SCLAWYERSWEEKLY.COM VOLUME 19 NUMBER 22 ■
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OCTOBER 25, 2021 ■ $8.50
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FROM THE BRINK Transparency, reinvestment spark Charleston School of Law’s comeback story ■ BY TERI ERRICO GRIFFIS Dean Larry Cunningham was full of apologies after running a few minutes late to a meeting. A group of Charleston School of Law students had surprised him last-minute by dropping off a handful of handwritten thank you cards, expressing their appreciation for his support volunteering at a recent event. The bubbly moment was a far cry from where the law school was seven years earlier, on the brink of disaster and on its way to permanently shuttering. Back then, school administrators were far more likely to be receiving correspondence related to two lawsuits filed by faculty members than thank-you notes from students. The hiccup in the school’s history began in 2013 when owners Robert Carr and George Kosko called an impromptu gathering of faculty to inform them that that the school would either have to close or be sold to InfiLaw, a Floridabased for-profit company that owned three bottom-tier law schools, including Charlotte School of Law. The school was only 10 years old at that time. This newspaper called it “a law school on the brink,” which it very much was. But devastated but determined students, alumni, and faculty pushed back, fearing that the sale would mar the school’s reputation and lower the standards of a Charleston School of Law education. The turning point came in October 2015 when Ed Bell, See CSOL Page 5 ►
Failure to call alibi witnesses was ineffective assistance ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A man who spent nearly a decade in prison after being a convicted of several violent crimes will get a new trial because his trial lawyer declined to call alibi witnesses that could have called his guilt into question, the South Carolina Court of Appeals has unanimously ruled. The attorney who represented
Victor Weldon during his 2012 trial—a real estate attorney who said he’s tried one or two criminal cases in more than 20 years of practicing law—testified at a post-conviction relief (PCR) hearing that he didn’t know why he didn’t call Weldon’s mother and sister as alibi witnesses, and that the outcome may have been different had he done so. In hindsight, he said, he should have. Instead, the trial attorney attacked
the DNA evidence linking Weldon to the crimes. The argument didn’t persuade the jury, and Weldon was convicted of first-degree burglary, armed robbery, grand larceny, kidnapping, and possession of a weapon during the commission of a violent crime when he and two other men allegedly assaulted and robbed the victim in his own garage. Weldon was sentenced to consecutive 30-year sentences, a concurrent 20-year-sentence, and two
concurrent five-year sentences. The PCR court determined that despite trial counsel’s change of heart, he had made clear, tactical, strategic decisions during the trial and was at least reasonably competent. But in its Oct. 6 decision, hearing the case on a petition for a writ of certiorari, the appeals court overturned the PCR court’s denial of relief, finding that See Alibi Page 7 ►
INSIDE VERDICTS & SETTLEMENTS
VERDICTS & SETTLEMENTS
SIDEBAR
Bars to pay $5.5M in dram shop settlements
Parents of man slain in hotel settle suit for $1.25M
All doughnut hole and no doughnuts
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S O U T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 25, 2021
NEWS BRIEFS Dismissal upheld in lawsuit over unemployment benefits COLUMBIA (AP) — The South Carolina Supreme Court has rejected a lawsuit against Gov. Henry McMaster over his early exit from federal unemployment programs providing extra money to residents during the pandemic. The unanimous Oct. 13 opinion upheld State Circuit Judge Lawton McIntosh’s August dismissal of the suit brought by four jobless South Carolinians. The unemployed workers had asked a judge to require state officials to rejoin the programs after McMaster ordered the state’s workforce agency to opt out at the end of June. The extra benefits were scheduled to run through early September and included an extra weekly $300 to unemployed workers. The South Carolina Department of Employment and Workforce estimated jobless residents would lose out on about $585.3 million in additional federal benefits. McMaster had cited a workforce shortage he claimed was due in large part to the supplemental federal payments.
Civil rights attorney seeks charges over inmate’s death COLUMBIA (AP) — A prominent civil rights attorney has demanded that a South Carolina prosecutor revisit a case and criminally charge the two jail employees who stunned a mentally ill Black man 10 times and kneeled on his back until he stopped breathing. Ninth Circuit Solicitor Scarlett Wilson announced in July that the Charleston County jail deputies who were seen on surveillance video restraining Jamal Sutherland wouldn’t face charges. Wilson called the deputies’ actions “damning,” but said she couldn’t prove the guards intended to kill Sutherland, who at the time was refusing to go to his bond hearing. Attorney Ben Crump joined Sutherland’s relatives outside Wilson’s office on Oct. 19 to call on the solicitor to reconsider her decision, arguing she had gathered enough evidence throughout her months-long investigation to charge the former deputies with involuntary manslaughter. The Florida-based attorney has represented the families of a number of Black people who have died at the hands of police and vigilantes in recent years. He compared Sutherland’s death to two cases he has litigated — the killings of George Floyd in Minneapolis and Ahmaud Arbery in Georgia. The deaths of those men were also captured on video, and charges were eventually filed in both of those cases. Sutherland, 31, had been booked into the jail the day before his death on a misdemeanor charge. Officers had arrested him while investigating a fight at the mental health and substance abuse center where he was receiving treatment for schizophrenia and bipolar disorder. His death drew national attention after county officials released video of the incident months later. Amy Sutherland, Jamal’s mother, expressed frustration over the number of times the family met with Wilson’s office as the investigation moved forward, saying it seemed like the decision not to charge the deputies was predetermined. “Scarlett Wilson could have done so much more,” Amy Sutherland said. “She’s shammed us just like she
LAWYERS IN THE NEWS shammed y’all. We were in and out that office, in and out that office, in and out that office — and no time did we ever hear one encouraging word.” In a statement on Oct. 13, Wilson said that she understood “the frustration that some may have with my decision.” The solicitor added that she had invited the U.S. Department of Justice to look into the case in April and that she wouldn’t interfere with any review by federal authorities or the state Attorney General’s Office. “While I stand by my decision, I welcome the review of other prosecutors, especially those with different statutory opinions,” Wilson said. Charleston County Sheriff Kristin Graziano was sworn into office the day before Sutherland died. She has promised wide-ranging changes to jail operations, including how those with mental illnesses are treated. Four months after Sutherland’s death, Graziano fired Charleston County Detention Center Sgt. Lindsay Fickett and detention Deputy Brian Houle. Charleston County also agreed to pay a $10 million settlement to Sutherland’s family. Wilson had said the jail employees were merely following training that had fostered a “militaristic culture” at the jail. She said that prior to the incident, the guards tried to talk Sutherland into voluntarily going to the hearing for 15 minutes, asking supervisors if they could do something other than attack him. But they received no help, so the deputies did what they were trained to do, Wilson said — use the Taser or pepper spray. But that rationale wasn’t adequate to Crump, who said the guards shot Sutherland with a stun gun too many times and for too long, and then put a “spit mask” on him: “At some point, it just becomes reckless, reckless, reckless,” Crump said. In the videos released in May, a deputy enters Sutherland’s cell, trying to handcuff him. The deputies stun him and, with the electrodes still on Sutherland, a second officer fires the stun gun again. Sutherland can be heard saying, “I’m not resisting, officer.” Sutherland was eventually placed in handcuffs with a deputy’s knee on his back for more than two minutes. “I can’t breathe,” Sutherland said. Attorney Carl Solomon also said one of the deputies involved has a history of excessive use of force, noting Fickett was sued by a former inmate in 2016 over improper use of his stun gun. That federal suit, which also named former Charleston Sheriff Al Cannon and several other deputies, was settled in 2019.
