integration plans.

“It is not often that so few have so quickly changed so much,” Breyer said in a packed courtroom, an adlibbed line that was not part of his opinion.

His time working in the Senate led to his appointment by President Jimmy Carter as a federal appeals court judge in Boston, and he was confirmed with bipartisan support even after Carter’s defeat for reelec-

tion in 1980. Breyer served for 14 years on the 1st U.S. Circuit Court of Appeals before moving up to the Supreme Court.

His 87-9 high-court confirmation was the last with fewer than 10 dissenting votes.

Breyer’s opinions were notable because they never contained footnotes.

He was warned off such a writing device by Arthur Goldberg, the Supreme Court justice for whom Breyer clerked as a young lawyer.

“It is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the court has reached that decision,” Breyer once said. “It’s not to prove that you’re right. You can’t prove that you’re right; there is no such proof.”

Born in San Francisco, Breyer became an Eagle Scout as a teenager and began a stellar academic career at Stanford, graduating with highest honors. He attended Oxford, where

he received first-class honors in philosophy, politics and economics.

Breyer then attended Harvard’ Law School, where he worked on the Law Review and graduated with highest honors.

Breyer’s first job after law school was as a law clerk to Goldberg. He then worked in the Justice Department’s antitrust division before splitting time as a Harvard law professor and a lawyer for the Senate Judiciary Committee.

Breyer and his wife, Joanna, a psychologist and daughter of the late British Conservative leader John Blakenham, have three children — daughters Chloe and Nell and a son, Michael — and six grandchildren. ___ Associated Press writer Colleen Long contributed to this report. Sherman reported from Bradenton Beach, Florida.

Biden has long been preparing for a Supreme Court pick ■ BY JESSICA GRESKO AND COLLEEN LONG WASHINGTON (AP) — President Joe Biden has already narrowed the field for his first Supreme Court pick.

Biden said as a presidential candidate that if he were given the chance to nominate someone to the court, he would make history by choosing a Black woman. And word on Wednesday that Justice Stephen Breyer plans to retire should give Biden that opportunity.

“As president, I’d be honored, honored to appoint the first African American woman. Because it should look like the country. It’s long past time,” Biden said in February 2020 shortly before South Carolina’s presidential primary.

The White House has reiterated Biden’s campaign pledge since his election.

Almost all recent Supreme Court picks have been federal appeals judges. And since Biden took office in January 2021, he has worked to dramatically expand his options in that potential candidate pool by nominating five Black women who are currently sitting on federal appeals courts, with three more nominations pending before the Senate.

Selecting a Black woman for the lifetime post on the nation’s highest court would be historic. It would mark the first time four women would sit together on the court and the first time two of the court’s nine justices would be Black. Justice Clarence Thomas is the court’s only Black justice and only the second in history after the man he replaced on the court, Thurgood Marshall.

Biden now has the chance to show Black voters increasingly frustrated with a president they helped to elect that he is serious about their concerns, particularly after he has been unable to push through voting rights legislation.

At the same time, Breyer’s replacement by another liberal justice would not change the ideological makeup of the court. Conservatives outnumber liberals by 6-3, and Donald Trump’s three nominees made an already conservative court even more conservative.

With the larger push to diversify the judiciary — Trump largely ap-

pointed white men during his time in office — Biden’s team has consulted with the NAACP Legal Defense Fund, Black caucus members, Rep. Jim Clyburn, D-S.C. and influential Democratic lawyers.

Even with a narrowed field and the court’s majority not to be altered, there’s no guarantee a nominee will sail through the Senate.

Senate Majority Leader Chuck Schumer, D-N.Y., said Wednesday that Biden’s nominee “will receive a prompt hearing in the Senate Judiciary Committee and will be considered and confirmed by the full United States Senate with all deliberate speed.”

But Republicans in particular remain upset about Justice Brett Kavanaugh’s contentious 2018 hearing. Still, Democrats have the 50 votes plus a tiebreaker in Vice President Kamala Harris that they need to confirm a nominee.

Republicans who changed the Senate rules during the Trump-era to allow simple majority confirmation of Supreme Court nominees appeared resigned to the outcome.

Sen. Lindsey Graham of South Carolina, the top Republican on the Senate Judiciary Committee said in a statement: “If all Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support.”

Nonetheless, Democrats have also been unable to get all its members on board for Biden’s social and environmental spending agenda or to move forward with a voting rights bill.

Biden is uniquely aware of the challenges that come with a confirmation. As a senator, he served as chairman of the Judiciary Committee, overseeing six Supreme Court confirmation hearings from 1987 to 1995, including Breyer’s.

And one person who will be central to Biden’s process is chief of staff Ron Klain, a former Supreme Court law clerk and chief counsel on the Senate Judiciary Committee. While serving as an associate White House counsel for President Bill Clinton in 1993, Klain was summoned to breakfast with Justice Byron White, for whom he had clerked, only to be surprised with a resignation letter for Clinton.

Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing on pending judicial nominations, April 28, 2021 on Capitol Hill in Washington. President Joe Biden has already narrowed the field for his first U.S. Supreme Court pick. One potential nominee is Jackson, 51. She attended Harvard as an undergraduate and for law school. Obama nominated her to be a federal trial court judge, and Biden elevated her to the U.S. Court of Appeals for the District of Columbia Circuit. Early in her career, she was also a law clerk for Breyer. (Tom Williams/Pool via AP, File)

Ever since Biden suggested he would choose a Black woman if he had the chance, two names have seemingly topped any list of potential nominees: —Ketanji Brown Jackson, 51.

She attended Harvard as an undergraduate and for law school.

President Barack Obama nominated her to be a district court judge, and Biden elevated her to the U.S. Court of Appeals for the District of Columbia Circuit. Early in her career, she was also a law clerk for Breyer.

—Leondra Kruger, 45, a justice on the California Supreme Court. A graduate of Harvard and Yale’s law school, she served as a law clerk on the high court before arguing a dozen cases before the court as a lawyer for the federal government. But Kruger, whose mother is Jamaican, has also been described as a moderate, which could be a tough sell for some liberal Democratic senators.

Two other Black women Biden appointed to federal appeals courts are also seen as contenders: Holly Thomas, a longtime civil rights lawyer he named to the 9th Circuit and Candace Jackson-Akiwumi, a former public defender he named to

the 7th Circuit.

J. Michelle Childs, who has been nominated but not yet confirmed to serve on the U.S. Court of Appeals for the District of Columbia Circuit, is another option. Childs, currently a federal trial court judge in South Carolina, is a favorite of Clyburn, who made a crucial endorsement of Biden just before that state’s presidential primary.

Biden could also choose someone from outside the judiciary, though that seems less likely. One contender would be the head of the NAACP Legal Defense and Educational Fund, Sherrilyn Ifill, 59.

She has headed the fund since 2013 and has announced she is stepping down in the spring.

The court has had three women on it for more than a decade, since 2010, when Obama named Justice Elena Kagan to the court to replace the retiring John Paul Stevens.

Kagan joined Obama’s other nominee, Justice Sonia Sotomayor, the court’s first Latina justice, and Justice Ruth Bader Ginsburg. When Ginsburg died in September 2020, Trump’s choice of Amy Coney Barrett to fill her seat kept the number of women on the court at three.

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 Ja nuary 31, 2022

Opinions S.C. SUPREME COURT

7

S.C. COURT OF APPEALS

7

4TH U.S. CIRCUIT COURT OF APPEALS, UNPUBLISHED

SC SUPREME COURT

Attorneys Discipline – Disbarment – Federal Convictions In addition to mishandling a child support case, a foreclosure, and a real estate closing, and in addition to failing to communicate with the Office of Disciplinary Counsel, respondent was convicted on federal charges arising out of her conveyance of personal client information to two other individuals who used that information to make and pass counterfeit and forged securities in the names of the clients.

These two other individuals deposited the money from the forged securities into a designated account from which respondent paid them a percentage of the fraudulently obtained proceeds.

Additionally, respondent endorsed stolen checks; attempted to use another person’s identity to facilitate a vehicle trade; possessed a fake driver’s license and social security card and attempted to use them to purchase a car; purchased a different vehicle using a false identity; and possessed and passed two counterfeit checks with the intent to defraud a car dealership. Respondent was also suspended from the practice of law in North Carolina based on her failure to comply with the investigation of 17 grievances pending against her.

Respondent’s conduct violated multiple Rules of Professional Conduct in North and South Carolina, and her misconduct constitutes grounds for discipline under multiple Rules for Lawyer Disciplinary Enforcement. We accept the agreement for discipline by consent and disbar respondent.

In re Misocky (Lawyers Weekly No. 010-002-22, 9 pp.) (Per Curiam) John Nichols and Julie Martino for the Office of Disciplinary Counsel; Jonathan Harvey for respondent.

S.C. S. Ct.

Tort/Negligence Punitive Damage Cap – Not an Affirmative Defense – Syringe in Parking Lot – Offer of Judgment – Interest Where S.C. Code Ann. § 15-32530(A) requires trial courts to reduce punitive damage awards in excess of “the greater of three times the amount of compensatory damages . . . or the sum of five hundred thousand dollars unless exempt under subsection (B) or (C),” the statutory cap on punitive damages is not an affirmative defense. Defendant’s failure to plead the statutory cap did not waive the cap.

The Court of Appeals’ decision is affirmed as modified in part, re-

4TH CIRCUIT UNPUBLISHED

12

versed in part, and remanded.

Facts

In the parking lot of a Target store, plaintiff Denise Garrison’s eight-year-old daughter picked up a syringe and asked, “Mommy, what is this?” Denise instinctively swatted the syringe out of her daughter’s hand. The syringe punctured the palm of Denise’s hand, and her doctor prescribed several medications to prevent her from developing HIV or hepatitis.

Defendant Target Corp. lost the syringe. As proof that Target had constructive notice of the syringe’s presence in its parking lot, plaintiffs presented evidence of the syringe’s “dirty and dingy” appearance, as well as Target’s lack of policies and practices requiring the cleaning of its parking lot.

A jury awarded Denise $100,000 in compensatory damages and $4.51 million in punitive damages.

The jury awarded Denise’s husband, Clint, $3,500 for lost wages and $5,000 for loss of consortium.

The circuit court granted Target’s motion for JNOV as to punitive damages. Based on plaintiffs’ $12,000 offer of judgment – which Target had rejected – the circuit court awarded plaintiffs costs and interest.

Our Court of Appeals reversed and also held that the statutory cap on punitive damages constituted an affirmative defense that must be pled or else waived. Because Target failed to plead the cap, the Court of Appeals held its application was waived. The Court of Appeals also held that, despite her offer of judgment, Denise was not entitled to interest on the punitive damages award.

