SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 12
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JUNE 6, 2022 $8.50
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No explicit consent, no jurisdiction Objections key Appeals ruling
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BY HEATH HAMACHER hhamacher@sclawyersweekly.com
Judge John E. Waites Photo provided by Nelson Mullins
Bankruptcy judge receives state’s highest civilian honor BY JASON THOMAS John E. Waites, a United States bankruptcy judge for the district of South Carolina, has been given the Order of the Palmetto, which is the highest award given to civilians in South Carolina. Associate Justice John C. Few of the South Carolina Supreme Court recently presented the award to Waites on behalf of South Carolina Gov. Harry McMaster, according to a news release from the U.S. Bankruptcy Court. Waites is a Columbia native and graduate of Davidson College and the University of South Carolina
School of Law. Among the many reasons cited for making this award to Judge Waites is his almost 28 years’ service as a bankruptcy judge and five years as the U.S. Trustee for Region 4; his expansion of the court’s pro bono program; and his founding of the South Carolina Credit Abuse Resistance Education (CARE) Program, which brings much needed financial education into South Carolina high schools and colleges, the release stated. He has served two terms on the South Carolina Supreme Court Access to Justice Commission, and he
Where a military retiree objected to the state’s family court’s jurisdiction over his retirement benefits at his earliest opportunity and at every stage of the divorce proceeding, he did not explicitly consent to have his military benefits decided in South Carolina, the state’s Court of Appeals has unanimously ruled in a case of first impression. The May 25 ruling reverses the family court’s finding that the plaintiff consented to the court’s jurisdiction to divide his military retirement benefits. The question before the court was whether consent for purposes of section 1408(c)(4) of the U.S. Code (the Uniformed Services Former Spouses’ Protection Act) must be specifically to jurisdiction over military retirement benefits rather than to the jurisdiction of the court in general. The court found that it must. “If the statute means consent to jurisdiction in general, then Husband did so by conceding the family court had jurisdiction over him for the matters that did not relate to his military retirement benefits,” Judge Aphrodite Konduras wrote for the appeals court. “However, Husband was clear at all times that he objected to jurisdiction over his military benefits.” Judges Stephanie McDonald and John Geathers concurred in the decision.
Two judges, one ruling
See Bankruptcy Page 6 ►
In 2015, Rubiela Williams filed
for divorce in South Carolina from Ennis Williams, her husband of 25 years. Ennis lived in the family home in Charlotte, while Rubiela had moved to Columbia, South Carolina. Among other things, Rubiela sought custody of the couple’s minor child, child support, and an order requiring Ennis to set aside his GI Bill benefits for the children equally. In April 2016, Ennis filed a motion to dismiss, arguing that under section 1408(c)(4), the family court lacks jurisdiction to divide his military benefits because he lived in North Carolina and had never been a resident or domiciled in South Carolina. Ennis did “not absolutely nor implicitly consent to the jurisdiction of the [family] court,” he stated. Section 1408(c)(4) prohibits state courts from exercising authority to determine the status of a service member’s pension unless personal jurisdiction over the member is acquired through one of three methods. Either the service member must reside (other than military assignment) in the territorial jurisdiction of the court, have domicile in the territorial jurisdiction of the court, or consent to the jurisdiction of the court. In his answer and counterclaim, filed just days later, Ennis again asserted that the family court, for the same reasons, did not have jurisdiction over his retirement benefits. The following month, family court Judge Michelle Hurley found that Ennis consented to the court’s jurisdiction through the affirmative actions of filing S e e M i l i t a r y Pe n s i o n P a g e 6 ►
12 sentenced in multi-million construction tax fraud case BY MELINDA WALDROP mwaldrop@scbiznews.com Twelve defendants from seven constructionrelated companies have been sentenced for employment tax fraud felonies and crimes related to hiring unauthorized workers in a scheme that saw at least $15 million in bogus checks cashed. The convictions are the first to come from a multi-year undercover investigation, led by the IRS and Homeland Security Investigations, in the Myrtle Beach area and along the South Carolina coast, according to a news release from the U.S. Attorney’s Office for District of South
Carolina. The operation targeted the use of unlicensed check cashers to facilitate under-the-table cash payments to employees, many of whom were unauthorized aliens. The check cashers would also provide certificates of insurance falsely stating that the employees were covered under workers’ compensation insurance. These off-the-book payments defrauded the United States out of applicable employment taxes on the employees, according to the U.S Attorney’s office. At least $15 million in checks were cashed, resulting in millions of dollars of total losses to the government.
“These defendants stole money from South Carolina taxpayers, they stole opportunities from those in the construction industry who did the right thing, and they stole safety from the workers who labored on jobsites without insurance,” U.S. Attorney Corey F. Ellis said in the release. “This successful prosecution was only possible because of the tireless and dedicated investigative efforts of IRS and HSI, as well as the work of our local partners. The defendants in this case, none of whom had criminal records before this investigation, are all now convicted felons. S e e Fr a u d c a s e P a g e 6 ►
INSIDE VERDICTS & SETTLEMENTS
VERDICTS & SETTLEMENTS
COMMENTARY
Impaired driver in head-on crash leads to $17M settlement.
Rear-end crash victim settles for $1M.
SC rules emotional distress damages not available under Title VI, Title IX.
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2 / NEWS
S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ju n e 6, 2022
NEWS BRIEFS SC Bar bestows legal awards Five South Carolina attorneys and a law firm have been recognized by the South Carolina Bar for their outstanding contributions to the legal profession. The recognitions were made during the SC Bar House of Delegates meeting and other May events. Margaret “Peg” Fox of Columbia received the Law Related Education Lawyer of the Year Award for her outstanding contributions to fostering understanding of the legal system among students. Fox is a past chair of the SC Bar Law Related Education Committee, has coached and judged Mock Trial and helped write and edit the Mock Trial coaches’ manual for attorneys and teachers. Lewis Cromer of Columbia received the Employment and Labor Law Section Distinguished Lawyer Award for his contributions to the section including mentoring generations of plaintiff’s lawyers. His nominators referred to him as a tireless advocate for workers and trailblazer in the use of tort law to further workers’ rights. Mike Burch Jr. of Lancaster received the Young Lawyer of the Year Award as a member who “exemplifies excellence in practicing law and public service.”
Leslie McIntosh of Anderson received the Grady B. Anthony Public Service Award for giving time and energy to helping others through the Young Lawyers Division’s various public service initiatives. McIntosh chaired the Cinderella Project in 2021-22, founded the YLD Wellness Committee, is currently organizing the YLD 5k/10k, and has given back to the SC Bar overall in various capacities including serving in the House of Delegates and as 2022 Convention Committee chair. Columbia-based Robinson Gray Stepp and Lafitte received the Pro Bono Award for its outstanding contributions to pro bono legal services in South Carolina and partnership with the SC Bar Pro Bono program. The firm’s recent efforts included having each of its attorneys register as volunteers with the Bar’s Pro Bono Program, and regularly answering questions on the South Carolina Free Legal Answers website. It also served as counsel for Hannah House, a faithbased transitional housing facility that helps women and children learn the skills necessary to break the cycle of poverty, and other charitable organizations. Lydia Hendrix, a student at the University of South Carolina, received the Employment and Labor Law Section Memorial Scholarship. Staff reports
LAWYERS IN THE NEWS Patrick Bradley has joined Haynsworth Sinkler Boyd as an associate in its Greenville office. Bradley advises and represents corporations, small businesses, individuals, and governmental entities in a range of business, construction, manufacturing, insurance, and tort-related matters.
N. Ward Lambert has been named managing partner of the new Charleston office of Hudson Lambert Parrot Walker. Lambert also leads the firm’s Greenville office and his practice focuses on counseling, advising, and representing clients in the construction industry.
State organization warns of summertime scams Staff Report Fraudsters are in full swing now that the weather has heated up. While it’s impossible to know every scam out there, the South Carolina Department of Consumer Affairs has offered up some common red flags in a news release to help keep you safe this summer. Here’s a list from the SCDCA: • Baby formula scams: With a formula shortage, parents are desperate to find formula for their babies. “Third-party sellers” are advertising fake formula in stock, selling for much higher than retail prices and/or creating fake websites to trick parents into buying non-existent products. Always make sure you’re reading reviews before buying, using a credit card when shopping online and calling your pediatrician or your local WIC office when you cannot find food for your baby. If you come across any suspicious activity, please report it to the Attorney General’s Office at (803) 737-3953. • Disaster/storm scams: Hurricane season officially started on June 1, and scammers will jump on any disaster or storm acting like repair people or federal government agencies like the Federal Emergency Management Agency. They promise relief or help to clean-up and perform repairs but disappear with your money or information. Remember: You never have to pay for government disaster relief, and you should be very suspicious of repair people who show up unannounced and want payment upfront. • Financial aid and scholarship scams: Future college students may be looking for ways to pay
for college. Scammers will try and convince students that in exchange for a processing fee, they can get financial aid, grants or loans. In reality, all the fraudsters do is fill out a Free Application for Federal Student Aid. Sometimes they will enter false information to qualify for more financial aid, which could cost students a $20,000 fine and/or jail time. Students should not pay anyone to fill out their FAFSA form — it’s always free. • Travel scams: Whether it’s a “free” vacation offer, robocalls about vacation deals, or fake vacation rental listings, scammers know consumers are looking for an inexpensive way to take a trip. Never pay fees or taxes for a “free” vacation; a legitimate company will not ask you to pay for a free prize. Also, robocalls trying to sell you a product are illegal unless you’ve given them written permission to call. If you’re looking to book a vacation property, be aware that scammers can hijack a real rental or real estate listing by copying it and placing an edited advertisement on another site. Always do your research by reading reviews, searching the internet for duplicate listings and NEVER wire transfer money or pay with unusual forms of payment. Here are some red flags of scams to keep in mind any time of year, according to the release: If anyone tries to pressure you into making a fast decision, they demand an unusual form of payment, and/or a deal seems too good to be true. To file a complaint with the SCDCA or get information on consumer issues, visit www.consumer.sc.gov or call (800) 922-1594.
