Brinkley founded her Charlestonbased practice, Brinkley Law Firm, in 2011, with the firm’s main areas of concentration including fertility law, family law, and the unique area of military family law, according to a news release.The ART Committee works collaboratively to provide resources related to the legal and ethical consequences of technology advances for assisted reproduction and genetic science, the release stated. Throughout her legal career, Brinkley has been involved in the complex area of assisted reproductive technology and related legal issues impacting future families.
“To so hold would be for a court to take it upon itself to rewrite the statute in two impermissible ways: by penciling a new condition into the list of exclusions, and by erasing
SCLAWYERSWEEKLY.COM
Attorney Stephanie M. Brinkley has been appointed chair of the American Bar Association’s Assisted Reproduction Technology (ART) Committee for the 2022-23 year.
Gender dysphoria covered by ADA
With greater frequency, Brinkley is consulted to advise families transitioning divorce after creating
VOLUME 20 NUMBER 18 ■ SEPTEMBER 12, 2022 ■ $8.50Part of the network Page 2 Columbia-basedINSIDE rm renews commitment to downtown Page 3 Mother, daughter exposed to mold settle for $1M Page 3 Couple awarded $5M in vehicle crash settlement REAL ESTATE VERDICTS & SETTLEMENTS VERDICTS & SETTLEMENTS committeenamedattorneyCharlestontoABA
The ruling makes the Fourth Circuit the first federal appellate court in the country to find that the ADA
U.S. Circuit Judge Diana Gribbon Motz said the court “could not adopt an unnecessarily restrictive reading of the ADA,” given that Congress expressly instructed courts to construe the act in favor of maximum protection for those with disabilities.
of justice, and the development of environmental law through rigorous focus, outreach and education in all forums —federal, state, municipal, tribal and international.
U.S. Circuit Judge Pamela A. Harris joined Motz’s opinion, while U.S. Circuit Judge A. Marvin Quattlebaum Jr. penned a partial concurrence and dissent.
She represents clients seeking to build their families through surrogacy and/ or gamete donation as well as gestational carriers who have offered their services. In 2017, she coauthored “Developing a Successful Assisted Reproduction Technology Law Practice” with colleague Richard B. Vaughn, which is published by the American Bar Association.
Greenville attorney elected as ACEL fellow
■ BY JASON THOMAS jthomas@scbiznews.com
MAXIMUM PROTECTION
Gender dysphoria is a covered “disability” within the Americans with Disabilities Act, or ADA, the 4th U.S. Circuit Court of Appeals has ruled in a case of first impression.The decision in Williams v. Kincaid (VLW 022-2-204) reverses the district court and allows a transgender woman’s lawsuit against the Fairfax County sheriff and two prison officials to proceed.
The case returns to the Eastern District of Virginia.
Stephanie M. Brinkley
See Attorney Page 6 ►See Protection Page 6 ► See Greenville Page 6 ►
Wyche attorney Rita Bolt Barker has been elected as a fellow of the American College of Environmental Lawyers.
■ BY JASON THOMAS jthomas@scbiznews.com
Membership is by invitation and members are recognized by their peers as preeminent in their field.
covers gender dysphoria, defined in the court’s opinion as a “discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth.”
among the very best practitioners of environmental law in the country. Collectively, they represent a tremendous depth, breadth, and diversity of experience. We are pleased to welcome them to the College on the basis of their career achievements and thoughtBarkerleadership.”hasbroad experience helping clients navigate the wide range of laws that protect our natural resources, the release stated. She delivers results for clients who need assistance in investigating and responding to permitting challenges, as well as in
Congress’ command to construe the ADA as broadly as the text permits,” Motz wrote. “We cannot add to the ADA’s list of exclusions when Congress has not chosen to do so itself.”
In a statement, the plaintiff’s attorney Joshua Erlich said, “we are excited to get back into court to vindicate Kesha’s rights.”
Rita BarkerBolt
The U.S. Court of Appeals has ruled that gender dysphoria is a covered ‘disability’ within the Americans with Disabilities Act, which the court recently decided in a case of first impression. DepositPhotos
The American College of Environmental Lawyers elects fellows based on their recognition as the top environmental attorneys in the country, according to a news release from Wyche. Fellows are regarded as distinguished environmental lawyers dedicated to maintaining and improving the ethical practice of environmental law, the administration
■ BY JASON BOLEMAN BTN Wire Services
The ACOEL’s president, Michael D. Hockley of Spencer Fane LLP, announced the new members with the following statement: “Our new Fellows are
“We saw throughout our prac tice that there were so many times when decisions had to be based on finances or that the next opportu nity was not attainable because of a financial barrier that wasn’t cov ered by other service providers or grants,” said Sutton in the release. “Our office has so many caring at torneys who were trying to just help where they could so we tried to produce an organization that would be able to help fund some of those things.”
Collins & Lacey, PC, has renewed its decades-long commitment to downtown Colum bia afer renewing its lease at Capitol Station. (Photo/Collins & Lacey, PC)
LAWYERS IN THE NEWS
Associate attorney joins firm
orable George C. James Jr., an asso ciate justice of the South Carolina Su preme Court. He previously clerked for the South Caro lina Senate Judi ciary Committee where he assisted committee mem bers by drafting preliminary ver sions of bills and amendments, and also worked for the Judicial Merit Selection Commission.
“I look forward to working along
Catalano practices in the areas of Transportation and Trucking Law, Government Defense and Section 1983 Defense, and Gen eral Insurance Defense. He has handled jury and non-jury trials in municipal, state, and federal trial courts.Heis a member of the South Carolina Bar Association and the Richland County Bar Association.
which is also a SC Bar Founda tion grantee, has assisted citizens in paying for Uber rides to court, paperwork fees, birth certificate and identity documents, housing, driver’s license reinstatement fees, hygiene products and more. Other South Carolina attorneys serving on the organization’s board include Maisie Osteen, Morgan Drapeau, Lindsay Adler, Emily Blackshire, Destinee Wilson and Haley Hub bard. The Rainy Day Fund also plans to support a hygiene cabinet at the Richland County Public Li brary on Main Street in Columbia.
Prior to law school, Catalano served as a criminal investigator for the Lancaster County Sheriff’s Department.“Joegoes above and beyond for his clients, and we couldn’t be more thrilled to recognize his hard work
Prior to law school, Hanna grad uated from Clemson University, Honors College with a bachelor of arts in political science, magna cum laude, with a minor in phi losophy.
Firm renews Columbia commitment
and name him as a Partner in our firm,” said McKay Senior Partner Ju lius W. “Jay” McK ay CatalanoII. and his wife live in Columbia. He is an avid fan of the South Carolina Gamecocks.
Joe KieleyCatalanoSutton
Commercial real estate firm Colliers South Carolina negotiated a lease deal to keep the law firm at 1330 Lady St., according to the
This has been and will continue to be our headquarters for operations across the state with room for expansion as we continue our growth. We are pleased to renew our commitment to a vibrant downtown Columbia.
The SC Bar has recognized Kie ley Sutton for her efforts as cofounder of the Rainy Day Fund, a nonprofit based in Columbia serv ing citizens who are involved in the legal-system and in need.
side the exceptional lawyers at SMITH I ROBINSON,” said Fred Hanna. “Serving clients with com plex litigation needs is a challeng ing, yet rewarding opportunity.”
Christian Stegmaier
sitioned to house all new hires. It’s an exciting time at the firm.”
■ BY JASON THOMAS jthomas@scbiznews.com
SOUTH CAROLINA LAWYERS WEEKLY September 12, 20222 / NEWS
Sutton worked with her mom and co-founder Leanne Sutton to form a board of passion ate public inter est lawyers and social workers to eliminate as many financial barriers to success as possible so that citi zens are more likely to escape the cycle of incarceration and housing instability that is associated with
“Our ability to offer flexible work-from-home days keeps us po
The non-profit organization,
firmColumbia-basedaddspartner
“Collins & Lacy is growing and hir ing top legal talent to best serve our client needs,” firm President Chris tian Stegmaier said in the release. “This has been and will continue to be our headquarters for operations across the state with room for expan sion as we continue our growth. We are pleased to renew our commit ment to a vibrant downtown Colum bia. Colliers has been an important partner to us, and we are delighted this partnership will continue.
release.