Constructive Notice

Given plaintiffs’ evidence of the syringe’s damaged and weathered appearance and Target’s troubling lack of cleaning and inspection procedures, the jury could reasonably find the syringe had been in the parking lot long enough for Target to discover and remove it in the exercise of due care.

Further, the spoliation of the syringe while in Target’s possession supports the jury’s finding of constructive notice.

Punitive Damages

As quoted above, § 15-35-530(A) indicates that the punitive damages capping statute applies to all cases not specifically excluded by subsections (B) and (C).

Further, the statutory cap is neither an affirmative defense nor an avoidance because it does not affect liability or require new matter to be asserted but instead limits the amount of damages a plaintiff can recover. The statute requires the trial court to determine whether subsections (B) and (C) are applicable and does not create any issue for the jury to resolve.

9

Moreover, affirmative defenses generally shift the burden of proof to the defendant, and we do not believe the legislature intended for § 15-32-530 to shift the burden to Target to prove the applicability of the statutory cap on punitive damages. The plain language of the statute does not impose a burden on the defendant to prove the cap applies.

Rather, the legislature only directs trial courts to determine which level of the cap must be applied in a particular case.

Therefore, we hold the statutory cap on punitive damages pursuant to § 15-32-530 must be applied by the trial court where the jury has rendered a verdict for punitive damages exceeding the amount outlined in subsection (A), and in such cases, the trial court is required to conduct the inquiry set forth in subsections (B) and (C), as applicable.

Accordingly, we remand this case to the trial court to determine whether the punitive damages award must be reduced.

On remand, the trial court is to conduct a thorough review of the constitutionality of the amount of the jury’s punitive damages award, which includes consideration of potential harm. Although Denise did not ultimately contract a disease from the syringe, the trial court erred in failing to consider any potential harm in the ratio calculation, including the harm likely to result to other customers due to Target’s failure to maintain the parking lot in a reasonably safe condition.

Rule 68 Interest

Using similar language, Rule 68, SCRCP, and S.C. Code Ann. § 1535-400(B) provide, “If an offer of judgment is not accepted and the offeror obtains a verdict or determination at least as favorable as the rejected offer, the offeror shall be allowed to recover from the offeree: . . . (2) if the offeror is a plaintiff, eight percent interest computed on the amount of the verdict or award from the date of the offer. . . .”

The language of both the rule and statute clearly and unambiguously provides that Denise is entitled to eight percent interest on the entire amount of the verdict, including punitive damages.

We are not an outlier in reaching this conclusion. Kregos v. Stone, 872 A.2d 901, 906 (Conn. App. Ct. 2005).

However, the Court of Appeals relied on cases from Alaska and Nevada to hold the purpose of prejudgment interest is to compensate the plaintiff, while the purpose of punitive damages is to punish the defendant. Haskins v. Shelden, 558 P.2d 487 (Alaska 1976); Ramada Inns, Inc. v. Sharp, 711 P.2d 1 (Nev. 1985). Those cases are distinguishable because they considered prejudgment interest rather than interest awarded in the offer of judgment context.

Denise is entitled to eight percent interest on the entirety of her

damages award, including punitive damages, pursuant to Rule 68, SCRCP. Affirmed as modified in part, reversed in part, and remanded.

Garrison v. Target Corp. (Lawyers Weekly No. 010-007-22, 18 pp.)

(Donald Beatty, C.J.) Appealed from the Circuit Court in Anderson County (Keith Kelly, J.) On writ of certiorari to the Court of Appeals.

Joshua Thomas Hawkins, Helena LeeAnn Jedziniak and John Howell for plaintiffs; Lewis Powell, George Sibley, John Carroll Moylan, Henry Parr, Wallace Lightsey and Knox Haynsworth for defendant; Brooks Roberts Fudenberg, Steven Moskos and William Grayson Lambert for amici curiae. S.C. S. Ct.

SC COURT OF APPEALS

Domestic Relations Divorce – Subject Matter Jurisdiction – N.C. Residents Although the plaintiff-Husband presented some evidence that he intended his parents’ South Carolina home to be his residence, Husband returned to the parties’ North Carolina residence whenever his military service and airline employment allowed, and he also became involved in local politics and voted in North Carolina through the general election in 2016. In fact, Husband did not file a request to cancel his North Carolina voter registration until May 2017, just a few weeks before he filed this divorce action. We accept the family court’s credibility determinations and agree that Husband did not show that he had been a resident of South Carolina for one year prior to filing this action. S.C. Code Ann. § 20-3-30.

We affirm the family court’s dismissal of Husband’s action and its award of attorney’s fees to the defendant-Wife.

Wife failed to file the financial declaration required by Rule 20, SCRFC; however, her failure to comply with the rule did not preclude the family court from granting her request for attorney’s fees.

Wife testified that she was unemployed and had no income. Husband did not dispute Wife’s testimony.

Both parties testified they currently lived with their respective parents, and Wife testified that the parties’ children lived with her. This was sufficient for the family court to consider Wife’s financial condition and standard of living compared to Husband’s.

Given that Husband incurred almost $5,000 more in attorney’s fees for litigating the same issue, we find Wife’s attorney’s fees were reasonable based upon the nature, extent and difficulty of the case.

Hayduk v. Hayduk (Lawyers Weekly No. 011-004-22, 15 pp.)

8 / OPINION DIGESTS (James Lockemy, J.) Appealed from the Family Court in Greenville County (Tarita Dunbar, J.) David Alan Wilson for appellant; Falkner Wilkes for respondent. S.C. App.

Trusts & Estates Statute of Limitations – Father’s Debt to Mother – Judicial Estoppel – Father’s Competence Although decedent William Murray signed a letter in 2006, which his daughters claim acknowledged his continuing debt to their late mother’s estate, the letter was too equivocal to constitute an admission that the debt was due and unpaid. Because the statute of limitations had expired on the debt, the decedent-Father’s estate was entitled to summary judgment on the claim of Mother’s estate.

We affirm summary judgment for Father’s estate.

Facts

Minnie Murray (Minnie or Mother) and William Murray (William or Father) divorced in 1967, and William acknowledged a $142,685 debt to Minnie. Minnie died later that year. In 1980, William agreed to make payments to Mother’s estate to repay the debt. William stopped making payments in 1986.

When William died in 2007, Mother’s estate filed a claim for payment of the balance of the debt.

Standing

Even though the decedents’ daughters agreed among themselves how they would hold the proceeds of Mother’s estate’s claim against their father once it was liquidated, they did nothing to transfer ownership of the claim from Mother’s estate to themselves or to change the real party in interest.

Where Mother’s estate was never closed, the estate’s appointed foreign personal representative had standing to bring its claim against Father’s estate.

Statute of Limitations

On February 9, 2006, the personal representative of Mother’s estate – the couple’s daughter, Elizabeth – asked William to sign a letter acknowledging his debt to Mother’s estate. William signed the letter, but it was insufficient to renew a debt on which the statute of limitations had already run.

Although the 2006 letter identified the specific debt and acknowl-

edged the debt was “due,” it then said William owed the debt to Mother’s estate “whether on a currently due basis or as part of debt that will be due upon [William’s] death as a valid claim to [the daughters].”

A statement that the debt was either currently due or alternatively would be due upon William’s death was not an unequivocal admission the debt was due.

Moreover, the letter indicated the debt was due “both legally and as our father” and referred to the debt as an “honor debt.” These statements were equivocal because by signing the letter, William seems to have acknowledged only a moral obligation and not a legal one to repay this debt that is now over two decades old.

Because the letter contained equivocal language and an expression that was inconsistent with William’s intent to repay the debt, we find this letter was insufficient to demonstrate an unequivocal admission that the debt was due and unpaid. Accordingly, we affirm the circuit court’s grant of summary judgment in favor of Father’s estate as to this issue.

The doctrine of laches was inapplicable because this case involves a legal claim to collect on a debt.

Rather, as we have concluded, the statute of limitations barred the claims of Mother’s estate.

Judicial Estoppel

Elizabeth was the sole proprietor of a business, Stylesetters, which had performed services for and was allegedly owed money by William at the time of his death. Elizabeth relies on a letter from William dated July 21, 2007, reaffirming his intention to repay the debt to Stylesetters. However, judicial estoppel bars Stylesetters’ claim against Father’s estate.

In 2006, Elizabeth was involved in litigation in New York pertaining to William’s position as trustee of a charitable trust. Elizabeth alleged that William’s competence was “severely impaired.”

Given that Elizabeth is the sole proprietor of Stylesetters, she and Stylesetters are in privity. Both this case and the trust litigation presented a question of fact concerning William’s competence and how his competence or lack thereof affected the conduct in question. Although the trust litigation settled and there was no judicial determination as to William’s mental capacity, Elizabeth was reinstated as a trustee and therefore received a benefit.

Clarkson, Walsh, & Coulter, a well-established insurance defense litigation firm with offices in Greenville, South Carolina and Charleston, South Carolina, seeks to hire a licensed South Carolina attorney for its Greenville office. (www.clarksonwalsh.com) We are a fast paced litigation office that specializes in the defense of individuals and businesses in all areas of civil litigation, including products liability, automobile negligence, construction, civil rights, professional negligence, insurance coverage and bad faith defense and premises liability. The firm is looking for an individual who can work well within a team structure, but can also work independently as the lead lawyer in litigated matters.

Please submit a cover letter, resume, and writing sample in confidence to jcarver@clarksonwalsh.com.

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 Janu ar y 31, 2022

Furthermore, the position of Elizabeth in the trust litigation – that William was incompetent – and the position of Stylesetters here – that William was competent to acknowledge a debt of hundreds of thousands of dollars – are totally inconsistent, and the time periods at issue overlapped. The circuit court did not err by granting summary judgment in Father’s estate’s favor as to Stylesetters’ claim based on the doctrine of judicial estoppel.

Affirmed.

Murray v. Estate of Murray (Lawyers Weekly No. 011-005-22, 17 pp.) (James Lockemy, C.J.) Appealed from Charleston County (Jennifer McCoy, Circuit Court Judge; Tamara Curry, Probate Court Judge) George Kefalos, Oana Dobrescu Johnson, Barry Baker and Stephen Michael Slotchiver for appellants; Robert Hood, Mary Agnes Hood Craig and Deborah Harrison for respondent. S.C. App.

Workers’ Compensation Repetitive Injury Claim – Medical Evidence – Ergonomics Report Where the claimant presented medical evidence establishing a causal connection between his injuries and the “condition under which the work is performed,” as required

by S.C. Code Ann. § 42-1-172(D), the Workers’ Compensation Commission erred by adding a new requirement “that the Commission find by a preponderance of the evidence that the claimant’s specific job activities are repetitive.”

We reverse the Commission’s denial of benefits and remand for calculation of benefits.