Judge Michelle Childs steps closer to a seat on the U.S. Court of Appeals for DC Circuit BY TERI SAYLOR With bipartisan support from the United States Senate, Michelle Childs, a U.S. District Court judge for South Carolina has moved one step closer to confirmation for a seat on the federal bench. On May 26, the Senate Judiciary Committee voted 17-5 to approve Childs’ nomination to the U.S. Court of Appeals for the District of Columbia Circuit. Her nomination will next go to the full Senate for confirmation. Her supporters include Democratic U.S. House Majority Whip Jim Clyburn and GOP Sen. Lindsey Graham. Childs, a native of Detroit, received her law degree from the University of South Carolina School of Law and started her career as an associate attorney in Nexsen Pruet’s Columbia office, where she practiced employment law, focusing on representing businesses and employers. At Nexsen Pruet, she became the first African American woman to make partner at a major law firm in South Carolina. Leighton Lord, chairman of the firm, says he and Childs were hired at about the same time and worked together for the first 10 years of their careers. He recalls her as hardworking, engaged, and well-prepared. “She was great to work with,” he said in a phone interview. “She always kept a cool head and took a measured approach to her cases, which often in-
volved working through heated matters involving employment terminations and other issues.” Prior to Childs’ nomination to the U.S. Court of Appeals, she was on President Joe Biden’s short list of possible nominees to fill retiring Justice Stephen Breyer’s Supreme Court seat. Graham, who backed Childs’ nomination to the high court expressed his support for her final confirmation to the D.C. Circuit Court of Appeals on his website, echoing Lord’s assessment of her qualifications and temperament. “Judge Childs would not have been chosen by a conservative Republican president, but she is highly qualified to do the job,” Graham stated. “She has earned a reputation of following the law as it is written, being fair, and having a disposition that lawyers enjoy being in front of.” In remarks before the Senate Judiciary Committee in support of Childs’ nomination, Clyburn said, “while she has done many extraordinary things, it is her ordinary upbringing that has helped shape her life’s work and made her an example for so many young people in similar circumstances.” In 2000, Childs left Nexsen Pruet to serve as deputy director of the Division of Labor at the South Carolina Department of Labor, Licensing and Regulation and later was a commissioner on the South Carolina Workers’ Compensation Commission. She began her career on the bench in 2006 when
U.S. District Judge J. Michelle Childs stands in the federal courthouse where she hears cases on Feb. 18, 2022, in Columbia, S.C. On Thursday, May 26, the Senate Judiciary Committee voted 17-5 to approve Childs' nomination to the U.S. Court of Appeals for the District of Columbia Circuit. (AP Photo/Meg Kinnard, File)
the South Carolina General Assembly elected her to serve as a Richland County Circuit Court judge. Childs is still close to her former law partners, and she often visits the firm to interact with the younger lawyers, Lord said Her generosity with young attorneys extends beyond her former firm, William Hubbard, dean of the USC Law School wrote in a statement. “She is generous with her time and energy, participating in continuing legal education programs and accepting almost every invitation issued by student groups and faculty at this law school,” Hubbard wrote. “She welcomes South
Carolina Law students to her chambers to work alongside her and has been a thoughtful mentor to many more.” It is this down-to-earth-quality that has endeared her to her colleagues of the South Carolina Bar, Lord said and added the diversity she brings to the judiciary extends beyond her race and gender. “Michelle practiced law on the local level for almost 10 years, then served on the Workers’ Compensation Commission and knows how state government works,” Lord said. “We need all types of judges, and she brings an educational and professional background that is valuable for the court system.”
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 June 6, 2022
VERDICTS & SETTLEMENTS / 3
Rear-end crash victim settles for $1M BY HEATH HAMACHER hhamacher@sclawyersweekly.com A man who was rear-ended by a loaded logging truck has settled his negligence claims for the insurer’s policy limits of $1 million, his attorney reports. Brent Arant of the Joye Law Firm in North Charleston represented the plaintiff, a 56-yearBrent Arant old man who was sitting at an intersection in Williamsburg County when the truck crashed into him from behind. Arant said that the truck driver appeared to be driving recklessly, evidence gathered from surveillance camera footage from a nearby gas station. Many of the case’s details, including the names of the parties and defense counsel, were withheld
pursuant to a confidentiality agreement. “She (the at-fault driver) did not slow and post-collision, she crossed the road and stopped her truck approximately 100 yards away. It appeared that she may have had an overloaded load of logs on her truck, but this could not be verified,” Arant said. The man claimed negligence and negligent hiring and supervision, and Arant said that neither liability nor damages were contested. The plaintiff suffered neck and back injuries that required a cervical fusion and future medical care, Arant said, and will not be able to return to work as a commercial truck driver. “I could not flip a switch and make my client’s injuries go away or make the wreck disappear, but what I could do is ensure that my client recovered every penny possible for what had been thrust in his life,” Arant said. “From that perspective, we approached the case very methodi-
SETTLEMENT REPORT — MOTOR VEHICLE CRASH
Amount: $1 million Injuries alleged: Cervical and lower back injuries Case name: Withheld Venue: Williamsburg County Date of settlement: January 2022 Insurance carrier: Withheld Attorney for plaintiff: Brent Arant of the Joye Law Firm in North Charleston Attorney(s) for defendant: Withheld cal with the goal in mind to put the carrier and its attorneys in a position where they had to tender their limits.”
State insurance pays $100,000 for false DUI arrest BY HEATH HAMACHER hhamacher@sclawyersweekly.com The state’s Insurance Reserve Fund has paid $100,000 to a disabled, retired military veteran after a South Carolina Highway Patrol trooper falsely arrested her for driving under the influence, her attorney reports. Brooks Fudenberg of CharlesBrooks ton represented plaintiff Kelly Fudenberg Larson, a retired Air Force master sergeant who in 2016 was pulled over around midnight at a Summerville intersection by trooper J.M. Ross, who said that the front of Larson’s stopped vehicle sat beyond the white line at a traffic light. Fudenberg said that Ross administered a series of field sobriety tests, alleging that Larson smelled like alcohol and slurred her words. Larson informed the trooper that she had physical disabilities — including a herniated disc, sciatica in both legs, and sacroiliac joint dysfunction in her hip — that would interfere with her performance. Larson was arrested after failing to satisfactorily perform the sobriety tests, Fudenberg said. “Dashcam video and audio show Ms. Larson speaking clearly, standing like a rock during the
encounter except when asked to stand on one leg or walk heel-to-toe,” Fudenberg said. Fudenberg said that Larson blew a .02 on the breathalyzer, a conclusive presumption of not being under the influence of alcohol. Ross then requested a urine test, Fudenberg said, which revealed only metabolites of medications for which Larson was prescribed. “Defendant Ross decided to prosecute anyway,” Fudenberg said. Fudenberg said that the criminal charges were eventually dismissed. After being “paraded around” in handcuffs and humiliated, Fudenberg said, Larson suffers from anxiety and depression. Physically, she continues to suffer from numbness in her hands from being restrained too tightly. According to the complaint, the state’s highway patrol and public safety department pressure troopers to make DUI arrests. Fudenberg said that he understands that while the agency has no official quota, low numbers of arrests will “raise eyebrows.” “And when a trooper makes a lot of DUI arrests, as Trooper Ross did, she is honored,” Fudenberg wrote in an email to Lawyers Weekly. “Ross was named ‘Trooper of the Year’ at least in part due to her leading in number of DUI arrests.” The defendants were represented by several attorneys from Hood Law Firm in Charleston, in-
SETTLEMENT REPORT — FALSE ARREST
Amount: $100,000 Injuries alleged: Loss of freedom, aggravation of pre-existing injuries Case name: Kelly Larson v. J.M. Ross, South Carolina Highway Patrol, and the South Carolina Department of Public Safety Court: U.S. District Court for the District of South Carolina Case No.: 2:18-cv-02732 Judge: Richard Gergel Date of settlement: Nov. 15, 2021 Insurance carrier: South Carolina Insurance Reserve Fund Attorneys for plaintiff: Brooks Fudenberg of Charleston Attorneys for defendant: Elloree Ganes, Connor Treece, and Ryan Adams of Hood Law Firm in Charleston cluding Elloree Ganes, Connor Treece, and Ryan Adams. Ganes did not immediately respond to a request for comment.
Impaired, head-on crash leads to $17M settlement BY HEATH HAMACHER hhamacher@sclawyersweekly.com A former emergency room nurse who was severely and permanently injured in a head-on crash has settled her claims for $17,052,000, her attorneys report. Mark Bringardner, Carson Parker, and Madeline Nelson of Bringardner Injury Law Firm in Mark Charleston report that their client, Bringardner a 56-year-old woman, was driving on June 5, 2021, when tragedy struck. The attorneys said that the defendant, under the influence of a cocktail of drugs, crossed the center line and struck the plaintiff headon at approximately 55 mph. The attorneys said that the crash resulted from the defendant’s fourth or fifth DUI. Many of the case’s details, including the parties’ names, defense counsel, and venue, have been withheld under a confidentiality agreement. The plaintiff was catastrophically injured, the attorneys said, suffering multiple back, rib, and leg fractures, among other physical injuries, and has undergone five surgeries so far. She also suffers from anxiety and post-traumatic stress disorder, the attorneys said. The plaintiff spent four months in the hospital and rehabilitation facilities after the crash, has
not worked since the crash, and is entirely disabled, her attorneys said. She is still treating with several medical providers, including Carson Madeline a neurosurgeon, Parker Nelson an orthopedic surgeon, and therapists. Several surgeries are planned, and her attorneys said she is destined to live a life of pain and suffering. “She was a very active woman prior to the accident, and now she can do very little without assistance,” the attorneys wrote in an email to Lawyers Weekly. “She uses a walker or a cane to get around.” The attorneys called the case “tragic,” noting that a significant amount of harm cannot be fairly compensated with insignificant money. They said that they hope that the settlement will inform others concerning evaluating catastrophic injuries in comparable cases. The attorneys praised defense counsel for working hard to resolve the matter. “If experienced and professional claims adjusters and insurance decision-makers, who analyze serious cases on a regular basis, authorize a settlement of this magnitude, it demonstrates a reasonable basis to uphold large jury verdicts that provide eight-
SETTLEMENT REPORT — MOTOR VEHICLE CRASH
Amount: $17,052,000 Injuries alleged: Multiple fractures in the leg, vertebra, and ribs, post-traumatic stress disorder, anxiety Case name: Withheld Court: Withheld Date of settlement: May 23, 2022 Special damages: Past medical of $908,132, future medical of $2,582,722, past lost income of $137,656, and future lost income of $1,486,692 Most helpful experts: Robert Brabham (vocational rehabilitation), Sean Alexander (accident reconstruction), Demetra Garvin (forensic toxicologist), Charles Alford (economist), and Lindsay Moore (life care planner) Insurance carrier: Withheld Attorneys for plaintiff: Mark Bringardner, Carson Parker, and Madeline Nelson of the Bringardner Injury Law Firm in Charleston Attorney(s) for defendant: Withheld figure compensation for actual and punitive damages,” they wrote.
