FMLA leave Terri Cowgill worked as a call center representative from 2004 until September 2015 for First Data Technologies, Inc., a credit and debit card processing company. Cowgill handled calls about disputed transactions and was expect-
VOLUME 20 NUMBER 17 ■ AUGUST 29, 2022 ■ $8.50Part of the network Page 3 FamiliesINSIDEofworkers killed in accident get $10M Page 3 Breach of contract leads to $12.7 million award Page 4 Car accident results in $5.13 million settlement VERDICTS & SETTLEMENTS VERDICTS & SETTLEMENTS VERDICTS & SETTLEMENTS groupleadattorneyAndersontostate
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Registered patent attorneys Kim, Lahey, Killough and Lipscomb collectively have more than 140 years of experience and have the capabilities in providing legal services throughout the Carolinas to companies ranging from start-ups and early ventures to established international markets, the release stated.
■ BY NICK HURSTON BTM Wire Services
SCLAWYERSWEEKLY.COM
Charleston B. C. Killough has provided legal services in the areas of patents, trademarks, copyrights, commercial transactions, litigation and mediation to his clients for over 30 years, the release stated. He has obtained more than 300 U.S. patents for clients, participated in prosecuting more than 100 foreign patent applications and filed more than 1,200 trademark applications with the U.S. Patent and Trademark Office on behalf of his clients. In addition, he has obtained numerous foreign trademark registrations for clients and his foreign patent work in-
Registered patent attorneys Doug Kim and Seann Lahey of the Greenville area have joined together with Charleston patent attorneys B.C. Killough and Ernest B. Lipscomb III to form the statewide intellectual property law firm Kim Lahey & Killough, according to a Kim Lahey & Killough news release.
The South Carolina Association for Justice has elected Anderson, S.C,-based attorney Jennifer Spragins Burnett as its new president.SCAJ is the State’s largest lawyers association with over 1,200 members who work to “advocate for fairness under the law,” according to an SCAJ news release.
Burnett received a doctorate degree from the University of South Carolina School of Law in 2001, and quickly became well-known in the legal community, according to the release. She began her private practice handling the defense of a variety of nursing home abuse claims in both federal and state court. In 2007, she transitioned to representing the victims of nursing home abuse and medical malpracticeBurnett is currently a partner at Harbin & Burnett LLP in Anderson, S.C. whose practice is concentrated in professional negligence, nursing home abuse and medicalAccordingmalpractice.toSCAJ’s mission statement, it is dedicated to strengthening the integrity of the state’s judicial system through education and action.
■ BY HAVILAND STEWART hstewart@nclawyersweekly.com
Attorneys join to create new IP law firm Evidence of pretextual firing saves ADA claim nugget of misconduct’
An employee who routinely received above-average performance reviews and received the highest rating possible in her last two reviews before her termination will have her discrimination case heard by a jury. The 4th U.S. Circuit Court of Appeals vacated the dismissal of the employee’s discrimination claim after finding enough evidence to send the claim of discrimination under the Americans with Disabilities Act, or ADA, to a jury. The employer put forth several arguments, including that the plaintiff wasn’t meeting its legitimate business expectations, a discrimination inference was unwarranted and its reason for terminating her wasn’t pretextual.JudgeRoger L. Gregory disagreed. “There is a sufficient basis for a reasonable factfinder to conclude that [the employee] — despite being similarly-situated to the comparators — was treated differently,” he wrote. The judge added that a “reasonable factfinder could conclude that [the employer] searched for and found the single nugget of misconduct that allowed it to place [the employee] on an IAP and set the course for her termination.”
■ BY JASON THOMAS jthomas@scbiznews.com
Gregory was joined by Judge Stephanie D. Thacker. Judge A. Marvin Quattlebaum Jr., concurred in part and dissented in part, saying the evidence didn’t support a finding that the employee met legitimate expectations.
The July 22 opinion is Cowgill v. First Data Technologies Inc. (VLW 022-2-179).
Key practice areas include intellectual property, business and commercial litigation, mediation, employment, corporate and business matters, mergers and acquisitions, contracts, and cybersecurity in a number of industries to include manufacturing, software, energy, finance, hospitality, tourism, technology and more.
“Special interest groups are constantly working to limit liberties and judicial access at the Capitol,” Burnett said in the release. “The Association relentlessly fights those attacks while promoting smart public policy to make sure
See Anderson Page 1 ►See Misconduct Page 7 ► See Attorneys Page 2 ► DepositPhotos
SOUTH CAROLINA LAWYERS WEEKLY August 29, 20222 / LAWYERSNEWS IN THE NEWS
Doug Kim Ernest LipscombB. Seann Lahey B.C. Killough
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Farnsworth received her J.D. from the University of South Car olina (UofSC) School of Law and her Bachelor of Arts (cum laude) fromSMITHUofSC.IROBINSON announc es that Maya Weeks has joined the law firm as an associate attorney and will focus her practice on gen eral litigation. A graduate of the University of South Carolina School of Law, Weeks has served as a Judicial Law Clerk for the South Carolina Judicial Branch assisting retired active Judges and court adminis tration.“We are very excited to wel come Maya to our team,” said Jon Robinson, SMITH I ROBINSON managing partner. “Maya will be a great asset to the litigation ser vices we provide to our clients.”
ATTORNEYS / Attorneys join to create new IP law firm
“I am honored to begin my new role with SMITH I ROBINSON,” said Maya Weeks. “Working alongside seasoned litigators and serving the Firm’s extensive cli ent base will be a privilege, and I look forward to being a part of the SMITH I ROBINSON team.”
Turner Padget is pleased to an nounce the addition of Elizabeth D. Wiles, of counsel, to the firm’s Charleston office. Wiles joins the Employment & Workers’ Com pensation practice group and will support the Workers’ Compensa tion Defense team, partnering with employers of all sizes and insurance companies to provide compensation defense and resolu tion across South Carolina.
Zimbrick earned his M.B.A. in Finance from the University of Colorado at Colorado Springs and his B.S. from the Colorado School of Mines.
Maya Weeks ZimbrickDavid D.ElizabethWiles
Firm expands compensationworkerspractice
Greenville firm names chief financial officer Ogletree Deakins, one of the largest labor and employment law firms representing management, announces the naming of David Zimbrick as its chief financial of ficer. Zimbrick brings more than three decades of financial experi ence, most recently as the Chief Financial Officer for international law firm Steptoe. He will be based in Ogletree Deakins’ administra tive office in Greenville, S.C. As Ogletree Deakins’ Chief Fi nancial Officer, Zimbrick will di rect all aspects of the firm’s finance function and serve as a key business advisor to firm leadership. He will lead planning implementationand of strategic finance initiatives in alignment with the firm’s over all goals and objectives. Zimbrick will oversee a team of more than 130 professionals, including those whose roles focus on financial planning and analysis, reporting, accounting, treasury, tax, financial risk management, financial sys tems, budgeting, and billing and collections.“Davidbrings a wealth of ex perience to the firm and is high ly-regarded in both the legal and financial fields. His knowledge able and strategic approach to fi nancial leadership embodies the tenets of our Client Pledge,” said Matt Keen, managing shareholder of Ogletree Deakins. “I’m confident that David’s vision and experience will offer substantial value to both the firm and our clients.”
In addition to earning her Juris Doctorate degree from the Uni versity of South Carolina School of Law in May 2021, Weeks also graduated from the University of South Carolina with both a Bach elor of Science Degree in Criminal Justice (2017) and Master of Arts Degree in Criminal Justice/Crimi nology (2021).
Moore & Van Allen PLLC (MVA) announces the arrival of Julianne Farnsworth as counsel and a mem ber of the firm’s Litigation Group, based in the Charleston office. Prior to joining MVA, Farnsworth was the owner of Farnsworth Law Firm LLC and a partner at McNair Law Firm.
cludes participation in contested proceedings before the Opposition Division of the European Patent Office. Bill Killough is a senior fellow with the Litigation Counsel of America, is rated AV Preeminent by Martindale Hubbell, and listed in The Best Lawyers in America (2015 Charleston, SC Corporate Lawyer of the Year), South Caroli na Super Lawyers and Charleston Business Magazine as one of its Legal Elite, the release stated. He and his co-counsel Lip Lipscomb both previously served as adjunct professors of the patent law course at the University of South Caro lina School of Law. “Lip and I are excited to be work ing with fellow patent attorneys who know and understand the highly technical nature of an intel lectual property law practice. Both Doug and Seann are highly regard ed intellectual property attorneys. Having them available to assist in working through particularly chal lenging matters is a huge asset to our clients and we are thrilled to be a part of their team,” Bill Killough said in the Lipscombrelease. is the author of the seminal 11-vol ume treatise in the patent field, “Lip scomb’s Walker on Patents,” and “Lipscomb’s Patent Claims.” He has also testified as an expert witness in numerous pat ent cases. In 2015, the South Carolina Bar Foundation honored him as a member of the Nifty Fifty Class. Greenville A former a computer program mer and software engineer, Kim assists clients with drafting, ne gotiating, and reviewing license, assignment, inde pendent contractor, and experienceownership.tualpertainagreementsemploymentastheytointellecpropertyandHehaswithad vanced consumermaterials,products, software develop ment, data privacy, data security, man ufacturing, medical devices, tail,paddleboards,boats,sportinghealthcare,goods,kayaksandreGeographical Information Sys tems (GIS), books, music, product packaging, and dis tribution.Laheycounsels clients in all as pects of intellectual property law and has extensive experience deal ing with international and U.S. patent prosecution. In addition, he regularly works with matters including trademarks, copyrights, trade secrets, licensing of intel lectual property rights, and ren dering legal opinions on validity, infringement and enforceability of intellectual property rights, as well as litigation involving intellectual propertyLahey’srights.practice involves advis ing startups, middle market com panies, multinational corporations, universities, and individuals alike on various intellectual property protection and enforcement strate gies. He has worked across a range of technologies and industries in cluding automotive, agriculture, biotech, composite technology, con struction, education, manufactur ing, medical, and others. With offices in Greenville and Charleston, and Brevard, N.C., Kim, Lahey & Killough Law Firm is devoted to helping clients estab lish, enforce, and leverage their intellectual property rights from the Upstate, to the Lowcountry to across the globe, the release stated. For more information, visit the firm website at kimandlahey.com.