Facts

The claimant worked driving a “switcher truck,” moving trailers to various locations. The job required climbing, stooping, bending and twisting to switch 45 to 60 trailers each 12-hour shift, sometimes getting in and out of the truck 225 times. He developed pain in his back and legs and was diagnosed with right lower extremity radiculopathy secondary to an L4-L5 lumbar disk protrusion.

His doctor said “yes” when asked (1) whether the repetitive activities of the claimant’s job most probably caused low back pain with right leg radiculopathy and (2) whether the work injuries from repeated work activities caused an L4-5 protrusion.

The employer presented an ergonomics report that opined the claimant’s job duties entailed no enhanced risk of injury to his back.

The Commission relied on this report to deny benefits.

Analysis

The single commissioner applied Murphy v. Owens Corning, 393 S.C. 77, 710 S.E.2d 454 (Ct. App. 2011), and awarded benefits. In reversing the single commissioner’s award, the Full Commission found that § 42-1-172 requires “a two-part analysis a claimant must meet in order to meet his burden of proving a compensable repetitive trauma injury.”

The Commission went on to describe the two-part test: “First, there must be medical evidence establishing a causal connection between the ‘condition under which the work is

performed and the injury.’ § 42-1172(D). Additionally, there is an independent requirement that the Commissioner find by a preponderance of evidence that the claimant’s specific job activities are repetitive. § 42-1-172(B).”

The two-part test announced by the Full Commission is unfaithful to Murphy and misreads § 42–1–172.

In drafting § 42-1-172, the General Assembly understood that medical doctors are capable of diagnosing the cause of an injury. Doctors do not require, any more than the statute does, an ergonomics report to diagnose the cause of a repetitive trauma injury. The Full Commission therefore committed an error of law in adding an improper, redundant condition to § 42-1-172.

The Full Commission also committed a clear error in finding the ergonomics report concluded the claimant’s job duties were not repetitive. The report makes no such statement and does not even use the word “repetitive.”

A fair reading of the report reveals it merely opined Brooks’ duties did not, in general, expose him to an enhanced risk of injury to his back or legs. Recovery under § 42-1172 is not limited to work injuries that an ergonomics report deems statistically likely.

It is obvious the Full Commission substituted the opinion of the ergonomics report for the considered medical opinion, made to a reasonable degree of medical certainty, of Dr. Eric Loudermilk. This was reversible error.

While the Commission may refuse to accept even uncontradicted medical evidence, it must base its refusal on a valid reason supported by competent evidence in the record. Otherwise, the refusal is arbitrary and capricious and warrants reversal.

The ergonomic report was not competent evidence of causation in this § 42-1-172 case. Therefore, because all of the competent evidence supports the claimant’s claim, the claimant is entitled to compensation as a matter of law.

Reversed and remanded.

Brooks v. Benore Logistics System, Inc. (Lawyers Weekly No. 011-006-22, 8 pp.) (Garrison Hill, J.) Appealed from the Workers’ Compensation Commission.

Robert Usry for appellant; Daniel Barry Eller and William Franklin Childers for respondents. S.C. App.

Criminal Practice CSC with a Minor – Expert Testimony – Blind Expert – Pornography Dissemination Where prosecution witness Shauna Galloway-Williams was a blind expert, never met the child victim (Child) or her parents and had no information about the circumstances of Child’s case, Galloway-Williams’ testimony about the behavioral characteristics of sex abuse victims did not constitute improper bolstering. GallowayWilliams testified about grooming, the behaviors children may display after abuse, false denials, and risk factors. Such testimony was beyond the ordinary knowledge of the jury and was based on her experience and the research conducted in her field. The circuit court did not err in admitting Galloway-Williams’ testimony.

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We affirm defendants’ convictions for first-degree criminal sexual conduct with a minor and disseminating obscene material to a minor.

Defendant argues the circuit court erred in denying his motion for a directed verdict on the charge of dissemination of obscene material to a minor because the state failed to prove the videos he allegedly forced Child to watch were obscene and Child’s testimony alone was insufficient to prove obscenity.

However, Child – who was 17 years old by the time of defendant’s trial – testified that defendant showed her pornography on his computer in his home office, specifically “videos of people having sex.” Viewing this evidence in the light most favorable to the state, we find the circuit court properly denied defendant’s motion for a directed verdict.

State v. Acker (Lawyers Weekly No. 011-007-22, 18 pp.) (Stephanie McDonald, J.) Appealed from the Circuit Court in Spartanburg County (Derham Cole, J.) Adam Sinclair Ruffin and Kathrine Haggard Hudgins for appellant; Alan McCrory Wilson, William Blitch, Susan Ranee Saunders, Scott Matthews and Barry Joe Barnette for respondent. S.C. App.

4TH CIRCUIT UNPUBLISHED

Criminal Practice Sentencing – ACCA – Crime of Violence – Alford Plea The district court may not determine whether a prior conviction resulting from an Alford plea constitutes a crime of violence by relying on facts which are neither inherent in the conviction nor admitted by the defendant. However, South Carolina strong-arm robbery is categorically a crime of violence.

Hence, the district court properly counted defendant’s South Carolina strong-arm robbery conviction as a crime of violence under the Armed Career Criminals Act. We affirm defendant’s sentence.

Since defendant claims that his sentence exceeds the maximum sentence provided by statute, the appellate waiver in his plea agreement does not bar review of his claims.

United States v. Barr (Lawyers Weekly No. 003-004-22, 4 pp.) (Per Curiam) Appealed from U.D.S.C. at Florence, S.C. (Bryan Harwell, J.) David Alan Brown for appellant; Lauren Hummel for appellee. 4th Cir. Unpub.

Criminal Practice Sentencing – Minimal Participant Role – Guidelines Range Even if the minimal participant role reduction to U.S.S.G. § 3B1.2(a) applied, defendant’s advisory Guidelines range would still have been higher than the four-year statutory maximum to which defendant was subject under 21 U.S.C. § 843. Therefore, the district court did not clearly err when it determined that it was unnecessary to rule regarding whether U.S.S.G. § 3B1.2(a) applied.

We affirm defendant’s sentence for use of a telephone to facilitate the commission of a controlled sub-

stance felony.

United States v. Salley (Lawyers Weekly No. 003-005-22, 5 pp.) (Per Curiam) Appealed from U.S.D.C. at Orangeburg, S.C. (Terry Wooten, S.J.) Christopher Geel for appellant; Jane Barrett Taylor for appellee. 4th Cir. Unpub.

death alleged he received ineffective assistance of counsel regarding his decision to plead guilty and the process of sentencing explaining, but his arguments were procedurally defaulted or without merit, his claims were rejected.

Criminal Practice

In this death penalty case, Mikal Mahdi appeals from the district court’s denial of his 28 U.S.C. § 2254 petition for habeas relief and his accompanying request for supplemental expert funding. This court granted a certificate of appealability on five issues: (1) whether the district court abused its discretion in denying Mahdi’s supplemental expert funding request; (2) the jury sentencing claim; (3) the mitigation evidence claim; (4) the judicial sentencing claim and (5) the guilty plea claim.

Sentencing – Supervised Release – Conditions At sentencing, the district court announced that, “within 72 hours of release, [defendant] shall report in person to the probation officer in the district to which he’s released.”

However, the written judgment required defendant to report in person to the probation officer in the “judicial district where you are authorized to reside.” This error alone is reversible under United States v. Rogers, 961 F.3d 291 (4th Cir. 2020).

Moreover, the district court orally announced conditions corresponding only with standard conditions 1 and 12. The court did not orally announce the imposition of any of the other standard conditions of supervised release, nor did it state that it was adopting the Presentence Investigation Report (PSR).

Nevertheless, the written judgment imposed the standard conditions as set out in the Presentence Investigation Report.

We vacate defendant’s sentence and remand for resentencing.

United States v. Jenkins (Lawyers Weekly No. 003-006-22, 6 pp.) (Per Curiam) Appealed from U.S.D.C. at Beaufort, S.C. (David Norton) Emily Deck Harrill for appellant; Rhett DeHart or appellee.

4th Cir. Unpub.

UDTPA

Skyline challenges the dismissal of its Unfair and Deceptive Trade Practices Act, or UDTPA, claims.

Skyline alleges that Church Mutual’s actions proximately caused its damages, and it thus asserts a direct claim, not by way of assignment, against Church Mutual.

However, North Carolina “does not recognize a [separate] cause of action for third-party claimants against the insurance company of an adverse party based on unfair and deceptive trade practices under § 75-1.1.” Skyline is neither the insured nor in privity with Church Mutual. Additionally, Skyline’s complaint does not assert or suggest that there is any privity between it and Church Mutual. Without privity, Skyline cannot prevail on its direct UDTPA claim. And claims for unfair and deceptive trade practices under North Carolina General Statute § 75-1.1 are not assignable.

Affirmed.

Skyline Restoration Inc. v.

Church Mutual Insurance Company (Roger Gregory, C.J.) (Lawyers Weekly No. 001-210-21, 18 pp.)

Case No. 20-1549. Dec. 15, 2021.

From E.D.N.C. at Wilmington (Terrence W. Boyle, J.) David Stebbins Coats for Appellant. Mihaela Cabulea for Appellee.

Criminal Practice Death penalty defendant fails to show ineffective assistance Where a detainee sentenced to

Background

Expert

Mahdi argues the district court applied an overly demanding legal standard in denying his ex parte emergency motion to amend the expert witness budget to facilitate further investigation into a possible mitigation claim related to racebased trauma. However, the district court could not have abused its discretion by denying a motion for supplemental funding that, on its face, was premised entirely on “recently discovered evidence” that was already developed and presented to the state post-conviction relief, or PCR, court.

But even looking past this disqualifying defect, the district court

determined the services were not “reasonably necessary” because they were cumulative, unlikely to generate additional useful and admissible evidence and lacked merit. That determination was not an abuse of discretion, and it negates Mahdi’s main contention that the court failed to consider his funding request.

Ineffective assistance of counsel

Mahdi first contends the PCR court erred in finding trial counsel were not ineffective for purportedly failing to explain the general proposition that “jury sentencing may actually result in a life sentence, while on the same facts and arguments judge sentencing may result in a death sentence.” He maintains the district court’s conclusion that this claim was “directly contradicted by the record” improperly interpreted the facts in a “light most favorable to” the state rather than to him as the non-moving party. The court finds Mahdi’s argument without merit.

Next, Mahdi argues the district court erred in denying relief on his mitigation evidence claim for two reasons. First, he alleges the court “improperly concluded that [he] procedurally defaulted on all but one of his mitigation [sub]claims”—that trial counsel were deficient for failing to call non-family lay witnesses to testify on his behalf. Second, Mahdi maintains the court erred in finding the PCR court’s rejection of his non-procedurally barred subclaim concerning non-family lay witnesses was an objectively rea-

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10 / OPINION DIGESTS sonable application of Strickland.

The court rejects both arguments.