4 / COMMENTARY
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 Ju n e 6, 2022
Supreme Court holds that emotional distress damages are not available under Title VI, Title IX, and other spending clause statutes BY DEREK TEETER, MICHAEL RAUPP HUSCH BLACKWELL
ST. LOUIS, MO — In Cummings v. Premier Rehab Keller, P.L.L.C., the U.S. Supreme Court held that a plaintiff suing under Title VI (prohibiting race, color, and national origin discrimination), Title IX (prohibiting sex discrimination), the Rehabilitation Act (prohibiting disability discrimination), and the Patient Protection and Affordable Care Act (ACA) may not recover emotional distress damages. The Court reasoned that the scope of available remedies under these Spending Clause statutes is limited to only those remedies generally available for breach of contract. Because emotional distress damages are not generally available for breach of contract, the Court reasoned that emotional distress damages are not available under these Spending Clause laws. Cummings will substantially reduce the scope of available damages in a wide range of civil rights lawsuits brought by students against colleges and universities, including Title IX cases where a plaintiff claims emotional distress arising from sexual harassment, sexual assault, or the erroneous outcome of a Title IX investigation. In Cummings, the plaintiff, who was deaf and legally blind, sought physical therapy services from a private provider and requested that the provider hire a sign language interpreter to help the plaintiff communicate during physical therapy sessions. The provider declined to provide an interpreter, and the plaintiff sued the provider under the Rehabilitation Act and the ACA. The provider was subject to the Rehabilitation Act and ACA because it agreed to comply with those laws as a condition of receiving payments under Medicare and Medicaid programs. The plaintiff sought injunctive relief and damages, including damages for emotional distress that the plaintiff claimed she suffered from being unable to obtain the requested services. The district court held that the plaintiff could not recover damages for “humiliation, frustration, and emotional distress,” 2019 WL 227411, at *4 (N.D. Tex. Jan. 16, 2019) and the Fifth Circuit affirmed. 948 F.3d 673 (2020). The plaintiff asked the Supreme Court to reverse these lower courts and was supported by numerous groups (amici) who argued that Spending Clause legislation prohibiting discrimination should be construed broadly to include recovery for emotional distress damages. Plain-
tiff and her amici argued, among other things, that because emotional distress is particularly likely to result from discrimination, emotional distress is a foreseeable type of damage that should be recoverable even under contract law principles. The Supreme Court, adhering to its prior precedent in Barnes v. Gorman, 536 U.S. 181 (2002), did not agree. In Barnes, the Supreme Court held that because Spending Clause legislation operates like a contract — that is, a funding recipient agrees not to engage in discrimination in exchange for certain federal funds — it was appropriate to use a contract-law analogy to define the scope of recoverable damages. Under this analogy, a plaintiff is permitted to pursue particular relief only “if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.” Id. at 187. In Barnes, this reasoning resulted in a holding that punitive damages — not generally available for breach of contract — cannot be recovered under Spending Clause statutes. Cummings applied Barnes’ analysis to the separate category of emotional distress damages, finding them also to be not generally available for breach of contract and, therefore, not available for claims under Title VI, Title IX, the Rehabilitation Act, and the ACA. The dissent recognized that Cummings’ holding applies to bar the recovery of emotional distress damages under Title IV, Title IX, the Rehabilitation Act, and the ACA, even though the plaintiff’s claims in the case directly implicated only the Rehabilitation Act and the ACA. The dissent argued that emotional distress is particularly likely to result from breach of the contract at issue in Spending Clause cases — that is, an agreement not to discriminate — and should thus be recoverable. In other words, the dissent would have accepted the plaintiff’s argument that because emotional distress damages are available in some breach of contract actions, they should be available under Spending Clause legislation as well. The dissent also made an important observation regarding employment discrimination. Cummings limits recovery of emotional distress damages under Title VI and Title IX, which prohibit discrimination against students at colleges and universities, but Cummings does not limit recovery of emotional distress damages under Title VII, which prohibits multiple forms of protected-status discrimination against employees in the workplace. This is
because Title VII was not enacted pursuant to the Spending Clause (it was enacted as part of Congress’ authority under 14th Amendment) and a separate federal statute specifically permits the recovery of emotional distress damages for Title VII and other non-Spending Clause civil rights laws. Thus, unless Congress chooses to act, a student who experiences sex discrimination in a college or university will not be able to recover emotional distress damages under Title IX, whereas an employee of a college or university who experiences sex discrimination in the workplace will be able to recover emotional distress damages under Title VII. What this means to you Cummings will have an immediate impact on the valuation of lawsuits where a plaintiff claims discrimination by a college or university under Title VI, Title IX, or the Rehabilitation Act. Higher education institutions are rarely sued under the ACA. Under Cummings, plaintiffs in such suits will not be able to recover emotional distress damages and the scope of recovery will be limited to traditional compensatory damages, like out-ofpocket costs a plaintiff has experienced due to discrimination. The most profound impact of Cummings may prove to be in two specific types of Title IX lawsuits. First, Cummings will impact cases brought by victims of third-party sexual assault who claim an institution was deliberately indifferent to the risk of sexual assault. Prior to Cummings, the most significant element of damage in such cases was typically emotional distress resulting from the sexual assault itself, which plaintiffs often asserted should be valued in hundreds of thousands if not millions of dollars. With the emotional distress theory of damage no longer available, Cummings may result in fewer such lawsuits being filed, more modest settlements, and/or diminished verdicts for those cases that proceed to trial. Second, Cummings will impact cases in which students found responsible for committing acts of sexual harassment or sexual assault sue educational institutions claiming that the institution reached an “erroneous outcome.” Emotional distress typically forms a significant part of the damage theory in those cases as well. — For more information about the implications of this ruling for your institution, please contact Derek Teeter, Michael Raupp or your Husch Blackwell attorney.
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The first principle is not to fool yourself BY JEFF TRUEMAN BridgeTower Media Newswires BALTIMORE, MD — We spend so much time and money trying to protect and enforce our rights against others that we overlook threats from within ourselves. The famous physicist, Richard Feynman, said, “The first principle is not to fool yourself – and you are the easiest person to fool.” Most of us react negatively when
someone is overconfident about themselves or their opinions. We have an inner voice that is quick to identify and judge anything that sounds arrogant or single-minded. That same voice, however, is peculiarly silent when we are overly confident about our own opinions or capabilities. We don’t tolerate overconfidence in others but we indulge in it ourselves. Overconfidence is ubiquitous and manifests in a few ways. First, we
overestimate our abilities or likelihood of success. Second, we are overprecise regarding how accurate we think we are about our perceptions and conclusions. Finally, we overplace ourselves as compared to others. In other words, we think that we are better than average as drivers of automobiles, parents, professionals, etc. In one study, although newly wedded couples acknowledged that See Page 6 ►
send address changes to South Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051 Williamsport, PA, 17703-9940 service@bridgetowermedia.com South Carolina Lawyers Weekly is a publication of BridgeTower Media, 222 South Ninth Street, Suite 900, Minneapolis, MN 55402.
NEWS / 5
S O U T H C A R O L I N A L A W Y E R S W E E K LY I June 6, 2022
Cruises ships to no longer depart from Charleston after 2024 CHARLESTON, S.C. (AP) — Cruise ships will no longer start their journeys from Charleston by the end of 2024, the South Carolina Ports Authority said. The authority decided to not renew a deal with Carnival Cruise Line that allowed cruises to begin and end from the Union Pier Terminal in downtown Charleston. Cruise ships can continue to dock at Charleston, but only for brief, same-day port of call stops, The Post and Courier of Charleston reported.
The decision should cut the number of cruise passengers in Charleston down by 80%, officials said. The State Ports Authority said it will no longer work on plans to redevelop a warehouse at the Union Pier into a cruise terminal. Permits to start the project have been tied up for years by lawsuits from conservation and historical preservation groups. Instead, the authority said it will look into selling the land it owns to a private developer. Charleston Mayor John Tecklen-
burg said the decision by the authority will improve the quality of life in his city. “We’re grateful to the port for taking this critically important step, and we look forward to continuing to work with (State Ports Authority) to make Union Pier a beautiful and vibrant part of the city of Charleston,” Tecklenburg said. Currently, about 70 cruises a year leave Charleston for the Bahamas and other Eastern Caribbean destinations.
Carnival Cruise Line officials said they will continue to work with the authority to find options to use Charleston. “In the meantime, it is business as usual, and we look forward to seeing our guests aboard Carnival Sunshine through 2024,” Carnival spokesman Matt Lupoli said. After that deal is finished, the Ports Authority said it will continue to follow a voluntary limit of no more than 104 cruise ship visits a year, and no stops by ships that carry more than 3,500 passengers.
Scientists look for help to exactly measure Columbia's heat COLUMBIA, S.C. (AP) — Scientists are looking for volunteers in Columbia to help them study the differences in heat across short distances in the city. A sensor will be put on the car window of volunteers who will then drive certain routes to get exact temperature readings, University
of South Carolina professor Kirstin Dow told WLTX-TV. Dow is part of a mapping project paid for by the National Integrated Heat Health Information System to identify and research heat islands, or small areas that are hotter than their surroundings just feet away. That data can help determine the
best materials to use for buildings or ground cover or how important trees are to cooling off as temperatures are expected to get hotter. A similar mapping project was done in Charleston last summer and determined the influence of the sea breeze doesn’t extend far inland, said Scott Curtis, the director of the
Near Center for Climate Studies, which helped Charleston with the study. “One of the areas that was the hottest was the port. And not because it was near the water — because there is lots of asphalt, lots of concrete, there’s just no vegetation at all,” Curtis said.