“Liz brings a wealth of knowl edge to our grow ing South Caro lina team,” said C. Pierce Campbell, CEO and share holder at Turner Padget. “Her ex tensive experience in workers’ com pensation expandingstrengthensdefenseourprac tice and furthers our commitment to client service. Liz is also well respected within the legal indus try by her peers and colleagues and is a great addition to the firm.” Wiles represents employers and insurance carriers in work ers’ compensation claims by per forming legal research, coordinat ing defense strategies, drafting settlement agreements and pro viding representation for hear ings, mediations and appeals in South Carolina and Georgia She also oversees claims under the federal Longshore and Har bor Workers’ Compensation Act. Prior to joining Turner Padget, Wiles practiced workers’ compen sation defense at a boutique firm for four years, where she repre sented a variety of employers and insurance carriers. After law school, she served as a judicial law clerk for the Honor able Kristi L. Harrington, which honed her legal writing and re search skills. While in law school she received the CALI Award for Trial Advocacy and Professional Responsibility. Wiles is a member of the Charleston County Bar As sociation.Sheearned her undergradu ate degree from the University of Kentucky and her law degree from Charleston School of Law. Firm adds counsel to Charleston office
“We are pleased to welcome Juli anne who has been a top litigator in the Charleston area for over 30 years,” said Trudy H. Robertson, co-managing mem ber of the firm’s Charleston of fice. “Julianne’s experience and reputation will be valuable assets for servicing our litigation clients across the full spectrum of busi ness areas and industries.” Farnsworth has more than three decades of experience in complex civil litigation in federal and state courts across the United States, handling discovery, mo tions practice, non-jury and jury trials, mediations, arbitrations, andHerappealspractice has included cases in the areas of business torts, as well as construction, environmen tal, employment, franchise, phar maceutical product liability and securities law, among other areas. In addition, she is certified as a mediator in the circuit and federal courts of South Carolina. Farnsworth frequently lectures on trial techniques and trial advo cacy skills across the United States and abroad. She also has been ac tive in the local and national legal communities, holding leadership positions with the American Bar Association, the South Carolina Bar, and the American Inns of Court. She is a permanent mem ber of the Fourth Circuit Judicial Conference and a recipient of the South Carolina School of Law Compleat Lawyer Award.
The time of the braking attempt also came after the initial contact which led to additional specula tion by the plaintiffs that the driver might also have been asleep. However, the defense denied this.
ANDERSON / Anderson attorney to lead state attorney group
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Breach of contract leads to $12.7M award
Attorneys for plaintiff: Luke Rankin of Rankin & Rankin, (Conway); L. Morgan Martin and Mary Ashley Martin of the Law Offices of L. Morgan Martin, (Conway) Attorney(s) for defendant: Confidential
tions had each individually guaranteed. Pursuant to prom issory notes, the defendant agreed to pay more than $4 million to the plaintiff for sold inventory and $1.6 million for receivables, which the plaintiff contends it never did. Devlin said that the defendants were also unable to stay current on their payroll staffing agree ment with the parent company, which reached $7.1 million. Patriot Industrial sued for breach of con tract and fraud, among other claims. But the defendants, Devlin said, argued that they lost between $18.8 million and $22.5 million of fu ture profits by entering the agreement, filing counterclaims for fraud and misrepresenta tion. Devlin said that the defendants did not have an expert on business valuation to testify about lost profits but that Dawson allowed the business owners, over the plaintiff’s objections, to testify. “In cross examination, the defendants were unable to describe any specific plan for how they would have been able to survive the bank calling their credit line due, and had no facts which would support their contention that they could turn the company around and find a buyer,” Devlin said. The plaintiffs moved for directed verdict as to the individual causes of action alleged and the lost profits evidence.
Defendants fail to prove loss of future profit claim
An attorney for Patriot Industrial, John R. Devlin Jr. of DevlinAntley in Greenville, said that the dispute arose from his client’s acqui sition of the assets of defendant Patriot Solu tions, an electrical construction business, in 2016. The plaintiff’s parent company, Dela ware-based HKA Enterprise Holdings, sup plied payroll staffing to the defendants. The plaintiffs were also represented by Doug Weiner and Tracey Kitzman of Song Law in New DevlinYork.said that the defendants’ bank ad vised the owners that the $9.5 million they owed on their line of credit was going to be called due in November 2016 and that it would not be renewed. After the defendants were un able to find a lender, Devlin said, the plaintiff bought most of the defendant’s assets with the plan of making it profitable again. As part of the agreement, Patriot Industrial paid off the credit line, which the owners of Patriot Solu
justice is available to all South Carolinians. I believe deeply in our cause and am excited to be a part of the positive impact the group is having.” Burnett will serve a one-year term alongside several other new officers including Thomas Killoren, Sydney J. Lynn, and Ashley White Creech, the release stated. Killoren serves as vice presi dent. His primary practice areas include alcohol sale liability, medi cal malpractice, nursing home abuse/negligence, personal injury and vehicle accidents. Lynn has been elected secre tary. She focuses on building trust with her clients as she helps them navigate their personal injury and workers’ compensation cases. Creech has been elected trea surer. She focuses on personal in jury and has had key successes at trials for her clients. Ashley also has presented oral arguments in both State and Federal appellate courts. For more information about the SCAJ, visit www.scaj.com.
Amount: $20 million settlement Injuries alleged: Death Case name: Confidential Venue: Horry County Case No.: Confidential Insurance carrier: Confidential
■ BY DAVID BAUGHER
Rankin indicated that the defendant struck two other vehicles before hitting the decedents, ages 29 and 35. The pair perished of their injuries by the time medical help arrived. The names of the parties in the case were confi dential under the terms of the settlement.
SOUTH CAROLINA LAWYERS WEEKLY I August 29, 2022 VERDICTS & SETTLEMENTS / 3
“There were arguments over that issue but ul timately, it was confirmed by the independent in spectors after the collision that the pushrod was detached and had been for some time,” he said.
■ BY HEATH HAMACHER After a seven-day trial, a federal judge has awarded $12.7 million to a workforce solutions firm in a breach of contract dispute, one of the plaintiff’s attorneys reports. District Judge Joe Dawson on July 20 grant ed directed verdict in favor of plaintiff Patriot Industrial as to liability and damages, finding that there were no issues for a jury to consider. Dawson also directed verdicts dismissing all counterclaims by the defendants, which sought approximately $20 million for lost future prof its.
Attorneys for defendant: Sarah Hurley of Greenville and Langdon Cheves of Willson Jones Carter & Baxley in Greenville
Rankin said that the truck was deemed to have been unfit for use by an inspection after the fact. “It should not have been on the road that day,” he Hesaid.said that an electronic control module re corded a braking attempt that did not stop the truck.“That was an argument we made that they did not have a safety policy to require and ensure that their drivers knew how to do a proper pretrip [in spection],” he said. “We contended that had he merely looked, he would have seen that that push rod was broken and detached. Had he seen it, he would not have left the warehouse that day.”
“It was certainly a tragic case for the families and ultimately I think we got a fair result for them,” he said.
REPORT
“We were very gratified when Judge Dawson granted that motion,” Devlin said. Devlin added that before trial the plaintiffs offered to walk away from the case if the de fendants agreed to do the same, but that the defendants declined the offer. He said that he anticipates the filing of motions for interest, costs, and attorney’s fees, which would raise the final verdict amount significantly.
VERDICT REPORT — BREACH OF CONTRACT/ FRAUD Amount: $12.7 million Injuries alleged: Breach of contract Case name: Patriot Industrial v. Patriot Partners et al. Court: U.S. District Court for the District of South Carolina Case No.: 8:18-cv-01396 Judge: Joe Dawson Date of verdict: July 20 Attorneys for plaintiff: John R. Devlin Jr. of DevlinAntley in Greenville and Doug Weiner and Tracey Kitzman of Song Law in New York
Families of workers killed in accident get $10M
The families of two road workers who died after being struck by a box truck will collect $10 million each as part of a settlement in the case. According to Luke Rankin of Rankin & Rankin, which represented one of the parties, the matter concerned a 2019 accident which involved multiple vehicles struck by the runaway truck as it careened out of control, apparently due to braking issues caused by a broken pushrod.
L. Morgan Martin, who represented the other decedent’s family in the case, said the matter was resolved despite protracted litigation.
The defendants were represented by Sarah Hurley of Greenville and Langdon Cheves of Willson Jones Carter & Baxley in Greenville. Neither attorney immediately responded to a message seeking comment.
Please submit a cover letter, resume, and writing sample in confidence to jcarver@clarksonwalsh.com.
John DevlinR.Jr. Clarkson, Walsh, & Coulter, a well-established insurance defense litigation firm with offices in Greenville, South Carolina and Charleston, South Carolina, seeks to hire a licensed South Carolina attorney for its Greenville office. (www.clarksonwalsh.com) We are a fast paced litigation office that specializes in the defense of individuals and businesses in all areas of civil litigation, including products liability, automobile negligence, construction, civil rights, professional negligence, insurance coverage and bad faith defense and premises liability. The firm is looking for an individual who can work well within a team structure, but can also work independently as the lead lawyer in litigated matters.
SETTLEMENT – WRONGFUL
DEATH
SOUTH CAROLINA LAWYERS WEEKLY August 29, 20224 / VERDICTS & SETTLEMENTS
Charleston attorney appointed to Womble Bond Dickinson global board
Fisher Phillips partner named co-chair of NLRA committee Car accident results in $5.13 million settlement
“Our firm has been a part of my life since I was a law student in Texas (over 20 years ago),” Yarbrough said in the release. “Every day I’m grate ful to get to practice, and serve our wonderful clients, with our amazing lawyers. We have lawyers of immense talent, and they are also incredible people. That’s a special combination. I’ve also had the pleasure of working on client teams with our attorneys overseas for many years and am hum bled and honored to serve our firm on a global scale.”
An individual who lost part of their leg to an amputation in the wake of a rear-end collision in South Carolina will receive a $5.125 mil lionAttorneysettlement.Chris Romeo of Thur mond Kirchner and Timbes said that a commercial vehicle was trav eling 50 m.p.h. when it caused the 2021 accident by striking another driver from behind. “It was a box truck that hit a car behind him and pushed that car into my client,” said Romeo. The resulting broken ankle ne cessitated open reduction and inter nal fixation (ORIF) surgery. How ever, his client ultimately lost blood supply to the foot and underwent a below-the-knee amputation. He was subsequently fitted with a prosthet ic. Romeo said that electronic data recorder information was helpful in the“Itcase.showed that the box truck driver – even though everybody was stopped – never even put on his brakes,” he said. Romeo said matter was resolved pre-suit and the truck driver was never deposed so the reason for his actions remained unclear. However, he said the other side offered little or no defense in the case, which set tled in mediation. “This was about damages,” he said. “It really just came down to how you get there.”