Mahdi’s third IAC claim contends the district court erred in rejecting his argument that trial counsel were ineffective for failing to object to the trial court’s sentencing in light of three Supreme Court decisions. In response, the state argues that Mahdi has procedurally defaulted this claim. Mahdi responds that, if this court determines the claim to be procedurally barred, it should remand for the district court to conduct an evidentiary hearing to determine whether he can clear the necessary hurdles to merit review.

However, he cites no controlling precedent to support this approach.

And he failed to provide any argument in his reply brief addressing the state’s invocation of the procedural bar. Even if the court reached the merits of Mahdi’s argument, it discerns no error in the district court’s rejection of it.

Turning to Mahdi’s final IAC claim, he maintains that trial counsel were ineffective by “actively advising [him] that his guilty plea would be considered [a] mitigating [factor] at his judge sentencing.”

In response, the state asserts that Mahdi procedurally defaulted this claim. The court agrees.

Affirmed.

Dissent

(Gregory, C.J.): I believe the district court unquestionably applied the wrong legal standard to Mahdi’s request for additional funding to hire an expert in race-based trauma. I would therefore vacate the district court’s grant of summary judgment on this subclaim.

I would also vacate the district court’s grant of summary judgment on Mahdi’s abuse subclaim and remand for an evidentiary hearing.

New evidence of the physical abuse Mahdi suffered as a child fundamentally alters his failure-to-investigate claim, and genuine disputes of material fact preclude summary judgment on whether Martinez excuses the procedural default that resulted from Mahdi’s failure to raise this subclaim earlier.

Mahdi v. Stirling (Lawyers Weekly No. 001-211-21, 133 pp.)

(G. Steven Agee, J.) (Roger Gregory, C.J., dissenting) Case No. 19-3.

Dec. 20, 2021. From D.S.C. at Anderson (Timothy M. Cain, J.) Ernest Charles Grose Jr. for Appellant.

Melody Jane Brown for Appellees.

Criminal Practice Compassionate release motion was properly considered Where a detainee alleged that the district court had failed to consider that his offenses were not violent, there were no weapons involved, and he did not have a violent criminal history, but the record showed that his criminal history, the seriousness of his offense, and the violent nature of the crime were all considered, his bid for compassionate release was properly rejected.

Background

Dwight Jenkins, who is currently serving a 120-month sentence, filed a motion for compassionate release.

Jenkins argued that his pre-existing medical conditions placed him at a heightened risk for contracting and suffering severe complications from COVID-19.

Using a form order, the district court denied Jenkins’ motion and simply stated that the 18 U.S.C. § 3553(a) factors did not favor release.

Although the form order referenced a separate memorandum opinion, the clerk did not docket the memorandum opinion until after Jenkins filed a notice of appeal.

Jenkins asks this court to exclude the memorandum opinion and review the sufficiency of the form order alone. Jenkins also argues that the district court’s denial of his motion was procedurally unreasonable.

Record

The district court judge signed both the form order and memorandum opinion on Nov. 10, 2020.

Further, there is a notation on the docket that the memorandum opinion was previously signed by Judge Blake on Nov. 10, despite being docketed on Nov. 30. Additionally, in the form order, the district court explicitly stated, “a separate memorandum accompanies this order.”

The reference to the separate memorandum opinion reveals that the form order cannot be reviewed in isolation. Instead, the form order and memorandum opinion must be read in conjunction to determine whether the district court abused its discretion in denying Jenkins’ motion. Moreover, the memorandum opinion also incorporates by reference the form order, stating “a separate order follows.” The district court’s express incorporation by reference in both the form order and memorandum opinion demonstrates its intent to make the memorandum opinion a part of the Nov. 10, 2020, form order.

Further, the district court’s use of the present tense, “accompanies” and “follows,” suggests that the form order and memorandum opinion were to be docketed simultaneously or in close temporal proximity. These factors, incorporation by reference and use of the present tense, demonstrate that the district court intended for the memorandum opinion to be part of the Nov. 10, 2020, form order. And nothing in the record suggests that the docketing delay was more than a harmless clerical error.

Merits

The district court denied Jenkins’ motion, holding that “the factors outlined in 18 U.S.C. § 3553(a) do not favor [his] release.” Jenkins contends that the district court’s analysis of the § 3553(a) factors was procedurally insufficient as the court failed to provide an individualized explanation for each of his arguments. Because the district court is not required to address each of a defendant’s arguments when it considers a motion for compassionate release, the district court did not abuse its discretion in denying Jenkins’ motion.

The relevant standard is whether the district court “set forth enough to satisfy [the] court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority, so as to allow for meaningful appellate review.” In this case, the district court’s explanation of the relevant § 3553(a) factors in the form order and memorandum opinion are sufficient to allow for meaningful appellate review.

Jenkins argues that the district

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court did not specifically consider that “[his] offenses were not violent, there were no weapons involved in the offense, and he does not have a violent criminal history.” But the district court expressly acknowledged Jenkins’ criminal history and that this was not his first drug trafficking conviction. Further, the court considered the seriousness of Jenkins’ offense and alluded to the conduct’s violent nature.

Additionally, the district court did not end its analysis of the relevant § 3553(a) factors after addressing Jenkins’ individualized arguments. Although not dispositive, the district court further explained that Jenkins had served less than half of his 10-year sentence. The court also emphasized that Jenkins’ sentence was the mandatory minimum sentence for convictions involving the trafficking of this quantity of drugs.

Furthermore, it is significant that the district judge who considered and denied Jenkins’ motion “was the same judge who had sentenced [him] originally.” Finally the district court’s decision reflects its understanding of Jenkins’ health conditions, the conditions of FCI Fort Dix and the seriousness of those circumstances in light of the COVID-19 pandemic.

Affirmed.

United States v. Jenkins (Lawyers Weekly No. 001-212-21, 18 pp.) (Roger Gregory, C.J.) Case No. 20-7746. Dec. 29, 2021. From D. Md. at Baltimore (Catherine C. Blake, S.J.) Robin M. Earnest for Appellant. Christina Ann Hoffman for Appellee.

Labor & Employment Bid for overtime ‘gap pay’ revived Where a woman alleged that she was underpaid for non-overtime hours during weeks in which she also worked overtime, the district court erred in granting her employer judgment on the pleadings. In accordance with the Department of

Labor’s interpretation of a regulation and a prior decision from this circuit, overtime gap time claims are cognizable under the Fair Labor Standards Act, or FLSA.

Background

Sara Conner appeals from the district court’s order granting judgment on the pleadings to her employer, the Cleveland County Emergency Medical Services, which is a department of Cleveland County, North Carolina. Conner’s complaint alleged that Cleveland County underpaid her for straight (i.e., nonovertime) hours worked during weeks in which she also worked overtime. At issue is whether this alleged underpayment is a violation of the overtime provision of the FLSA under the theory of “overtime gap time.”

Conner argues the district court misinterpreted and misapplied (1) Department of Labor official interpretation 29 C.F.R. § 778.315 and (2) this court’s holding in Monahan v. County of Chesterfield, 95 F.3d 1263 (4th Cir. 1996).

Analysis

“In addition to seeking unpaid overtime compensation, employees may seek to recover wages for uncompensated hours worked that ‘fall between the minimum wage and the overtime provisions of the FLSA,’ otherwise known as ‘gap time.’” Gap time “refers to time that is not [directly] covered by the [FLSA’s] overtime provisions because it does not exceed the overtime limit, and to time that is not covered by the [FLSA’s] minimum wage provisions because ... the employees are still being paid a minimum wage when their salaries are averaged across their actual time worked.”

There are two types of gap time—pure gap time and overtime gap time. In pure gap time claims, the employee seeks to recover for unpaid straight time in a week in which they worked no overtime.

In overtime gap time claims, the employee seeks to recover unpaid straight time for a week in which they did work overtime.

While direct minimum wage and

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overtime violations can clearly be addressed by the FLSA, no provision of the FLSA explicitly governs employee claims to recover for unpaid gap time. This court has agreed with other courts that “there is no cause of action under the FLSA for pure gap time when there is no evidence of a minimum wage or maximum hour violation by the employer.” Rather, a “claim to [pure] gap time compensation is enforceable only under” state law related to the parties’ employment agreement.

To be sure, courts may be united in rejecting pure gap time claims under the FLSA but they are divided on whether an employee can bring an overtime gap time claim for unpaid straight time worked in an overtime week. The FLSA does not include language about overtime gap time, but that does not end this court’s inquiry. Given the FLSA’s silence regarding overtime gap time, the court turns as a “resort for guidance” to the “interpretations and opinions of the [Department of Labor] under [the Fair Labor Standards] Act.” It concludes that the department’s guidance in § 778.315 has significant “power to persuade.” Accordingly, the court will follow the department’s guidance and will look to its interpretation of the overtime provision to analyze overtime gap time claims.

This court’s decision in Monahan recognized there is a cause of action under the FLSA for overtime gap time claims. Although the Second Circuit summarily concluded that § 778.315 was owed no deference after finding it unpersuasive, this court respectfully disagrees with that decision. Accordingly, the court holds that overtime gap time claims are cognizable under the FLSA. Consistent with § 778.315 and Monahan, the court now lays out the standard for determining whether a plaintiff has pled sufficient factual allegations of an FLSA overtime gap time violation to overcome a Rule 12(b)(6) motion to dismiss. To do so, the facts in the complaint must support a reasonable inference that: (1) the employee worked overtime in at least one week and (2) the employee was not paid all straight-time wages due under the employment agreement or applicable statute. Because Connor has pleaded sufficient facts to support each prong, the court holds that she has sufficiently pleaded allegations of an overtime gap time violation under the FLSA. Vacated and remanded.

Conner v. Cleveland County, North Carolina (Lawyers Weekly No. 001-001-22, 30 pp.) (James A. Wynn Jr., J.) Case No. 19-2012, Jan. 5, 2022. From W.D.N.C. at

LAWYER TO LAWYER / Directory

Asheville (Martin K. Reidinger, C.J.) Philip J. Gibbons Jr. for Appellant. Christopher S. Edwards for Appellee.

Immigration ‘Prosecution witnesses’ is not a particular social group Where a Honduran man argued that he should not be removed from the United States because his status as a “prosecution witness” would result in threats to his life or freedom in Honduras, the claim failed because that social group was not sufficiently particular.

Background

Walter Rolando Herrera-Martinez petitions this court for review of the Board of Immigration Appeals, or BIA’s, denial of his claims for withholding of removal under 8 U.S.C. § 1231(b)(3) and the convention against torture, or CAT. The BIA concluded that Herrera-Martinez’s withholding claim failed because the particular social group he advanced, prosecution witnesses, was not particular. The BIA also rejected his CAT claim, first affirming the immigration judge’s conclusion that Herrera-Martinez’s testimony was not credible. It then determined that Herrera-Martinez

failed to show that it is more likely than not he would be tortured if he returned to Honduras and that the Honduran government would acquiesce to such torture.