Early voting underway for first time in South Carolina COLUMBIA, S.C. (AP) — South Carolina began regular early voting across the state for the first time Tuesday. Legislators passed and the governor signed into law a bill allowing anyone to cast a ballot without an excuse for the two weeks before Election Day in the same way they would by going to the polls. South Carolina’s primaries are June 14 and early voting is available Monday through Friday. The procedure to vote is just the same as on Election Day. For the general election in November, early voting centers will also be open on Saturdays. Counties are required to have at least one polling place open.
South Carolina Gov. Henry McMaster ceremonially signs a bill allowing early voting in the state on Wednesday, May 18, 2022, in Columbia, S.C. (AP Photo/Jeffrey Collins)
Some smaller counties like Bamberg, Chester, Hampton and Williamsburg counties will have multiple locations, while some larger counties like Aiken, Charleston, Greenville, Lexington and York only have one site at the county election office. A list of sites is on the South Carolina Election Commission’s website. County officials said early voting does give them flexibility to get more workers or voting machines to a site if it gets busy, which is something impossible to do on Election Day. Absentee voting is still allowed for people over the age of 65, with mobility issues or illnesses, but those ballots must be cast by mail.
IP Frontiers: Common pitfalls with expungement and re-examination BY THOMAS SICA BridgeTower Media Newswires ROCHESTER, NY — Since Dec. 18, the United States Patent and Trademark Office has accepted two new types of ex parte proceedings to be filed for trademark purposes: expungement and reexamination. When these new proceedings were first proposed and announced, many practitioners were curious about how effective these would be in practice. Now, a few months have passed since commencement of these proceedings; thus, we have an early look at how these are being handled by the USPTO. To start: what is expungement and reexamination? The Trademark Office has long recognized that many registered trademarks are unfortunately not actually being used in commerce. Before the Trademark Office registers any mark, the trademark applicant must provide a specimen (i.e., an example) that the mark is being used in commerce on the goods and/or services that are listed in the application. While the specimen process is intended to weed out any marks that are not
actually being used, several marks still slip through the cracks through the use of fraudulent specimens. The USPTO intended expungement and reexamination proceedings to act as a new way to remove fraudulently obtained trademark registrations from the rolls of the Trademark Office. Both proceedings commence with a petition to the Director of Trademarks claiming that an existing registration should be cancelled, in whole or in part. For an expungement proceeding, the basis for the petition is that the registered trademark was never used in commerce by the registrant for all or some of the identified goods and/ or services listed in the registration. For reexamination proceedings, the basis for the petition is that the registered trademark was not in use in commerce in connection with some or all of the goods and/or services listed in the registration at the time use was alleged (i.e., at the time the application was filed in a use-based application, or at the time the statement of use was filed in an intent-touse application). Both petitions must contain certain items such as a required fee,
the basis for the petition, the name and address of the petitioner, and the specific goods and/or services that the petitioner challenges. Additionally, the petition for expungement or reexamination must further include a verified statement from the petitioner outlining the investigation conducted along with the petitioner’s basis for its belief that the trademark was not in use in commerce as of the relevant date and supporting documentary evidence. However, the proceeding will not be instituted automatically. Once the petition is submitted, the Director of Trademarks must determine whether to institute the expungement or reexamination proceeding. If the director determines that the petitioner made a prima facie case that the mark was not used at the relevant time, then the director will institute the proceeding and issue an office action to the registrant. After which, the registrant will have an opportunity to respond, similar to how preregistration office actions are handled at the Trademark Office. The USPTO, on their website at https://www.uspto.gov/trademarks/
apply/expungement-and-reexamination-petitions-received, has been keeping a list of expungement and reexamination proceedings filed at the office. Between Dec. 21 and April 2, 64 petitions for expungement or reexamination have been filed. As this process is still new, none of these actions have proceeded far enough yet to actually remove any trademark registrations from the rolls. But the director has made a decision on whether to institute 29 of these petitions thus far. To break it down, the director has issued institution orders for 10 expungement proceedings and six reexamination proceedings, but the director declined to institute seven expungement proceedings and six reexamination proceedings. That means that petitioners are thus far only 55 percent successful on getting the proceedings instituted. The director has not been rubber-stamping these petitions; the petitioner truly must make out a prima facie case that the trademark was not being used in order for the proceeding to even reach the registrant. See Page 7 ►
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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 Ju n e 6, 2022
MILITARY PENSION / No explicit consent, no jurisdiction C o nt inu e d f r o m 1 ►
an answer and counterclaim and appearing and participating in the temporary hearing. Ennis motioned to reconsider, arguing that he was placed in an “impossible predicament” of either not answering the complaint by showing up at the temporary hearing or forfeiting the ability to contest the issues over which the court did have jurisdiction, such as child custody, alimony, and child support. He also argued that he filed the motion to dismiss nearly a week before the temporary hearing and tried unsuccessfully to have the motion heard on the same day as the temporary hearing. He said that before the temporary hearing, his attorney informed the court that a motion to dismiss was pending and asked the court to address the motion or to continue the temporary hearing until after it heard the mo-
tion to dismiss. But over his objections, the court moved forward with the temporary hearing. The court denied the motion to reconsider and on Oct. 31, 2016, again denied the motion to dismiss for lack of jurisdiction. During the final divorce decree hearing on Aug. 17, 2017, Ennis, appearing pro se, again asserted that the court did not have jurisdiction over the military retirement. And The court again stated it denied his motion regarding jurisdiction. Judge Gwendlyne Jones granted Rubiela a divorce and found that she was entitled to a percentage of Ennis’ retirement benefits.
A dissent on consent
Of the three methods for the state to acquire the authority to divide Ennis’ retirement benefits, only consent was relevant here. The appeals court noted that federal law does not set forth how the service
member must consent to the state’s jurisdiction and that South Carolina had not expressed a position on the meaning of consent in this context. States that have considered it have come up with conflicting interpretations, the court added. Konduras noted that some courts have found that implied consent to the court’s general jurisdiction is sufficient to obtain personal jurisdiction over a service member, while others have held that a defendant must affirmatively state their consent to jurisdiction. But the court found most persuasive the 2001 Pennsylvania Supreme Court ruling in Wagner v. Wagner, which noted that Congress usurped state long-arm statutes and provided in section 1408(c)(4) its own tests of personal jurisdiction that all state courts must apply. Quoting Wagner, “Reading the language of § 1408(c)(4) in the context and consistently with the Act’s
scope and object, we believe that Congress intended for the consent requirement … to relate, like the rest of the Act, specifically to a military member’s pension.” “Husband objected to the court’s jurisdiction over the retirement benefits at his earliest opportunity and before he took any further action, such as filing his answer and counterclaim,” Konduras wrote. “He reasserted his objection at every stage of the proceeding, including in his answer and counterclaim. Therefore, we find he did not explicitly consent to have his military retirements benefits decided in South Carolina.” Ennis Williams and Rubiela Williams represented themselves in this appeal. The 39-page decision is Williams v. Williams (Lawyers Weekly No. 011-027-2)2. The full text of the opinion is available online at sclawyersweekly.com.
FRAUD CASE / 12 sentenced in tax fraud investigation C o nt inu e d f r o m 1 ►
Several face potential deportation, several have lost their homes and face financial ruin, and many will never be able to return to the work they spent their lives pursuing.” Around 2019, IRS undercover agents embedded themselves in the Myrtle Beach area and recorded multiple interactions with the defendants’ companies. The investigation found that a member of the construction company would meet with an unlicensed check casher and give the check casher a business check made out to a company the check casher had created. The check casher would give the construction company representative a bag of cash to pay the employees, holding back a fee of approximately 3 percent. The check casher would also provide an invalid certificate of workers’ compensation insurance, according to the release, with the check casher claiming to be a subcontractor who provided the employees and provided insurance. “Criminals that exploit U.S. la-
bor and tax laws for profit take advantage of not only the workers, but they also steal revenue from the government, while also creating an unfair business advantage over their competitors,” said Special Agent in Charge Ronnie Martinez, who oversees HSI operations in North Carolina and South Carolina. “Thanks to the great work done by our agents along with our state, local and federal partners, we were able to stop this criminal organization from defrauding the government and hurting the local economy.” Chief U.S District Judge R. Bryan Harwell sentenced each of the defendants to five years’ probation, with all but one sentenced to home confinement. Each defendant must also pay restitution. The defendants received probation, the U.S. Attorney’s office said, because they admitted guilt early, agreed to assist authorities and collectively paid nearly a million dollars toward the approximately $3 million dollars owed to the IRS. Each defendant previously pleaded guilty to one felony count of conspiracy to defraud the United
States and one misdemeanor count of unlawful employment of aliens. The following defendants were sentenced in the case: Daniel A. Lavoie, 49, of Conway: Five years’ probation, 18 months home confinement with location monitoring, and $293,402.50 in restitution Enrique R. Reyes, 48, of Conway: Five years’ probation, 18 months home confinement with location monitoring, and $293,402.50 in restitution Walter A. Duran, 45, of Myrtle Beach: Five years’ probation, 21 months home confinement with location monitoring, and $976,076.08 in restitution Lisa Caulley Sellers, 57, of Myrtle Beach: Five years’ probation, eight months home confinement with location monitoring, and $488,038.04 in restitution Ming Xue Nan, 52, of Myrtle Beach: Five years’ probation, 14 months home confinement with location monitoring, and $173,712.43 in restitution Katherine L. Welker, 39, of Myrtle Beach: Five years’ probation, eight months home confine-
ment with location monitoring, and $173,712.43 in restitution Josafa P. Neto, 43, of Myrtle Beach: Five years’ probation, 18 months home confinement with location monitoring, and $209,847.07 in restitution Marylany Hardman Levino, 36, of Myrtle Beach: Five years’ probation and $209,847.07 in restitution Saul Prieto, 56, of Myrtle Beach: Five years’ probation, nine months home confinement with location monitoring, and $74,868.50 in restitution Martha E. Zarate, aka Martha E. Prieto, 54, of Myrtle Beach: Five years’ probation, nine months home confinement with location monitoring, and $74,868.50 in restitution Marcos Caetano De Almeida, 45, of Myrtle Beach: Five years’ probation, 21 months home confinement with location monitoring, and $298,816.52 in restitution Johanna A. Carpio, 38, of Myrtle Beach: Five years’ probation, 14 months home confinement with location monitoring, and $131,449.69 in restitution Reach Melinda Waldrop at 803726-7542.