■ LizPUBLISHERIrwin lirwin@bridgetowermedia.com ■ INTERIM EDITOR Jason Thomas jthomas@scbiznews.com ■ HavilandEDITORIALStewart, Reporter hstewart@nclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ SheilaADVERTISINGBatie-Jones, Advertising Account Executive sbatie-jones@sclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ DisaCIRCULATIONEhrler , Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Bradley Redmond, Director of Production John Reno, Production Specialist ©2022 BridgeTower Media. Material published in South Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers. The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress. South Carolina Lawyers Weekly (USPS #020216) is published biweekly every other Monday with General Statewide Circula tion by South Carolina Lawyers Weekly at 130 N. McDowell St. Unit B, Charlotte NC 282042411. (919) 829-9333, (800)-876-5297. Periodi cals postage paid at Charlotte, NC 28228-9998. Subscriptions Rates: $369 per year. Website: www.sclawyersweekly.com POSTMASTER: Electronic Service Requested, send address changes to South Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051 Williamsport, PA, more"HelpingMinneapolis,222isSouthservice@bridgetowermedia.com17703-9940CarolinaLawyersWeeklyapublicationofBridgeTowerMedia,SouthNinthStreet,Suite900,MN55402.lawyerspracticebetter,efficiently,andmoreprofitably."YarbroughStephanie SETTLEMENT REPORT – VEHICLE ACCIDENT Amount: $5.125 million Injuries alleged: Below-the-knee amputation of right leg Case name: Confidential Venue: Charleston County Case No.: None Special damages: $367,840 in medical expenses Most helpful experts: Ken Rich ardson (accident reconstruction); Liz Oakley (day-in-the-life video) Insurance carrier: Confidential Attorney for plaintiff: Chris Ro meo of Thurmond Kirchner and Timbes, (Charleston) Attorney for defendant: Confi dential MitchellStephen Every day I’m grateful to get to practice, and serve our wonderful clients, with our amazing lawyers. We have lawyers of immense talent, and they are also incredible people. That’s a combination.special Stephanie Yarbrough
Fisher Phillips partner Stephen Mitchell, regional managing part ner of the firm’s Columbia office, has been appointed co-chair of the Com mittee on Development of the Law Under the NLRA, one of the oldest and largest committees in the ABA’s Labor and Employment Law Sec tion, according to a Fisher Phillips news release. Stephen will repre sent employers and serve a two-year term starting Sept. 1. As co-chair, Mitchell will work with fellow committee members to inform the membership of develop ing case law under the National La bor Relations Act and seek the or derly and equitable development of those laws. He will also oversee the publication of “The Developing La bor Law: The Board, the Courts, and the National La bor Relations Act,” a Togetherlawtreatisecomprehensiveforlaborpractitioners.withhis union counterpart, At Fisher Phil lips, Mitchell has primarily repre sented employers in the traditional labor law arena for the past 25 years. His practice includes advising clients on collective bargaining, avoiding and responding to unfair labor practices, acquisition of unionized facilities, union organizing efforts, corporate campaigns, labor arbitrations, and work stoppages. Mitchell represents employers throughout the United States. His client base is diversified and includes private equity, banks, multinational manufacturing com panies, large distribution facilities, and clients in the medical field, such as hospitals, medical practices, and nursing homes. As co-chair of the firm’s Manufacturing Industry Group, he has a keen understanding of the challenges and opportunities facing these clients. Mitchell is certified by the South Carolina Supreme Court as a Spe cialist in Employment and Labor Law. He was named the 2022 “Law yer of the Year” in South Carolina for Employment Law – Management by Best Lawyers in America and is consistently recognized for his legal prowess by Chambers USA. - Staff report
Staff report
As per the terms of the settle ment, the parties remain confiden tial.
■ BY DAVID BAUGHER
Womble Bond Dickinson Partner Stephanie Yarbrough has been ap pointed to the firm’s global board, the governing body that oversees and di rects all transatlantic activities for Womble Bond Dickinson, according to a news release from the firm. She will serve a two-year term on the board. The global board was formed by the 2017 transatlantic combination that created Womble Bond Dickinson, ac cording to the release. Yarbrough will join other global board members in promoting collaboration between the firm’s UK and US teams and ensuring that clients enjoy seamless service on both sides of the Atlantic. Yarbrough is a go-to lawyer for economic development in the South east, particularly in her home state of South Carolina, the release stated. She has negotiated and closed some of the region’s biggest deals of the past 20 years, and her work has helped create thousands of new jobs and bil lions of dollars in new investments. She has practiced with Womble Bond Dickinson and its predecessor firm in Charleston for 21 years. Many of her clients are based out side of the U.S. or have significant international op erations, the release stated. For example, Yarbrough guided Blackbaud’s efforts to build its new world headquarters in the Charleston area. The fast-growing soft ware company has operations in five countries on three continents. She has worked on Black baud matters globally for many years.
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“We want to be up front about the importance of wellbeing as founda tional to a student’s success inside and outside the classroom,” Carson said. The remaining $1.5 million will create the Hillel Endowment Fund to provide permanent support to ex pand and enhance the Furman Hillel for a more robust Jewish life for all students and the broader community. The Hillel also provides important aspects of mental fitness by giving students a place where they feel wel comed and valued, and where they can satisfy their spiritual needs, the release said. “By creating The Hillel Endow ment Fund, we are able to expand and enhance the Furman Hillel for a more robust Jewish life for all students and the broader community,” June Trone said in the release.
Firm adds to presence in Charleston region
“In this day and age, it is vital that we work together to break the stigma surrounding mental health, ensure tolerance in our diverse communities, and equip our students with the tools and resources to succeed,” Trone, who gave $3.5 million to Furman in 2013 to renovate and name the Trone Stu dent Center, said in the release. “With this gift through the David and June Trone Family Foundation, I trust that Furman University will continue to positively impact and shape our na tion’s future leaders.” The gift gets to the heart of The Furman Advantage and its empha sis on helping students create lives of purpose and impact, said Fur man University President Eliza beth Davis. “The Furman Advantage helps stu dents become resilient and adaptable to change in the face of adversity,” she said in the release. “Mental fitness is vital to developing these skills, ensur ing our students are able to succeed academically, socially and emotion ally. David and June’s generous do nation clearly will make a significant difference in our students’ lives and in our campus community, now and for generations to come.”
Mental health problems among college students have been on the rise in recent years. Several studies show that increase was made worse by the COVID-19 pandemic. A spring 2021 national Healthy Minds Network Study showed that 41% of college students screened positive for depres sion, and 34% had anxiety disorder. In a recent survey of Furman stu dents, 65% said the pandemic nega tively impacted their mental health and 63% said it affected their loneli ness and isolation, the release said. “The impact of the Trones’ gift will kickstart a more integrative approach to mental health and launch us on a trajectory of prioritizing wellbeing as part of a student’s educational path way,” Vice President for Student Life Connie Carson said in the release. With $1 million of the Trone gift, Furman will expand and renovate its counseling center to create more group space and areas to practice mindfulness, as well as provide more flexible space for the expansion of oth er services and programs. The space will be renamed the Trone Center for MentalAnotherFitness.$7.5 million will create the Trone Family Fund for Student Mental Health and Well-Being. It will fund positions to ensure a consis tent level of professional staffing that adapts as methods for engaging in mental fitness change, starting with the hiring of a health and wellbeing coordinator. It also endows the posi tion that oversees mental health and ensures the hiring of a diverse staff to reflect the student population. The Trone gift will allow Furman to expand mental health and well being services beyond the walls of a therapist’s office, integrating mental fitness into a variety of student activi ties, such as mentoring and advising, the release said. The goal is to help students develop lifelong healthy habits that promote mental wellbe ing, while giving students tools and skills to help them build resilience when health challenges arise.
Domonic Jones, PE is a civil proj ect manager for the Charleston region. He joined Thomas & Hutton in 2015 and holds a Bachelor’s in Civil Engineering from The Citadel and a Master of Business Administra tion from Florida State University. Jones oversees the planning and design of large-scale residential, commercial, and roadway projects in the Charleston metro. A graduate of Leadership Charleston’s 2021 class, he is a member of the American So ciety of Civil Engineers and served as a mentor for The Citadel School of Engineering’s “Men tor a Cadet” pro gram. Jones plays a crucial role in projects withinaffordableredevelopmentimpactingandhousingtheCharles ton region, including WestEdge (Charles ton, SC), Spruill Av enue Icehouse Re development (North Charleston), Gre gorie Ferry Towns (Mount Pleasant), and Restore at Caro lina Park (Mount Pleasant).Ross Oakley, PE is a civil project manager in the Charleston region. He joined Thom as & Hutton in 2014 working in the Columbia region and recently trans ferred to Charleston. Oakley has 17 years of experience providing eco nomic development services, as well as planning and design for industrial sites/parks, roadway, commercial, and residential projects. A licensed professional engineer and a graduate of Leadership Columbia, he earned his Bachelor’s in Civil Engineering from the University of South Caro lina. Oakley is a member of the South Carolina Economic Developers Asso ciation and the Urban Land Institute. He is instrumental in several projects that helped transform South Caroli na’s economy in recent years, includ ing Volvo and Camp Hall (Berkeley County), Nephron Pharmaceuticals (Lexington), and over 60 industrial sites and parks throughout South Carolina. David Williams III, PE is a civil project manager in the firm’s Charles ton region. He began his career at Thomas & Hutton in 2017 and has 11 years of experience in residential, commercial, and transportation proj ects associated with site development. Williams is a licensed professional en gineer and obtained his Bachelor’s in Civil Engineering from Virginia Tech. His notable projects include Sheep Island (Summerville), The Ponds (Dorchester County), Azure Canes Crossroads (Goose Creek), and Roper Francis Berkeley Hospital Campus (Goose Creek). Williams is a Rotarian with the Charleston Rotary Breakfast Club. - Staff report
David Trone
“As a proud alumnus of Furman University, I am honored by the op portunity to give back in a meaningful way on an issue of great personal im portance,” Trone, who also is founder and co-owner of the retail chain Total Wine and More The $8.5 million for mental health is intended to transform services, en abling the university to reach more students in need of care earlier, and with new approaches, making Fur man a model for mental and emo tional health care — what Trone calls “mental health fitness” — in higher education, the news release said. Trone has championed many men tal health and addiction initiatives in Congress, the release said. He co-led the U.S. Commission on Combat ing Synthetic Opioid Trafficking, is founder and co-chair of the Bipartisan Addiction and Mental Health Task Force, and has spoken publicly about his nephew Ian Trone’s death from a fentanyl overdose.