Man acquitted after years in jail following 2017 shooting GREENVILLE (AP) — An upstate South Carolina man who spent four years in jail while accused of murder has been found not guilty. The Greenville News reports that jurors acquitted 36-year-old Diderikcous Jacobi Hill on Oct. 15 in the 2017 shooting death of 48-year-old James Calvin Hill. The men were not related, according to testimony. Officials arrested the Fountain Inn resident after being called regarding a shooting. Deputies initially found only a pool of blood, but later found James Hill of Simpsonville dead in a ditch with multiple gunshot wounds to the head. See Page 7 ►
Nexsen Pruet announced that Kamri Barber, Emory Sloan, and Erica Wells have joined the firm in its Columbia office, and Caitlin Walker has joined the firm in its Greenville office. Barber and Walker both focus their practices on employment and labor law. Sloan focuses on corporate and tax law. Wells focuses on business and commercial litigation. Matthew “Matt” S. Morgan and Tiffany E. Payne have joined Moore & Van Allen as counsel in the firm’s Charleston office. Morgan joins the firm’s financial services and special situations groups and represents investment funds, financial sponsors, and financial institutions with transactions across the credit spectrum. Payne joins the firm’s litigation group and represents clients facing white-collar criminal prosecution, enforcement, regulatory matters, and high-stakes business litigation. Bret Pruehs and Jennie Cerrati have joined Burr & Forman as partner and counsel, respectively. Both attorneys are based in Hilton Head. Pruehs joins the firm’s real estate practice group and handles residential and commercial real estate transactions and general corporate law. Cerrati joins its corporate practice group and focuses her practice on estate planning, probate, trust and estate adminis-
tration, and tax matters. Pam Larson has joined Womble Bond Dickinson in its Charleston office as a staff attorney. Larson joins the firm’s mass torts litigation team and comes to the firm from Charleston Pro Bono Legal Services, where she served as a staff attorney focusing on helping survivors of human trafficking and victim rights. Nick Farr has joined Rogers Townsend as a member in the firm’s Greenville office. Farr focused his practice on civil litigation with a focus on insurance coverage, tort and personal injury. David F. DuTremble has joined Sanders Law Firm in Charleston as an associate attorney. His practice will focus on civil and criminal litigation, and he comes to the firm from the Charleston County Solicitor’s Office. Shumaker has announced that Laura J. Evans, a partner in the firm’s Charleston office, will serve as the national leader for its health law practice. Jon Asbill has been named special sounsel with Baker Ravenel Bender. Asbill has been an associate with the firm since 2014. He practices in the areas of appellate advocacy, construction litigation, insurance coverage, products liability, premises liability, and personal injury.
BAR DISCIPLINE
ROUNDUP Attorney: Cory Howerton Fleming Location: Beaufort Bar membership: Member since 1994 Disciplinary action: Suspended from the practice of law until further order on Oct. 8 Background: The Of f ice of Disciplinar y Counsel asked the Supreme Court to place Fleming on interim suspension pursuant to Rule 17(b) of the Rules for Law yer Disciplinary Enforcement, and the court ordered that Fleming’s license to practice law in the state be suspended until further order. The court’s order did not provide any information about the reason for the suspension, but the Associated Press reported that Fleming has been named as a defendant in two lawsuits connected his work in legal disputes related to now-suspended at torney Alex Murdaugh. In a statement reported by the AP, Fleming acknowledged that he had made “material mistakes” while managing an estate, but said that he was not a willing participant in any scheme perpetrated by Murdaugh. Previous discipline: None Judge: Kenneth E. Johns Jr. Location: Walhalla Bar membership: Not a member of the state bar Disciplinary action: Suspended from judicial duties for 18 months on Oct. 13 Background: In a post on his Facebook page, on which Johns identified himself as a probate judge, Johns solicited donations to the American Red Cross, thereby violating
a canon of the Code of Judicial Conduct prohibiting a judge from personally par ticipating in the solicitation of funds or other fundraising activities. Johns had previously been suspended for six months for social media posts commenting on a matter pending before the cour t, endorsing a presidential candidate, and fundraising for a local church. After that sanction, Johns had promised to refrain from making political posts or posting fundraising information on Facebook or any other social media. Separately, in 2017 Johns prepared a certification for submission in litigation pending in the Superior Court of New Jersey in which he personally attested to the character of a South Carolina resident and advocated on behalf of the resident’s legal position in the New Jersey litigation, thereby violations canons requiring a judge to uphold the integrity and independence of the judiciary and avoid impropriety and the appearance of impropriety and prohibiting a judge from testifying voluntarily as a character witness. Previous discipline: Johns had been on interim suspension from his position as an Oconee County associate probate judge since April 12. Johns’ previous six-month suspension had been imposed retroactively after he had been placed on interim suspension in 2016. All information contained in the Bar Discipline Roundup is compiled and edited by Lawyers Weekly editor in chief David Donovan. He can be reached at david.donovan@sclawyersweekly.com.
S O U T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 25, 2021
NEWS / 3
Bars to pay $5.5M in dram shop settlements ■ BY DAVID BAUGHER Two people who were injured when their vehicle was hit head-on by a heavily intoxicated late-night driver who was going the wrong way on an interstate have agreed to $5.5 million in confidential settlements with two bars that served the drunk driver, the plaintiffs’ attorneys report. David Yarborough and Liam Duffy of Yarborough Applegate in Charleston and Shelly Leeke, Chip Alexander, and Kassandra Garan of Shelly Leeke Law Firm in North Charleston report that the driver, who was not identified due to a confidentiality agreement, celebrated her 29th birthday with friends and a bottle of vodka David before consuming more drinks Yarborough at one area bar and then traveling to downtown Charleston for drinks at a second establishment. She got onto I-26 around 3 a.m., where she crashed into the attorneys’ clients. Yarborough said that the impaired driver—a 4’9” individual weighing under 100 pounds— was “really drunk,” to the point Liam Duffy
that she was swaying, based on the account of a witness, and her blood alcohol level was two and half times the legal limit when she was tested an hour after the crash. Yarborough said that both vehicles were traveling about 50 mph when the impact occurred. Both plaintiffs sustained fractures to the femur and tibia as well as concussions and broken toes. The passenger also sustained a dislocated shoulder and lacerated liver. The downtown bar’s insurance paid about $1 million into the settlement, though Duffy said part of that went to a passenger in the drunk driver’s car, whose matter remains ongoing. Most of the total was borne by the first tavern, which did not appear in court, apparently due to an error. “Their insurance broker failed to transmit the lawsuit papers to their insurer. Because of that, they were held in default by a circuit court judge here in South Carolina,” Duffy said. “What that means is that liability was established against them, and it was just a question of damages at that point.” He said that the bar made a motion to set aside the default, but it was denied. “The message that we hope is getting through is that responsible alcohol service by commercial establishments, bars, and restaurants is not something that should just be given lip service,
SETTLEMENT REPORT – DRAM SHOP
Amount: $5.5 million Injuries alleged: Fractured femurs, tibias, and toes; concussions, lacerated liver, dislocated shoulder Case name: Confidential Venue: Confidential Special damages: $324,622.80 in medical expenses between two people Attorneys for plaintiff: David Yarborough and Liam Duffy of Yarborough Applegate in Charleston and Shelly Leeke, Chip Alexander, and Kassandra Garan of Shelly Leeke Law Firm in North Charleston Attorneys for defendants: Withheld because if it is, which is often the case, people are going to get hurt,” Duffy said. “Our roadways are endangered by that. This is a situation where someone should have never been served alcohol and she unfortunately got behind the wheel of a car after being served a copious amount.” The names of the attorneys for the defendants were also withheld pursuant to a confidentiality agreement.