BANKRUPTCY / Judge receives state’s highest civilian honor C o nt inu e d f r o m 1 ►
is one of the few judges to serve on the SC Bar Pro Bono Committee, according to the release. Waites has worked on the national and local level to improve the bankruptcy system, the release C o nt inu e d f r o m 4 ►
the overall divorce rate is roughly 50 percent, on average, they believed that they as individuals faced a 0 percent chance of divorcing. Despite the many ways in which we are overly confident, there is variability to the phenomenon and it can be influenced. We are more likely to be excessively optimistic about ourselves when we think in generalized or abstract terms, but when projects involve numerous de-
stated. He is the only South Carolina judge to serve as president of the National Conference of Bankruptcy Judges and to be inducted as a fellow in the American College of Bankruptcy. He has received recognition and awards from a variety of entities, in-
cluding the Pro Bono Service Award from South Carolina Legal Services (2013), a Special Pro Bono Award from the SC Bar (2013), the J. Bratton Davis Professionalism Award, presented by the South Carolina Bankruptcy Law Association (2014), the Matthew J. Perry, Jr. Civility
Award from the Richland County Bar Association (2015), the Pro Bono Service Award from the Legal Services Corporation of the U.S. (2016), and the Lifetime Achievement Award from the National CARE Financial Literacy Program (2019), according to the release.
tails that we cannot control, we are less sure of ourselves. Timing matters as well. When we are overly optimistic at the outset of a situation or a project, our confidence level is less likely to shrink – even in the face of contradictory evidence. But we are more likely to change our minds if doubt and pessimism exist at the outset of an endeavor. Even though we may not like to deal with it in other people, overconfidence has its place within our own
psyches. Studies show that it can provide benefits such as greater selfesteem and motivation to do difficult things. Overconfidence may also be strategically deployed to deceive and persuade others, especially in competitive situations like litigation and mediation of litigated disputes. Each side often postures with tough talk that predicts ultimate victory, even in the face of evidence that is unfavorable to them. Internal conversations between counsel and client should be nu-
anced and balanced, but may not be. Organizational cultures and ungrounded client expectations often fan the flames of “confirmation bias” where everyone on the team gravitates around evidence that supports their position, while discounting or ignoring everything else. Usually there is little appreciation of how many consequential factors reside out of any lawyer’s control. But risk management may be See Page 7 ►
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After Cawthorn's loss, candidate challenge ruling reversed BY GARY D. ROBERTSON ASSOCIATED PRESS RALEIGH, N.C. (AP) — A week after U.S. Rep. Madison Cawthorn lost his primary election, a federal appeals court on Tuesday overturned a trial judge’s decision that had blocked North Carolina’s elections board from examining whether he should be disqualified from running for reelection. A panel of judges on the 4th U.S. Circuit Court of Appeals reversed the ruling from District Judge Richard Myers, who had determined that a section of the 14th Amendment addressing insurrection and serving in Congress didn’t apply to Cawthorn. Voters who filed a formal challenge to Cawthorn’s candidacy pointed to how the first-term Republican spoke at the “Stop the Steal” rally that preceded the U.S. Capitol riot on Jan. 6, 2021. Cawthorn denies participating in an insurrection. The decision lost some urgency, however, because Cawthorn lost his May 17 primary in the 11th Congressional District to state Sen. Chuck Edwards. The court ruled even after Cawthorn’s attorney suggested last Friday the appeal was moot because election officials would certify the primary result in early June, meaning his name will not appear on the November general election ballot. In an opinion footnote, Circuit Judge Toby Heytens wrote the rulings were filed anyway because the results aren’t yet official, leaving to Myers any decision on whether to C o nt inu e d f r o m 6 ►
larger than how we perceive uncertainty or value money. Sometimes it’s not about money at all. Many attorneys define success in terms of executing their clients’ objectives and earning client loyalty. Furthermore, some lawyers feel that they can be, and perhaps should be, responsible for the decisions of judges and juries. They believe their actions can determine the outcome of a case. Similarly, clients often feel the same way. Insurance companies may litiC o nt inu e d f r o m 5 ►
Among the failed petitions, there exists some commonality in the reasons that the director has declined to institute the expungement or reexamination proceeding. In other words, many petitioners are running into the same issues. Thus, here are three common pitfalls that petitioners are facing in attempting to institute these ex parte proceedings: No Index of Evidence. One of the many requirements for a petition for expungement or reexamination is a “clear and legible copy of all documentary evidence supporting a prima facie case of nonuse of the mark in commerce and an itemized index of such evidence.” 37 C.F.R. §2.91(c)(9). While most petitioners thus far have submitted documentary evidence, many have neglected to provide an itemized index of that evidence. The index of evidence acts similar to a table of contents; it exists as a way for the director to easily navigate through the evidence provided. The itemized index is rela-
dismiss the case. Tuesday’s ruling, however, could inform how other challenges are handled by states in the future. Similar challenges have been filed against members of Congress in other states who have been strong supporters of former President Donald Trump, including Georgia Rep. Marjorie Taylor Greene. Free Speech for People, a national election and campaign finance reform group that assisted with the Cawthorn challenge, called Tuesday’s decision a “major victory.” A spokesperson for Cawthorn didn’t immediately respond to emails seeking comment. The North Carolina voters who filed the challenge cited the section that declared no one can serve in Congress “who, having previously taken an oath, as a member of Congress ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The amendment, ratified three years after the Civil War ended to deal with ex-Confederates, does allow Congress to pass laws that can remove such restrictions. Writing the prevailing opinion among the three judges, Heytens wrote that Myers got it wrong in March when he wrote that an 1872 law that removed office-holding disqualifications from most ex-Confederates also exempted current members of Congress like Cawthorn. Arguments that since the law removed office-holding disqualifications “from all persons whomsoever” meant it applies to future legisla-
tors were misplaced, according to Heytens. The circuit judge said the past-tense language clearly meant it applied to “those whose constitutionally wrongful acts occurred before its enactment.” Given that the 1872 law still prevented top Confederate officials like its former president Jefferson Davis from serving again, Heytens wrote, “the notion that the 1872 Congress simultaneously deemed any future Davis worthy of categorical advance forgiveness seems quite a stretch.” Still, the judges “express no opinion about whether Representative Cawthorn in fact engaged in ‘insurrection or rebellion’ or is otherwise qualified to serve in Congress,” Heytens added. James Bopp, an attorney for Cawthorn, argued before the panel on May 3 in Richmond, Virginia, that the Constitution leaves the decision on whether someone is disqualified to serve in the U.S. House with the elected body itself — not the states. While Heytens wrote that the also panel didn’t rule on whether the Constitution gives Congress that responsibility, his colleagues weighed in. Circuit Judge Jim Wynn wrote that the Constitution does give states broad powers to regulate candidates and ballot access. Circuit Judge Julius Richardson said Myers’ court lacked jurisdiction to handle the case to begin with, saying determining a House member’s qualification is a “privilege and duty given only to the House itself.”
Free Speech for People also helped file the challenge against Greene, who was on Tuesday’s primary ballot in Georgia. While a federal district judge allowed the challenge there to continue, a state administrative law judge found that they did not present sufficient evidence to back their claims that she had engaged in insurrection. Georgia Secretary of State Brad Raffensperger accepted those findings and said Greene was qualified to run. An appeal is pending. The appeals court also agreed that Myers should have allowed at least one voter filing the candidacy challenge to intervene in the lawsuit, which was actually filed by Cawthorn against the State Board of Elections.
gate for reasons not readily apparent to outsiders. Although they can afford to take risks, payment of any amount to settle may be highly scrutinized when a liability defense can be asserted. Often, a great deal of internal pressure exists within an insurance company to maintain the status quo of how risk is managed. An underwriting department may be overly invested in exclusionary language and not want the claims department to settle. Case reports from lawyers who may be risk averse filter their way up to company leaders who may
be risk seeking and view “questionable” outcomes as “winnable” outcomes. This raises an interesting dichotomy between the ways in which jury verdicts are viewed. While individuals look to juries as form of accountability, some institutions blame them or use them as “cover” when corporate politics or an executive’s ego takes priority. These dynamics challenge lawyers and mediators to consider any number of reasons why litigants may want to assume more risk than seems rational. Many mediators
believe their assessment of risk is more realistic than that of the parties or counsel. Perhaps mediators should acknowledge their own biases. In my view, sometimes lawyers have an unshakable confidence in his or her client’s case for professional reasons and no mediation technique can alter it. If you make it past Feynman’s first principle, I wish you good success. Jeff Trueman is a full-time mediator and arbitrator. He can be reached at jt@jefftrueman.com.