■ BY JASON THOMAS jthomas@scbiznews.com
investment in downtown Columbia here at the Capitol Station build ing. On behalf of building owner ship, Colliers is pleased to extend this key relationship with Collins & Lacy for many years to come.”
Attorney recognized for helping those in need
“We are thrilled to have Fred join our team and expand our complex litigation and appel late practice,” said Jon Robinson, SMITH | ROBINSON managing partner. “Appellate litigation is a growing practice area for our firm and Fred’s experience will provide valuable insights for clients.”
Hanna earned his Juris Doctor, magna cum laude, from the Uni versity of South Carolina School of Law. While in law school, Han na served as the Students Works Editor of the South Carolina Law Review and he received the CALI Awards for Appellate Advocacy, Coastal Law, Legal Writing for the Courts, Legal Research, Analy sis and Writing II, and Topics in Insurance Law. Hanna is also a Member of the Order of the Coif and Order of the Wig and Robe.
Located a block away from South Carolina’s Supreme Court, in the shadow of the State House, and just blocks from Richland County Circuit Court, South Caro lina law firm, Collins & Lacy, PC, has renewed its decades-long com mitment to downtown Columbia, a news release from the firm stated.
Collins & Lacy, PC, staying at Capitol Station downtown
The Columbia-based McKay Firm has announced the promo tion of Joe Catalano to the position of partner with the firm.
Fred Hanna
An assistant public defender and homeless court attorney with the Richland County Public De fender’s Office, Sutton has experi enced firsthand the financial frus trations people faced while they were involved in the legal system,
“The firm’s name and logo are on the building for a reason,” Col liers’ Tommy Johnson said in the release. “Collins & Lacy is the an chor tenant with almost 35 years of
poverty, the release stated.
The firm has renewed its lease at the six-story Capitol Station on Lady Street. Since 1987, the defense firm has been defending South Carolina businesses and in dividuals from the top floor of its downtown building, according to the release.
SMITH | ROBINSON has an nounced Fred Hanna has joined the law firm as an associate attor ney and will focus his practice on complex litigation and appellate practice.Mostrecently, Hanna served as a judicial law clerk for the Hon
according to an SC Bar news release.
McCulloughClaytonP.JasonReynolds
The defendants were represented by Jeffrey Ross and Emily Sheets of Ross & Cristaldi in Mount Pleasant. Neither attorney responded to a request for comment.
SCDOR: Student loan forgiveness not subject to state tax
After a weeklong trial, a Charleston County jury deliberated approximately three hours be fore awarding $1 million to a mother and her adult daughter after they were exposed to high levels of mold in their Mount Pleasant apart ment.The attorney for plaintiffs Karolina (mother) and Krista Richardson, Clayton McCullough of McCullough Khan Appel in Mount Pleas ant, said that his clients lived in the Oyster Park Apartments in Mount Pleasant from May 2017 through September 2017. Just a couple of months after moving in, McCullough said, the women, neither of whom has a history of asthma, began to suffer respiratory issues.
Judge: Jennifer McCoy
Amount: $5 million (global)
■ BY CHRISTINA KNAUSS cknauss@scbiznews.com
VERDICT REPORT — PERSONAL INJURY
Attorneys for plaintiff: P. Jason Reynolds of Samuels Reynolds Law Firm in Columbia, S.C. Attorney(s) for defendant: Withheld
SETTLEMENT REPORT — MOTOR VEHICLE NEGLIGENCE
Plaintiff attorney Jason Reynolds with Samuel Reynolds Law Firm in Columbia, S.C., was thank ful the couple was able to resolve its medical bills.
Case name: Karolina Richardson and Krista Richardson v. Mt. Pleasant Square Associates et al.
The trucking company retained defense coun sel after receiving a letter of representation and demand for preservation of evidence. Full pre-suit discovery was conducted to include gathering of driver qualification file, trip documents, satellite tracking data, post-accident drug and alcohol test results, as well as inspections and downloads of
Amount: $1 million ($850,000 for one plaintiff and $150,000 for the other)
Most helpful experts: Drs. Andrew Davidson and Marshall White (treating physicians), Rob ert Brabham, Ph.D. (vocational expert), Karen Shelton (life care planner), and Oliver Wood, Ph.D., (economist)
Court: Charleston County Circuit Court Case No.: 2018-CP-10-03286
Gathering of driver qualification files, trip doc uments, and satellite tracking data revealed that the semitrailer driver was on cruise control at 69 mph up until 0.25 seconds from impact, causing the defendants’ vehicle to accelerate from 8 mph to 54 mph in less than a second.
Attorney for plaintiff: Clayton McCullough of McCullough Khan Appel in Mount Pleasant Attorneys for defendant: Jeffrey Ross and Emily Sheets of Ross & Cristaldi in Mount Pleasant
Injuries alleged: Wife: multiple left and right rib fractures, transverse process fractures, bilateral pneumothorax, iliac fractures, periph eral neuropathy. Husband: scapular fracture, laminar fracture C6-C7
Judge: None. Pre-suit settlement Date of settlement: August 2022
2017,” McCullough said. “Un fortunately, these issues are ongoing—tenants are still com plaining of mold in their apart ments.”TheRichardsons moved into another apartment unit but continued to suffer the effects of mold, developing toxic mold disease and have undergone numerous medical treatments.
Special damages: Wife: $718,303.79 Husband: $65,470.80
Most helpful experts: Ken Richardson/Bryan Miller of Engineering Expert, Inc. (accident reconstruction), David Stopper of Stopper & Associates LLC (transportation safety)
Please submit a cover letter, resume, and writing sample in confidence to jcarver@clarksonwalsh.com.
In mid-August, President Biden announced the cancelation of $10,000 in federal student loans. The cancel ation applies to those who earn less than $125,000 a year or $250,000 for couples who file jointly. Pell Grant recipients are also eligible for an ad ditional $10,000 in relief.
The couple suffered severe injuries. The wife experienced multiple rib fractures on her left and right sides, transverse pro cess fractures, bilateral pneu mothorax, iliac fractures, and peripheral neuropathy, requiring $718,303.79 in medical bills. The husband suffered a capsular frac ture and laminar fracture, pay ing $65,470.80 in medical bills.
“To the extent a student described in IRC Section 108 (f) (5) is forgiven for federal income tax purposes and excluded from federal tax income, then the amount is also excluded from South Carolina taxable income,” the statement read.
To learn more student loan can cellation, visit cellation.relief-announcement/one-time-canstudentaid.gov/debt-
& SETTLEMENTS / 3
all vehicles involved.
A husband and wife that were injured in a March 2022 auto accident were awarded $5 mil lion in a pre-suit settlement in August.
Injuries alleged: Significant respiratory and allergy issues for both plaintiffs and exacerba tion of Meniere’s Disease for Karolina Richard son
Court: Pre-suit but venue would have been US District Court – Rock Hill Division
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.
loans through 2025.
In a statement dated Sept. 1, the DOR said residents will not be taxed because in May, the S.C. General As sembly adopted Internal Revenue Code (108) (f) (5), which describes how student loans that receive forgiveness at the federal level are excluded from federal taxable income. The code was temporarily revised under the Ameri can Rescue Plan of 2021 to add spe cial rules for the discharge of student
VERDICTS
SOUTH CAROLINA LAWYERS WEEKLY I September 12, 2022
In March 2022, the couple, who were in their early- to mid-60s, was traveling on Interstate77 northbound near Chester, S.C., when they were rear-ended by a semitrailer.
Case name: Withheld
South Carolina residents who receive student loan forgiveness through a plan recently announced by President Joe Biden will not be taxed for it, according to the S.C. Depart ment of Revenue.