Parents of man slain in hotel settle suit for $1.25M ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com The parents of a man who was shot and killed at a “crime-infested” hotel have settled their wrongful death suit against the motel’s owner for $1.25 million, well above its insurance policy’s limits, their attorneys report. Brian Mickelsen and Danny Dalton of Mickelsen and Dalton in Charleston report that their clients and their son were approached at the defendant hotel by a drug dealer who lived there. The son and the dealer got into an altercation that led to the fatal shooting, and the parents watched their son die in their arms. A motel security guard witnessed the shooting, Dalton said, and the parents later learned that the guard had previous convictions for sex offenses and violent crimes. The attorneys said that the motel claimed that the son was a former motel employee who’d been trespassed from the property for threatening fellow employees with a knife. The parents denied the allegations and produced more than 15 af-
fidavits from former motel employees, guests, and neighboring businesses showing that the security guard had previously fired shots at the motel; that he was in cahoots with the killer; that it knew about violent crimes committed both on motel premises and by the guard; and that the Brian motel had a history of destroying Mickelsen or doctoring documents such as internal incident reports, emails, and video surveillance. The attorneys said that the motel rejected a $300,000 offer of judgment by the plaintiffs but later offered $500,000, which the parents rejected. The motel also rejected several Tyger River policy-limit demands, the attorneys Danny Dalton said. The attorneys said that the motel was also sanctioned for failing to timely respond to discovery.
SETTLEMENT REPORT — WRONGFUL DEATH
Amount: $1.25 million Injuries alleged: Death and negligent infliction of emotional distress Case name: Withheld Court: Withheld Date of settlement: September 2021 Attorneys for plaintiffs: Brian Mickelsen and Danny Dalton of Mickelsen Dalton in Charleston Attorneys for defendant: Withheld “We went to war on this one,” Mickelsen said. “Ultimately, the court granted plaintiffs’ motion for sanctions and struck the defendant motel’s answer. I admire our judge, who demanded that the parties play by the rules and then sanctioned the defendant when it disregarded his order.” Pursuant to a confidentiality agreement, many details of the case, including names of the parties and venue, have been withheld.
Workers’ comp case settled for $1.15M after severe car crash ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A plaintiff who T-boned an oncoming vehicle has settled their workers’ compensation claim against their insurance carrier for $1.15 million, their attorneys report. Christopher Hart of Hart Law in Columbia and Justin Bamberg of Bamberg Legal in Bamberg represented the injured worker, whose name was withheld pursuant to a confidentiality agreement. Hart said that despite being airlifted to the hospital and Christopher undergoing emergency surgery, Hart the crash left the client paralyzed from the waist down. The client had to travel out of state several days a week to receive adequate care for the required injuries for extensive rehabilitation and treatment with several medical professionals, Hart said. Hart said that post-rehabilJustin itation, insurance carrier GalBamberg
lagher Bassett Services was required to modify the client’s home and vehicle for wheelchair accessibility but that the claims process included much “hand-wringing” and “tug-of-war” with the Illinois-based carrier. As the client rehabilitated from catastrophic injuries, Hart said, the carrier declined to approve medical treatment. “On a daily basis for over three years we were constantly calling, emailing, faxing, writing letters to the insurance carrier ensuring the client’s medical treatments were approved and paid,” Hart said. Bamberg added that the plaintiff was adamant about not allowing the carrier to call the shots going forward. “Our client is now in control of all future medical treatment,” Bamberg said. The plaintiff’s injuries preclude them from doing the job they did before the crash. Hart said that his client has found other employment but with limited hours. Hart said that his client is doing much better, under the circumstances, and continuing to work at once again becoming self-sufficient. “Paraplegic therapy support groups and counseling has played a tremendous role in our client’s positive health gains,” Hart said.
SETTLEMENT REPORT – WORKERS’ COMPENSATION
Amount: $1.15 million Injuries alleged: Paraplegia Case name: Withheld Court: South Carolina Workers’ Compensation Commission Case No.: Withheld Date of settlement: Oct. 7 Most helpful experts: Janice Holloway (life care planner) Insurance carrier: Gallagher Bassett Services of Rolling Meadows, Illinois Attorneys for plaintiff: Christopher Hart of Hart Law in Columbia and Justin Bamberg of Bamberg Law in Bamberg Attorneys for defendant: Withheld Pursuant to a confidentiality agreement, many details of the case, including names of the parties, the defense counsel, and location of the crash were withheld.
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S O U T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 25, 2021
How operating agreements can solve debt/equity disputes ■ BY ZANA TOMICH BridgeTower Media Newswires Private businesses often rely on infusions of cash from their owners — whether to start the business, fund its expansion or develop its next great product. The infusions can be small, such as amounts needed to get through a payroll period while awaiting a customer payment. They can also be large, such as financing for a major equipment upgrade. Financing from owners, then, can solve a lot of operations problems for a private business. But it can also create a whole bunch of other problems down the road if the right planning isn’t in place. The potential trouble arises from the fact that when owners put cash (or other value) into a privately held company, the transfer can be characterized in one of two ways: either as a loan or a capital contribution. The distinction is significant — for the business, its owners and its creditors. Given the stakes riding on it, it’s not unusual for business owners to fight, after the fact, over whether funding received from one of them was a loan or capital contribution. And in almost all cases, having a clear operating agreement would have rendered
those stressful and costly legal disputes unnecessary. This article will describe why the difference between loans and capital contributions matters, how courts distinguish between them, and how a good operating agreement can forestall disputes over them.
Why it matters
Capital contributions are investments an owner makes in a business in return for equity. A loan, on the other hand, is a debt owed by the company. The classification of financing as a loan or a capital contribution has important implications. For starters, it dictates how repayment is treated for tax purposes for the owner. If it’s a loan, the repayment is tax free. If it’s a capital contribution, the repayment may have to be treated as a taxable dividend. The classification also affects whether the business must make interest payments on the money it received — and whether it can deduct those payments from its taxes. If it’s a loan, it can deduct the interest payments; if it’s a capital contribution, no interest payments would be required (nor could they be deducted). The distinction between loans and capital contributions can also hold
great importance if the business is forced into bankruptcy, where loans are entitled to a higher priority than equity. Given the stakes, disputes often break out among owners over the classification an owner contribution. The disagreements often arise after the fact, and very often occur when a business relationship sours (as many unfortunately do). There have been innumerable instances of owners squabbling over the critical distinction between loans and capital contributions. Related issues also arise frequently, like whether one owner’s “sweat equity” was the equivalent of another’s cash transfer or whether an operating agreement obligated one owner to make a contribution but not another. Ultimately, in the absence of a clear operating agreement, the courts are left to determine whether an owner’s transfer to a business should be considered a loan or capital contribution.