tively simple but must not be forgotten when preparing these petitions. Insufficient Investigations. “A petitioner must make a bona fide attempt to determine if the registered mark was not in use in commerce or never in use in commerce on or in connection with the goods and/or services … by conducting a reasonable investigation.” 37 C.F.R. §2.91(d). Thus far, many petitions have been rejected based upon the director’s determination that the petitioner’s investigation was not reasonable or comprehensive enough. Some petitions have only submitted testimonial evidence rather than documentary evidence; other petitions have merely submitted screenshots of the registrant’s webpages in order to establish nonuse. These types of evidence alone will not establish a prima facie case for non-use sufficient to institute an expungement or reexamination proceeding. More evidence is required such as State and Federal trademark records, website evidence outside of the registrant’s website, or attempts to contact the registrant
or purchase the relevant goods and/ or services, among other acceptable evidence. The evidence must be enough to establish a prima facie case that the mark was not used at the relevant time; a comprehensive investigation is necessary. Evidence not Tailored to the Relevant Date. Neither expungement nor reexamination proceedings are concerned merely with the current use, or non-use, of the trademark at issue. A petition for expungement asserts that the trademark has never been used in commerce; a petition for reexamination asserts that the trademark was not used as of the date that the registrant alleged use to the Trademark Office. Thus far, some petitioners have failed to submit evidence showing that the mark was not in use as of the relevant date. Petitioners must not only submit evidence about the current non-use of the trademark, but must submit evidence that the mark was not used at any time (in an expungement proceeding) or at the time that use was alleged (in a reexamination proceeding). The mere submission of
recent evidence of non-use will not establish a prima facie case for expungement or reexamination, and the proceeding will not be instituted. While expungement and reexamination proceedings may still be more convenient for petitioners than attempting to cancel a trademark at the Trademark Trial and Appeals Board, potential petitioners still must make a significant effort to follow the instructions provided by the USPTO, conduct a reasonable investigation and provide sufficient evidence in order for the director to institute the proceeding. We now know that merely instituting expungement or reexamination proceedings may be a significant hurdle to overcome; it still remains to be seen how successful these petitions will be once they are instituted. Thomas Sica is an associate with the law firm of Heslin Rothenberg Farley & Mesiti P.C. His experience includes litigation work, trademark prosecution, and general IP counseling. He can be reached at (518) 4525600 or thomas.sica@hrfmlaw.com.
U.S. Rep. Madison Cawthorn, R-N.C., speaks to supporters and the media at his primary election night watch party in Hendersonville, N.C., Tuesday, May 17, 2022. (AP Photo/Nell Redmond)
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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 Ju n e 6, 2022
COA: Inmate accounts are protected property interests BY HEATH HAMACHER hhamacher@sclawyersweekly.com A South Carolina inmate will have an opportunity to appeal a $250 DNA processing fee after the state’s Court of Appeals held that the Administrative Law Court erred by dismissing the man’s grievance for lack of jurisdiction. ALC Judge Ralph King Anderson found that the court lacked subject matter jurisdiction because the man’s claim did not implicate a state-created liberty or property interest. But in its May 25 opinion, the appeals court unanimously found
that although no South Carolina case has addressed the issue, federal courts have consistently found that inmates have a protected property interest in their inmate accounts. James Millholland is serving nine years in prison for manufacturing methamphetamine. The South Carolina Department of Corrections, pursuant to the state’s DNA Identification Record Database Act, collected his DNA and deducted the processing fee from his inmate trust account. Millholland argued that he had previously provided a DNA sample while on probation for a separate offense and that a second fee should
not have been applied. Millholland appealed to the ALC after the corrections department denied his Step 1 and Step 2 grievances. The appeals court was persuaded by several opinions from different circuits holding that an inmate’s interest in the funds in their prison account is a protected property interest. The court then noted a 2007 decision in Furtick v. S.C. Department of Corrections holding that the ALC “has jurisdiction over all inmate grievance appeals that have been properly filed.”
“Accordingly, we find the ALC erred in failing to hold a hearing to determine whether Millholland’s due process rights were violated,” the court wrote. “Thus, we reverse and remand to the ALC for a hearing on the merits.” Kensey Evans of Columbia represented the Department of Corrections. James Millholland represented himself. The three-page decision is Millholland v. South Carolina Department of Corrections (Lawyers Weekly No. 011-026-22). The full text of the opinion is available online at sclawyersweekly.com.
Jury awards $208K in interstate wreck BY HEATH HAMACHER hhamacher@sclawyersweekly.com After a one-day trial, a federal jury has awarded $208,000 to a Canadian woman heading South for the winter after her vehicle was struck by a flying semi-truck wheel on Interstate 95 in Clarendon County, her attorney reports. Jeffrey Gerardi of Joye Law Firm in Summerville represented Karen Hodder and Terry Hodder, who were on their way from Newfoundland, Canada, to their winter home in Florida when the tire assembly of a truck driven by defendant Mark Maye came off, sending a tire bouncing across the median and into the Hodders’ vehicle. Terry Hodder, who was driving, suffered only a minor wrist injury. But Karen, who was in her late-50s at the time of the incident, suffered back injuries that resulted in continuing, debilitating daily pain. “She went through several rounds of therapy and basically finished treating about a year and a half after the collision,” Gerardi said.
Jeffrey Gerardi
Gerardi said that Maye, who lives in New Jersey, did not show up for the trial and that his discovery deposition was read to the jury. The defense admitted liability but contested damages, Gerardi said, adding that the defense filed an offer of judgment of $21,500 for both plaintiffs before mediation ended at $7,500 for Karen and $500
for Terry. The jury deliberated approximately 30 minutes before awarding more than twice the original demand, but half of what the Hodders hoped to get. Gerardi said that he asked for $416,000 with a per diem argument at trial, something he said one juror told him they had a hard time with, given Karen Hodder’s lack of treatment and low medical bills ($9,700). The defendants were represented by Ron Diegel of Murphy Grantland in Columbia. Diegel did not immediately respond to a request for comment.
SETTLEMENT REPORT — MOTOR VEHICLE CRASH
Amount: $208,000 Injuries alleged: Soft tissue, back injuries, degenerative disc issues Case name: Hodder v. Mark Maye and Maye Transport Court: U.S. District Court for the District of South Carolina Case No.: 2:20-cv-00019 Judge: Bruce Howe Hendricks Date of verdict: May 13 Demand: $100,000 Highest offer: $20,000 for Karen Hodder and $1,500 for Terry Hodder Insurance carrier: Progressive Attorney for plaintiff: Jeffrey Gerardi of Joye Law Firm in Summerville Attorney for defendant: Ron Diegel of Murphy Grantland in Columbia
Clinton 2016 campaign lawyer acquitted of lying to the FBI BY ERIC TUCKER ASSOCIATED PRESS WASHINGTON (AP) — A lawyer for Hillary Clinton’s 2016 presidential campaign was acquitted Tuesday of lying to the FBI when he pushed information meant to cast suspicions on Donald Trump and Russia in the runup to that year’s election. The case against Michael Sussmann was the first courtroom test of special counsel John Durham since his appointment three years ago to search for government misconduct during the investigation into potential ties between Russia and Trump’s 2016 campaign. The verdict marks a clear setback for Durham’s work, especially since Trump supporters have looked to the probe to expose what they contend was egregious bias by law enforcement officials who investigated the ex-president’s campaign. The outcome is likely to hasten questions about the purpose of the inquiry and its cost to taxpayers, especially since the three criminal cases Durham has brought so far have fallen short of establishing any sort of sweeping conspiracy to frame Trump or derail his candidacy. The jury deliberated for several hours Friday afternoon and Tuesday morning before reaching its verdict. Speaking to reporters outside the courthouse after the verdict was delivered, Sussmann said he “told the truth to the FBI, and the jury clearly
recognized that with their unanimous verdict today.” He added, “Despite being falsely accused, I am relieved that justice ultimately prevailed in this case.” In a separate statement, Durham said that though he and his team were disappointed in the outcome, they respected the jury’s decision. He thanked the investigators and prosecutors on his team for their “dedicated efforts in seeking truth and justice in this case.” The trial focused on a narrow issue: whether Sussmann, a cybersecurity attorney and former federal prosecutor himself, concealed from the FBI that he was representing Clinton’s campaign when he passed along computer data that he said showed a possible secret communication backchannel between Russia-based Alfa Bank and Trump’s business company, the Trump Organization. The FBI, which was already investigating potential collusion between the Trump campaign and Russia, examined the data but quickly determined that there was no suspicious computer contact. The FBI’s then-general counsel and the government’s star witness, James Baker, testified that he was “100% confident “ that Sussmann had told him he was not representing any client during a September 2016 meeting the two men had. Prosecutors alleged Sussmann was actually acting on behalf of the Clin-
ton campaign and another client, a technology executive, and that he hid that information to make the data seem more credible and to boost the chances of getting the FBI to investigate. They pointed to a text message Sussmann sent to Baker the night before the meeting in which he requested a sit-down and said he’d be coming on his own and not on behalf of any client. Lawyers for Sussmann denied to jurors that he lied, saying it was impossible to know with certainty what he told Baker in the meeting since they were the only participants and neither of them took notes. They argued that though Sussmann legally represented the Clinton campaign, he didn’t attend the meeting on the campaign’s behalf and hadn’t asked the FBI to take any action to benefit the campaign. They elicited testimony from former campaign officials who said Sussmann had not been authorized by the campaign to visit the FBI. And they said that even if he did make a false statement, it was ultimately irrelevant since the FBI was already investigating Russia and the Trump campaign and, given the urgency of that probe, would have looked into the Alfa Bank data no matter the source. Sussmann’s lawyers, Sean Berkowitz and Michael Bosworth, said in a statement that Sussmann should never have been charged in the first
place. “This is a case of extraordinary prosecutorial overreach. And we believe that today’s verdict sends an unmistakable message to anyone who cares to listen: politics is no substitute for evidence, and politics has no place in our system of justice,” the lawyers said. During the two-week trial, jurors heard from a slew of witnesses, including current and former FBI officials who described efforts to assess the legitimacy of the Alfa Bank data, exClinton campaign aides and lawyers and colleagues and friends of Sussmann who vouched for his character. Jurors were instructed to put politics aside, but Trump’s supporters took note of the fact that the jury pool was taken from heavily Democratic Washington. The former president wrote on his social media platform that the legal system was “corrupt” and referenced the acquittal as one of several examples of “our country going to HELL.” The original Trump-Russia investigation, overseen for two years by former special counsel Robert Mueller, found multiple efforts by Russia to interfere on the Trump campaign’s behalf but did not establish that the two sides had worked together to sway the outcome of the election. ____ Follow Eric Tucker on Twitter at http://www.twitter.com/etuckerAP
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Opinions Criminal Practice Sentencing – Felon in Possession – Knowledge of Status The district court plainly erred at the Rule 11, FRCrP, hearing by not advising defendant that the government had to prove he knew he was a felon when he possessed the firearms and ammunition in the offense. However, (1) defendant had at least two prior convictions that were punishable by more than one year in prison; (2) at sentencing, defendant admitted he knew he was a felon at the time of this offense; (3) on appeal, defendant has not proffered a sufficient argument or representation that he would have presented a factual basis at trial for contradicting this admission that he knew he was a felon; and (4) we find no basis in the record for such a proffer. Accordingly, we find no basis in the record to conclude that, if the district court had correctly advised defendant of the mens rea element of the offense, there is a reasonable probability that defendant would
not have pled guilty. We affirm defendant’s sentence of 94 months in prison and three years of supervised release after he pled guilty to possession of firearms and ammunition subsequent to a felony conviction. The district properly calculated defendant’s U.S. Sentencing Guidelines range and reasonably imposed a prison sentence within that range, followed by three years of supervised release. The court gave the parties an opportunity to argue for an appropriate sentence, conducted an individualized assessment of the facts and arguments presented, considered the 18 U.S.C. § 3553(a) factors, and adequately explained the chosen sentence. Taking into account a totality of circumstances, we conclude that defendant has not rebutted the presumptive reasonableness of his sentence. United States v. Bishop (Lawyers Weekly No. 003-024-22, 7 pp.) (Per Curiam) No. 19-4507. Appealed from USDC at Greenville, S.C. (Timothy Cain, J.) Lora Blanchard for appellant; Maxwell Cauthen for appellee. 4th Cir. Unpub.