Will Cox Ross Oakley
■ ROSS NORTON rnorton@scbiznews.com
Thomas & Hutton announced the addition of four new company share holders in the Charleston region: Will Cox, PE, Domonic Jones, PE, Ross Oakley, PE, and David Williams, III, PE.“We are excited to recognize the achievement of these professionals,” CEO and President Sam McCachern said in a news release. “Sustainability is integral to the vitality of Thomas & Hutton, and ownership transition is part of our plan. For over 75 years, we continue to invest for growth and op portunities, as well as long-term suc cess by transferring firm ownership to the next generation.” Will Cox, PE is a civil project man ager based in the firm’s Charleston region. He specializes in the develop ment of residential, commercial/retail, and recreational facilities throughout the South Carolina Lowcountry. After earning his bachelor’s in Civ il Engineering from Clemson Univer sity, Cox joined Thomas & Hutton in 2014 working in the Environmental Department where he gained expe rience in the design of water, waste water, and natural gas systems. A li censed professional engineer in South Carolina and an active member of the American Society of Civil Engineers, Cox’s experience is concentrated in the City of Charleston, notably the Point Hope Community where he serves as the master engineer for multiple projects, including a Publixanchored shopping center and planned multi-phase Del Webb neighborhood.
Congressman and wife donate $10M to Furman
U.S. Rep. David Trone, a Democrat from Maryland, and his wife have giv en $10 million to Furman University, with $8.5 million dedicated to student mental health services and $1.5 mil lion to support Furman’s Hillel, the Jewish Student Association. The gift makes the congressman, a 1977 Fur man graduate and a member of the Furman University Board of Trust ees, one of the university’s largest living donors, according to a news re lease.
David and June Trone are among the largest living donors to Furman University, with David being a 1977 graduate. Photo provided In this day and age, it is vital that we work together to break the stigma surrounding mental health, ensure tolerance in our diverse communities, and equip our students with the tools and resources to succeed.
Dominic Jones WilliamsDavid III
SOUTH CAROLINA LAWYERS WEEKLY I August 29, 2022 NEWS / 5
“It would be contradictory to hold that the Agreement is void as against North Carolina public policy but nev ertheless creates a duty to disclose,” Biggs wrote. “Allowing such a claim would create a backdoor for athlet ics agents to avoid the requirements of the UAAA and effectively enforce unenforceable contracts through tort law.”
“I am honored to be chosen for this position and am passionate about the CJCC’s vision and mission,” said Judge Steinberg. “I am excited to work with this Council to identify challenges and continue to improve the criminal justice system.”
In their brief, Williamson’s at torneys added: “All of Prime Sports’ claims seek to benefit from the void contract either directly—as is the case for Prime Sports’ claims for breach of contract, breach of the covenant of good faith and fair dealing, and un just enrichment—or indirectly—as is the case for Prime Sports’ claims seeking to recover payment in connec tion with certain marketing materials prepared under the contract.”
■ BY HEATH HAMACHER Correspondent
A Florida-based marketing agent looking to recoup $100 million from former Duke basketball star and cur rent NBA player Zion Williamson will receive nothing after a federal judge on July 18 disposed of all counter claims by the defendant agent, find ing that the claims fail as a matter of law since the contract between the two parties is void under the North Carolina Uniform Athlete Agents Act.
Marketing agency falls short in recouping $100M from Zion Williamson
In this Jan. 5, 2019, file photo, Duke’s Zion Williamson drives for a dunk against Clem son during the second half of an NCAA college basketball game, in Durham, N.C. Zion. AP Photo/Gerry Broome, File
Steinberg replaces Kristy Pierce Danford who launched and led the CJCC since 2015. “Judge Steinberg’s experience practicing law, serving on the CJCC, and as a judge makes her an ideal director for the CJCC,” the council’s board chair, Jason Bruder, said in theTherelease.CJCC is a collaboration of elected and senior officials, law en forcement leaders, judicial and court leadership, behavioral health profes sionals, victim and legal advocates, and various community leaders. The mission of the CJCC is to assist in making sustainable, data-driven im provements to Charleston County’s criminal justice system.
SOUTH CAROLINA LAWYERS WEEKLY August 29, 20226 / NEWS
“This is particularly true for alle gations of fraud, which must be pled ‘with particularity’ in order to give the other party ‘sufficient information to formulate a defense by putting [him] on notice of the conduct complained of,’” she wrote. “This alone is sufficient reason to deny Defendants’ motion for summary judgment as to this claim.”
The ‘secret’s’ been out In a brief, Williamson’s attorneys, including John Wester and Fitz Bar ringer of Robinson Bradshaw in Char lotte, wrote that uncontroverted evi dence forecloses the plaintiffs’ claims regarding marketing materials.
Signing with a new team Before becoming the No. 1 over all pick in the 2019 NBA draft, Wil liamson played at Duke during the 2018-19 season. According to court documents, it is disputed whether Williamson or Ford initiated the re lationship between Ford’s company, Prime Sports, but the parties began discussing a potential partnership in February 2019 and entered into an agreement in April 2019. The agree ment provided that Prime Sports would provide “identity branding and endorsement opportunities” and ex clusively oversee all marketing oppor tunities brought before Williamson. In April and May of 2019, William son and his family were contacted by a competing agency, Creative Artists Agency (CAA). Williamson emailed Ford on May 31, 2019, to terminate their agreement. He signed with CAA the same day. Williamson sued Prime Sports on June 13, 2019, alleging that the defendants fraudulently induced him to sign their agreement. Defen dants filed their answer with counter claims including breach of contract, fraud, unjust enrichment and misap propriation of trade secrets. In her Jan. 20, 2021 ruling, Biggs wrote that the agreement was void as a matter of law because William son was a student-athlete under the UAAA, and neither Prime Sports nor the agreement complied with the UAAA’s requirements for student athletic agents and agency agree ments. The defendants motioned to vacate or amend the court’s decision, but on Sept. 15, 2021, Biggs denied those motions. Fair play Here, Williamson and the de fendants both argued that they are entitled to summary judgment on the counterclaims. The defendants contend that the agreement is valid and enforceable because Williamson breached the agreement and the im plied duty of good faith and fair deal ing. However, since the agreement is void under the UAAA, Biggs wrote, the claims fail as a matter of law. Biggs also shot down claims that Williamson received financial or eco nomic benefits from the defendants for which they have not been compen sated.“Contracts in violation of the UAAA are void as against public poli cy,” Biggs wrote. “Defendants are not entitled to recover payment for the work they did, or recoup benefits they provided to Plaintiff pursuant to the Agreement under a theory of unjust enrichment.” Defendants claimed in their an swer that Williamson lied to Ford to obtain a written marketing plan that they intended to share with CAA rather than for their purported pur pose of ensuring that Ford was estab lishing “a global brand and not just … endorsement deals.” But in their briefing, Biggs notes, defendants ar gued that Williams falsely omitted his discussions with CAA and his plan to end his relationship with Prime Sports, inducing the agency to pro vide him with the plan and other ben efits. Biggs held that defendants are not allowed to “pivot at the summary judgment stage to new legal theory that is based on allegations that are not included in their pleadings.”
The Charleston County Criminal Justice Coordinating Council has named County Magistrate Judge El len Steinberg their new director. Steinberg will begin her new role on Aug.12. Prior to becoming a mag istrate judge, she worked as an assis tant solicitor for the ninth circuit, an assistant public defender, a family court attorney, a prosecutor for the Department of Social Services, and as a teacher in the paralegal depart ment at Trident Technical College. She was also a founding member of the CJCC and a prior CJCC vice chairwoman, according to a news re lease.Steinberg is a founding member of the Tri-County Do mestic Violence Co ordinating Council, serves on several lo cal boards, and par ticipates in attorney and judge mentor ship programs, the release said. “We are excited to welcome Judge Steinberg to Charleston County’s Public Safety Directorate,” Deputy County Administrator of Public Safety Eric Watson said in the news release. “I am confident she is the right person to continue to carry out the CJCC’s mission to improve public safety and better this commu nity.”
CJCC names new magistrate director SteinbergEllen
On Jan. 20, 2021, district court Judge Loretta Biggs found that the agreement is void under the UAAA because the agent, Gina Ford, was not registered with the state at the time she met with Williamson, and it lacked the requisite language stating that Williamson would forfeit NCAA eligibility by signing the contract.
Hoops star notches legal victory
“The evidence belies Prime Sports’ assertion that the marketing materi als are trade secrets,” the attorneys wrote. “Far from it. The summary judgment record shows they were as sembled hastily, shared with abandon without efforts to protect confidential ity, and contained nothing more than publicly accessible or easily acquired information.”Thecourt agreed, finding that the defendants’ allegations of trade secrets are “general and sweeping.” Where the defendants alleged that their comprehensive marketing plan, including numerous multi-milliondollar strategic branding and market ing endorsements and opportunities, constitutes a trade secret, it does not specify what information, if any, de fendants consider proprietary. And where defendants do explic itly identify trade secrets, they do not qualify as such under the statutory definition. Biggs cites the defendants’ contention that “the First Zion Wil liamson” slogan is their trade secret. According to the defendants, Ford told Williamson and his parents that he should not be marketed as “the next Lebron” or “the next anyone,” but the “First Zion Williamson.” But Biggs noted that Williamson stated in interviews dating to 2017 that he is “just trying to be the first Zion.”
Biggs further found that the de fendants cited no evidence support ing their assertion that Williamson actively concealed material informa tion and that a typical enforceable contract would not create a duty to disclose his relationship with CAA, so this unenforceable agreement “cer tainly did not create such a duty.”
Lawyers Weekly reached out to two attorneys for the defense, Alvin Pittman of Los Angeles and JoAnn Squillace of New York, but was un able to speak with either attorney before publication. However, court re cords show that defense counsel has filed a notice of appeal in the matter.
“Before that, Lebron James’ mar keting agent stated publicly in 2005 that ‘our focus is to make sure [James is} the first LeBron James and not the second Michael Jordan,’” Biggs wrote. “Michael Jordan, in turn, was com pared to Julius Erving as ‘The Next Dr. J.’ … [T]his concept is not a trade secret as a matter of law.”
Finally, the HR director’s inquiry about Cowgill’s sudden “out of char acter” conduct provided an additional layer of pretext, and it was “highly suspicious that Rowe failed to coach Cowgill,” he wrote. The matter returns to the district court.
On Feb. 11, 2015, Cowgill felt too uncomfortable to keep working, so she called in and requested leave. Instead of granting leave, First Data issued a final written warning that she had more than 64 hours of unscheduled ab sences and that further requests may result in Cowgilltermination.complained about harass ment to Annette Wood, a human re sources employee, who withdrew the warning. Wood told her she did so be cause Cowgill was “such a good rep,” but she never admitted the warning was a mistake. Wood also told her that “she needed to do what she had to do to ‘protect’ her job.” In August 2015, Rowe informed Cowgill she was being put on a 90-day IAP due to alleged call avoidance and unprofessionalism during a call in the prior month.