“The evidence at trial showed there have also been ongoing tenant complaints of water leaks and excessive moisture in the Oyster Park units. There has been flooding caused by a rain event, leaks caused by roof issues, window and plumbing leaks, and HVAC issues causing high levels of humidity.”
McCullough said that he is pleased with the verdict and the decision to hold the defendants responsible.“Iamhappy the jury saw the disturbing im pact this event had on the Richardson family,” McCullough said.
McCullough said that Karolina has Me niere’s Disease, a disorder of the inner ear, and that the mold exposure worsened her symptoms, causing headaches, dizziness, and nausea.According to the complaint, the plaintiffs informed the defendants several times about the mold and the impact it was having on their health. After “multiple demands to do so,” the defendants hired a lab to do mold testing on the apartment. The testing revealed “signifi cantly elevated levels of mold,” the complaint states, especially Penicillium and Aspergillus.
“You can’t ever replace life and limb through money. It’s an absolute imperfect system, but it’s the only system we have,” Reynolds said. “But my clients being able to receive the funds from the settlement has allowed them to completely resolve any outstanding medical bill issues and take care of any needs they may have related to any future treatment.”
■ BY HAVILAND STEWART hstewart@nclawyersweekly.com
Date of verdict: July 22
In court documents, the Rich ardsons accused the apartment complex of breaching its duties to them by, among other ways, falsely representing to the plaintiffs that the mold had been eradicated and that the apartments were habitable.
■ BY HEATH HAMACHER
Couple awarded $5 million in vehicle crash settlement case
McCullough said this is not an isolated in cident.“Oyster Park Apartments has had numer ous complaints from residents of mold in their apartments since the complex was opened in
Mother and daughter exposed to mold settle for $1M
jthomas@scbiznews.com
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SC Bar to host free public sessions
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The debtor filed a motion in her bankruptcy case seeking sanctions against the servicer for a willful violation of the automatic stay. The bankruptcy court denied the motion, but on appeal the district court re versed and instructed the bankrupt cy court to determine the amount of actual damages and to consider pu nitive damages. The Second Circuit Court of Appeals affirmed the district court’s ruling in favor of the debtor.
In a case of first impression from July 2022 the Second Circuit Court set a bright-line rule regarding the Bankruptcy Code’s automatic stay provisions. Pexels.com
SOUTH CAROLINA LAWYERS WEEKLY September 12, 2022
est under an expired lease is insuf ficient to trigger an automatic stay . . .” In re Premier Auto. Servs., Inc., 492 F.3d 274, 281 (4th Cir. 2007).
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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.
In the Fogarty case, the individu al debtor lived in a house owned by an LLC in which the debtor held a 99 percent membership interest. The house was subject to a mortgage to secure debt owed by the LLC. When the LLC defaulted on the mortgage prior to the debtor’s bankruptcy, the loan servicer started a foreclosure action in state court. The LLC was initially the only named defendant in the foreclosure action, but the servicer later added the debtor as a defendant. The servicer obtained a judgment allowing a foreclosure sale.Four days before the scheduled foreclosure sale, the individual debt or filed a Chapter 7 bankruptcy peti
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one to develop an understanding of the law and the legal system. We appreciate the willingness of our Bar members to give of their time and share their knowledge to make these events successful.”
Bankruptcy stay may shield property possessed but not owned by debtor
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The automatic stay triggered by a bankruptcy filing may protect the debtor’s residence even if the debtor does not own the property, accord ing to a recent decision from a New York-based federal appeals court.
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It remains to be seen whether other courts follow the Second Cir cuit’s lead. The Fourth Circuit has held that, at least for nonresidential property, “[a] mere possessory inter
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Between September through November, there will be 70 ses sions available statewide. See a list of upcoming Law Talk sessions at https://bit.ly/3cOmAeF, or check out the SC Bar’s Facebook page. Staff report
■ LizPUBLISHERIrwin
In the absence of clear authority, wise creditors will seek stay relief to avoid potentially costly consequenc es. A creditor found in violation of the automatic stay may be ordered to pay the debtor’s actual damages, including attorney fees — and, de pending on the jurisdiction, emo tional distress damages. A creditor may also face punitive damages if the bankruptcy court finds the credi tor acted maliciously or with reck less disregard and actual knowledge of the stay. A creditor with a track record of stay violations may be pre sumed to have acted in bad faith, weighing in favor of a punitive dam ages award.
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In a case of first impression de cided in July 2022, the Second Cir cuit set a bright-line rule that the Bankruptcy Code’s automatic stay pro visions “are violated by the foreclosure sale of a property when the debtor is a named party in the foreclosure pro ceedings, even if the debtor holds only a possessory interest in the property.” In re Fogarty, 39 F.4th 62, 71 (2d Cir. 2022). The case addressed a foreclo sure on a home occupied by the debt or but owned by the debtor’s limited liability company (LLC), which had not filed for bankruptcy.
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Each session includes a 30–45-minute presentation fol lowed by a question-and-answer session with a volunteer attorney. Nearly 70 attorneys have volun teered to participate in Law Talks statewide.“Weare excited to partner with libraries statewide to host these educational Law Talks,” said Cindy Coker, director of Public Services for the South Carolina Bar, in the release. “It is important for every
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Lisa P. Sumner is a member at Nexsen Pruet and is admitted to practice in North Carolina and South Carolina. She has been help ing creditors protect and enforce their rights in North Carolina, South Carolina and Virginia for more than two decades by structuring deals to avoid risk and maximize recovery, pursuing effective collection strate gies, and defending against lender liability claims.
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The SC Bar is collaborating with county libraries across the Palmetto State to offer a series of free sessions for the public on key legal topics, an SC Bar news re leaseCalledstated.Law Talks, these events are designed to educate and pro vide general legal information on the topics such as landlord-tenant law, credit card debt, end-of-life is sues, family law, wills and estates, and more.
The decision may surprise some creditors because a fundamental precept of corporate law is that an LLC is a legal entity separate from its members, so the members have no ownership rights in assets owned by the company. Thus, when a mem ber of an LLC files a bankruptcy petition, assets owned solely by the LLC do not constitute property of the debtor’s bankruptcy estate and aren’t necessarily shielded from col lection efforts by the automatic stay. However, if the member who en tered bankruptcy holds a possessory interest in a residence owned by the non-debtor LLC, the member’s pos sessory interest itself may constitute property of the bankruptcy estate and be entitled to the protections of the automatic stay.
■ INTERIM EDITOR
tion. Debtor’s counsel called the ser vicer on the eve of the sale to contend the automatic stay barred the foreclo sure sale because the property was the debtor’s residence, even though she did not own the property. The servicer rejected the argument on the grounds that the debtor’s petition for personal bankruptcy did not protect assets owned by the LLC. Although the servicer could have sought stay relief from the bankruptcy court to allow the foreclosure sale, the ser vicer chose not to do so. The sale took place and the third-party purchaser evicted the debtor after securing re lief from the automatic stay.
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COLUMBIA, S.C. (AP) — Dylann Roof’s death sentence and conviction in the 2015 racist slayings of nine members of a Black South Carolina congregation should be upheld and don’t merit review by the U.S. Supreme Court, attorneys for the federal government wrote in a filing Wednesday.Attorneys for the U.S. Justice Department argued in the 39-page brief that Roof “fails to identify any meaningful disagreement in the lower courts” over how his legal representation played out at trial.
The brief came in response to a request from Roof’s attorneys that justices take up his case, asking the court earlier this year to decide how to handle disputes over mental illness-related evidence between capital defendants and their attorneys.
ill over his objection.”