Withholding claim

In Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), this court recognized the particular social group of “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses.” HerreraMartinez insists this decision supports his position that “prosecution witnesses” is a particular social group. But closer inspection reveals that the particularity analysis in Crespin-Valladares focused on the characteristic of “family relationship,” which, the court held, was not amorphous What’s more, in Crespin-Valladares the petitioners used limiting language to describe the public nature of the witnesses’ testimony and the type of prosecution that the witnesses assisted, referring to “those who actively oppose gangs in El Salvador by agreeing to be prosecution witnesses.” Importantly, the court did not analyze whether prosecution witnesses, without limiting language, was particular.

The court today holds that, without any limitations, the group “prosecution witnesses” has no clear

12 / OPINION DIGESTS boundaries and thus fails for lack of particularity. Because “prosecution witnesses” has multiple meanings, there is no way to know who is in and who is out of that proposed group. As such, it is not particular.

Herrera-Martinez argues that “prosecution witnesses” is limited by the other groups raised in his brief: “[persons] ... who sought to assist law enforcement against narcotraffickers” and “witnesses who file police reports.” But the BIA did not consider if prosecution witnesses who sought to assist law enforcement against narcotraffickers or prosecution witnesses who file police reports were particular social groups. It considered the group prosecution witnesses, and that is the group Herrera-Martinez asked this court to consider in his petition.

Undeterred, Herrera-Martinez argues that “a majority of circuits to evaluate this issue have determined that prosecution witnesses as a group is sufficiently particular.” Despite Herrera-Martinez’s assertion to the contrary, those cases involved different alleged particular social groups. Neither of these decisions, which expressly considered different groups, involved the broader, prosecution witnesses group alleged here. Therefore, they do not help Herrera-Martinez’s case. Because Herrera-Martinez cannot prevail on his withholding claim without a valid particular social group, the BIA’s decision that Herrera-Martinez has not met his burden for withholding under § 1231(b)(3) is affirmed.

CAT claim

The immigration judge offered specific, cogent reasons for his adverse credibility finding. He addressed the explanations offered by Herrera-Martinez and the additional evidence he introduced. Further, in affirming the decision of the immigration judge, the BIA held that substantial evidence supported the adverse credibility finding. Based on this record, the court agrees.

Since Herrera-Martinez’s testimony and his family members’ testimony was not credible, HerreraMartinez could not show that he would incur severe pain or suffering upon removal to Honduras. Furthermore, the news articles showed that Honduran government officials would not acquiesce to his torture.

Therefore, the BIA did not err in finding that Herrera-Martinez had failed to satisfy his burden for withholding of removal under the CAT. Denied.

Herrera-Martinez v. Garland (Lawyers Weekly N0. 001-002-22, 27 pp.) (A. Marvin Quattlebaum Jr., J.) Case No. 20-1423. Jan. 5, 2022.

From the Board of Immigration Appeals. Krystal Brunner Swendsboe for Petitioner. Sarah Kathleen Pergolizzi for Respondent.

4TH U.S. CIRCUIT COURT OF APPEALS, UNPUBLISHED

Criminal Practice Search & Seizure – Warrant Affidavit – New CI – Roadside Miranda Warning There is no indication that, if the investigating officer had included information about a new confidential informant’s past, the CI’s credi-

bility would have been undermined.

At defendant’s home, the CI bought marijuana, not from the owner, but from an unknown person; however, the search warrant was for the residence and not just a person. The CI said he could purchase drugs at the residence, as opposed to saying he had done so in the past, but this ignores the fact that the CI successfully completed a controlled buy there. Defendant has not shown that including information that was omitted from the affidavit in support of the investigating officer’s search warrant affidavit would have defeated probable cause.

We affirm the district court’s denial of defendant’s motion to suppress.

Defendant also complains that there was no audio or video recording of the marijuana purchase. Neither we nor the U.S. Supreme Court has ever held that the existence or non-existence of audio or video recordings is necessarily decisive to a probable-cause determination.

Even including defendant’s identified omissions within the affidavit, the facts remain clear. After apprising law enforcement of marijuana at the residence, the CI was searched prior to the controlled buy, and no drugs were on his person. Although the CI was not surveilled inside the residence, his travels to and from the residence were continuously surveilled by law enforcement. And defendant does not contest that the CI’s possession of the marijuana only occurred upon the controlled buy’s completion, which establishes probable cause to search the residence when coupled with the CI’s initial tip.

Miranda Warning

Even though it was minor traffic violation, defendant’s failure to use a turn signal provided a law enforcement officer with a sufficient justification, and even probable cause, to stop defendant’s vehicle. So even when ordered out of his own vehicle, defendant was still only detained, not arrested. During this detention, the officer cautiously provided defendant with Miranda warnings although he was not yet required to do so, and this decision to do so is not necessarily a constitutional problem.

Despite receiving Miranda warnings when none were required and before he was handcuffed, defendant voluntarily answered the officer’s questions about his residence during the detention. We have previously permitted officers to ask limited questions about a stopped individual’s travels during traffic stops, and the officer’s questions here do not exceed those narrow confines.

The officer was permitted to ask about defendant’s residence during the traffic stop if his questions did not prolong the detention. Defendant has not argued, nor is there evidence before us, that either the officer’s questions or conferral of Miranda warnings impermissibly extended the traffic stop.

The traffic stop was justified by defendant’s traffic infraction, and the evidence obtained therefrom was not subject to suppression.

Affirmed.

Concurrence

(Wilkinson, J.): I write to underscore that Miranda warnings were not required.

I make what seems an obvious

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point, because it would take rather little for courts to push police departments to adopt Miranda warnings as a protective measure near the inception of a stop. Roadside encounters between the police and the citizenry are apprehensive enough without adding Miranda warnings to the mix. Importing Fifth and Sixth Amendment concepts to these interactions would push policing even further from a collaborative enterprise to the sort of adversarial model which many communities are attempting to ameliorate. Uttering warnings of such severity to drivers as a matter of course would make police more feared and less trusted.

Concurrence

(Wynn, J.): While the concurring opinion is well intentioned, we need not offer advice to the police on issues and facts not currently before us.

United States v. Hall (Henry Franklin Floyd, J.) (Harvie Wilkinson and James Wynn, JJ., concurring separately) Case No. 20-4618.

Dec. 3, 2021. From D.S.C. at Columbia (Joseph Anderson, S.J.) Louis Lang for appellant; Brook Bowers Andrews, Rhett DeHart and Leesa Washington for appellee. 24 pp.

Criminal Practice Constitutional – Ineffective Assistance Claim – Lesser Sentence Defense counsel argued many objections to a probation officer’s advisory Sentencing Guidelines calculations and also presented two witnesses who persuaded the district court to impose a lesser sentence. Defendant does not present any alternative argument that a different attorney would have presented that could have resulted in him receiving a lesser sentence. Furthermore, defendant cannot show that his proceeding was fundamentally unfair—he was represented by competent counsel throughout the sentencing process. Defendant has failed to show he received ineffective assistance of counsel.

We affirm the district court’s denial of relief on defendant’s 28 U.S.C. § 2255 motion.

United States v. Singleton (Per curiam) Case No. 20-7756. Dec. 3, 2021. From D.S.C. at Beaufort (Richard Mark Gergel, J.) Brandon Sample for appellant; Rhett DeHart and Rovert Frank Daley for appellee. 4 pp.

Civil Practice Denial of spoliation motion should have been raised on direct appeal Where the defendants’ spoliation motion was denied by the district court, the denial should have part of the direct appeal and did not present a valid ground for vacating the judgment under Fed. R. Civ. P. 60(b) (3).

Background

Defendants appeal the district court’s order denying their Fed. R. Civ. P. 60 motion.

Rule 60(b)(3)

Defendants first sought relief under Rule 60(b)(3) based on plaintiff Alia Salem Al-Sabah’s alleged misconduct in destroying evidence and failing to notify the district court of

a potential conflict of interest held by defendants’ counsel. The district court did not abuse its discretion in denying relief under Rule 60(b)(3).

Defendants are correct that a party’s misconduct during discovery can constitute a basis for Rule 60(b)(3) relief in certain circumstances. However, in those cases, the opposing party withheld discovery in its possession despite the movant properly requesting it. By contrast, Al-Sabah admitted in her discovery responses that she did not possess much of the electronic evidence that had previously been in her possession. Defendants then filed a spoliation motion, which was rejected prior to trial by the magistrate judge and the district court.

Thus, defendants are improperly attempting to raise an issue that should have been raised on direct appeal—the denial of their spoliation motion—rather than presenting a valid ground for vacating the judgment.

Turning to the conflict of interest claim, the only fact surrounding this claim of which Al-Sabah had knowledge was defendants’ counsel James Sweeting III’s concurrent representation of them and IRM Plaza LLC. However, without more knowledge of the facts, this would appear to be at most a potential conflict of interest. Moreover, while Al-Sabah did not raise this issue in the district court, she alerted the Maryland state court— the forum where she learned of the conflict.

Thus, Al-Sabah did not conceal any fact from defendants.

Furthermore, defendant Jean Agbodjogbe himself admitted that he was aware prior to trial of nearly all the facts surrounding the conflict of interest regarding Sweeting’s actions moving his businesses into the North Howard Street building.

Therefore, the district court did not abuse its discretion in denying defendants relief under Rule 60(b)(3).

Rule 60(b)(6)

Defendants also sought relief under Rule 60(b)(6) based on Sweeting’s alleged conflict of interest and ineffective assistance. This court has not squarely addressed whether an attorney’s conflict of interest or ineffectiveness may constitute an extraordinary circumstance justifying relief under Rule 60(b) (6). However, several courts have held that an attorney’s gross negligence can constitute a basis for Rule 60(b)(6) relief. The Third and Ninth circuits have defined “gross negligence as ‘neglect so gross that it is inexcusable.’” Moreover, these courts also require that the client exercise diligence despite counsel’s lapses.

Assuming that gross negligence constitutes a basis to vacate the judgment, defendants cannot meet this standard. Regarding the conflict of interest, defendants knew enough facts prior to trial to raise the issue at that time. Indeed, Agbodjogbe admitted to having concerns with Sweeting, but chose to put them aside until after trial.

Moreover, most of the acts that defendants complain of relate to Sweeting’s trial tactics, which do not rise to the level of gross negligence. The only fact that would appear to come close to this bar is Sweeting’s alleged failure to file a notice of appeal as instructed. However, the court entered final judgment on April 20, 2020, and Agbodjogbe did not file a notice of appeal

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until September 15. Thus, even if Sweeting was grossly negligent, defendants cannot establish diligence necessary to succeed on their Rule 60(b)(6) motion.