Judges Discipline – Perception of Impartiality – Sheriff’s Department The respondent-magistrate, who was married to the county sheriff, accessed the sheriff department’s Facebook page and forwarded citizen complaints she found there to the department using her judicial email account. She also involved herself in sheriff’s department personnel matters and prepared correspondence on behalf of the sheriff’s department, using her judicial email account in some steps of these processes. Respondent’s actions blurred the boundaries between her role as an independent and impartial magistrate and someone acting on behalf of the sheriff’s department. Even if respondent intended her emails and actions to remain private, her conduct served to erode public confidence in the judiciary, creating in reasonable minds a perception that her ability to carry out her judicial responsibilities impartially is impaired, thereby violating Canon 2A of the Code of Judicial Conduct. We accept the agreement for disci-
pline by consent and suspend respondent from office for six months. In re Underwood (Lawyers Weekly No. 010-019-22, 3 pp.) (Per Curiam) John Nichols and Carey Taylor Markel for the Office of Disciplinary Counsel; Leevy Johnson for respondent. S.C. S. Ct.
Prisons & Jails Administrative Jurisdiction – Constitutional – Due Process The appellant-inmate challenges the respondent Department of Corrections’ collection of a $250 processing fee from his inmate trust account for the collection of his DNA for the South Carolina DNA Identification Record Database when he had already submitted a DNA sample – and been charged another $250 processing fee – following a previous conviction. Although there are no South Carolina appellate decisions on point, the court is persuaded by federal decisions to hold that the inmate has a property interest in his inmate trust account. We reverse the Administrative Law Court’s dismissal for lack of jurisdic-
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10 / OPINION DIGESTS tion, and we remand for a hearing on the merits. Millholland v. South Carolina Department of Corrections (Lawyers Weekly No. 011-026-22, 3 pp.) (Per Curiam) Appealed from the Administrative Law Court (Ralph King Anderson, ALJ) James Millholland, pro se; Kensey Evans for respondent. S.C. App.
Domestic Relations Military Pension – Jurisdiction – Objection & Participation Where the nonresident defendantHusband objected to the family court’s jurisdiction over his military retirement benefits at his earliest opportunity and before he took any further action in response to the plaintiff-Wife’s action for divorce, equitable distribution and other matters, and where Husband reasserted his objection at every stage of the proceeding, including in his answer and counterclaim, Husband did not explicitly consent to have his military retirement benefits decided in South Carolina. The family court erred in not first deciding Husband’s motion to dismiss for lack of jurisdiction and not granting him a continuance at the hearing on temporary relief so that Husband’s motion could be decided first. We reverse the family court’s determination that it had jurisdiction over him to divide his military retirement benefits.
Facts
Husband, a military veteran, lived in North Carolina. Wife and their child lived in South Carolina. In a South Carolina family court, Wife filed a complaint for divorce, custody of the minor child, child support, alimony, and equitable distribution. Husband first filed a motion to dismiss Wife’s claims related to his military retirement benefits. He contended that, under 10 U.S.C. § 1408(c)(4), the family court did not have jurisdiction to divide his military benefits because he lived in North Carolina, had never been a resident or domiciled in South Carolina, and did not consent to the jurisdiction of the family court. On April 20, 2016, the family court held a hearing on temporary relief. Husband asked the court not to consider anything related to military retirement because of his pending motion to dismiss that claim for lack of jurisdiction. Husband then noted that Husband was requesting custody of the child. Also on April 20, 2016, Husband filed an answer and counterclaim denying that the family court had jurisdiction to divide his military retirement benefits, and he counterclaimed for divorce, custody or visitation, and attorney’s fees. On May 11, 2016, the family court held a hearing on Husband’s motion to dismiss for lack of jurisdiction. The family court found Husband had consented to the family court’s jurisdiction through his (1) filing of an answer and counterclaim and (2) appearance at and participation in the temporaryrelief hearing. The family court denied Husband’s motion for reconsideration.
Analysis
Under our Rules of Civil Procedure, a defense of lack of personal jurisdiction is made by a Rule 12(b)(2) motion. According to Rule 12(h), the defenses enumerated in Rule 12(b)(1)(8) are to be heard and determined before trial on application of any party, unless the court orders that the hear-
ing and determination thereof be deferred until trial. Because Husband’s motion asserted the family court’s lack of personal jurisdiction over him in relation to his military retirement benefits, the family court should have considered it first. By not hearing the motion to dismiss first, the family court placed Husband in the position of either not answering Wife’s complaint or potentially waiving his jurisdictional issue. The family court should have first considered whether it had jurisdiction over the military retirement benefits. Accordingly, the family court erred in not first hearing Husband’s motion to dismiss for lack of jurisdiction. Furthermore, the family court erred in relying solely on South Carolina’s long-arm statute in determining personal jurisdiction when it should have determined whether the requirements of 10 U.S.C. § 1408(c) of the Uniformed Services Former Spouses’ Protection Act (the USFSPA) had been established. By virtue of the U.S. Constitution’s Supremacy Clause, the USFSPA overrides our state’s long-arm statute to the extent that the state statute exceeds the limitations of the USFSPA. Section 1408(c)(4) prohibits state courts from exercising authority to determine the status of a military member’s pension unless the court, as of the commencement of the action, has personal jurisdiction over the member by virtue of residence (other than because of military assignment), domicile, or consent. Of the three ways prescribed by Congress for a state to acquire the authority to divide a military member’s pension under § 1408(c)(4), the only one relevant here is the member’s consent. The USFSPA’s jurisdictional provision does not set forth the manner in which the service member must consent to the forum state’s jurisdiction. South Carolina has not expressed a position on the meaning of consent in this context. Other states have reached conflicting interpretations. According to the Defense Finance and Accounting Service (DFAS) website, a “member indicates his or her consent to the court’s jurisdiction by taking some affirmative action in the legal proceeding.” Here, Husband never explicitly consented to the family court’s jurisdiction over his military retirement benefits. Therefore, the decision in this case turns on whether South Carolina would reason that consent for purposes of § 1408(c)(4) must be specifically to jurisdiction over military retirement benefits rather than to the jurisdiction of the court in general. If the statute means consent to jurisdiction in general, then Husband did so by conceding the family court had jurisdiction over him for the matters that did not relate to his military retirement benefits. However, Husband was clear at all times that he objected to jurisdiction over his military benefits. Although South Carolina case law does not necessarily provide a clear direction we might follow, we agree with Husband the consent required by § 1408 is to the court’s jurisdiction over the military retirement benefits specifically. We find the reasoning of Wagner v. Wagner, 768 A.2d 1112, 1117 (Pa. 2001), persuasive: “Reading the language of § 1408(c)(4)(C) in context and consistently with the Act’s scope and object, we believe that Congress intended for the consent requirement in § 1408(c)(4)(C) to relate, like the
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rest of the Act, specifically to a military member’s pension.” Husband objected to the court’s jurisdiction over the retirement benefits at his earliest opportunity and before he took any further action, such as filing his answer and counterclaim. He reasserted his objection at every stage of the proceeding, including in his answer and counterclaim. Therefore, we find he did not explicitly consent to have his military retirements benefits decided in South Carolina. Accordingly, the family court erred in not first deciding Husband’s motion to dismiss for lack of jurisdiction and not granting him a continuance so that motion could be decided first. Additionally, the family court erred in finding he consented to the court’s jurisdiction to divide his military retirement benefits. Reversed. Williams v. Williams (Lawyers Weekly No. 011-027-22, 39 pp.) (Aphrodite Konduros, J.) Appealed from Richland County Family Court (Michelle Hurley & Gwendlyne Jones, JJ.) Ennis Williams, pro se; Rubiela Williams, pro se. S.C. App.
Environmental Administrative – Poultry Facilities – ‘No-Discharge’ Permits The respondent-Department of Health and Environmental Control could not bypass its obligation to consider whether there was any potential for manure, litter or process wastewater from the proposed concentrated animal feeding operations (CAFOs) to be added to the waters of the state by simply issuing the CAFOs “nodischarge” permits which prohibited the CAFOs from discharging pollutants into the waters of the state. The Administrative Law Court erred by deferring to DHEC’s interpretation of regulations 61-9.122 and 61-43 Part 200 of the South Carolina Code. We reverse. DHEC determined that, because it issued the respondent-chicken farms a no-discharge permit – which prohibits the farms from discharging pollutants into the waters of the state – the farms were not required to either apply for a National Pollutant Discharge Elimination System (NPDES) permit or request a determination that they had no potential to discharge. However, the farms are by definition large CAFOs because they propose to house between 162,000 and 237,000 broiler chickens, using a dry manure handling system. Regulation 61-9.122.2 states a CAFO comprises a point source and thus requires an NPDES permit for discharges. Under regulation 61-9.122.23(d), large CAFOs are required to apply for an NPDES permit unless they obtain a determination from DHEC pursuant to regulation 61-9.122.23(f) that they have “no potential to discharge.” Paragraph (f) provides “the term ‘no potential to discharge’ means that there is no potential for any CAFO manure, litter, or process wastewater to be added to waters of the State under any circumstance or climactic condition.” DHEC’s conclusion that a “no discharge” permit—which prohibits a facility from discharging pollutants into the waters of the state—is the equivalent of a determination under regulation 61-9.122.23(f) that the facility has “no potential to discharge” is manifestly contrary to the language of the regulation, which requires DHEC to make a case-specific evaluation.