RPWB LLC — 1037 Chuck Dawley Boulevard — Mt. Pleasant, SC 29464 CELEBRATING 20 YEARS OF RPWB Offices in Charleston, Columbia, Aiken & Edwardsville, Ill. RPWB is an effective and respected advocate for injured clients and consumers throughout the country, but our roots run deep here in South Carolina. We proudly work alongside our fellow trial lawyers as a trusted and experienced partner on complex legal matters. 843-727-6500 www.RPWB.com class actions mass torts medical malpractice ••• product liability personal injury wrongful death mesothelioma ••• Dylann Roof enters the court room at the Charleston County Judicial Center to enter his guilty plea on murder charges on April 10, 2017, in Charleston, S.C. Roof’s death sentence and conviction in the 2015 racist slayings of nine members of a Black South Carolina congregation should be upheld and don’t merit review by the U.S. Supreme Court, attorneys for the federal government wrote in an expected filing on Wednesday, Aug. 31, 2022. Grace Beahm/The Post And Courier via AP, Pool, File
But there is a disconnect, his attorneys argued, between how such cases have been handled in the 4th Circuit versus other jurisdictions, where “the vast majority of state and federal courts hold otherwise, leaving this deeply personal choice to a defendant.”Intheir brief, government attorneys wrote that the appellate court “correctly determined” that Roof “was not entitled to enjoy the assistance of counsel while directing presentation of mitigation evidence,” adding that, “Any conflict on that question in the lower courts is far narrower than petitioner suggests and does not warrant this Court’s review.”
Roof, now 28, opened fire during the closing prayer of a Bible study at Mother Emanuel AME Church in Charleston, South Carolina, raining down dozens of bullets on those assembled. He was 21 at the time.
death penalty — has been a constant in his Duringcase. the sentencing phase of his death penalty trial, Roof fired his legal team and opted to represent himself. This move, his appellate attorneys have written, successfully prevented jurors from hearing evidence about his mental health, “un-
SOUTH CAROLINA LAWYERS WEEKLY I September 12, 2022 NEWS / 5
der the delusion” that “he would be rescued from prison by white-nationalists — but only, bizarrely, if he kept his mental-impairments out of the publicRoofrecord.”made his decision, his team has argued, “after the district court told him that counsel could introduce evidence depicting him as mentally
Roof’s self-representation and desire to block any evidence potentially portraying him as mentally ill — even if it could have helped him avoid the
If unsuccessful in his direct appeal, Roof — now on federal death row at a maximum-security prison in Terre Haute, Indiana — could file what’s known as a 2255 appeal, a request that the trial court review the constitutionality of his conviction and sentence. He could also seek a presidential pardon. argues Supreme Court shouldn’t review Dylann Roof case
But on Wednesday, noting that “the ultimate objective of his defense was to avoid the death penalty,” Justice Department lawyers argued that Roof “was not ... entitled to control his counsel’s strategy for achieving that objective by dictating the mitigation evidence that they could introduce.”
When a capital defendant who has been ruled competent to stand trial and his attorneys “disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?” Roof’s appellate team wrote in their February petition.
Last year, a panel of appellate judges unanimously upheld Roof’s conviction and death sentence and issued a scathing rebuke of Roof’s crimes, which the judges wrote “qualify him for the harshest penalty that a just society can impose.”
meaning of ‘gender identity disorders,’ as that term was understood ‘at the time of its enactment,’” Motz wrote. “But nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a ‘gender identi ty disorder’ excluded from ADA protec tion. For these reasons, we agree with Williams that, as a matter of statutory construction, gender dysphoria is not a gender identity disorder.”
Continued from
1 ►
Background
As medical knowledge advanced, the American Psychiatric Association removed “gender identity disorders” from the DSM-5, and added “gender dysphoria” as a diagnosis that did not exist in 1990. That is defined as “clinically significant distress or im pairment related to gender incongru ence, which may include the desire to change primary and/or secondary sex characteristics.”The“ADAexcludes from its protec tion anything falling within the plain
legislation, and making of Reports and Recommendations through the Section of Family Law to the ABA; and by these efforts, influence pub lic policy, legislation, and, as amici curiae, court decisions, that impact the individuals and institutions in volved, toward the end of promoting progress in, and betterment of, the law, as well as the practice of law,” according to the ABA website.
Plausible inference
She further alleged harassment by other inmates and that “prison deputies repeatedly harassed her re garding her sex and gender identity.” Requests for accommodations includ ing the ability to shower privately from the other inmates and for body searches to be conducted by a female deputy were denied.
“That Williams did not ‘specifically allege that her gender dysphoria is rooted in some physical component’ by using those particular words does not render implausible the inference that her gender dysphoria has a phys ical basis,” Motz wrote. “Williams’ complaint, as it stands, permits the plausible inference that her condition ‘result[ed] from a physical impair ment.’”Motz added that barring ADA cov erage for both “gender identity disor der” as it existed in 1990 and “gender dysphoria” could run afoul of the Con stitution.“Wehave little trouble concluding that a law excluding from ADA pro tection both ‘gender identity disor ders’ and gender dysphoria would dis criminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment,” Motz wrote.
ART Committee, Brinkley is also a member of the Academy of Adoption and Assisted Reproduction Attor neys (AAAA), the American Society for Reproductive Medicine (ASRM), Resolve, and the Society for Eth ics in Egg Donation and Surrogacy (SEEDS). She is also a member of the Charleston County and Green ville County Bar Associations and a local and national speaker on legal challenges for the modern family.
Barker also advises clients on assessing environmental risks and incentives associated with corporate transactions, including mergers, acquisitions, and real estate deals. She has advised clients on matters arising under the Comprehensive
The ADA excludes from its protection anything falling within the plain meaning of ‘gender identity disorders,’ as that term was understood ‘at the time of its enactment.’ But nothing in the ADA, then or now, compels the conclusion that gender protection.excludedidentityconstitutesdysphoriaa‘genderdisorder’fromADA
The ADA broadly defines “disabil ity” to include “a physical or mental impairment that substantially limits one or more major life activities of suchTheindividual.”sheriffdid not dispute that gender dysphoria falls within that definition. Rather, he relied on the exclusions found in the statute, argu ing that because the statute excludes “gender identity disorders not result
Kesha Williams spent six months incarcerated in the Fairfax County Adult Detention Center. A transgen der woman, Williams was initially assigned to women’s housing before being reassigned to the men’s section.
In evaluating Williams’ first claim, Motz said the ADA does not define “gender identity disorders” — and never mentions gender dysphoria.
“The binary approach … flouts the case-by-case analysis federal law requires,” Motz wrote. As such, the majority reversed the dismissal of the gross negligence claim against the sheriff.
“Thus, although the ADA specifi cally lists a number of exclusions from the definition of “disability,” that list does not include gender dysphoria,” Motz wrote. “To determine whether ‘gender identity disorders’ includes gender dysphoria, we must look to the meaning of the ADA’s ‘terms at the time of its enactment.’”
1 ►
Barker is a graduate of Harvard Law School and Clemson Univer sity. She is recognized as a top en vironmental attorney by the legal industry’s leading attorney ranking publications, including Chambers USA, Best Lawyers, and South Car olina Super Lawyers.
Gender dysphoria
Continued from
Environmental Control.
U.S. Circuit Judge Diana Gribbon Motz
In addition to her role with the
SOUTH CAROLINA LAWYERS WEEKLY September 12, 20226 / NEWS
At trial, the defendants moved
to dismiss the complaint, contend ing that the ADA offered no basis for relief as gender dysphoria is not a covered “disability” under the ADA because gender dysphoria “is an iden tity disorder not resulting from physi calTheimpairments.”lowercourt dismissed the ADA and Retribution Act claims under this basis.
The district court agreed with the defendant, holding that the exclusion applied to Williams’ gender dysphoria and barred her ADA claim.
The majority opinion further states the prison’s policy of classify ing detainees according to genitalia appears to violate the Prison Rape Elimination Act, which requires pris ons to “consider on a case-by-case ba sis whether placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems.”
PROTECTION / Gender dysphoria covered by ADA
mittee,” Brinkley said in the relesae.