Gregory dismantled this argument, saying caselaw shows “plaintiffs do not need to share the same supervisor in every case, and that comparison point is not a bar to relief in a case like this one, where the comparators are other wise similar in ‘all relevant respects.’” There was plenty of evidence for a factfinder that Cowgill was treated dif ferently. “For example, after engaging in call avoidance and being placed on a FWW, Comparator A was given spe cial coaching attention, including re assignment of her work location to sit next to two team leaders for support and assistance,” the judge pointed out. “Yet, in spite of its commitment to coach Cowgill, First Data failed to follow through and ultimately did not go to the same lengths as it did with Comparator A to shore up Cowgill’s purported deficiencies.”
The warnings
MISCONDUCT / ‘Single nugget of misconduct’
SOUTH CAROLINA LAWYERS WEEKLY I August 29, 2022 NEWS / 7 ed to refrain from “call avoidance,” a broad set of prohibited behaviors, such as failing to or not promptly answer ing, and prematurely hanging up. Except for being placed on a 30-day Improvement Action Plan, or IAP, in 2006, Cowgill “retained a spotless dis ciplinary record’ … and ‘she routinely received above-average performance reviews.’”InJanuary 2015, Cowgill requested leave under the Family and Medical Leave Act, or FMLA, due to back pain from a car accident. Her physician said she needed a “reduced work schedule: 4 hour(s) per day; 3-5 days per week” for a month. First Data approved her for an “in termittent leave of absence,” and she was required to follow her “business unit’s call in procedures” and try to schedule doctor’s appointments during non-work hours. Eight months later, Cowgill recerti fied her request for FMLA leave but limited it to one to two days per month. Cowgill testified that she com plained to her supervisor, Dawn Rowe, who told her to request leave for physi cal therapy or flare ups as needed us ing their call-in system. However, Cowgill said that “sched ule compliance” was part of First Da ta’s review system and the requests would count against her. According to Cowgill, First Data never actually provided a reasonable accommodation because she wasn’t recertified for enough leave, although she couldn’t recall having been denied a request for intermittent leave.
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- Staff reportButch Barnhill
Gregory also noted that fact issues existed regarding causation. “Cowgill disclosed her disability and requested an accommodation on January 20, 2015 and — exactly three weeks later — on February 11, First Data placed Cowgill on an IAP after she used the FMLA leave granted to her,” he wrote. “That First Data even tually withdrew the FWW does not erase the mark of discriminatory mo tive.”Likewise, the judge continued, “Rowe placed Cowgill on an IAP im mediately after Cowgill confirmed that she was requesting recertification of FMLA leave. The extremely short time gap between these two events raises an even stronger discriminatory inference….”Finally,Wood’s statements to Cow gill about needing “to ‘protect’ her job” also revealed “a discriminatory motive because it suggests that Cowgill’s job would remain unprotected if she al lowed her disability to get the way of her work performance,” Gregory point ed out. Taken together, there is enough evidence “to create a jury question re garding the causation prong of Cow gill’s prima facia disability discrimina tion claim.”
According to Cowgill, the announce ment was made immediately after she requested to recertify her FMLA leave. Furthermore, she argued that First Data had deviated from its policy of re viewing questionable calls within two days.Despite the IAP requiring weekly performance coaching, Cowgill testi fied that Rowe only met with her once and that her advice was simply to “playNextpretty.”month, a customer complained that Cowgill prematurely hung up. Cowgill said she wasn’t aware of a problem with her equipment, and she greeted the caller three times, but she could only hear background voices. While hanging up, she heard a voice say “hello,” but she was unable to re connect the call.
The district court later granted summary judgment to First Data and dismissed Cowgill’s disability discrim ination and failure to accommodate claims. ADA discrimination
Viewing the incident as a second act of call avoidance, Rowe asked to termi nate Cowgill. In response, the HR director noted Cowgill’s good performance reviews, inquired about her mid-year 2015 evaluation and whether the allega tions were “out of character” for her. The director also pointed out that Cowgill received the FWW and IAP as her first level of discipline and didn’t understand what was motiving her de cline in performance. Cowgill had re ceived an “above-average” in her 2015 mid-year evaluation. Cowgill filed a charge of ADA dis crimination with the Equal Employ ment Opportunity Commission. When that was dismissed, she filed in U.S. District Court in Maryland. In the complaint, Cowgill alleged disability discrimination and failure to accommodate under the ADA, as well as retaliation pursuant to the ADA andFirstFMLA.Data moved to dismiss the retaliation claims under the FMLA as time-barred and for failure to exhaust remedies under the ADA, which the district court granted.
Edward D. “Butch” Barnhill Jr., a real estate attorney who has prac ticed with distinction in the Columbia area for nearly five decades, has an nounced his retirement from the firm of Callison Tighe and Robinson. “This is a bittersweet moment in which we celebrate the career of a fine lawyer and good friend. Butch made us all better, and we will miss work ing alongside him each day,” said Man aging Member Rick Detwiler in a news release. “But now he can devote his full energies to fishing and hunting and be ing outdoors, where he is most happy.”
Barnhill joined Callison Tighe as of counsel in 2016 with more than 40 years of experience already in the profession and community. He has focused his practice on real estate, business law and probate. He is also a certified South Carolina Circuit Court Mediator.Heholds an AV Preeminent Rat ing from Martindale-Hubbell, has been honored by Best Lawyers in America every year since 2011, and was listed by Legal Elite of the Mid lands in Commercial Real Estate in 2018 and 2020. Before Callison Tighe, he served with law firms of every size, from small two-attorney shops to huge op erations with hundreds of lawyers.
The Fourth Circuit rejected First Data’s contention that Cowgill wasn’t meeting their legitimate business ex pectations.“Ifanemployer genuinely believed that one of its employees was perform ing poorly on metrics the employer perceives as important (as First Data claims here), it seems unlikely that it would rate the employee’s perfor mance highly,” Gregory wrote. “Yet that is what happened here. The re cord shows that Cowgill ‘routinely received above-average performance reviews,’ and during her 2014 yearend and 2015 mid-year reviews, she received the highest rating possible — a ‘3.’” Because Cowgill was entitled to the benefit of all inferences, the judge found a genuine dispute if she was meeting First Data’s expectations.
“But Cowgill’s termination was prompted by call avoidance infractions alone — not anything more,” the judge noted.
Comparators Cowgill identified as comparators two employees First Data cited dur ing the EEOC process. But here, First Data argued they weren’t valid com parators because they didn’t report to Cowgill’s supervisor.
Gregory found evidence suggesting that, “for those without a disability — something more than call avoidance is required for termination,” such as taking long breaks and missing days of work at the same time.
The 4th U.S. Circuit Court of Appeals vacated the dismissal of an employee’s discrimination claim after finding enough evidence to send the claim of discrimination under the Americans with Disabilities Act to a jury. DepositPhotos
Barnhill retires after practicing law nearly five decades
SOUTH CAROLINA LAWYERS WEEKLY August 29, 20228 / OPINION DIGESTS Opinions
A juror’s attenuated connection to the victim – the juror’s ex-wife, from whom he had been divorced for 11 years, was related to the exhusband of the mother of the victim – was insufficient to warrant a post trial hearing. We affirm defendant’s convictions for first-degree, second-degree and third-degree criminal sexual con duct (CSC) with a minor.
While plaintiff took steps to miti gate the spread, such as increasing cleaning or installing plexiglass, these acts are different than restor ing damaged or lost property. In other words, plaintiff had nothing to “repair, replace, or rebuild[,]” thus further demonstrating that direct physical loss or damage requires something material and tangible. Because neither the presence of the coronavirus nor the govern ment order prohibiting indoor din ing constitutes “direct physical loss or damage,” the policy’s triggering language is not met.
Criminal Practice Guilty Plea – Anders Brief – Sentenc ing Argument – Guidelines Range
Although defendant argues that his guilty plea is invalid because the government breached the plea agreement by relying on the conduct underlying dismissed charges when arguing for an appropriate sentence, the plain language of the plea agree ment does not limit the government in the way that defendant suggests. We affirm defendant’s convic tion and sentence for conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin. We remand for correction of a clericalDefendant’serror. sentence is reason able. The district court did not clear ly err when calculating the applica ble drug weight at sentencing, nor did it abuse its discretion in credit ing defendant’s coconspirator’s tes timony when doing so. Moreover, the district court otherwise cor rectly calculated defendant’s advi sory Guidelines range, thoroughly explained its reasoning for imposing the sentence in light of the 18 U.S.C. § 3553(a) factors, and addressed defendant’s arguments regarding the appropriate sentence. Finally, defendant has failed to rebut the presumption that his within-Guide lines sentence is substantively rea sonable, nor has he established that the government engaged in miscon duct at sentencing. However, the judgment incor rectly states that defendant pleaded guilty to 21 U.S.C. § 841(b)(1)(C), rather than § 841(b)(1)(B). We re mand for correction of this clerical error. United States v, Ingram (Law yers Weekly No. 003-034-22, 7 pp.) (Per Curiam) No. 21-4348. Appealed from USDC at Rock Hill, S.C. (Cam eron McGowan Currie, S.J.) Jona than Milling for appellant Benjamin Neale Garner for appellee. 4th Cir. Unpub. Criminal Practice Appeals – Witness Testimony – Young Victim We improvidently granted a pe tition for writ of certiorari to re view the Court of Appeals’ decision (Although defendant argues his victim – 12 years old at the time of trial – was too old to qualify as “very young” under S.C. Code Ann. § 163-1550(E), the circuit court did not abuse its discretion in allowing the victim to testify while defendant and one of his attorneys observed from the courtroom next door via a video monitor.). Dismissed as improvidently granted.
In the parties’ commercial prop erty insurance policy, coverage for a business interruption loss is trig gered by “direct physical loss or damage.” The policy does not define this phrase, so we give the words of the phrase their ordinary meanings and conclude that neither a govern ment order nor the presence of virus particles in the insured facilities constitutes “direct physical loss or damage.” Therefore, the policy does not provide coverage for the inter ruption of the plaintiff-insured’s business during the COVID-19 shutdown.
State v. Carter (Lawyers Week ly No. 010-027-22, 2 pp.) (Per Cu riam) Appealed from Lancaster County Circuit Court (Steven John, J.) Robert Dudek for appellant; Alan Wilson, David Spencer and Randy Newman for respondent. S.C. S. Ct.