How courts decide
To help themselves work through frequent questions over the distinction between debt (loans) and equity (capital contributions), courts have develSee Disputes Page 5 ►
How to run a well-documented and defensible eDiscovery process ■ BY JEAN E. KORDENBROCK It is commonplace in almost every litigation matter today, but it still strikes fear in the minds of many lawyers: electronic discovery. From collecting data to protecting it in a secure environment, the federal rules require lawyers to competently gather the relevant information and defend the process used to collect it. The reasons many lawyers distress over eDiscovery are twofold: (1) the process can be complex and (2) a flawed process can lead to serious, negative consequences, including adverse rulings and sanctions. The good news is that, with greater understanding and careful planning, every litigator can handle eDiscovery. Once a lawyer learns of an imminent or actual legal claim against a client, it is critical that eDiscovery becomes an immediate area of focus. The process of determining whether the appropriate steps were taken to identify ESI in litigation is evaluated using a standard of reasonableness. The first step in the eDiscovery process involves the legal duty to preserve potentially relevant ESI. This includes the identification, preservation and collection of relevant information. The identification of ESI begins with gaining an understanding of what current information policies and procedures the client currently has in place. To the extent the client has an information technology (“IT”) department in place, meeting with the relevant IT professionals can be a good way to gain a holistic understanding of the client’s past and current infor-
mation governance practices. Some of the questions that should be immediately addressed include: • What are the client’s document management systems? • What hardware and software applications are in use? • What is the current data management strategy? • How do employees save, retrieve and share documents? • What backup procedures are in place? During the process of identifying ESI, it’s important to keep in mind the scope and breadth of the ways clients create, store and share information in 2021. Email, text messaging, instant message software such as Slack, chat functions in Zoom and Teams, social media applications, file servers, cloud-based applications, mobile devices...the list goes on. While not every source of ESI will contain relevant information, it is nonetheless incumbent upon the lawyer to identify all sources in order to make that determination. Once sources are identified, a data map should be created, which is a comprehensive inventory of an organization’s data which could be potentially relevant to a legal investigation. A data map typically includes: (1) what types of data the company generates, uses, and stores; (2) where the data is stored; (3) who is in charge of the data; and (4) whether and when it should be archived or deleted. Another important aspect of creating a defensible process is determining the key people involved in events giving rise to the dispute who may be custodians of information. This re-
quires analysis of who the custodians are, what the reporting structure is within an organization, who has access to what data, and what systems and applications custodians use. As you can see from this merely cursory review of the many steps involved in the identification, preservation and collection of ESI, there is a lot to take into account. And the risks of failing to take the appropriate action are real and significant. At worst, lawyers can expose themselves and their clients to sanctions or adverse rulings in litigation. At best (and this is still bad), the eDiscovery process may have to be redone, leading to substantial additional costs for clients. A lawyer who is handling a case involving eDiscovery has a few different options. First, trying to go it alone, which is risky if they don’t have the requisite experience and expertise. Second, hiring an outside eDiscovery vendor, which can be helpful but still poses risks because the lawyer may have no way to evaluate the appropriateness of the process. Third, team up with another outside lawyer who specializes in eDiscovery who can help ensure that the process is defensible. Regardless of the approach, one thing is certain: in our increasingly digital and remote-working world, eDiscovery will continue to gain more significance—and become more complex—in litigation. Knowing the Rules is an important first step. Creating and running a defensible eDiscovery process requires a deeper understanding, and expertise born of experience. Jean E. Kordenbrock leads the eDiscovery practice group at Fraser Trebilcock.
"Helping lawyers practice better, more efficiently, and more profitably." ■ PUBLISHER Liz Irwin lirwin@bridgetowermedia.com ■ EXECUTIVE EDITOR Andy Owens aowens@scbiznews.com ■ EDITOR IN CHIEF David Donovan ddonovan@sclawyersweekly.com ■ EDITORIAL Heath Hamacher, Reporter hhamacher@sclawyersweekly.com Scott Baughman, Digital Media Manager sbaughman@mecktimes.com ■ ADVERTISING Sheila Batie-Jones, Advertising Account Executive sbatie-jones@sclawyersweekly.com ■ ACCOUNTING & ADMINISTRATIVE Michael McArthur, Business Manager mmcarthur@bridgetowermedia.com ■ CIRCULATION Disa Ehrler, Audience Development Manager dehrler@bridgetowermedia.com Circulation: 1-877-615-9536 service@bridgetowermedia.com ■ PRODUCTION & OPERATIONS Jason Reckamp, Designer jreckamp@molawyersmedia.com ©2021 BridgeTower Media. Material published in South Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers. The material may not be republished, resold, recorded, or used in any manner, in whole or in part, without the publisher’s explicit consent. Any infringement will be subject to legal redress. South Carolina Lawyers Weekly (USPS #020216) is published biweekly every other Monday with General Statewide Circulation by South Carolina Lawyers Weekly at 130 N. McDowell St. Unit B, Charlotte NC 28204-2411. (919)829-9333, (800)-876-5297. Periodicals postage paid at Charlotte, NC 28228-9998. Subscriptions Rates: $369 per year. Website: www.sclawyersweekly.com POSTMASTER: Electronic Service Requested, send address changes to South Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051 Williamsport, PA, 17703-9940 service@bridgetowermedia.com The South Carolina Lawyers Weekly is a publication of BridgeTower Media 222 South Ninth Street Suite 900, Minneapolis, MN 55402.
NEWS / 5
S O U T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 25, 2021
CSOL / School committed to moving to non-profit status C o nt inu e d f r o m 1 ►
a Georgetown trial lawyer, stepped in as president and bought into the school, alongside Carr and Kosko, to save it from a damaging sale. The agreement is he will manage the school, while Carr and Kosko serve as members of the board until the school goes nonprofit and the former owners are bought out. Since then, InfiLaw has since gone out of business and all of its law schools are now closed, while Charleston School of Law years has clawed its way back from that brink of dissolution to record enrollments this fall. “We predicted we would get here, but we didn’t predict we’d get here this quickly,” Bell said. “We came from a law school that was getting ready to go under to now a nationally ranked law school in six years, so that’s pretty good.” Under his leadership, the school has gone from a Washington Post headline reading “Charleston School of Law to close?” to increased job placement numbers, the highest South Carolina bar pass-rate in the school’s history at 87 percent and a student-centric model that invests money back into the education, rather than the pockets of its leaders, Bell said. This fall, 611 students enrolled in the school, with 1,515 total first-year applicants from 35 states—the largest matriculation to date. And job placements are just as strong with firms all over the metro Charleston area, and some as far as Ohio, seeking out CSOL students. One firm currently employs 11 graduates from the law school. “When you realize that a downturn like we had could have had a horrible adverse effect on our applications and admissions, I think we’ve been really fortunate,” Bell said. “It’s a testament to our faculty and our staff and our school. We have some good strong bones.”
Pursuing nonprofit status
Bell’s involvement with the school started years ago, when a CSOL student was temporarily staying with his family. When troubles arose later on, the woman and her now-husband, also a CSOL graduate, asked if Bell would be willing to step up and help save the school with a group of others.
Charleston School of Law has seen record enrollment this fall, including more than 1,500 first-year applicants from 35 states. (Photo provided.) A couple of months later, Bell asked who else had joined the effort and learned he was still the only one. “It just happened,” he said. “I can’t tell you. I just felt compelled to do it. I couldn’t back down. I said, ‘You know, I’ll do the best I can,’ and I did.” Over the years, Bell felt the best way to right the ship was to reinvest in the school, in the facilities, the faculty and the students. While the school is currently forprofit, Bell has assured he has no interest in profiting from the school and that is what has made the difference for CSOL. “If you have some money in the bank, do you take that as a profit or do you put it back in the school for the benefit of the students,” he said. “Do you have a board that wants to get paid or do you have a board that wants to reinvest?” Annually, Bell earns a salary of $1 and said he hasn’t taken a penny out of the school since he began in 2015. Comparatively, between 2010 and 2013, Carr, Kosko, and Charleston’s the school’s three other co-founders—who have since left the institution—withdrew $25 million in profits from the school. Instead, he’s put money into the school, settling a $6 million debt to InfiLaw. At the time of his arrival, the balance was $5 million, which Bell paid off in 2017. He also settled
lawsuits, recruited more faculty and updated the facilities to meet American Bar Association standards. On his first day, Bell set a new tone by rehiring four teachers who had been let go during the distress, most of whom are still there today. The school has had some lean years, but Bell and Cunningham are committed to Bell’s goal of nonprofit status. The conversion process should typically have only taken three years, but the road is complicated because the school must first generate the resources for the conversion, develop a reliable plan for the ABA, receive the ABA’s acquiescence to change in structure, and then receive approvals from the Department of Education, Internal Revenue Service and the South Carolina Commission on Higher Education. Before the school reaches that status, however, Carr and Kosko will be bought out. “We owe it to [the students] to give them an education that’s going to enable them to be successful,” Cunningham said. “I really view it as a as an ethical or moral imperative that that we focus on students so much. And for them to be successful, they have to be able to engage with us.”