In one instance, Williams claimed her request to have a female deputy search her during a “shakedown” was denied “despite the presence and availability of a female deputy.” Wil liams alleged the resulting search from a male deputy was “highly ag gressive,” and caused bruising and “pain for several days,” and that the deputy “mocked Ms. Williams and made light of his actions in searching herWilliamsperson.” was released after six months and subsequently brought a § 1983 action against the Fairfax Coun ty sheriff and two prison officials. The complaint asserted violations of the ADA, the Rehabilitation Act, the U.S. Constitution and state common law.
The court agreed that Williams al leged sufficient facts to support the inference that her gender dysphoria results from physical impairments, particularly the need for hormone treatments that she has been taking for 15 years.
The ART committee shares its findings through “CLE programs, publications, development of model
“Critically, this holding applies to any individual seeking accommoda tions for gender dysphoria, including in employment, public accommoda tions, and in any other context in which the ADA provides disability protections,” Erlich noted.
In 1990, the judge said, “gender identity disorders” did not include gender dysphoria. At the time, the medical community did not acknowl edge gender dysphoria as an indepen dent condition or a subset of another condition. However, a gender iden tity disorder diagnosis marked being transgender as a mental illness.
Environmental Response Compen sation and Liability Act, the Re source Conservation and Recovery Act, the Endangered Species Act, the Administrative Procedure Act, the Clean Water Act, the Clean Air Act, and the SC Pollution Control Act.
ing from physical impairments” from its protections, Williams’ condition was not covered.
children through third party repro duction, the release stated. Parental disputes arising from genetic rela tionships (or lack thereof), misappli cation of medical consent forms, and ownership rights of unused embryos are rising among divorce litigants.
Continued
“Whether this is so constitutes a question of first impression for the federal appellate courts,” Motz noted.
responding to requests for informa tion and enforcement actions before administrative agencies, including the United States Environmental Protection Agency and the South Carolina Department of Health and
ATTORNEY / Charleston attorney named to ABA committee
Motz said the court had to follow Congress’ direction and cited a 2008 amendment to the ADA instructing courts that the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent per mitted by the [ADA’s] terms.”
“It’s truly an honor to be appoint ed Chair of the ABA’s Assisted Re productive Technology (ART) Com
The reassignment came after she explained that she had not had geni tal surgery pursuant to a prison pol icy that stated “[m]ale inmates shall be classified as such if they have male genitals” and “[f]emale inmates shall be classified as such if they have fe maleAftergenitals.”being moved to men’s hous ing, Williams claimed she experienced delays in receiving medical treat ment, including hormone medication she had been taking for 15 years for her gender dysphoria.
Williams posed two challenges to the lower court’s holding: that gender dysphoria is not a “gender identity disorder” and that, even if it were, it “results from a physical basis that places it outside the scope of the ex clusion from ADA protection.”
from 1 ►
GREENVILLE / Greenville attorney elected as ACEL fellow
“I am grateful to the current Chair of the ABA Family Law Section, Thad Woody, for appointing me to this position. I am excited to guide the council’s focus and direction as we continue our efforts to shape policy and law surrounding fertility and family law.”
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Section 1437d(1)(6) does not re quire a threat to be “ongoing” to justify terminating a public-housing lease. The facts that the son was in jail and, upon release, would go to live with his grandmother – mean ing he was no longer physically able to threaten other public-housing tenants – do not weigh in the thresh old showing of whether good cause exists to evict the tenant and her daughter for the son’s actions.
Affirmed.
Quiet Title – Taxation – Property Tax Sale – Federal Income Tax Lien
Guardian Tax SC, LLC v. Day (Lawyers Weekly No. 003-035-22, 9 pp.) (Per Curiam) No. 21-1411. USDC at Charleston, S.C. (Bruce Hendricks, J.) Matthew Adams Abee, Reed Hollander and Martin Warf for appellant; Julie Ciamp orcero Avetta, David Hubbert, Joan Oppenheimer, Rhett DeHart, Natalie Armstrong Ham, Bernard Ferrara, Kevin DeAntonio and Sean Foerster for appellees. 4th Cir. Unpub.
Since no marriage existed be tween the parties, the family court lacked jurisdiction to equitably ap portion defendant’s nonmarital property.Eventhough the parties’ tempo rary consent order required docu mentation of the parties’ respective income, the family court accepted plaintiff’s claims about his income with no supporting documentation. On remand, the parties must sub mit documentation of their respec tive incomes, which the family court should consider in determining child support.Income documentation should also be considered when the family court makes its award of attorney’s fees.Reversed and remanded.
We reverse the family court’s find ing of a common law marriage, its division of purportedly marital prop erty, and its determinations of the amounts of awards for child support and attorney’s fees.
We agree with our Court of Ap peals that Opternative, Inc., has constitutional standing to chal lenge the constitutionality of the Eye Care Consumer Protection Law. However, in the context of constitutional standing, any dis cussion of the three elements of constitutional standing – injury in fact, causal connection, and re dressability – is not an analysis of the merits of the underlying ac tion. Accordingly, the Court of Ap peals’ decision should in no way be construed as a comment on the merits of the action.
Real Property
importantly, we agree with the district court that there is “nothing inequitable about the outcome required by § 7425 be cause [appellant] easily could have avoided it by engaging in due dili gence prior to the Tax Sale.” In deed, appellant failed to conduct its own title search on the prop erty prior to the tax sale despite the rather minimal burden to do so. Equity will not spare appellant the consequences of its lack of due diligence.
PublicLandlord/TenantHousing–Eviction–One Strike
titioner; William Wood, Miles Ed ward Coleman, Robert McNamara and Joshua Windham for respon dent. S.C. S. Ct.
Opternative, Inc. v. South Caro lina Board of Medical Examiners (Lawyers Weekly No. 010-030-22, 3 pp.) (Per Curiam) Appealed from Richland County Circuit Court (DeAndrea Benjamin, J.) Kirby Darr Shealy and Luke Allen for pe
Defendant testified that she never intended to marry plaintiff. She pre sented several documents indicating her single status, and she noted that the couple’s children received Medic aid because she was a single mother.
It appears that plaintiff called himself married when it was conve nient and financially beneficial for him but considered himself single when marriage was inconvenient or financially detrimental. More over, the evidence shows defendant did not consider herself married to plaintiff. The parties’ conduct does not demonstrate they each intended to be married or knew the other in tended the same.
Common Law Marriage
After defendant sold her Charles ton duplex at a profit, plaintiff sought to prove the parties had a common law marriage. He testified about their lengthy periods of cohab itation; raising their two children together; their alleged partnership in acquiring, renovating and renting the duplex; and their partnership in owning and operating a restaurant. However, plaintiff did not submit any evidence that the parties were jointly titled on the duplex, mortgag es or bank accounts or that they ever filed joint tax returns.
We affirm the district court’s ruling that the federal tax liens were valid and not discharged by the tax sale.
gues that equity required the dis trict court to institute a 120-fay redemption period within which the United States could redeem the property. But pursuant to I.R.C. § 7425(d)(1), the 120-day redemption period begins to run only when the United States has received the statutorily required notice. Since the United States did not receive such notice in this case, the redemption period never began to run, and the United States was not obligated to redeem the prop erty or surrender its interest.
lenge – Discussion of Merits
Owners of Charleston real estate failed to pay either their county property taxes or their federal in come taxes. When the county held its tax sale, it failed to notify the federal government; accordingly, appellant – the purchaser at the tax sale – bought the property sub ject to the government’s tax lien. Given that appellant could easily have avoided this situation by en gaging in due diligence prior to the tax sale, equity does not require the reopening of a 120-redemption period for the government.
defendant went out on dates with other men. The family court erred in finding a common law marriage existed.
See Page 9 ►
If the United States is joined as a party in a judicial sale, that is, a court-ordered sale of property, then the federal tax lien on the subject property is extinguished because the joinder serves as ad equate notice to the United States of the sale. See I.R.C. § 7425(a). However, if the sale is non-judi cial, the United States must re ceive proper notice of the tax sale at least 25 days before the sale, or the purchase will be subject to the federal tax lien. § 7425(b)(1). Such notice must be “given . . . in writ ing, by registered or certified mail or by personal service.” § 7425(c) (1).Below, neither party disputed that the tax sale in this case was non-judicial. Therefore, the dis trict court operated under the premise that the sale was a nonjudicial sale.