DHEC’s issuance of a no-discharge permit did not satisfy this requirement because DHEC did not specifically consider whether there was no potential for any CAFO manure, litter, or process wastewater from the proposed facilities to be added to the waters of the state “under any circumstance or climactic condition.” Simply because the no-discharge permit prohibited the facilities from discharging pollutants into the waters of the state did not mean they had no potential to discharge pollutants within the meaning of regulation 61-9. Rather, DHEC was required to evaluate the proposed facilities to determine whether there was any potential to discharge. The ALC erred in deferring to DHEC’s interpretation of regulation 61-9 and in finding the facilities had “no potential to discharge” because DHEC issued them no-discharge permits. Waterkeeper All., Inc. v. U.S. Envtl. Prot. Agency, 399 F.3d 486 (2d Cir. 2005), does not require a contrary result because that decision was based on the federal Clean Water Act while the South Carolina regulations at issue are based not only on federal NPDES regulations but also on the South Carolina Pollution Control Act, which specifically authorizes the DHEC to “prevent pollution.” Finally, the respondent-facilities are near the Little River, an impaired waterbody located downstream from the proposed facilities. The pertinent regulations require DHEC to evaluate sensitive areas, including areas on the impaired water bodies list, to determine if more stringent requirements or setbacks are needed. DHEC bypassed this case-specific evaluation by concluding agricultural facilities are not considered to contribute to the “Total Maximum Daily Load.” This interpretation was arbitrary because the regulations required DHEC to evaluate specific factors to determine whether additional setbacks were required or additional or more stringent requirements were needed. The ALC erred in deferring to DHEC’s interpretation. DHEC should have evaluated the factors set forth in regulations 61-43.200.70(F) and 61-43.200.140(C). The ALC erred in finding DHEC complied with the regulatory requirements in issuing the permits. Reversed and remanded. Blackmon v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 011-02822, 16 pp.) (James Lockemy, A.J.) Appealed from the Administrative Law Court (Ralph King Anderson, ALJ) Robert Guild for appellants; Mitchell Willoughby, Tracy Colton Green, Michael Smoak Traynham, Sara Volk Martinez and Stephen Philip Hightower for respondents. S.C. App.
Criminal Practice Murder – Jury Instructions – Involuntary Manslaughter & Accident Defendant admitted he was unlawfully handling a loaded firearm while impaired; defendant testified that his gun fell out of his pocket as he got out of the victim’s car, he picked up the gun and held it in his hand when he walked to the car’s driver’s seat and while he argued with the victim (who was in the driver’s seat), and he still held the gun in his hand when he reached into the car to take its keys. Defendant’s gun had no safety and would fire once it had five-anda-half pounds of pressure applied to
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its trigger, even if that pressure was unintentional. Finally, defendant’s illegally possessed gun fired the shot that killed the victim. Since defendant’s illegal possession of a firearm proximately caused the victim’s death, defendant was not entitled to a jury instruction on involuntary manslaughter and accident. We affirm defendant’s convictions of murder and possession of a firearm during the commission of a violent crime. Defendant argues the trial court violated his right to testify when it excluded his testimony that the victim’s mother had placed a spell on him, that he was hearing voices in his head, and that he left the scene, not because of a guilty conscience, but to look for a cement truck, which the voices had told him was going to bury his family alive. However, the trial court excluded the testimony on the grounds that it was largely based on hearsay and would result in unfair prejudice. Defendant’s brief provides no authority regarding these grounds; as a result, the trial court’s ruling is the law of the case. State v. Brewton (Lawyers Weekly No. 011-029-22, 13 pp.) (Aphrodite Konduros, J.) Appealed from Spartanburg County Circuit Court (Derham Cole, J.) Adam Sinclair Ruffin for appellant; Alan McCrory Wilson, William Blitch and Barry Barnette for respondent. S.C. App.
Civil Practice Standing – Attorneys – Tort Reform Statutes – Constitutional The appellant-attorneys essentially claim that they have settled cases for less money than they could have received prior to the enactment of the Noneconomic Damages Act of 2005 and the Fairness in Civil Justice Act of 2011; thus, their fees were diminished and they were directly affected by the acts. However, the circuit court did not err in finding that the challenged acts do not address attorneys’ fees, which are a matter of private contract; there is no causal connection between the constitutionality of the acts and appellants’ alleged injury; any reduction in appellants’ clients’ recovery did not affect appellants personally; and appellants’ recovery from
future cases is conjectural. We affirm the circuit court’s rulings that appellants lacked constitutional standing to challenge the tortreform statutes and that their claims were also barred by res judicata. The challenges to the constitutionality and validity of the acts could have been raised in any of the prior actions in which appellants represented clients whose recoveries were limited by the act, which led to appellants’ fees being limited. Hawkins v. Hammond (Lawyers Weekly No. 011-030-22, 7 pp.) (Paula Thomas, J.) Appealed from Anderson County Circuit Court (Scott Sprouse, J.) Drew Bradshaw, Druanne White, Kyle White, Trevor White, Joshua Hawkins and Helena Jedziniak for appellants; Mattison Bogan, Matthew Abee and Karl Smith Bowers for respondents. S.C. App.
Criminal Practice DWI – Death & Great Bodily Injury – Blood Draw – Video Recording In 2008, the legislature amended S.C. Code Ann. § 56-5-2950 to add the italicized phrase “No tests may be administered or samples obtained unless, upon activation of the video recording equipment and prior to the commencement of the testing procedure, the person has been given a written copy of and verbally informed” of her implied consent rights. By the addition of this language, the legislature did not intend to expand the video recording requirement past the incident and breath-test site. Defendant was not entitled to have a hospital blood draw video recorded. We affirm defendant’s convictions of felony driving under the influence (DUI) resulting in death and felony DUI resulting in great bodily injury. After her vehicle collided with that of the victims, defendant was taken to a hospital for treatment. The arresting officers obtained a warrant for samples of her blood and urine, and those samples were taken by a hospital phlebotomist. S.C. Code Ann. § 56-5-2953 specifies in detail that a recording must be done for breath testing at the incident site. If the legislature had intended to establish video recording for all tests, including blood and urine samples, it
would have done so in a more explicit way, including laying out the procedures as it did in § 56-5-2953. The trial court did not err in finding § 565-2950 did not require video recording the taking of the blood sample at the hospital. Therefore, the trial court did not abuse its discretion in admitting the blood sample as evidence.
Indictment
Defendant was indicted for felony DUI resulting in death and felony DUI resulting in great bodily injury. The language of both indictments included, “while driving a vehicle under the influence of alcohol, drugs, or a combination . . . [defendant] did an act forbidden by law or neglected a duty imposed by law in the driving of said vehicle . . . all in violation of Section 56-5-2945” of the South Carolina Code. Section 56-5-2945 states, “A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, drives a motor vehicle and when driving a motor vehicle does any act forbidden by law or neglects any duty imposed by law in the driving of the motor vehicle, which act or neglect proximately causes great bodily injury or death to another person, is guilty of the offense of felony driving under the influence . . . .” Because the indictments followed the language of the statutes prohibiting the crimes, the trial court did not err in denying defendant’s motion to dismiss or quash the indictments.
Blood Sample
At the hospital, a nurse told defendant she could obtain an independent sample of her blood to take to a testing location of her choosing, and defendant told the nurse, “Fine” and “okay.” The arresting officers testified that defendant did not request an independent blood sample in their presence. Additionally, the phlebotomist said defendant never requested an independent sample when she took defendant’s blood. Based on all of the testimony and the fact that defendant refused to sign the blood sample collection report, the trial court did not abuse its discretion in finding defendant did not request an independent blood sample. Moreover, the officers provided affirmative assistance to defendant to obtain an independent blood sample
because they informed defendant of her rights, she was present at a hospital where she could have requested a sample of her blood, and they did not do anything to prevent defendant from obtaining an independent sample. Thus, the trial court did not err in denying defendant’s motion to suppress the results of defendant’s blood sample analysis. Affirmed. State v. Brown (Lawyers Weekly No. 011-031-22, 19 pp.) (Aphrodite Konduros, J.) Appealed from Clarendon County Circuit Court (Ferrell Cothran, J.) Adam Sinclair Ruffin for appellant; Alan McCrory Wilson, Jonathan Scott Matthews and Ernest Adolphus Finney for respondent. S.C. App.
Trusts & Estates Trustee’s Fee & Personal Representative’s Commission – Denial The estate of the late James Brown faced a mountain of challenges, and there was testimony that it was next to impossible to competently administer the estate without retaining experts to assist, yet the appellant-trustee/ personal representative endeavored to manage much of the “entertainment” administration herself while also personally handling much of the estate litigation herself. The record supports the circuit court’s decision that this harmed the entertainment side and that the harm outweighed any benefits provided on the litigation side. We affirm the circuit court’s denial of appellant’s application for her share of the $5 million fee/commission that she and her co-trustee/personal representative Robert Buchanan submitted before Buchanan settled with the estate. The testimony in the record about how to properly administer this sort of estate is compelling, and we cannot overlook the court’s finding that appellant prolonged this litigation and made it unnecessarily expensive. Pope v. Estate of Brown (Lawyers Weekly No. 012-009-22, 11 pp.) (Per Curiam) Appealed from Aiken County Circuit Court (Doyet Early, J.) Adam Tremaine Silvernail for appellant; David Black and Kirsten Elena Small for respondents. S.C. App. Unpub.
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