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Sullivan Management, LLC v. Fireman’s Fund Insurance Co. (Lawyers Weekly No, 010-028-22, 8 pp.) (Kaye Hearn, J.) On certifi cation from the U.S. District Court for the District of South Carolina (Mary Lewis, J.) Justin O’Toole Lu cey, Anna McCann, Sohayla Townes and Amanda Nicole Funai for plain tiff; Larry Kristinik, Mattison Bo gan, Blake Terence Williams, Brett Ingerman and Brett Solberg for de fendants; Harmon Cooper, Murrell Smith, Jonathan Robinson, Shanon Peake, Amy Mason Saharia, Kait lin, Mark Billion and Jason Kosek for amici curiae. S.C. S. Ct. Criminal Practice Criminal Sexual Conduct with a Minor – Juror Bias – Pornography Evidence
Vouching The mental health profession als who treated the minor victim (Child) testified that Child suffered from post-traumatic stress disorder, but they did not link Child’s PTSD to sexual abuse. Neither did they testify that they believed Child or told her to be truthful. These wit nesses did not improperly vouch for Child’s credibility. The circuit court acted within its discretion in finding the proba tive value of the testimony of these witnesses was not substantially outweighed by the danger of unfair prejudice under Rule 403, SCRE. The testimony of each was probative to show Child suffered some trauma and to refute defendant’s contention that nothing happened, or that if anything inappropriate happened, it happened while both were asleep. Pornography Pretrial, the state indicated it would not seek to introduce evi dence of defendant’s pornography collection, including that on his cell phone. However, defendant opened the door to such evidence when he cross-examined Child about wheth er she had previously mentioned seeing a pornographic video on de fendant’s iPhone. This allowed the state, on redirect, to question Child about having seen defendant watch ing pornography alone. Although the circuit court erred when it allowed the state to ques tion Child about the pornography collection that defendant kept in a storage building, defendant was not prejudiced by the admission of this testimony because Child testified that he never showed her the videos from the storage building. Furthermore, defendant’s testi mony that he did not intend to be come aroused by Child’s wiggling on his lap did not open the door to the state’s questioning about his in ternet searches related to “younger looking girls” because these acts do not arise from the same fact or transaction. Nevertheless, we find any error harmless. Child had already testified as to defendant’s search for a “Birthday Sex” video and his showing her a vid eo called “step-dad having fun with daughter.” Thus, even if the circuit erred in finding defendant opened to the door to the state’s questioning about his internet searches, he was not prejudiced by this. Shortly before trial, defendant moved for a continuance to allow an expert to examine his broken iPhone. At that time, the state agreed not to elicit testimony about defendant’s cell phone searches. Of course, defendant subsequently opened the door to such testimony. Defendant could not identify any specific information on the iPhone that might be helpful to him, other than the purported absence of por nographic internet searches. The circuit court did not abuse its discre tion in denying defendant a continu ance to retain an expert to access a damaged device he possessed during the months prior to trial. Juror Bias During opening statements, juror Bailey – a real estate agent – real ized that his ex-wife (from whom he
The federal district court asked, “Does the presence of COVID-19 in or near [plaintiff’s] properties, and/ or related governmental orders, which allegedly hinder or destroy the fitness, habitability or function ality of property, constitute ‘direct physical loss or damage’ or does ‘di rect physical loss or damage’ require some permanent dispossession of the property or physical alteration to the Ourproperty?”answeris, “No.”
CommercialInsuranceProperty – Business Interruption Loss – COVID-19 Shut down
While the government order pro hibiting indoor dining certainly af fected plaintiff’s financial well-be ing, the order itself was not directly physical. Mere loss of access to a business is not the same as direct physical loss or damage. Although government orders affected busi ness operations, these restrictions did not cause any direct physical loss or damage. “Loss” and “damage” should not be read as synonymous. Loss con notes destruction, meaning it is broader than the term damage. Stated differently, a property that has suffered physical loss has been damaged, but the converse is not necessarily true because a property can suffer damage without enduring destruction or loss. The overwhelming majority of the courts that have addressed the same issue have concluded the pres ence of COVID-19 does not consti tute a physical loss of or damage to property because it does not alter the appearance, shape, color, struc ture, or other material dimension of the property. Moreover, other policy provisions bolster our contention that “direct physical loss or damage” contem plates a tangible or material compo nent to loss or damage. The policy’s restoration period provision limits business interruption coverage dur ing the period of restoration, or put differently, the time for the physi cal loss or damage to be “repaired, rebuilt, or replaced with reasonable speed and like kind and quality.”
According to commonly used dic tionaries, physical is defined as “(a) having material existence: percep tible especially through the senses and subject to the laws of nature; (b) of or relating to material things.” Loss means “destruction; ruin” and can also be “the disappearance or diminution of value, usually in an unexpected or relatively unpredict able way.” Another definition for loss is “deprivation, the failure to keep possession,” and a “decrease in amount, magnitude, value, or de gree.” Finally, damage means “loss or harm resulting from injury to person, property, or reputation.”
Finally, because the arbitration agreement delegates issues concern ing its “interpretation or applica tion” to the arbitrator, the question of whether the arbitration agree ment encompasses plaintiff’s posttermination claims must be decided by the arbitrator, not the court. Reversed and remanded. Lampo v. Amedisys Holding, LLC (Lawyers Weekly No. 011-052-22, 8 pp.) (Garrison Hill, J.) Appealed from Georgetown County Circuit Court (Benjamin Culbertson, J.) George Reeves and Jason Keck for appellants; James Paul Porter for respondent. S.C. App.
SOUTH CAROLINA LAWYERS WEEKLY I August 29, 2022 OPINION DIGESTS / 9 had been divorced for 11 years) was related to members of Child’s fa ther’s family (the Lyons), and that, two years before trial, he had sold a house to one of the Lyons. Voir dire questions had referred to Child’s mother by the last name she shares withWhendefendant.Bailey revealed these con nections to the circuit court, the court questioned him, and Bailey said his prior relation to the Lyons family would not affect his ability to be fair and impartial. After trial, defendant learned that Bailey was Facebook friends with a witness’s grandmother and an investigator involved in this case. Bailey became friends with the investigator only after the trial had ended.The circuit court held Bailey’s Facebook friendship with a wit ness’s grandmother was discover able prior to trial and recognized it would be difficult to impanel a jury with “absolutely no ties” to any wit nesses because Laurens County is an “interconnected community.”
Using the language of a warranty deed, the defendant-marina’s prede cessor granted non-exclusive ease ments of ingress, egress and parking to the plaintiff-restaurant, allowing the restaurant to use the marina’s parking and access. The warranty provision promised “to warrant and forever defend” the easements. Since the restaurant’s litigation was successful in establishing its rights under the easements, the warranty language does not entitle the res taurant to an award of attorney’s fees against the marina. We affirm the circuit court’s de nial of the restaurant’s motion for attorney’s fees. The restaurant argues that the marina’s conduct (blocking access) challenged the restaurant’s rights and was “equivalent to a claim to title.” The purpose of a general war ranty deed is to indemnify the pur chaser against the loss or injury it may sustain by a failure or defect in the vendor’s title; the grantor war rants that it will restore the pur chase price to the grantee if the land is entirely lost. As a general rule, where a covenantee successfully defends title, the covenantee is not entitled to attorney’s fees from the covenantor under a warranty deed. The exception to this rule is where the wrongful act of the covenantor in a warranty deed causes the cov enantee to be in litigation with a third party, then the covenantor is liable for costs despite the fact that the covenantee prevailed. In Black v. Patel, 357 S.C. 466, 594 S.E.2d 162 (2004), our Supreme Court explained that “the gener al rule for cases in this context is that only ‘lawful’—that is, success ful—claims asserted against title justify an award of attorneys’ fees where the covenantor has failed to defend.” However, footnote 4 of the opinion said, “There are exceptions to this rule, for example, where it is the wrongful act of the covenantor which causes the covenantee to be in litigation with the third party, then the covenantor would be liable for costs despite the fact that the cov enantee prevailed.”
The email subject heading alert ed plaintiff that she “must read” the content, and the form twice notified her she was required to read the en tire agreement. The language of the offer also makes clear that accep tance would not be accomplished by the employee’s signature (electronic or otherwise) but instead by the em ployee’s continued performance of job duties after declining to opt out of the agreement. Finally, there is no dispute that plaintiff declined to opt out of the agreement and contin ued working for defendant. Accordingly, plaintiff’s conduct demonstrates as a matter of law that she had actual notice of the ar bitration agreement and accepted it. We caution that the arbitration agreement designed by defendant may well be at the outer limits of what constitutes a valid offer to modify the terms an employment agreement to add an arbitration agreement. To be sure, defendant did not mandate arbitration as a condition of employment. However, defendant is a sophisticated, multistate corporation employing over 16,000 people, whose offer to arbi trate all employee-related claims was designed with specific choice architecture: it was sent by email (rather than presented in person, on paper), with barriers to opting out of the modification (having to print a form and send it in the mail to an out-of-state address), and no bar riers to accepting the modification (just keep showing up to the job the employee has already agreed to do). The acknowledgement form did not require plaintiff to confirm she read the arbitration agreement but only to promise she would read it. We understand why the circuit court was hesitant to find plaintiff agreed to this modification of her employment contract. Nevertheless, we must conclude plaintiff received actual notice of the arbitration agreement and accepted it by her continued employment. We also find plaintiff agreed to ar bitrate her claim against defendant Lisa Neasbitt, plaintiff’s former supervisor. While the arbitration agreement did not name Neasbitt, it did state that, as used in the agree ment, the term “Amedisys” included reference to and was synonymous with its employees and agents. Be cause Neasbitt is an employee and agent of Amedisys, the arbitration agreement is directly enforceable by Neasbitt against plaintiff. Although the arbitration agree ment allows each party to take the deposition of only one witness and any expert witness designated by another party, the parties are equal ly limited by this term and both par ties retain the right to additional discovery by mutual agreement or by order of the arbitrator upon re quest.
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Finally, we note that our decision today does not prevent the restau rant from seeking attorneys’ fees in future contempt actions as a sanc tion if the marina continues to in fringe upon the restaurant’s rights.