I.R.C. § 7425 exclusively gov erns the enforceability of federal tax liens, and state law controls only when § 7425 directs. As such, South Carolina law does not afford appellant the equitable remedy it seeks.More
But appellant now argues on appeal that the sale was judicial. Appellant reasons that pursu ant to South Carolina law, the only method by which the United States’ interest in the property could be extinguished was through a quiet title action, which is a judi cial action. Thus, according to ap pellant, because the United States is a party to this quiet title case, the United States necessarily had adequate notice of the tax sale, and the federal tax liens should be discharged.Because of its failure to raise an issue before the district court in the first instance, appellant has forfeited its argument that the tax sale was Moreover,judicial.appellant does not dispute that, if the notice require ment for non-judicial sales con tained in § 7425(b)(1) applies, the United States did not receive ade quate notice. We affirm the district court’s holding that the United States did not receive adequate notice of the tax sale. Therefore, the federal tax lien on the property was not Alternatively,extinguished.appellant ar
Affirmed.
Other Issues
Powell v. Dolin (Lawyers Weekly No. 011-058-22, 13 pp.) (Stepha nie McDonald, J.) Appealed from Charleston County Family Court (Michael Holt, J.) Anthony O’Neill and Elonda Fair O’Neill for appel lant; Roger Scott Dixon for respon dent. S.C. App.
Civil StandingPractice–Constitutional Chal
SOUTH CAROLINA LAWYERS WEEKLY September 12, 20228 / OPINION DIGESTS
Domestic Relations
Plaintiff’s documentary evidence of a common law marriage consisted of (1) defendant’s stepfather’s obitu ary – which defendant said she did not write – listing defendant as plaintiff’s husband, (2) an admin istrative law court order referring to plaintiff as defendant’s husband in its findings of fact regarding a beer and wine permit for their res taurant, and (3) a mechanic’s lien referring to plaintiff as defendant’s husband and stating that defendant owns the Charleston duplex. Plain tiff also presented witnesses who gave equivocal testimony regarding the parties’ marital status. Plain tiff himself testified that he did not know when the parties became hus band and wife.
The parties’ conduct does not demonstrate they each intended to be married or knew the other in tended the same. We note that, in 2011, plaintiff filed a verified com plaint and sworn affidavit saying the parties were not married. Moreover, plaintiff babysat the children while
Even though the defendant-ten ant’s 17-year-old son was a mile from their apartment when he committed an armed robbery, the plaintiff-hous ing authority could still find that the son’s activities posed a threat to the health, safety or right to peaceful enjoyment of the rental premises by tenants. Therefore, the housing au thority had good cause to evict the tenant and her minor daughter pur suant to the “One-Strike Rule.” 42 U.S.C. § 1437d(1)(6).
We affirm in part, reverse in part and remand the circuit court’s deci sion to uphold the eviction.
However, the One-Strike Rule did not require eviction; rather, the housing authority had discretion as to whether to pursue the tenant’s eviction. The record is unclear as to whether the housing authority knew it had such discretion. The circuit court erred in concluding the hous
Common Law Marriage – Conflict ing Evidence – Child Support – In come – Attorney’s Fees
Opinions
Rule – Distance from Home – Discre tion
Where the parties’ trust agree ment required the trustee – before accepting an asset into the trust – to determine that the asset was “nego tiable” without third-party consent, and where the trustee accepted securities that could not be trans ferred without the approval of the securities’ “Administrative Agent,” the trustee breached the agreement.
Plaintiff agreed to allow a Texas insurance company to use plaintiff’s name to sell insurance in South Carolina. In order to protect plain tiff, the Texas insurer was required to place collateral in a trust to cover plaintiff’s potential liabilities from the Texas insurer’s policies.
– Payments to Subcontractors – Extracontractual Work
012-021-22, 8 pp.) (Per Curiam) Ap pealed from Florence County (Eu gene Preston Warr, Special Referee) Brooks Roberts Fudenberg for ap pellant; Gary Ivan Finklea and Pat rick Buel Ford for respondent. S.C. App. Unpub.
SOUTH CAROLINA LAWYERS WEEKLY I September 12, 2022 OPINION DIGESTS / 9
ing authority demonstrated that it had exercised discretion simply by being “aware of the applicable regu lations.” We remand for consider ation of whether the housing author ity exercised its discretion.
Removed PR – Tort/Negligence –James Brown Estate
CollateralContractinTrust
– Trustee’s Duty – Negotiability – Fronted Insurance Program
The Texas insurer became insol vent. Plaintiff then discovered that
We affirm summary judgment for respondents on appellant’s counter claims. We dismiss the appeal of the circuit court’s denial of appellant’s motion to dismiss.
Affirmed in part, reversed in part and remanded.
We remand for correction of a $100 clerical error but otherwise af firm the award of $176,794.99 plus interest to the contractor.
had notice and an opportunity to be heard. In addition, appellant’s fore cast of evidence does not support her counterclaims of civil conspiracy, abuse of process, fraud or tortious interference with contractual rela tions.
Bauknight v. Pope (Lawyers Weekly No. 012-020-22, 10 p.) (Per Curiam) Appealed from Richland County Circuit Court (Doyet Early & Case Manning, JJ.) Charles Car penter, Adam Tremaine Silvernail, Daryl Williams and William Jeffrey Smith for appellant; Kenneth Wing ate, Mark Gende, Aaron Jameson Hayes and Everett Augustus Ken dall for respondents. S.C. App. Un pub.
RestaurantContractRenovation
Carter v. Eagles Landing Restau rants, LLC (Lawyers Weekly No.
City of Charleston Housing Au thority v. Brown (Lawyers Weekly No. 011-059-22, 10 pp.) (Per Curiam) Appealed from Charleston County Circuit Court (Alison Renee Lee, J.) Matthew Billingsley and Adam Protheroe for appellant; Tjheodore Parker, Jacqueline Dixon Phillips and Thomas Bacot Pritchard for re spondent. S.C. App.
On appellant’s second attempt to appeal the denial of her motion to dismiss, we note again that the or der denying appellant’s motion does not establish the law of the case, af fect a substantial right or prevent appellant from raising her defenses at an appropriate stage of the litiga tion.
Check your preferred available dates online or schedule appointments directly with Academy Members, for free.SOUTHwww.SCMediators.orgCAROLINACHAPTERCheck AVAILABLE DATES for the State’s Top-Rated Mediators at www.SCMEDIATORS.org Need a top rated mediator or arbitrator outside of South Carolina? Please visit NADN’s free National Directory at www.NADN.org Walter B. Todd, Jr. (803)Columbia753-7952 Thomas (843)CharlestonWills727-1144 Richard (843)FlorenceHinson799-5599 Eric (864)GreenvilleEnglebardt232-2329 Karl (843)FlorenceFolkens665-0100Danny (803)ColumbiaCrowe888-3936 Jack (864)GreenvilleGriffeth349-2600 Bill (843)CharlestonLyles696-6294 Tom(864)GreenvilleStephenson370-9400 Earl (803)ColumbiaEllis260-0235 Rob (864)GreenvilleHassold325-7467 Mills (864)GreenvilleGallivan271-5341Jon (843)CharlestonAusten727-2271 David(843)CharlestonMcCormack789-9153 Lee (864)GreenvillePlumblee235-2600 Franklin (803)ColumbiaShuler227-4242 Lana Sims, (803)ColumbiaJr.995-4342 Brad (843)CharlestonWaring277-3700 Theron (864)GreenvilleCochran298-2721Ellen (803)ColumbiaAdams255-0426 Sam (800)CharlestonClawson774-8242 Anne (864)GreenvilleCulbreath672-3713 Ben (803)ColumbiaMcCoy758-6000 Ronald (803)ColumbiaStanley799-4700 Ned (843)BeaufortTupper524-1116 Derrick (803)ColumbiaWilliams929-0029 Mitch (843)BeaufortGriffith521-4242 Regina H. (803)ColumbiaLewis790-8838 Vernon (864)GreenvilleDunbar239-6735 Amy (803)ColumbiaGaffney790-8838 Harry (803)ColumbiaGoldberg765-2935 Stuart (864)GreenvilleMauney271-5356 Bob (843)MyrtleCalamariBeach946-5660 Becky (803)ColumbiaLaffitte231-7831 Darren Sanders Mt. Pleasant (843) 714-7661 Matt (843)CharlestonStory577-2026 See Page 10 ► Continued from 8 ►
Trusts & Estates
After appellant was removed as personal representative of the James Brown estate, respondents sued her for several torts based on, among other things, (1) appellant’s request for millions of dollars for services provided in a short amount of time and (2) appellant’s sale and attempted sale of iconic assets from the estate and the use of a large portion of the sale proceeds to pay appellant’s own attorneys’ fees. We agree with the circuit that the ma jority of appellant’s counterclaims are collaterally estopped because of separate litigation upholding her re moval for cause, in which appellant
settled a claim by electrical subcon tractor Carolina Construction Solu tions (CCS) for $50,000. CCS was only hired after the project owner became frustrated by construction delays, demanded that the general contractor hire additional electri cians, and approved a change or der listing a cost of $37,397.45 to hire the additional electricians. The change order specified that it would be added to the original contract price. Consequently, the special ref eree properly declined to offset the owner’s liability to the general con tractor by either its payment to CCS or by any alleged savings under the original contract.