An entirely new culture
David Estes, a third-year law student, hadn’t heard of CSOL’s history when he applied, but said his experi-
ence has been everything he’d hoped for in a law school because of the professors and their interaction with students on a personal level. “There is still the respect of a student-teacher relationship, but it isn’t confined just to that,” Estes said. “If you want to ask about their career experience, or share your own personal goals, they are always happy to speak during office hours or work around your schedule.” From his first tour of Charleston School of Law, Estes felt at home and today considers Cunningham family. The two forged a bond during the pandemic, working on student initiatives to make everyone still feel a part of the school despite socially distanced protocols. Cunningham worked outside of the scope of his role, attending virtual social events and judging contests that brought a glimmer of relief and joy to the mundane shut-in days. “We have some professors with amazing accolades that could really be doing anything else, practicing, but they have a passion for wanting to foster and create that next generation of legal leaders,” Estes said. “They want to be here, and I feel like they’re living out their passion that way by helping us.” The school and its culture sell itself, Cunningham said, with small classes, faculty that has been rated by Princeton Review as one of the top 10 most accessible, and millions of dollars in scholarships. Dean of Admissions Jacqueline Bell calls every single student to welcome them to the school. Charleston Mayor John Tecklenburg writes a letter to ever student, welcoming them to the city. “We’re able to say here are the improvements that we’re making in career services. Here’s how we’re going to help you get a job. Here’s how we’re going to help you pass the bar exam. And here are the results that we’re seeing,” Cunningham said. Bell’s passion for law is mirrored in his students, and his humility of working to earn their trust amidst a crumbling foundation is possibly what’s built the school back up again. “It’s simple,” he said. “You tell people the truth. You tell them what you can do for them and how important they are to the school and treat them as such. It’s an old-fashioned way of doing business, but it works. It works.”
DISPUTES / Avoid disputes between owners from the start C o nt inu e d f r o m 4 ►
oped their own analytical frameworks. One common approach was established by the 6th U.S. Court of Appeals. The “Roth Steel Factors,” as the 6th Circuit’s test is known, look beyond the intent of the parties and require an analysis of a series of factors such as (but not limited to) names given to the instruments, if any, that evidence indebtedness; the presence or absence of a fixed rate of interest and interest payments; the source of repayment; and the adequacy or inadequacy of capitalization. An example of how these factintensive issues play out in the real world is described in a case between two business partners in New York — Gary Duff and Peter Curto — who
were each 50% members in an LLC. After their business failed, Duff initiated a lawsuit against Curto, alleging that he (Duff) made more than $500,000 in capital contributions to the business and Curto made none. Duff asserted claims for breach of contract and unjust enrichment. The LLC’s operating agreement provided that “each Member shall contribute cash and/or property to the Company as set forth opposite their names in Exhibit A” to the agreement. Unfortunately for Duff, the spaces on exhibit A for the owners’ “initial cash contribution” had been left blank. Accordingly, the court found that the operating agreement was ambiguous as to whether an initial cash contribution was required by both parties. Because of that ambiguity, and the fact
that Duff reported a recourse loan to the LLC on his tax return, the court ruled in favor of Curto on summary judgment. If the LLC’s operating agreement had been clearer on the cash contribution required from each of the partners, the dispute between Duff and Curto likely would never have reached the court. It’s a recurring theme in disputes between owners over the debt-equity distinction
The solution: A clear operating agreement
To avoid disputes between owners from the start, an operating agreement should address issues such as how ownership interests are allocated, the amount and manner in which initial and additional capital
contributions will be made, and how unexpected events which may impact ownership interests (or the very existence of the business), such as death, withdrawal from the business, bankruptcy or failure to make capital contributions, will be handled. Without clear terms covering these issues, courts may well be forced to decide the outcome in the event of a dispute. That’s not a position they want to be in, and the extended court battles that precedes their decisions often leave both sides feeling like they have lost. It’s much better to set things straight from the start. Zana Tomich is a co-founding partner of Dalton & Tomich, PLC based in Detroit. She frequently acts as an outside general counsel to small- and mid-sized businesses.
6 / NEWS
S O U T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 25, 2021
Supreme Court commission talks positively of shorter terms Associated Press WASHINGTON — A commission tasked with studying potential changes to the Supreme Court has released a first look at its review, a draft report that is cautious in discussing proposals for expanding the court but also speaks approvingly of term limits for justices. The 36-member bipartisan commission, largely composed of academics, has been studying court reform and holding hearings, but it was not charged with making recommendations under the White House order that created it. As a result, much of the some 200 pages of materials the commission released on Oct. 14 are history and context for reform proposals. A final report from the committee is expected in about a month and would go to the president then. Even when the commission does finish its work, however, any proposals for change would be met with serious political headwinds particularly with midterm elections looming and the chance that Democrats could lose control of Congress. The current makeup of the Supreme Court, with a conservative majority, and key issues that are likely to be addressed by the court could shape the conversation in upcoming midterm elections. There are two growing pressure points: abortion and voting rights. The court’s decision last month not to block a Texas abortion law from going into effect has left the state with the nation’s most restrictive measures. Challenges to the law are ongoing and the court is already hearing a major abortion case in December that could reshape abortion rights nationwide. There also stand to be legal challenges to GOP efforts to restrict access to the ballot in several battleground states. The commission’s review was a campaign promise President Joe Biden made amid pressure from activists and Democrats to react after the court’s composition tilted sharply to the right during President Donald Trump’s term. Trump nominated three justices to the high court, giving it a 6-3 conservative majority. Democrats were especially frustrated that the Republican-led Senate kept former President Barack Obama from filling the seat left empty for months by the death of conservative Justice Antonin Scalia in 2016. Then, with Trump in office, the Senate pushed to confirm Amy Coney Barrett to the court following the death of liberal Justice Ruth Bader Ginsburg weeks before the election. That led to calls by some progressives for reforms including term limits and demands that Biden pack the court, adding justices to it to act as a bulwark against challenges to voting rights, abortion rights and civil liberties. Biden, an institutionalist at heart, had told advisers that he was not inclined to do so, in part because it would open the door for the Republicans to do the same when they had the chance. For its part, the commission devoted a significant section of the materials it released to discussing term limits for the justices, who under the Constitution have life tenure. The commission described term limits as the proposal that appears to have “the most widespread and bipartisan support.” Biden was asked by reporters on Oct. 15 if he supports term limits on the Supreme Court, and responded, “No.” During discussion of the draft report that same day, however, a number of commission members said they were in favor of term limits before studying the issue but have since changed their minds. And more than one member said the draft came close to endorsing term limits, a view they dis-
agreed with. Harvard University Professor Emeritus Laurence Tribe said he began the process thinking that of all the possible changes, term limits would be the most obvious, “relatively uncontroversial, widely supported across the spectrum and probably beneficial.” After the review process, however, he said, “I no longer think it’s likely that this would be a good idea.” The draft report said a politically diverse array of scholars have endorsed term limits and a survey of literature on the subject by the commission “discovered few works arguing against” them. The report also said three current justices — Chief Justice John Roberts, Justice Stephen Breyer and Justice Elena Kagan — “have noted the potential benefits of term limits.” And it cited experts recommending an 18-year term limit for justices and said term limits for state high court justices are common. The commission said it was divided over whether Congress has the power to create the equivalent of term limits for justices by statute or if a constitutional amendment is required. The commission’s report was cautious in addressing proposals for increasing the size of the court. It noted increasing the court’s size could create a more diverse court that could handle more cases. But it also noted that the “risks of Court expansion are considerable,” including to the court’s legitimacy. The commission said most state high courts have fewer seats than the Supreme Court but that by global standards the Supreme Court is small, with France, Spain and Britain among the countries with larger high courts. “Other countries have found ways to make a larger court workable,” the commission said, while noting that: “We should be cautious about assuming, however, that the U.S. Supreme Court could easily follow the lead of its international analogues.” Congress originally set the size of the court at six members. The size has been nine since 1869. With the commission wrapping up its work, calls for action from Congress and the president could increase. During the presidential campaign Biden repeatedly sidestepped questions on expanding the court. White House press secretary Jen Psaki had said he would not weigh in about the size of the court until the commission finished its work. A number of groups are closely watching what the committee produces. Brian Fallon, executive director of the progressive court group Demand Justice, called the draft report “not even close to being worth the wait,” arguing that the “paralysis-by-analysis reflected here is exactly what you would expect from a commission made up mostly of academics.” He said the commission’s purpose was simply to “buy time for the Biden administration while it fights other legislative battles.” But Alliance for Justice President Rakim Brooks said in a statement that the “report will help raise awareness that reform is not only possible, but necessary.” And Gabe Roth of the group Fix the Court said in a statement that the “draft highlights the benefits of several popular Supreme Court reforms, including term limits, that would rebuild trust in an institution whose public esteem has recently cratered.” The panel is being led by Bob Bauer, who served as White House counsel for former President Barack Obama, and Cristina Rodriguez, a Yale Law School professor who served in the Office of Legal Counsel for Obama.