Affirmed. Gulfstream Café, Inc. v. Palmetto Industrial Development, LLC (Law yers Weekly No. 011-053-22, 9 pp.) (James Lockemy, A.J.) Appealed from Georgetown County Circuit Court (Benjamin Culbertson, J.) Robert Wood, Sean Matthew Foer ster, Simon Bloom, Adam Nugent and Andrea Pearson for appellant Henrietta Golding for respondent. S.C. App. Real EasementsProperty–Contempt– Blocking Access A 2018 injunction barred appel lant Lawhon and his marina from interfering with the respondent-res taurant’s easements, which give the restaurant the right to use the ma rina’s parking and access. The cir cuit court properly found appellants in criminal contempt for parking a golf cart in front of the restaurant’s delivery gate on at least four occa sions. We affirm the circuit court’s order holding appellants in criminal con tempt.Appellants argue the circuit court erred because (1) parking the golf cart in a parking spot did not violate the injunction and (2) appellants presented evidence that under mined the restaurant’s claimed use of the delivery gate and the circuit court’s finding of a willful violation. WeAaffirm.2018 injunction prohibited ap pellants from interfering with the restaurant’s joint, non-exclusive easement rights over the marina parking lot. Even though some small deliv eries were made to the restaurant via the front door, this did not give Lawhon cause to block the delivery gate used by the restaurant for larg er deliveries. Additionally, it would be illogical to accept appellants’ im plicit argument that they could park and block the delivery gate as much as they wanted to because the res taurant only had a joint, non-exclu sive easement. Appellants alleged, and the res taurant admitted, that restaurant employees parked in front of the delivery gate. They began park ing there so their vehicles could be moved when a delivery was coming to the Lawhon’sgate. conduct was calculated to undermine the circuit court’s in junction that permitted the restau
We reverse the circuit court’s de nial of defendant’s motion to compel arbitration.Defendant’s email—combined with the links to the arbitration agreement, FAQs, and cover let ter—was effective to communicate the offer of the arbitration agree ment to plaintiff. Only one ratio nal inference may be drawn from the undisputed fact that plaintiff clicked “Acknowledge” on the popup acknowledgement form while logged into her unique employee username: plaintiff had actual no tice of the offer.
LaborArbitration&Employment
The circuit court found a posttrial hearing was unnecessary due to its inquiry with Bailey at the beginning of the trial when the issue with the house sale arose. Bailey’s initial concealment of the prior family connection was unintentional. Further, Bailey’s exwife’s relation to the Lyons family and the fact that Bailey sold a home to a Lyons aunt does not suggest he had a “close business or social relationship” with a potential wit ness— particularly when the person to whom he sold the home was not a witness at trial. Significantly, Bai ley told the circuit court he could be fair and impartial in adjudicating defendant’s innocence or guilt. As there is no suggestion that Bailey deliberately concealed infor mation during voir dire and the so cial media connections are tangen tial, the circuit court did not abuse its discretion in declining to replace him on the jury or in denying the motion for a new trial without con vening a hearing to further question the juror.
– Email with Links – Opt-out Procedure
Real EasementsProperty–WarrantyDeed – Attor ney’s Fee Provision – Inapplicable
A month after plaintiff went to work for defendant, defendant sent her an email with links to a cover letter, frequently asked questions and an agreement to arbitrate any disputes arising from plaintiff’s em ployment. Under the terms of the email and linked documents, since plaintiff continued to work for de fendant, she agreed to arbitrate the employment-related disputes that she has brought before the court.
One of arbitration’s main benefits is that it allows parties to agree to an alternative, informal forum to re solve their disputes by streamlined process. Limiting formal discovery is essential to the mission of arbi tration, provided the limits do not deprive parties of a fair opportunity to present their claims. Plaintiff has not provided any concrete evidence specific to her case showing the limi tation is actually unfair; though, as her case progresses, the arbitration agreement allows her the opportu nity to persuade the arbitrator to enlarge her discovery rights. We therefore find the arbitration agree ment is not unconscionable.
The question before us here is whether the warranty provisions in the restaurant’s easements provide that the restaurant is entitled to at torneys’ fees from the marina. The answer is “no” because the restau rant’s “title” is not in issue. At worst, the marina has been infringing upon the restaurant’s rights. Moreover, the jury found in favor of the restaurant. Thus, pur suant to Black’s general rule, the restaurant is not entitled to attor neys’ fees.
Lesser Included Offense After enactment of the Omnibus Crime Reduction and Sentencing Act, second-degree assault and bat tery is not a lesser included offense of third-degree CSC with a minor. Affirmed. State v. Eubanks (Lawyers Week ly No. 011-051-22, 21 pp.) (Stepha nie McDonald, J.) Appealed from Laurens County Circuit Court (Frank Addy, J.) Charles Grose for appellant; Alan McCrory Wilson, William Blitch and David Matthew Stumbo for respondent. S.C. App.
In a 2014 order, a single com missioner’s order summarily stated that the respondent-Claimant was not entitled to benefits under S.C. Code Ann. §§ 42-9-10 (total dis ability), -20 (partial disability), -30 (scheduled recovery), -210 (pay ments made by an employer when they were not due), -260 (temporary total disability) and 42-15-60 (medi cal treatment). These conclusions were based on the commissioner’s ruling that the claimant had failed to comply with S.C. Code Ann. § 42-1-560 (the third-party statute), a ruling that this court reversed on appeal. Accordingly, on remand, the Workers’ Compensation Commis sion properly considered the claim on its merits. We affirm the commission’s award of benefits. We reject appellants’ argument that the commission erred in desig nating an orthopedic surgeon to di rect Claimant’s future neck and back care. Appellants assert the com mission improperly deprived them of their right to choose Claimant’s physician, but appellants’ preferred physician had opined Claimant was not at the point of maximum medi cal improvement and did not need any future medical treatment—po sitions with which the commission disagreed.Thecommission is empowered to supervise and direct the treatment process. It would at least be odd— and maybe even silly—for the com mission to order that Claimant was entitled to back surgery but desig nate as Claimant’s doctor a physi cian who believed Claimant did not needThesurgery.lastpoint we must address is related to temporary total disabil ity benefits (TTD). This case was tried in 2013 and decided in 2019. The order found Claimant was not at maximum medical improvement and, among other things, found that appellants could not terminate TTD. The 2019 order required appellants to resume TTD payments and held that they owed Claimant a lump sum for any back-owed TTD. When this case was remanded, appellants did not ask the commis sion for the opportunity to update the record from the 2013 trial or to amend their stop-pay request and present evidence that Claimant’s condition had improved and that he was capable of working. Granted, the situation was unusual, but the time to sort out and litigate (if nec essary) the proper procedure was before the commission ruled on the merits, not after. The case was tried on appellants’ request to stop TTD payments. The commission ruled against appel lants on that request. The result of that ruling necessarily meant appel lants could not stop paying TTD and that they owe it until the commis sion authorizes them to stop paying.
Affirmed. Rose v. JJS Trucking (Lawyers Weekly No. 012-019-22, 8 pp.) (Per Curiam) Appealed from the Work ers’ Compensation Commission. Timothy Blair Killen, Amy Cofield, Lisa Glover and Kirsten Leslie Barr for appellants; Stephen Benjamin Samuels for respondent. S.C. App. Unpub. Real Property Church Property – Trusts – Revoca tion – Refiled Opinion This refiled opinion concerns the ownership of parish property after parishes withdrew from the nation al Episcopal Church in 2010. The only change from the court’s April 2022 opinion involves the issue of trust revocation based on S.C. Code Ann. § 62-7-602(a). Trusts for the benefit of the National Church, which were created by two parish es after 2006, did not contain lan guage making them irrevocable, so those two parishes could – and did – revoke their trusts. Otherwise, the property held in trust by the Trustees of the Prot estant Episcopal Church in South Carolina is now held for the benefit of the Episcopal Church in South Carolina. Before a court may find that
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Wells v. Vetech, LLC (Lawyers Weekly No. 011-055-22, 4 pp.) (Gar rison Hill, J.) Appealed from Green ville County Circuit Court (Perry Gravely, J.) John Reckenbeil for ap pellant; Hannah Rogers Metcalfe for respondents. S.C. App. Domestic Relations
Pursuant to Rule 68, SCRCP, de fendants offered judgment “for all claims alleged.” Plaintiff could not accept the offer and still hang on to his claims for treble damages and attorney’s fees. However, he is en titled to costs under Rule 68. We modify the circuit court’s or der and affirm. Plaintiff sued defendants for un just enrichment and violation of the Wage Payment Act, S.C. Code Ann. §§ 41-10-10 to -110 (the Act). Defen dants filed a Rule 68 offer of judg ment, offering for plaintiff to “take judgment for all claims alleged” in the “total amount” of $5,968.89. Plaintiff accepted the offer of judgment but then sought an award of treble damages and attorney’s fees. The circuit court denied the motion.Defendants offer did more than merely give plaintiff judgment for a sum stated; in the language of Rule 68, “the effect specified in the offer” was for plaintiff “to take judgment against [defendants] for all claims alleged in the above-cap tioned action in the total amount of $5,968.89.” We do not believe the language of the offer of judgment permitted plaintiff to rationally think he could accept the offer and still hang on to his claim for treble damages and attorney’s fees. To any reasonable reader, the phrase “all claims alleged” encompasses all claims for all available remedies un der the Wage Payment Act, includ ing plaintiff’s claims for attorney’s fees and treble damages. Our Supreme Court has likened Rule 68 offers of judgment to settle ments and has held they may not be construed as a resolution of the merits. Belton v. State, 339 S.C. 71, 529 S.E.2d 4 (2000). As such, there is no basis enabling a court to de clare defendants violated the Act, a necessary predicate for a discretion ary award of attorney’s fees per § 41–10–80(c). Belton also answers the question of whether plaintiff can use the costs mechanism of Rule 54, SCRCP, to achieve what we hold Rule 68 does not permit: recovery of attorney’s fees after acceptance of an offer of judgment that states it is for “all claims alleged” yet does not mention attorney’s fees. It is true that statu tory attorney’s fees can be “taxable costs.”
But Belton tells us a judg ment obtained by Rule 68 is not a merits resolution, which we hold is a necessary precursor to recovery of attorney’s fees under § 41–10–80(c) of the Act and, consequently, a pre cursor to recover them as Rule 54(e) (1) taxable costs in this case. We must discuss something fur ther about Wells’ attorney’s fees request. Wells relies on Hueble v. Dept. of Nat. Res., 416 S.C. 220, 785 S.E.2d 441 (2016), for the principle that a party accepting an offer of judgment becomes a “prevailing party” entitled to attorney’s fees un der any statute that permits them. This stretches Hueble too far; the decision there seems driven by the fact that the attorney’s fees derived from the unique fee-shifting mecha nism of 42 U.S.C. § 1988, which gen erally requires a court to award at torney’s fees to the prevailing party unless special circumstances exist. Even if plaintiff’s avenue to seek treble damages and attorney’s fees was not closed by his acceptance of the offer of judgment, the trial court correctly declined to award them. A court may only award treble damag es, attorney’s fees, and costs under the Act if it finds there was no bona fide dispute the wages were owed and the employer withheld them unreasonably and in bad faith. According to plaintiff, there is no bona fide dispute because the offer of judgment matched the precise amount he claimed was owed. The trial court was not persuaded by this argument, and neither are we. The fact that the offer of judgment mirrored plaintiff’s demand does not, without more, reflect that de fendants withheld plaintiff’s wages in bad faith or without good reason, and it proves nothing related to re covery of fees under the Act. We do, though, agree with plain tiff that Rule 54 entitled him to re cover his $198.73 in costs. We there fore modify the order of the trial court to tax these costs against de fendants. Modified and affirmed.