Affirmed.

Al-Sabah v. Agbodjogbe (Per curiam) Case No. 20-2375. Nov. 8, 2021. From D. Md. at Baltimore (Stephanie A. Gallagher, J.) Mohamed M. Bamba for Appellants.

Michael B. MacWilliams, Michael J. Wilson and Elizabeth C. Rinehart for Appellee. 7 pp.

Civil Practice

quirement.”

The district court entered its order on April 19, 2021. Jackson filed the notice of appeal, at the earliest, on June 14, 2021. Because Jackson failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, the appeal is dismissed.

Dismissed Jackson v. Wade (Per curiam) Case No. 21-6947. Nov. 22, 2021.

From E.D. Va. at Alexandria (Leonie M. Brinkema, J.) Charles Deland Jackson Jr. for Appellant.

Simone T. Williams and Leslie A. Winneberger for Appellees. 3 pp.

Appeal dismissed because lower court reconsidered its order

Civil Rights

Where a litigant appealed the district court’s dismissal of his case for failure to inform that court of his address of record, and the district court then indicated its inclination to reconsider, the appeal was remanded to allow the lower court to rule on the motion for reconsideration.

No appellate jurisdiction over nonfinal order

Background

Corey DeAndre Hood appeals the district court’s order dismissing his case without prejudice for failing to inform the court of his address of record. After noting his appeal, Hood timely filed a motion to reconsider the district court’s order, which remains pending in the district court.

The district court subsequently filed a notice indicating its inclination to grant Hood’s motion.

Analysis

Consistent with Fed. R. App. P. 12.1(b) and Fobian v. Storage Tech.

Corp., 164 F.3d 887 (4th Cir. 1999), the appeal is remanded for the limited purpose of allowing the district court to consider Hood’s pending motion for reconsideration. After the district court has made its ruling, the record, as supplemented, will then be returned to this court for further consideration. In ordering this remand, the court expresses no opinion as to the merits of Hood’s motion.

Remanded.

Hood v. Bureau of Prisons (Per curiam) Case No. 21-6985. Nov. 22, 2021. From W.D. Va. at Roanoke (Michael F. Urbanski, C.J.) Corey DeAndre Hood for Appellant. Sara Bugbee Winn for Appellees. 3 pp.

Civil Rights Notice of appeal was filed too late Where the appellant filed his notice of appeal more than 30 days after entry of the district court’s order denying relief, and he failed to obtain an extension or reopening of the appeal period, the appeal was dismissed.

Background

Charles Deland Jackson Jr., seeks to appeal the district court’s order denying relief on his 42 U.S.C. § 1983 complaint.

Analysis

In civil cases, parties have 30 days after the entry of the district court’s final judgment or order to note an appeal, unless the district court extends the appeal period or reopens the appeal period. “The timely filing of a notice of appeal in a civil case is a jurisdictional re-

Where the district court dismissed claims against only one of several defendants, an appeal from that decision was dismissed because the order being appealed was neither final nor an appealable interlocutory or collateral order.

Background

Michael Green seeks to appeal the district court’s order dismissing his claims against one of the defendants in his pending 42 U.S.C. § 1983 action.

Analysis

This court may exercise jurisdiction only over final orders and certain interlocutory and collateral orders. The order Green seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, Green’s pending motions are denied and this appeal is dismissed for lack of jurisdiction.

Dismissed Green v. Salmon (Per curiam) Case No. 21-6970. Nov. 22, 2021.

From W.D. Va. at Roanoke (Michael F. Urbanski, C.J.) Michael Duchelle Green for Appellant. Julian Friedman Harf for Appellee. 3 pp.

Criminal Practice Court erred by raising First Step exhaustion on its own Where the district court on its own raised the issue of whether the inmate seeking compassionate release had satisfied the First Step Act’s administrative exhaustion requirement, and then dismissed the motion for failure to exhaust administrative remedies, that was error. The Fourth Circuit recently held the exhaustion requirement was non-jurisdictional and could be waived by the government.

Background

Vasilios Dourdoumis appeals the district court’s orders denying Dourdoumis’ motion for compassionate release, pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act of 2018, and denying Dourdoumis’ motion for reconsideration.

A district court may reduce a term of imprisonment under 18 U.S.C. § 3582(c)(1)(A), as amended by the act, if “extraordinary and compelling reasons warrant such a reduction.” A reduction may be granted only upon a motion filed by either the director of the Bureau of Prisons, or BOP, or “the defendant

after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.”

Here, after raising the administrative exhaustion requirements under the act on its own and affording Dourdoumis an opportunity to establish that he satisfied the exhaustion requirements, the district court determined that Dourdoumis failed to exhaust his administrative remedies and denied compassionate release on that ground, and then summarily denied Dourdoumis’ motion for reconsideration.

Analysis

This court recently held in United States v. Muhammad, 16 F.4th 126 (4th Cir. Oct. 20, 2021), that, “although [§ 3582(c)(1)(A)] plainly requires [a prisoner] to complete certain steps before filing his motion [for compassionate release] in the district court ... this requirement [is] non-jurisdictional, and thus waived if it is not timely raised.” Because the district court raised the administrative exhaustion issue in Muhammad on its own, this court held that the district court reversibly erred when it dismissed Muhammad’s motion for compassionate release “based on the threshold requirement, even assuming [Muhammad] had not completed the prerequisites to suit.”

The district court here did not have the benefit of this court’s decision in Muhammad when it raised the administrative exhaustion issue on its own and denied Dourdoumis’ motion for compassionate release because he failed to establish that he satisfied the act’s threshold requirement for filing such a motion.

The district court’s order denying Dourdoumis’ motion for compassionate release is therefore vacated and remanded for further proceedings.

Vacated and remanded.

United States v. Dourdoumis (Per curiam) Case No. 20-7408. Nov. 23, 2021. From E.D. Va. at Norfolk (Rebecca Beach Smith, S.J.) Vasilios Dourdoumis for Appellant. 3 pp.

Criminal Practice Sentencing – Acceptance of Responsibility – Bond Violations To establish entitlement to a sentence reduction for acceptance of responsibility, a defendant bears the burden of showing he has clearly recognized and affirmatively accepted personal responsibility for his criminal conduct, and this does not flow automatically from a guilty plea. One consideration in determining entitlement to the reduction is whether the defendant voluntarily terminated or withdrew from criminal conduct. Here, defendant was on pretrial release for approximately eight months. In that time, he incurred repeated bond violations—including new arrests for serious conduct in New York and North Carolina—and his bond was eventually revoked. In light of this conduct, we conclude that the district court did not plainly err in declining to award defendant a reduction for acceptance of responsibility.

We affirm defendant’s sentence for conspiracy to commit fraud by

means of identification of another in violation of 18 U.S.C. § 1028(a) (7) and (f).

United States v. Alexander (Per curiam) Case No. 21-4095. Nov. 19, 2021. From D.S.C at Greenville.

(Timothy Cain, J.) Louis Lang for appellant; William Jacob Watkins for appellee. 4 pp.

Criminal Practice Supervised Release Revocation – Below-Policy Statement Range In this case involving the revocation of supervised release, the trial court correctly calculated defendant’s policy statement range, afforded him an opportunity to argue for an appropriate sentence, considered the relevant 18 U.S.C. § 3553(a) factors, stated its reasoning, and granted defendant the below-policy statement range sentence that he and the government had agreed on. We find the revocation sentence both procedurally and substantively reasonable.

Affirmed.

United States v. Richardson (Per curiam) Case No. 21-4213.

Nov. 23, 2021. From D.S.C at Florence. (Bryan Harwell, C.J.) William Nettles for appellant; Arthur Bradley Parham for appellee. 4 pp.

Attorneys Malpractice – Statute of Limitations – Trusts & Estates – Estate Planning – Tax Consequences In 2012, a client’s wife questioned whether the defendant-attorney had divided loyalties between the client and the client’s children with regard to the client’s tangible personal property. This did not start the statute-of-limitations clock on the client’s claim of legal malpractice, which is based on the attorney’s advice regarding the tax consequences of estate planning and the transfer of the client’s stock to a trust controlled by his children.

We vacate summary judgment for defendants, which the district court granted on the grounds that the claims brought by the administrator of the late client’s estate were time-barred.

The two potential claims against the defendant-attorney and his firm involved two different types of injuries. One injury related to the increased, potential tax exposure the client allegedly suffered because of the attorney’s advice regarding the 2009 transaction, while the other injury related to the attorney’s alleged conflict of interest regarding the disposition of the client’s personal property. Thus, although these two claims in the present case both related to the attorney’s representation of the client, the claims involved different conduct and different alleged injuries.

Nothing in the email exchange involving the client’s wife, the attorney and the attorney’s assistant referenced the defendants’ role in the 2009 estate-planning transaction or the defendants’ advice to the client about that transaction. Thus, contrary to the district court’s conclusion, the February 2012 email exchange did not establish that the allegedly misleading and incomplete tax advice related to the 2009 transaction was a harm “of the same nature” as the harm involv-

14 / OPINION DIGESTS ing the disposition of the client’s personal property.

Knowledge of the attorney’s interaction with the client’s children concerning the personal property did not place the client on notice that he should investigate the defendants’ work performed three years earlier regarding a complicated tax strategy.

The record also contained evidence that a person of common knowledge could not readily have discovered the alleged breach of duty involving the tax implications of the 2009 transaction. The estate’s primary expert witness, Jerome Hesch, an attorney whose practice focuses on taxation and estate planning, opined that given the nature of the advice at issue, the client would have been unable to discern that he had received misleading and incomplete tax advice unless he had consulted with a different estate tax professional. In addition, the defendants conceded in the district court that nothing in the documents relating to the 2009 transaction revealed any information about the transaction’s tax consequences.

We further observe that the evidence is in dispute whether letters the attorney sent to the client in January 2010, November 2011, and November 2012 provided the client adequate notice to discover the full scope of the tax implications of the 2009 transaction. Although portions of those letters discuss certain tax obligations relating to the promissory note and to gift and estate tax liability, Hesch reviewed

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 Janu ar y 31, 2022

this correspondence and opined that the letters contained various misrepresentations and omissions, including an omission regarding a potential $17.5 million in gift tax liability.

In addition, the client’s new counsel, Edward Bennett, stated that the defendants failed to inform the client that he could be subject to $40 million in income tax liability in the event that his children decided to liquidate the transferred assets in prior to the client’s death.

According to Hesch, given these misrepresentations and omissions, a person of common knowledge would not have known that he should investigate the accuracy of the tax advice he had received.

Thus, contrary to the district court’s conclusion, there is evidence in the record that the risks and consequences of the 2009 transaction were not readily discoverable by the client until he consulted with Bennett in mid-2013.

Vacated and remanded.