Sidebar The news told differently
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ALL DOUGHNUT HOLE AND NO DOUGHNUTS One of the great ironies of our justice system is that arbitration clauses are inserted into contracts ostensibly to keep any subsequent disputes out of litigation, but the clauses are themselves frequently and ferociously litigated. Sometimes these arguments over arbitration clauses can be quite creative and innovative, as Sidebar was recently reminded in a fascinating decision from the South Carolina Court of Appeals. In the case, the litigants were arguing over an arbitration clause in which the parties—a group of healthcare providers and a woman whose foot was amputated, allegedly as a result of medical malpractice—had agreed to resolve any disputes through arbitration. The clause defined a “dispute” as “any claim ... totaling $50,000 individually or in the aggregate.” Any claims for less than $50,000 were deemed not to be disputes. The plaintiff argued that the clause thus applied only to claims or disputes of exactly $50,000, no more and no less. Somewhat surprisingly, the circuit court agreed with this oddly specific interpretation and ruled in the plaintiff’s favor, but in an Oct. 6 opinion, the Court of Appeals unanimously reversed and remanded the case. Judge Blake Hewitt, writing for the court and very clearly not buying what the plaintiffs were selling, said that the case presented “the odd but familiar situation where opposing parties pitch different interpretations of a writing while also arguing the writing is unambiguous.” But he went on to find that the plaintiff’s preferred reading of the clause couldn’t hold up when viewing the agreement as a whole, and would result in an idiosyncratic agreement that didn’t remotely accomplish its own stated purpose. “Putting aside the practical question of how one would enforce a contract binding someone to arbitrate claims with precisely $50,000 in controversy—could a plaintiff simply plead damages of one cent more or less and completely avoid arbitration?—the agreement’s purpose was directly advertised as covering all disagreements, not discussing some and ignoring others,” Hewitt wrote. “We are convinced the right approach is to read the agreement as comprehensive. We do not think it is sensible to read it as an agreement that is all donut-hole and no donut.” It was certainly a valiant effort by the plaintiff in the case. But sometimes you make a creative argument for how a contract should be read, and the judges simply … donut agree. D.D.
NEWS / 7
S O U T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 25, 2021
ALIBI / Single piece of DNA wasn’t ‘overwhelming’ evidence C o nt inu e d f r o m 1 ►
Weldon had been prejudiced by his attorney’s decisions. “We find no evidence supports the PCR court’s findings that trial counsel provided effective assistance or implemented—much less articulated—any valid trial strategy with respect to the alibi witnesses,” Judge Stephanie McDonald wrote for the court.
A sticky situation
Between 6 and 6:30 am on May 15, 2010, the victim was preparing to leave his home when three masked men attacked him, bound him with duct tape, robbed him, and made their getaway in his vehicle. Police soon arrested another man, Michael Pearson, after lifting his fingerprint from the stolen vehicle. Weldon was arrested when detectives discovered his DNA on a piece of duct tape recovered from the crime scene. A forensic scientist with the South Carolina Law Enforcement Division (SLED) testified that the probability of randomly selecting an unrelated individual matching the DNA sample is approximately one in 670 billion. No one implicated Weldon in the robbery, and Weldon denied knowing Pearson, although the two once worked in the same wood shop. The trial counsel filed an alibi de-
C o nt inu e d f r o m 2 ►
Investigators said they believed Diderikcous Hill had opened fire after an altercation. He pleaded not guilty and remained jailed for years, in part because of concerns that trial would spread COVID-19. Eddie Satterwhite, a witness for the prosecution, said he was present that night and heard a gunshot when walking to his car, but did not see who shot James Calvin Hill. “We have a system where it’s not a rubber-stamp guilty, a system where a jury will listen and apply the law to the facts and evidence and give everyone a fair chance,” said defense attorney Cameron Grant Boggs.
Lawyer: Murdaugh knows he’ll go to prison for stealing money COLUMBIA (AP) — The attorney for prominent South Carolina lawyer Alex Murdaugh, who discovered his wife and son dead at their home this summer, said Murdaugh is resigned that he will serve time in prison for stealing millions of dollars. But Murdaugh continues to insist he had nothing to do with their shooting deaths and regrets if his actions have hindered investigators trying to find who killed his wife, Maggie, and son Paul. “He has indicated clearly that he is going to try to right every wrong – financial wrong – and others that he may have committed. Look, he’s reconciled to the fact he’s going to prison. He understands that. He’s a lawyer,” Murdaugh attorney Dick Harpootlian said on Oct. 15 on “Good Morning America.” Murdaugh’s former law firm — founded by his great-grandfather a century ago — has accused him of stealing possibly millions of dollars. State police are investigating. On Oct. 14, Murdaugh was charged with taking insurance settlements meant for the sons of his housekeeper, who died more than two years ago. A
fense, but opted to attack the state’s DNA evidence because investigators couldn’t say where on the tape Weldon’s DNA was found. (DNA on the inside of the tape would more strongly suggest that it was handled rather than merely picked up or touched.) The PCR court found trial counsel’s strategy “reasonable,” and that Weldon had failed to meet his burden of showing prejudice in light of the “overwhelming evidence of his guilt,” despite the DNA evidence being the only direct evidence tying Weldon to the crime. (The PCR court also noted, incorrectly, that Weldon’s fingerprints were on the duct tape; the fingerprints were Pearson’s.) The trial counsel later testified that he found himself “scratching [his] head” trying to figure out why he didn’t call to the stand the two witnesses who possibly could’ve placed Weldon at his Sumter home at the time of the robbery.