During the underlying proceed ings between the project owner and the general contractor, the owner
The project owner argues the special referee erred in failing to award $71,784.52 on its counter claim for lost profits resulting from the postponement of the opening the restaurant due to construc tion delays. However, the record reflects that most, if not all, delays were due to the owner’s actions or circumstances beyond the control of either party. The initial delay in starting construction was the result of the owner’s difficulty obtaining fi nancing. Other delays caused by the discovery of mold in the long-vacant building and the owner’s change orders cannot be attributed to the contractor. Therefore, the special referee properly declined to award the owner damages for lost profits.
We vacate the district court’s holding that the trustee did not breach the agreement by accepting into the trust Destra Targeted In come Unit Investment Trust secu rities (Destra units). Otherwise, we affirm.
Weassets.conclude that Paragraph 8(b) required the trustee , before ap proving any asset for deposit into the trust account, to determine that the asset was in such form that plaintiff could negotiate it without third-party consent. The logical consequence is that, if the trustee found that an asset wasn’t in the proper form, it couldn’t then accept it.
AutoInsurance–UIM–Meaningful Offer
Plaintiff contends that the form
Continued from 9 ►
SOUTH CAROLINA LAWYERS WEEKLY September 12, 202210 / OPINION DIGESTS
But Paragraph 8(b) of the trust agreement doesn’t distinguish be tween asset types. And the trustee admits its expert derived his opin ion not from the contractual text but from his “practice.” The district court erred in relying on such ex trinsic evidence in the face of a clear and unambiguous term. In short, Paragraph 8(b) required the trust ee to determine that a trust asset was in such form that plaintiff or the trustee could “negotiate”—i.e., transfer ownership of—the asset without third-party consent.
Speakers at the ceremony talked about the need not only to boost the workforce but to make sure that people of all ages have access to needed training.
rate has dropped by 0.2 percent age point, according to the U.S. Bureau of Labor Statistics.
Accident Insurance Co. v. U.S. Bank National Association (Law yers Weekly No. 003-036-22, 24 pp.) (Albert Diaz, J.) No. 21-1504. Appealed from USDC at Columbia, S.C. (Michelle Childs, J.) Jordan Christopher Calloway and Chad McGowan for appellant; Michael Krauss, Johanna Hyman and Me liah Bowers Jefferson for appellee. 4 th Cir. Unpub.
Paragraph 8(b) required the trustee to determine an asset’s proper negotiability “before accept ing any Asset for deposit to the Trust Account.”
We affirm in part, vacate in part, and remand.
The trust agreement was gov erned by Delaware law. Thereun der, a contract’s construction should be that which would be understood by an objective, reasonable third party. Nearly universally, diction aries define “negotiate” – in the context of financial instruments –to mean “transfer ownership,” and Delaware courts recognize this or dinaryRathermeaning.than deduce the plain meaning of “negotiate” with dic tionaries or precedent, the district court relied on the trustee’s expert to find that “[n]egotiability depends on whether a security is a physical stock certificate . . . or journal bookentry.” This “negotiability” finding led to the court’s ultimate conclu sion on the meaning of “negotiate” vis-à-vis the Destra units.
We affirm summary judgment for the Plaintiffdefendant-insurer.alsoarguesthat the broad range of premiums (between $23 and $780) noted on the form was not a reasonable warning of the potential size of a premium in crease of plaintiff wanted to pur chase UIM coverage. However, S.C. Code Ann. § 38-77-350(A)(2) requires just “a list of available limits and the range of premiums for the limits[.]” We do not read the statute to require a precise dol larSinceamount.the form also advised plaintiff of the nature of UIM in surance and the limitations on that coverage, defendant made a meaningful offer of UIM coverage to plaintiff.
plaintiff requested. The trustee did not breach this paragraph. It took the necessary step of inform ing plaintiff that, before the Destra units could be transferred, plaintiff would need to communicate with the Destra Administrative Agent. Plaintiff never communicated with the Administrative Agent, so the trustee could not take any further steps to complete the transfer of the Destra
DEW has launched two Work force Development Month pages where jobseekers and others can check out the schedules: www. dew.sc.gov/wdm and www.sc works.org/wdm.
the bulk of the assets in the trust were not readily negotiable.
will work to reconnect people who were employed before the pan demic but not currently working.
Federal data backs up DEW numbers, showing the state’s la bor force participation at 57.3% as of Aug. 19 — down from 57.5% in July. Since last year, South Car olina’s labor force participation
The schedule of events for Workforce Development Month is jam-packed, including more than 200 job fairs and workshops state wide; dozens of visits by the Be Pro Be Proud and Career Coach mobile workshops; discussion fo rums and roundtables; four la bor market webinars and other events, both in-person and online.
■ BY CHRISTINA KNAUSS cknauss@scbiznews.com
Addressing that situation will be a central focus this month and beyond, officials said Wednesday during a special ceremony to of ficially declare September Work force Development Month state wide.Officials from the S.C. Depart ment of Employment and Work force as well as numerous other state agencies, nonprofits and companies attended the event at the Michelin plant in Lexington, as well as S.C. Gov. Henry Mc Master and Alexis Garcin, presi dent and CEO of Michelin North America.Thestate is currently seeing one of its strongest job markets ever, said Dan Ellzey, executive director of DEW. He said the agency’s statistics show 74,000 more people are working right now statewide than were on the payroll in the months leading up to the COVID-19 pandemic in ear ly However,2020. Ellzey said, the catch is that there are currently 113,000 jobs that need filling in the state, a problem made worse by the fact that South Carolina has one of the nation’s lowest labor force partici pation rates at around 57%.
on which he declined underinsured motorist (UIM) coverage was not commercially reasonable under Dewart v. State Farm Mut. Auto Ins. Co. , 296 S.C. 150, 370 S.E.2d 915 (Ct. App. 1988). However, Dewart ’s caution that an insert explaining UIM coverage might be disregarded as “junk mail” is inap plicable here because all of the in formation was on the same form.
State agencies take aim at gap in workforce pipeline
“Our challenge is to figure out how to get people to these jobs,” he said. “We need to figure out why people who lose their jobs aren’t returning to work, and why they don’t enter the workforce in the first place. We’ve had a task force studying this, and we expect to have some answers later this year.”Inhopes of finding a solution, DEW is kicking off a new program on Thursday. Direct Connect aims to get people back into the work force on a county-by-county basis, starting in Laurens County in the Upstate. Ellzey said the program
“We think this is a possible solu tion to the problem we’ve got.”