Wellin v. Farace (Per curiam) Case No. 20-1120. Nov. 22, 2021.

From D.S.C. at Charleston (David Norton, J.) Badge Humphries, Keith Babcock and David Paavola for appellant; Robert Stepp, Benjamin Gooding, Jasmine Smith and Vordman Carlisle Traywick for appellees. 15 pp.

In his appeal of the trial court’s denial of his motions for sentence reduction under the First Step Act, for compassionate release, and challenging his convictions, defendant has not made the requisite showing that the district court’s procedural ruling was debatable or that his motions state a debatable claim of the denial of a constitutional right.

Defendant’s claims challenging the validity of his convictions and sentence should have been construed as a successive 28 U.S.C. § 2255 motion. Absent prefiling authorization from this court, the district court lacked jurisdiction to entertain defendant’s successive § 2255 motion.

We dismiss defendant’s appeal as to his successive § 2255 motion. We affirm the district court’s denial of defendant’s motion to compel and denial of the remaining portions of the motions for judgment on the verdict and for application of the Fair Sentencing Act of 2010.

United States v. Reid (Per curiam) Case No. 21-7225. Nov. 22, 2021. From D.S.C. at Rock Hill (Cameron McGowan Currie, S.J.) Kenneth Roshaun Reid, pro se; William Kenneth Witherspoon for appellee. 4 pp.

Criminal Practice Government breached plea agreement

Criminal Practice Appeals – Successive § 2255 Motion – First Step & Fair Sentencing Acts

Where the government agreed to request a one-level reduction of a drug sentence if certain conditions were satisfied, and when the condi-

tions were met it failed to request the reduction, it breached the plea agreement. The government may, however, argue that the defendant’s breach of the agreement excused it from requesting the reduction.

Background

Phi Van Nguyen pleaded guilty—pursuant to a written plea agreement with the government— to a drug conspiracy offense. In exchange for Nguyen’s guilty plea, the government agreed to request an additional one-level reduction for acceptance of responsibility under the sentencing guidelines if two conditions were satisfied: (1) Nguyen qualified for an initial two-level reduction for acceptance of responsibility and (2) Nguyen’s offense level before that two-level reduction was 16 or greater.

At the final sentencing hearing, the government did not request the additional one-level reduction, despite the district court’s determination that the aforementioned conditions were satisfied. The government explained that it would not honor its promise because it believed that Nguyen had breached the agreement, and because the agreement provided that, in the event of Nguyen’s breach, the government was excused from performance. The district court declined to decide whether Nguyen had breached the plea agreement and also refused to order the government to move for an additional onelevel reduction.

Nguyen appealed and argued that the government had breached

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the plea agreement when it did not move for an additional onelevel reduction. This court ordered a limited remand to the district court for the purpose of determining whether Nguyen had breached the plea agreement. On remand, the district court did not follow this court’s order. That is, the district court entered a response to remand that declined to make a finding as to whether Nguyen had breached the plea agreement.

appropriately considered defendant’s other arguments.

We vacate the district court’s order and remand for further proceedings.

United States v. Jenkins (Per curiam) Case No. 20-6913. Dec. 10, 2021. From D.S.C at Florence (R. Bryan Harwell, C.J.) Deandre Adarias Jenkins, pro se; Everett McMillian for appellee. 6 pp.

Criminal Practice

Standard

Nguyen asserts that he preserved his argument that the government breached the plea agreement while the government contends that he did not and that the court should therefore review Nguyen’s argument for plain error only. The court is satisfied that Nguyen preserved his breach argument by asserting before and during the final sentencing hearing that he had not breached the plea agreement and that he was thus entitled to an additional one-level reduction for acceptance of responsibility. The government’s request to apply plain error review is rejected.

Merits

On the current record, the government has breached the plea agreement. The plea agreement obliged the government to move for an additional one-level reduction for acceptance of responsibility if two conditions were satisfied, and both of those conditions were met.

The government was thus required to request the additional one-level reduction unless and until the district court found that Nguyen had breached the plea agreement. Because the district court never made such a finding, the government was required to move for the additional one-level reduction.

Given that Nguyen has elected specific performance of the plea agreement rather than asked to withdraw his guilty plea, the court concludes that it is appropriate to vacate Nguyen’s sentence and remand for resentencing before a different district judge. The government will remain free to argue at Nguyen’s resentencing hearing that it should be relieved of its obligation to recommend an additional onelevel reduction.

Vacated and remanded.

United States v. Nguyen (Per curiam) Case No. 20-4244. Dec. 6, 2021. From E.D. Va. at Alexandria (Leonie Brinkema, J.) Mark Diamond for Appellant. Raj Parekh, Daniel T. Young and James L. Trump for Appellee. 6 pp.

Prisons & Jails Compassionate Release – COVID 19 – Sentencing & Recidivism Risk Arguments Although one basis for defendant’s motion for compassionate release was his vulnerability to COVID-19, he also (1) cited the difference between his lengthy sentence and the sentence he would have received under the recently enacted First Step Act and (2) argued that he was unlikely to recidivate given his minimum-security status and placement in a camp with no fence.

Where the district court’s denial of defendant’s motion focused solely on his COVID-19 argument, we are unable to discern whether the court

Supervised Release Revocation – Sentencing – Mitigation Arguments After the revocation of defendant’s supervised release, the district court sentenced defendant without either addressing or acknowledging defendant’s mitigation arguments. Although the court generally referred to the policy statements in the U.S.G.S. Manual Chapter Seven and the statutory factors under 18 U.S.C. §§ 3553(a) and 3583(e), the court neither provided an individualized explanation for the sentence it selected nor expressly or implicitly addressed defendant’s specific mitigation points.

We vacate the district court’s judgment and remand for resentencing.

Although a court’s tailoring of a sentence to a defendant’s individual characteristics may provide evidence that the court considered relevant § 3553(a) factors, the special conditions of supervised release imposed by the district court lack a sufficient nexus to defendant’s mitigation arguments to give rise to an inference that the court accounted for those arguments when determining the sentence. Likewise, the district court’s announcement of an alternative variant sentence, standing alone, does not establish whether, or how, the court considered defendant’s mitigation arguments, falling short of the requirements for meaningful appellate review.

The record provides inadequate assurance that the district court, in fact, considered the mitigation arguments proffered by defendant and his counsel. The district court’s failure to so much as mention defendant’s arguments, which violated our established minimum procedural requirements, renders the sentence plainly unreasonable.

Because it remains plausible that the court might have imposed a lower revocation sentence had it expressly considered defendant’s mitigation arguments, the error is not harmless.

Vacated and remanded.

United States v. Reeves (Per curiam) Case No. 21-4397. Dec. 8, 2021. From D.S.C. at Greenville (Bruce H. Hendricks, J.) Emily Deck Harrill for appellant; Rhett DeHart and Justin Holloway for appellee. 5 pp.

Criminal Practice Search & Seizure – Traffic Stop – Reasonable Mistake of Law – Roadway Width Even if the arresting officer was mistaken in believing that the unmarked 16’-wide road upon which defendant was driving was subject to S.C. Code Ann. § 56-5-1810(a)— which requires that vehicles be driven on the right half of any roadway “of sufficient width”—the offi-

cer’s mistake in believing defendant was violating the statute by driving down the middle of the road was an objectively reasonable mistake of law. Under Heien v. North Carolina, 574 U.S. 54 (2014), an objectively reasonable mistake of law can give rise to the reasonable suspicion necessary to uphold a seizure under the Fourth Amendment.

We affirm the denial of defendant’s motion to suppress and the criminal judgment against him.

In order to convict defendant of being a felon in possession of a firearm, the government was required to prove, inter alia, that defendant knew he was a felon when he possessed the firearm. Rehaif v. United States, 139 S. Ct. 2191 (2019). Given defendant’s multiple felony convictions and the fact that, when he committed the instant offense, he was still on supervision from a conviction for assault and battery with intent to kill, defendant’s conviction under 18 U.S.C. § 922(g) remains valid. He has not carried the burden of showing a reasonable probability that he would not have pled guilty but for the Rehaif error.

United States v. Elam (Per curiam) Case No. 19-4334. Dec. 16, 2021. From D.S.C. at Anderson (Donald C. Coggins Jr., J.) Emily Deck Harrill for appellant; Peter McCoy and Maxwell Cauthen for appellee. 6 pp.

Criminal Practice Sentencing – Upward Variance – Substantively Reasonable – Real Estate Fraud When it sentenced defendant for conspiring to commit mail fraud, equity skimming and embezzling money from a labor organization, the district court explicitly stated that a 136-month upward variance sentence was warranted under the pertinent 18 U.S.C. § 3553(a) factors. Furthermore, the district court explained that an upward variance of this magnitude was warranted in light of defendant’s disrespect for the law, as indicated by her involvement in two separate criminal endeavors; the need to protect the public from defendant, who, in both schemes, badly abused her authority and position of trust; and the need to reflect the seriousness of defendant’s extensive real estate fraud, which wreaked significant financial and emotional harm on more than 200 victims, resulting in a total loss exceeding $2.6 million.

Accordingly, any Sentencing Guidelines error was harmless under United States v. Miller, 917 F.3d 324 (4th Cir. 2019).

United States v. Roush (Per curiam) Case No. 20-4506. Dec. 15, 2021. From D.S.C. at Greenville and Spartanburg (Timothy M. Cain, J.) Joshua Snow Kendrick for appellant; Rhett Dehart and William Watkins for appellee. 5 pp.

Tort/Negligence Moving company escapes liability for allegedly stolen goods Where a federal statute generally preempts state law causes of action for goods lost or damaged in transit, a homeowner alleging her household goods were lost or stolen during a move could not escape application of the statute by alleging

theft or other criminal conduct.

Background

Cathy Marie Brentzel sued Fairfax Transfer and Storage, or FTS, alleging two counts related to the loss of household goods transported from a Virginia residence to a Washington, D.C. residence, and a third count for alleged theft of money and a ring from the D.C. residence The district court granted FTS’s motion to dismiss the complaint.

Bills of lading

Brentzel contends first that the district court’s review of the bills of lading was improper as the bills were not essential or integral to her claims. Because the statute on which her claim is based required a receipt or bill of lading to be issued and explicitly recognized that the document could limit liability in certain instances, the bills of lading or other receipts (or lack thereof) would be necessary to determine the scope of liability and the details of the agreement between the parties.

While it is true that Brentzel could have instituted her claim even if no bill of lading was issued, Brentzel makes no argument, either below or on appeal, that FTS failed to issue a bill of lading. Accordingly, the district court correctly found that the bills of lading were integral to Brentzel’s claims.

On appeal, Brentzel surmises that the back of the bills of lading attached to the motion to dismiss may not have been on the back of the documents signed by a member of her household staff, David Lamonde. However, below, Brentzel did not dispute that the bills of lading proffered by FTS with its motion to dismiss were complete and were presented to and signed by Lamonde.