You must know why
In order to establish ineffective assistance of counsel, a petitioner must show that the counsel failed to render “reasonably effective assistance under prevailing professional norms,” and that the petitioner’s case was prejudiced by the counsel’s deficiency. McDonald said that a court will uphold a PCR court’s finding of facts where any lawsuit filed by the sons said Murdaugh took more than $4 million in that case. Harpootlian’s said medical records show that Murdaugh was shot in the head on Sept. 4 on the side of a lonely highway after trying to arrange his own death so his surviving son could collect a $10 million insurance policy. Like many developments in the case, that account has ended up in dispute and endless discussion online. In a court appearance where Murdaugh was being arraigned on insurance fraud and other charges 12 days after the shooting, he had no bandage on his head or a visible wound. The man charged with shooting Murdaugh went on TV on Oct. 14 and said he was “1,000% certain” Murdaugh wasn’t shot. Curtis “Eddie” Smith said a month ago that he wasn’t certain if Murdaugh was hit as they struggled for the gun. Smith has said he didn’t know Murdaugh wanted to be killed until he met him on the road and the gun fired as he tried to wrestle it out of his friend’s hand. During his interview, Harpootlian again called Smith a drug dealer who provided Murdaugh with opioids and other drugs that led to a crippling addiction. “Eddie Smith is not telling the truth, and he has reasons not to tell the truth,” Harpootlian said. Smith has adamantly denied being a drug dealer, saying he and Murdaugh were friends after the attorney handled his workers’ compensation case. Medical records mention a gunshot wound with blood on the brain and time spent in an intensive care unit during Murdaugh’s two-day hospital stay. When a medical helicopter arrived after the shooting, Murdaugh was sitting up and answering questions in full sentences, although he did complain of head pain and said he was temporarily blinded after the shot, according to four pages of records sent to The Associated Press. “They did a CAT scan — skull fracture, bullet wound, brain bleed. Oxygen got into the brain. They had to put him in ICU,” Harpootlian said on Good
evidence supports them, but that no evidence in this case showed any valid trial strategy regarding alibi witnesses. McDonald noted the similarities to the Supreme Court’s 2019 decision in Martin v. State, which held that the petitioner’s trial attorneys had been deficient because they didn’t elicit specific alibi timeline testimony from the defendant’s mother showing that he was at an Atlanta bus stop when the alleged crime was committed. “We recognize trial counsel agreed with the State’s suggestion that he may have declined to call the witnesses because the State might have then called rebuttal witnesses to challenge the alibi testimony and because he wanted to have the last closing argument,” McDonald wrote. “Still, trial counsel repeatedly testified he did not know why he chose not to call the witnesses. Thus, we can find no support … for a strategic reason for choosing not to call alibi witnesses.” In rare cases, the appeals court held, “overwhelming evidence” can serve as a categorical bar to preclude a finding of prejudice, but it found that the evidence in this case didn’t meet that bar. Weldon wasn’t a person of interest until the DNA evidence came back, he had challenged that DNA evidence, and he could have raised a reasonable doubt of his guilt had he presented an alibi, McDonald wrote, saying that the
overwhelming evidence that would preclude a finding of prejudice must be conclusive, such as a confession, DNA evidence demonstrating guilt, or a strong combination of physical and corroborating evidence. The appeals court dismissed the PCR court’s finding that DNA on a single piece of duct tape constitutes “overwhelming evidence” where other reasonable explanations exist. Appellate Defender Taylor Gilliam represented Weldon. Gilliam said that while PCR appeals are often a steep hill to climb, Weldon’s PCR attorney, Lance Boozer, passed along a comprehensive record, laying the foundation for Gilliam to argue for a reversal. “I’m pleased with the ruling, and the case is one I felt strongly about,” Gilliam said. “As much as I wish that Mr. Weldon would be released from state prison today and sent to the county jail to await trial, I anticipate the state will petition for a rehearing.” Attorney General Alan Wilson, Senior Assistant Deputy Attorney General Megan Jameson, and Assistant Attorney General Brianna Schill represented the state. None of the state’s attorneys responded to a request for comment. The 13-page decision is Weldon v. State (Lawyers Weekly No. 011-08521). The full text of the opinion is available online at sclawyersweekly.com.
Morning America. Murdaugh initially said he was checking a flat tire on his SUV when someone riding by shot at him, later changing his story to asking Smith to kill him, authorities said. The scrutiny into Murdaugh’s life started June 7 when he found wife Maggie, 52, and son Paul, 22, shot to death outside their Colleton County home. Their deaths remain unsolved. Murdaugh, 53, woke up on Oct. 15 in the Orange County, Florida, jail after South Carolina state police charged him with two felony counts of obtaining property by false pretenses related to insurance settlements meant for the sons of a housekeeper who died in February 2018 in what the family said was a fall at their home. A lawsuit by the sons estimates the stolen money at more than $4 million. Murdaugh, arrested at a drug rehab center in Florida, waived extradition and had a bond hearing on the latest charges scheduled in Columbia. Along with the investigating into his wife and son’s deaths, the roadside shooting, the missing law firm money and the insurance payments for the housekeeper’s deaths, state police are also investigating whether Murdaugh has connections to a 2015 hit-and-run death and whether he or other family members tried to obstruct the investigation into a boat crash involving Paul Murdaugh that killed a 19-year-old woman in 2019. The Murdaughs have dominated the legal community in their Hampton County home for nearly the past century. Murdaugh’s father, grandfather and great-grandfather were elected prosecutors and the family founded and built a law firm known for suing railroads.
The South Carolina Supreme Court refused to reconsider its August decision upholding ex-Greenville County Sheriff Will Lewis’ 2019 conviction, meaning Lewis ran out of appeals. Lewis was at the state prison’s evaluation center on Oct. 13 as officials decides where he should serve his sentence, South Carolina Corrections Department spokeswoman Chrysti Shain said. Lewis’ lawyer has requested he be kept at a prison out of state for his own safety since he was sheriff. Shain said prison administrators are reviewing that request. With good behavior, Lewis will likely serve less than six months, officials said. Lewis was convicted in 2019 of misconduct. Prosecutors said he hired a then 22-year-old assistant at $62,000 a year and gave the woman a county vehicle and other perks to groom her into a sexual relationship. The sheriff’s actions were criminal because Lewis misused county money to hire a woefully unqualified person for an unnecessary position and then used county resources such as his cellphone to continue the relationship. The South Carolina Supreme Court rejected an argument from Lewis’ attorney that the charge was vague and while Lewis’ actions were immoral, they were not illegal. Solicitor Kevin Brackett said Lewis’ misconduct was “brazen, naked corruption” as Lewis arranged to have the assistant come to an out-of-town budget conference and put a bottle of whisky in her bag so he would have an excuse to go to her room and get it late at night. Lewis is among at least 13 sheriffs in the state’s 46 counties who have been convicted of crimes since 2010. Those crimes have ranged from using inmates for personal labor and running a drug operation to protecting people in the county illegally from being deported and creating false police reports of stolen credit cards. Lewis is one of five sheriffs to end up serving prison time. A sixth, former Chester County Sheriff Alex Underwood is awaiting sentencing on several federal felonies including stealing money from government programs.
Ex-S.C. sheriff off to prison on 1-year misconduct sentence COLUMBIA (AP) — A former sheriff in South Carolina has reported to prison to serve a one-year sentence for using his power and office to pressure a personal assistant to have sex with him.
8 / OPINION DIGESTS
S O U T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 25, 2021
Opinions S.C. SUPREME COURT U.S. DISTRICT COURT
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14
S.C. COURT OF APPEALS
8
S.C. COURT OF APPEALS UNPUBLISHED
4TH U.S. CIRCUIT COURT OF APPEALS
S.C. SUPREME COURT
Administrative Unemployment Compensation – CARES Act – Participation Ended Although S.C. Code Ann. § 41-29230(1) requires the Department of Employment and Workforce (DEW) to secure “all advantages available under the provisions of the Social Security Act” (SSA), since the only connection between the unemployment compensation programs of Congress’s Coronavirus Aid, Relief, and Economic Security (CARES) Act and the SSA is that the funds to be distributed to recipients pass through bank accounts of the Social Security Administration, this is not sufficient to render benefits paid under the programs to be “advantages available under the provisions of the [SSA].” Therefore, the governor did
15
not violate § 41-29-230(1) when he instructed DEW to end South Carolina’s participation in the federal unemployment programs created under the CARES Act. We affirm the circuit court’s grant of respondents’ motion to dismiss. Brannon v. McMaster (Lawyers Weekly No. 010-061-21, 4 pp.) (Per curiam) Appealed from the Circuit Court in Richland County (Lawton McIntosh, J.) Adam Protheroe, Susan Berkowitz and John Kassel for appellants; Rebecca Laffitte, Robert Tyson, Vordman Carlisle Traywick, Todd Timmons, Steven Jordan, Michael Shedd, Thomas Limehouse and William Grayson Lambert for respondents; Jack Cohoon and Christopher Mills for amici curiae. S.C. S. Ct.