Child Support Payments – Credibility – Reversal
Although the family court ac cepted the respondent-Mother’s tes timony that she had paid the appel lant-Father child support in cash, the record shows that Mother’s tes timony was not credible. We reverse the family court’s finding that Mother made cash pay ments to Father for child support and remand for the family court’s determination as to whether Moth er’s nonpayment was voluntary and whether Father is entitled to addi tional attorney’s fees.
rant to use its easement.
The family court accepted Moth er’s testimony that she had paid Father in cash at various times and places noted on a written list that Mother produced. However, after Mother supposedly started mak ing such payments, an email from Father’s attorney indicated Mother had made no payments. Mother responded, “I would like to make a payment arrangement with you for the fees owed. Please let me know how we can start this arrangement. Pertaining to child support, I have attempted to pay [Father] but he has made it diffi cult.” Mother stated that the reason for the failure of her attempt to pay Father was her inability to find him. Both the letter from Father’s at torney and Mother’s response are dated after the alleged inception of Mother’s cash payments to Father. If these payments had been occurring as alleged in Mother’s transaction list, it is likely that Mother would not have stated she “attempted to pay” Father but would have stated that she had paid Father. Further, Mother’s transaction list indicated that she met Father several times at various locations to pay him child support prior to the e-mail she sent to Father’s attorney, but in the email, Mother did not indicate that she had seen or paid Father; rather, she indicated that she had been un able to find Father in order to pay him.These discrepancies cast doubt upon the legitimacy of Mother’s list of alleged cash transactions. In the absence of any supporting evidence of these alleged cash transactions beyond Mother’s own self-serving testimony, and pursuant to our au thority to find facts in accordance with our own view of the evidence, we find Mother did not meet her burden of proving by a preponder ance of the evidence that she made cash payments for child support to Father. While this court normally defers to the family court’s assessment of witness credibility, the e-mail evi dence puts Mother’s credibility on the witness stand in doubt. Moreover, at the time of the hear ing, the family court had already taken judicial notice of a January 16, 2018, order in which there are many adverse findings against Mother that call into question her candor and honesty to the court. Specifi cally, Mother’s self-serving testi mony, coupled with the unfounded and grave child abuse accusations against Father, call into question her credibility. Therefore, relying on Mother’s testimony alone, with out any corroborating evidence is not sufficient for a finding that pay ments were made. As a result, we reverse the fam ily court’s finding that Mother made cash payments for child support. Re manded.
Affirmed. Gulfstream Café, Inc. v. Lawhon (Lawyers Weekly No. 011-054-22, 10 pp.) (James Lockemy, A.J.) Ap pealed from Georgetown County Circuit Court (Steven John, J.) Hen rietta Golding for appellants; George Redman, Sean Matthew Foerster, Simon Bloom and Adam Nugent for respondent. S.C. App. Civil Practice Offer of Judgment – ‘All Claims Al leged’ – Labor & Employment – Wage Payment Act – Treble Damages & Attorney’s Fees
Register v. Dixon (Lawyers Week ly No. 011-056-22, 8 pp.) (John Geathers, J.) Appealed from Rich land County Family Court (Michelle Hurley, J.) Carrie Ann Warner for appellant; Angel Register Dixon and Lee Dixon, pro se. S.C. App.
AppealsCompensationWorkers’–TreatingPhysician – TTD
Continued from
These post-January 1, 2006, trusts were presumptively revo cable under § 62-7-602, and there is no direct or circumstantial evi dence “expressly” providing these Parishes intended the trusts to be irrevocable. Further, we hold these Parishes revoked the trusts in accordance with South Carolina trust law. Both of these Parishes amended their respective govern ing documents with approval from their congregations after 2011 to remove the accession language. Therefore, the Stateburg and Charleston-St. Andrew Parish es created revocable trusts after January 1, 2006, and revoked the trusts in compliance with South Carolina trust law.
In a recorded jailhouse call be tween defendant and his girlfriend, defendant did not explicitly admit that he had shot the victim; however, his jubilant reaction to his girlfriend’s incorrect report – that the victim had died from injuries sustained in a car crash – was admissible evidence of defendant’s consciousness of guilt. We affirm defendant’s convictions for murder and armed robbery. Defendant’s companion grabbed crack cocaine from the victim (Victim) and ran away. Victim grabbed defen dant’s arm. Defendant pulled out a gun and shot Victim in the chest. Victim drove away and eventually crashed in the parking lot of the lo cal magistrate’s court. Although first responders originally believed Victim had died from injuries sustained in the crash, they soon detected his fatal gunshot wound. Defendant was arrested. From the detention center, defendant called his girlfriend Maggie Aldrich, and their conversation was recorded. During the conversation, Aldrich told defendant that his family was not visiting him at the detention cen ter because they knew he was going to come home. Aldrich then stated that Victim’s autopsy revealed he died from injuries sustained from his car crash, not the gunshot wound. Defendant’s response was one of ex citement, claiming “that’s the best Christmas present ever” and yelling to a friend that he had good news to tell him. Defendant and Aldrich then spoke about how the prosecution had nothing on him and that they were “f***ed all the way around.”
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First, the court must find the par ty creating the trust took present actions—in writing—documenting both the creation of a trust and the placing of specified property in it. S.C. Code Ann. § 62-7-401(a)(1)(ii) provides there must be a “written declaration signed by the owner of property that the owner holds iden tifiable property as trustee.” While the actions to create a trust “must be proved by some writing signed by the party creating the trust,” S.C. Code Ann. § 62-7-401(a)(2), the court can look to more than one writing in determining whether a trust has been created. Second, the court must find the documents creating the trust in dicate the owner had the present intent for the writings to create a trust for the particular benefi ciary. S.C. Code Ann. § 62-7-402(a) (2022) (providing among four other requirements that “A trust is cre ated only if: . . . (2) the settlor in dicates an intention to create the trust”).In2017, this court did not con sider the applicability of § 627-602(a)—effective January 1, 2006—which provides, “Unless the terms of a trust expressly pro vide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before the ef fective date of this article.”
Protestant Episcopal Church v. Episcopal Church (Lawyers Week ly No. 010-029-22, 43 pp.) (John Few, J.) (Donald Beatty, C.J., & George James, J., concurring sepa rately) Appealed from Dorchester County Circuit Court (Edgar Dick son, J.) Bert Glenn Utsey, Kath leen Chewning Barnes, Kathleen Fowler Monoc, Thomas Tisdale, Allan Holmes, David Booth Beers and Mary Kostel for appellants; Alan Runyan, William Bryan, Thomas Christian Davis, Albert Lacour, Charles Williams, Susan Pardue MacDonald, Mark Phillips, Peter Brandt Shelbourne, Pierce Campbell, James Kent Lehman, Mitchell Brown, Ivon Keith Mc Carty, Timothy O’Neill Lewis, Henry Grimball, Robert Horger, Allan Poe Sloan, Andrew Spencer Platte, Thornwell Sowell, Bess Jones DuRant, William Foster Gaillard, Joseph Wilson, William Scott, Harry Roberson Easterling, Mark Evans, Edward Guerard, Francis Marion Mack, David Mar vel, David DeVane, of Henrietta Golding and John Furman Wall for respondents. S.C. S. Ct.
an owner of property has creat ed a trust under South Carolina law, the court must find the party claiming to benefit from the trust has proven several elements, two of which are particularly relevant here.
LAWYER TO LAWYER
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The 2017 court looked only to pre-2006 writings contained in a five-page summary of accession from the National Church, which did not reference any documents created after 2006, that was in cluded in the prior record on ap peal. It is clear to this court the National Church focused only on pre-2006 writings and urged the 2017 court not to consider the ef fect of § 62-7-602(a). This con clusion is confirmed by Justice Hearn’s statement that the stat ute provided the “answer to any question of revocability: the trust is irrevocable because it was cre ated prior to the implementation of the [South Carolina Trust Code].” Therefore, we hold the votes cast in 2017 on revocability do not ap ply to trusts created after 2006. Two parishes—the Church of the Holy Cross, Stateburg and the Vestries and Church Wardens of the Parish of St. Andrew, Charles ton—took the actions we hold amount to accession to the Nation al Church’s Dennis Canon after January 1, 2006. The Dennis Can on provides in part, “All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese there of in which such Parish, Mission or Congregation is located.”
Criminal Practice
Murder & Armed Robbery – Jailhouse Call – Consciousness of Guilt
The recorded conversation between defendant and Aldrich was relevant to show defendant’s consciousness of guilt. The state introduced the con versation because it tended to show that defendant knew he shot Victim, that he was being detained for Vic tim’s murder, and that he was excited to learn (even though based on false information) that Victim’s gunshot wounds were not the ultimate cause of his death. In other words, the con versation indirectly pointed to defen dant as Victim’s murderer because de fendant’s elated reaction to the news regarding the cause of Victim’s death showed defendant was conscious of the possibility that the gunshots he fired hit Victim and caused his death. The evidence was circumstantial, and thus, provided the jury with mul tiple avenues of interpretation, and both defendant and the state were able to argue their own competing inferences and rationalizations de duced from the evidence to the jury. Because the conversation tended to prove defendant was conscious that he shot Victim and believed he caused Victim’s death, the conversation was logically related to whether defendant was guilty of Victim’s murder. Furthermore, the trial court’s ad mission of the conversation did not violate Rule 403, SCRE. Although the conversation contained profanity, it was not used in a vulgar, threatening, or disparaging manner. Defendant and Aldrich carried a conversational tone throughout the call. This would be an unlikely reason for the jury to draw an unfairly prejudicial inference regarding defendant’s guilt from the conversation. While the entirety of the 15-minute phone call was not relevant to defen dant’s trial, this fact, combined with the profanity, does not substantially outweigh the conversation’s probative value. Based on the foregoing, we find the trial court did not err in admitting the conversation under Rule 403. Affirmed. State v. White (Lawyers Weekly No. 011-057-22, 7 pp.) (Bruce Wil liams, C.J.) Appealed from Barnwell County Circuit Court (Doyet Early, J.) Lara Mary Caudy for appellant; Alan McCrory Wilson, Jeffrey Young, Donald Zelenka, Melody Jane Brown, William Joseph Maye and John Wil liam Weeks for respondent. S.C. App. 10 ►
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