Paragraph 8(b) acted as a gate keeping clause against deposit of nonnegotiable assets.
Yet, knowing the Destra units could not be transferred without the approval of the Destra “Admin istrative Agent,” the trustee accept ed the Destra units into the trust anyway. The trustee thus breached the trust agreement.
To “accept” something means to “receive [it] willingly” or to “give admittance or approval.” MerriamWebster Dictionary. We thus find that Paragraph 8(b)’s use of “ac cepting” required the trustee to af firmatively decide whether to admit trust
“The No. 1 challenge our com panies have is not being able to find enough workers, and often when they do get enough appli cants, they discover they don’t have the skills for the job,” Mor gan said. “We also have compa nies that are hiring workers who never show up or who only end up staying for a week or so. The big gest challenge this state has ev ery day is workforce development, and we applaud all the efforts to put a spotlight on this challenge.”
Finally,units.plaintiff failed to prove its claims of breach of fiduciary duty and negligent misrepresenta tion based on the trustee’s listing of the Destra units under a “Taxable Bonds” heading in account state ments. Plaintiff’s claims fail be cause plaintiff did not show that it relied on the heading.
The state’s business-friendly attitude draws companies both large and small, but they face a double-edged sword when trying to attract workers, said Bob Mor gan, president and CEO of the S.C. Chamber of Commerce.
Paragraph 3(b) of the trust agreement required the trustee to “immediately take any and all steps necessary to transfer” trust assets “absolutely and unequivocally” as
Officials from the S.C. Department of Employment and Workforce, as well as other state agencies and nonprofits, attended a recent event to officially declare Septem ber Workforce Development Month statewide. Pexels.com
Other Issues
Staff members will identify unemployment insurance claim ants from the pandemic and work with regional partners in Laurens County, such as religious organi zations and nonprofits, to try to find out why the residents have not returned to work. The program will offer hands-on, personalized services to help guide people back to employment and connect them with local businesses that are hiring, Ellzey said. Once the pro gram is launched in Laurens, the agency will take Direct Connect to other“Wecounties.know that about 1,200
people in Laurens County fall into this category, and even if we could get 200 of them back into the workforce, that would have a big impact on payroll,” Ellzey said.
Current statistics show South Carolina’s job market at an inter esting crossroads, with more jobs available than ever before but a consistent problem in getting peo ple to apply for them.
Bronner v. GEICO Indemnity Co. (Lawyers Weekly No. 012022-22, 7 pp.) (Per Curiam) Ap pealed from Beaufort County Cir cuit Court (Marvin Dukes, Acting Judge) Olin McDougall and Bert Glenn Utsey for appellant; Thom as Milligan for respondent. S.C. App. Unpub.
“We have to pull weeds and plant seeds,” Moore told protesters last week.
LAWYER TO LAWYER / Directory
“We knew that we were all over the place,” Republican Rep. Davey Hiott said Tuesday evening of the caucus meeting. “If I told you it was pleasant in there I’d be lying to you.”
“I wish (the House) hadn’t sent us anything and left it alone,” Shealy said. “We had a good bill. Leave it like
Moore named Rep. Neal Collins, who two weeks ago in a moment that went viral, got choked up at a meeting as he described the impact of the six-week abortion ban he supported. While Collins abstained from moving the proposal out of committee, he ultimately voted for the final bill.
system, increase SNAP benefits, and expand Medicaid, among other poli cies. Republicans on Monday men tioned a planned bill to streamline the adoption process.
Abortion ban reaches S. Carolina Senate
Republican Sen. Katrina Shealy — who represents Lexington County, one of the state’s more conservative districts — said the chances are “slim to none” that the Senate passes the HouseAccordingversion.to Shealy, enough Re publican Senators want to see how the state’s “heartbeat bill” pans out before taking additional action.
But much of the landscape has changed since South Carolina Gov. Henry McMaster signed the state’s temporarily blocked ban around six weeks at the presence of cardiac ac tivity. Now, members of a state Re publican Party divided on the issue’s details are no longer constrained by federalConservativelaw. lawmakers have been emboldened to pursue further restrictions since the U.S. Supreme Court overturned Roe v. Wade. But factions within the party were made plain Tuesday when Republican lead ership called a nearly two-hour recess to convene members before the House ultimately passed an abortion ban with limited exceptions.
it is.”Democratic Sen. Marlon Kimpson — who in 2018 filibustered a bill that would have outlawed most abortions — is not optimistic he can repeat that success. Since then, procedural rule changes and the loss of several mod erate Republican voices have made it less likely he will successfully block any proposal. Plus, Kimpson said the remaining moderate members are less comfortable voicing opposition out of increased fears they might lose their next primary.
SOUTH CAROLINA LAWYERS WEEKLY I September 12, 2022 NEWS / 11 TOM MILLIGAN • OVER 30 YEARS OF EXPERIENCE • TRIAL LAWYER WHO HAS TRIED OVER 200 JURY TRIALS • CERTIFIED ARBITRATOR SINCE 1999 • CERTIFIED MEDIATOR SINCE 2001 PROFESSIONALMEDIATIONS:CONVENIENTOBJECTIVEMILLIGAN&HERNS,PC 721 Long Point Road, Suite 401 Mt. Pleasant, SC 29464 843-971-6750 ❘ tom@milliganlawfirm.com
“We have no idea what the Senate will do,” Hiott, the House majority leader, added. “Our goal was to get a bill over there that we were comfort ableThosewith.”shifting fault lines will de termine whether the upper chamber follows suit or carves out a new pro posal when lawmakers convene next week.Ata news conference last week, Re publican Sen. Richard Cash and Rep. Stewart Jones said they represented a “growing consensus” that would not commit to voting for a proposal that included exceptions outside of protec tions for a mother’s life.
the bill’s final passage. While Cash’s uncompromising position is backed by Republican Sens. Danny Verdin and Rex Rice, whether other colleagues support him remains to be seen.
To defeat any new restrictions, Democrats will have to find eight Republicans to join their ranks — a “challenging” task, according to Kimpson.“Atthe end of the day it’s about numbers. And the game is set in fa vor of the party whose controlled both houses and the governor’s offices for almost two decades or more,” Kimp son said. “It’s going to an uphill bat tle.”With the House advancing its pro posal, lawmakers on both sides of the aisle are looking ahead to Janu ary’s regular session. Democrats on Wednesday asked when the legisla ture will better fund the foster care
But that faction ultimately lost in the House when Republicans — by a voice vote — added exceptions for pregnancies up to 12 weeks caused by rape or incest. Jones did not vote on
Having exhausted their options for dissent in the legislature, House Democrats also repeatedly urged abortion rights supporters to vote for pro-choice candidates this fall.
Charleston Republican Sandy Senn said she would vote against any proposal that bans abortion before the first trimester ends and lacks ex ceptions for rape, incest, a mother’s life and fetal anomaly.
COLUMBIA, S.C. (AP) — While the results of this month’s Kansas abortion vote have shaken some Re publicans’ appetite for additional re strictions, South Carolina lawmakers last week advanced a ban with lim itedByexceptions.a67-35vote, the South Caro lina House sent the Senate a bill ban ning abortion with exceptions only when the pregnancy risks the moth er’s health or up to 12 weeks when it is the result of rape or incest.
“Most people in our state would support such a reasonable bill, and I believe most of my colleagues inter nally would too. Some senators will feel the heat of the party base to vote a certain way,” Senn said in an email. “I don’t because that base is in the mi nority even within our party.”
At a demonstration Tuesday before the final House vote, activists asked supporters to continue calling their elected officials. Melissa Moore, the director of organizing for Women’s Rights and Empowerment Network, said the ballot box can’t be the only response because gerrymandered dis tricts have limited its effectiveness as a tool for change.
South Carolina Rep. John McCravy, R-Greenwood, talks about a total ban on abortion he has proposed during the House session on Tuesday, Aug. 30, 2022, in Columbia, S.C. AP Photo/Jeffrey Collins
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