Moreover, Brentzel avers that, when she filed the complaint, she possessed copies of the bills of lading that did not include the back of the FTS form, where the time limitations were listed. Thus, Brentzel would have been able to raise her current authenticity claim in district court. As such, given that the bills of lading were integral to Brentzel’s claims and that there was no timely objection to their authenticity, the district court properly considered the bills during the motion to dismiss.

Authority

Brentzel next asserts that the district court erred in determining that the complaint admitted (or inferred) that Lamonde had actual and/or apparent authority to sign the bills of lading. While Brentzel alleged in her complaint that the agency was “strictly limited,” she did not aver whether there was an employment/agency contract (whether oral or written), whether she had specific discussions with Lamonde about signing movingrelated documents or what sort of discretion Lamonde was permitted in order to execute the move.

Accepting Brentzel’s interpretation of her complaint, she alleged an unworkable agreement with Lamonde, whereby she gave him authority to commence, oversee, and execute the move but forbade him from signing the necessary documentation. Such an interpretation is implausible and does not prevent dismissal of the motion.

In addition, even assuming that the agency relationship was struc-

16 / OPINION DIGESTS tured in this implausible manner, the complaint is silent as to how, when or where FTS was made aware of these allegedly strict limitations. Accordingly, because the complaint’s allegations that were contrary to the district court’s ruling were not entitled to a presumption of truth, the contours of the agency relationship did not require any factual findings.

Brentzel next contends that Lamonde’s deviations (or Lamonde’s acquiescence to FTS’s deviations) from the agreed-upon moving arrangements placed FTS on notice that it should inquire further prior to permitting Lamonde to sign the bills of lading. Brentzel provides no facts from which to infer that FTS should not have relied on Lamonde’s apparent authority.

Preemption

Brentzel argues that FTS’s actions were so extreme that they constituted an abandonment of the “contract of carriage” and were criminal in nature. Brentzel contends that the extreme nature of FTS’s alleged actions removed the claim from Carmack Amendment preemption.

Brentzel provides no support for an exception to preemption for state law claims alleging theft or other criminal conduct resulting in damage or destruction to property during shipping. To the contrary, the Third Circuit has specifically found that even state law claims based on “intentional conduct or conduct in the nature of theft” are preempted. Thus, the district court correctly found that Brentzel’s state law claim for damage to and theft of her property during shipping was preempted by the Carmack Amendment.

C o nt inu e d f r o m 3 ►

ily member to get his hands on the cash, prosecutors said.

Murdaugh has been in jail since October for the ever-growing list of breach of trust, forgery, money laundering and computer crime charges. A judge set his bail at $7 million and refused to reduce it, even as Murdaugh’s lawyer argued his bank accounts were seized in civil lawsuits and he could barely afford to buy underwear at the Richland County jail. He has blamed his problems on years of drug addiction.

Murdaugh’s professional career began to unravel after his 52-yearold wife, Maggie, and 22-year-old son Paul were killed in a shooting at the family’s home in June.

Murdaugh’s lawyers have adamantly said he had nothing to do with it and repeatedly said they hope investigators are working as hard to find their killers as they are untangling Alex Murdaugh’s finances.

C o nt inu e d f r o m 4 ►

the vaccination or regular testing of 84 million people.” The concurring Justices concluded that it may not, finding that Congress has not delegated to OSHA the breadth of authority and power it seeks to exercise over the lives of such a large number of Americans.

Justices Breyer, Sotomayor, and Kagan authored a dissenting opinion, which focused on concepts

Affirmed.

Brentzel v. Fairfax Transfer and Storage Inc. (Per curiam) Case No. 21-1025. Dec. 29, 2021.

From E.D. Va. at Alexandria (T.S. Ellis III, S.J.) James R. Tate for Appellant. Robert R. Worst for Appellee. 15 pp.

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Civil Practice Personal Jurisdiction – Specific Jurisdiction – Products Liability – Florida Motorcycle Accident

tying defendant’s in-state conduct to the litigation resulting from the out-of-state accident, we conclude that plaintiff’s claims do not arise out of or relate to defendant’s South Carolina-directed conduct.

Wallace v. Yamaha Motors Corp., U.S.A. (Lawyers Weekly No. 003-002-22, 12 pp.) (John Gibney, J., sitting by designation) Case No. 192459. Jan. 6, 2022. From D.S.C. at Beaufort (David C. Norton, J.) Ronnie Crosby and Kathleen Barnes for appellant; Robert Wise and Stephanie Simm for appellee.

In revoking defendant’s supervised release and imposing a 12-month sentence, the district court found, “Protection of the public is a significant factor here given” defendant’s “prior criminal history, the nature of the underlying offense that brought him to Court, and the supervised release violations that he has committed.” The district court’s findings allow us to review defendant’s arguments (1) that the district court’s refusal to reduce defendant’s sentence or to increase it to 12 months and one day was unreasonable and (2) that “the district court’s prohibition of [defendant] from earning good time credits did not fall within any legitimate sentencing factor.” In denying defendant’s request for an upward variance, the district court did not err or abuse its discretion in considering the possibility that defendant would receive good-time credits and serve only a 10-month sentence.

Affirmed.

United States v. Johnson (Lawyers Weekly No. 003-001-22, 4 pp.) (Per curiam) Case No. 21-4280.

Jan. 7, 2022. From D.S.C. at Greenville (Timothy Cain, J.) Amy Raffaldt for appellant; William Jacob Watkins for appellee.

Although (1) plaintiff is a South Carolina resident, (2) defendant conducts extensive business in South Carolina and (3) it would not be constitutionally unreasonable to require defendant to litigate in South Carolina, since (1) the motorcycle in question was designed and manufactured in Japan, (2) the motorcycle was sold in Kansas, (3) a South Carolina resident eventually acquired the motorcycle, (4) plaintiff borrowed the motorcycle, and (5) plaintiff was involved in an accident in Florida while driving the motorcycle, no facts connect plaintiff’s specific claims to defendant’s actions in South Carolina. Defendant is not subject to specific jurisdiction in South Carolina in this case.

We affirm the district court’s grant of defendant’s motion to dismiss for lack of personal jurisdiction.

Plaintiff’s residence does not dictate whether South Carolina courts can properly exercise personal jurisdiction over defendant; rather, the relationship must arise out of contacts that defendant itself creates with the forum state. Plaintiff contends that this balance was changed by Ford Motor Co. v. Mont.

Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021). However, Ford repeatedly emphasized that the injuries occurred in the forum states. Perhaps Ford would allow plaintiff to sue defendant in Florida, but it does not allow her to sue defendant in South Carolina.

In the absence of specific facts

Murdaugh was the fourth generation of a prominent legal family in tiny Hampton County. His great-grandfather, grandfather and father were all elected prosecutors and his family helped run the biggest law firm in the county for a century.

Friday’s indictments include charges for Murdaugh’s handling of the aftermath of a wreck that caused a deaf man to end up a quadriplegic.

Murdaugh took a $309,000 check he was supposed to give to Hakeem Pinckney’s family and instead bought money orders that went to cover money he took from the accounts of other clients, to pay down a loan and get cash for himself and an unnamed family member, according to the indictment.

Then when Pinckney died in a nursing home from the lingering effects of his injuries, Murdaugh got an additional $89,000 settlement on Pinckney’s behalf, but deposited that check in his account without ever telling the man’s family, pros-

ecutors said.

The lawyer for the Pinckney family said the transactions are complex and hard to follow and even more money may have been stolen. Prosecutors have suggested at Murdaugh’s bond hearing they still haven’t gotten to the bottom of his shady practices.

Pinckney is Black, Most of the people Murdaugh stole from were like him, minorities and not well off, family attorney Justin Bamberg said.

“Alex gave them just enough money so they would drop on their knees and say ‘thank you Jesus’ and took the rest,” Bamberg said.

Murdaugh’s longtime law firm, which fired him after learning he was stealing money, and his banker friends and other professionals who Murdaugh used to be personal representatives for hurt victims and grieving families or played other roles in helping his schemes go on so long should face consequences too because even if they aren’t criminally responsible, they should have

asked questions, Bamberg said.

“We are coming for your pockets.

We’re going to get all the money these people were supposed to get,” Bamberg said.

Another indictment Friday details how starting in 2013, Murdaugh collected 14 settlement checks totaling more than $1.3 million for a man whose wife died in a wreck and stole all the money for himself.

Other victims have included a state trooper, family friends and an immigrant living in the country illegally, according to previous indictments.

At his bond hearings, Murdaugh’s lawyers blamed years of addiction to opioids for his behavior, saying he has sought counseling and wants to make things right for the clients he hurt.

Murdaugh’s law license has been suspended since his arrest in September after state agents said he tried to arrange his own death so his surviving son could collect a $10 million life insurance policy.

of grave danger, the necessity for OSHA to address the ongoing COVID-19 pandemic in workplaces, and administrative deference to OSHA’s conclusions in light of the evidentiary support, data, and studies.

Takeaway As of January 13, the ETS was again stayed nationwide — a stay that would have remained in place until the final disposition of all litigation. In the wake of the Supreme

Court’s stay, OSHA announced on January 25 that it was withdrawing the ETS effective January 26.

OSHA clarified that it is not withdrawing the ETS as a proposed rule.

However, OSHA has indicated that it will be prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.

nessee office. She can be reached at mkcampion@bakerdonelson.com.

Ashley Meredith Strittmatter, a shareholder in Baker Donelson’s Knoxville, Tennessee office, advises and represents clients before state and federal administrative agencies and boards in both compliance efforts and enforcement defense related to various environmental, safety and health laws. She can be reached at astrittmatter@bakerdonelson.com.

Criminal Practice Supervised Release Revocation – Sentence Length – Anders Brief

Mary Katherine Campion is a labor and employment associate in Baker Donelson’s Memphis, Ten-

Criminal Practice Prisons & Jails – Compassionate Release Motions – COVID-19 Although COVID-19 is highly communicable, is aggravated by certain other medical conditions and can be lethal, defendant failed to make the requisite showing that he has a particularized susceptibility to the disease and a particularized risk of contracting the disease at his prison facility.

We affirm the district court’s denial of defendant’s motions for compassionate relief.

Because defendant did not make a showing meriting a finding that extraordinary and compelling reasons warranted a sentence reduction, any perfunctory consideration by the district court of the factors in 18 U.S.C. § 3553(a) did not amount to an abuse of discretion.

United States v. Colleton (Lawyers Weekly No. 003-003-22, 5 pp.)

(Per curiam) Case No. 21-6015. Jan. 3, 2022. From D.S.C. at Charleston (David C. Norton, J.) Elaine Jenkins for appellant; Rhett Dehart and Nick Bianchi for appellee.