Judges Discipline – Fundraising – Character Witness In a prior disciplinary action, the
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4TH U.S. CIRCUIT COURT OF APPEALS UNPUBLISHED respondent-judge promised not to make reference to his court or to post fundraising information on Facebook or any other social media, yet respondent restored the reference in his Facebook profile identifying himself as a probate judge with the Oconee County Probate Court and again used social media for fundraising purposes. Moreover, via a certification submitted to the Superior Court of New Jersey, respondent advocated as a character witness for a South Carolina resident in New Jersey litigation. Respondent has violated Canon 2(B) (prohibiting the use of the prestige of judicial office to advance interests of the judge or others), Canon 4(C)(3)(b)(iv) (prohibiting a judge from personally participating in the solicitation of funds or other fundraising activities), Canon 1 (requiring a judge to uphold integrity and independence of the judiciary), Canon 2 (requiring a judge to avoid impropriety and the appearance of impropriety) and Canon 2(B) (pro-
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hibiting a judge from testifying voluntarily as a character witness). In light of respondent’s prior misconduct, we suspend him from office for 18 months. In re Johns (Lawyers Weekly No. 010-062-21, 4 pp.) (Per curiam) John Nichols and Carey Taylor Markel for the Office of Disciplinary Counsel; Larry Brandt for respondent. S.C. S. Ct.
S.C. COURT OF APPEALS
Criminal Practice Attempted Murder – Irrelevant Evidence – Co-Defendant’s Car – Constitutional – Self-Incrimination The identity of defendant’s accomplice was not at issue, yet the trial court erroneously allowed the state to present evidence that, several months before the attack on the victim, the ac-
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10 / OPINION DIGESTS complice was stopped while driving a gold Cadillac, as corroboration of the victim’s testimony that the accomplice drove his gold Cadillac to the victim’s home on the day of the attack. We have little doubt that the state presented the traffic-stop evidence simply for its spillover prejudicial effect—to paint defendant as someone who consorted with law breakers—but the evidence was so feckless that it an easy call for us to deem it harmless. We affirm defendant’s conviction for attempted murder. Defendant contends the trial court erred when it allowed the accomplice to assert his Fifth Amendment right against self-incrimination. We disagree. Though the trial court’s in camera examination of the accomplice may have been too specific (and involved an unnecessary inquiry of a police witness), we affirm the upholding of the accomplice’s right to not testify. The hazard of incrimination was openly apparent. The accomplice was not facing just a risk of prosecution; he was already being prosecuted. Almost anything the accomplice could utter about the incident would likely be used against him at his upcoming trial. The trial court well understood the situation and also knew the accomplice’s proposed testimony was at odds with what the state was contending was the truth. State v. Lawrence (Lawyers Weekly No. 011-081-21, 7 pp.) (Garrison Hill, J.) Appealed from Dorchester County Circuit Court (Maite Murphy, J.) Susan Barber Hackett for appellant; Alan McCrory Wilson, William Frederick Schumacher and David Michael Pascoe for respondent. S.C. App.
Tort/Negligence Medical Malpractice – Emergency Defense – OB-GYN Patient Even though the defendant-doctor had provided obstetrical care and had a prior doctor-patient relationship with plaintiff Treva Flowers, since Treva’s delivery of plaintiff Ashley was complicated by the emergency situation of shoulder dystocia, the doctor was entitled to assert the emergency defense set out in S.C. Code Ann. § 15-32-230. We affirm judgment for defendants. Section 15-32-320 provides, “(A) In an action involving a medical malpractice claim arising out of care rendered in a genuine emergency situation involving an immediate threat of death or serious bodily injury to the patient receiving care in an emergency department or in an obstetrical or surgical suite, no physician may be held liable unless it is proven that the physician was grossly negligent. “(B) In an action involving a medical malpractice claim arising out of obstetrical care rendered by a physician on an emergency basis when there is no previous doctor/patient relationship between the physician or a member of his practice with a patient or the patient has not received prenatal care, such physician is not liable unless it is proven such physician is grossly negligent. “(C) The limitation on physician liability established by subsections (A) and (B) shall only apply if the patient is not medically stable and: (1) in immediate threat of death; or (2) in immediate threat of serious bodily injury. “Further, the limitation on physician liability established by subsections (A) and (B) shall only apply to care rendered prior to the patient’s discharge from the emergency department or obstetrical or surgical suite.”
Plaintiffs contend subsection (A) provides a defense for a physician rendering care in a genuine emergency situation in, among other places, an obstetrical suite. However, if the care provided is obstetrical care, plaintiffs argue subsection (B) then limits subsection (A), precluding the defense if the physician or a member of his or her practice has a prior doctor/patient relationship with the patient or if the patient received prenatal care. Plaintiffs submit that because the defendant-doctor provided obstetrical care and had a prior doctor/patient relationship with Treva and she previously received prenatal care, the doctor could not invoke the affirmative defense. We disagree. From a plain reading of the text, we find subsection (A) describes a physician that encounters an emergency while providing care whereas subsection (B) describes a physician treating a patient previously unassociated with the physician or his or her practice or lacking prior prenatal care. Because subsections (A) and (B) describe different factual scenarios in which a physician might provide negligent care, we find the legislature intended subsection (B) to apply separately from subsection (A) rather than as a limitation to (A). Moreover, the language within subsection (B) neither indicates that it is a limitation on the defense provided in subsection (A) nor does it state that subsection (A) only provides a defense for obstetrical care if the requirements within subsection (B) are satisfied. To adopt plaintiffs’ interpretation and read subsection (B) as a limitation to subsection (A) would be a forced construction of the text’s plain language. Accordingly, we find § 15-32-230 provides a defense against simple negligence in two separate and distinct scenarios. Thus, we hold the trial court did not err in its interpretation of § 15-32230 and in denying plaintiffs’ motion to strike the defense. Affirmed. Flowers v. Giep (Lawyers Weekly No. 011-082-21, 6 pp.) (Bruce Williams, J.) Appealed from Spartanburg County Circuit Court (Derham Cole, J.) Charles Henshaw for appellants; Mitchell Brown, Brian Patrick Crotty and Dennis Gary Lovell for respondents. S.C. App.
Taxation Penny Tax – Transit Project Operation – Failure to Prosecute – Dismissal Although the statute in question is titled, “Optional Methods for Financing Transportation Facilities Act,” the act allows counties to finance the cost of “operating ... transportation-related projects.” Therefore, the respondentcounty may spend funds collected pursuant to the act on operating transportation-related projects, including mass transit systems. We affirm the circuit court’s reading of the act; however, it was an abuse of discretion for the circuit court to dismiss appellants’ claims against the county with prejudice for failure to prosecute. As far as we can discover, no South Carolina case upholds a dismissal with prejudice for the sort of pre-trial failure to prosecute at issue here. There can be no question appellants should have served discovery sooner, requested an extension of the scheduling order before it expired, and formally requested a stay if they thought it made sense for the circuit court to wait for our supreme court’s ruling in a related case. Possible consequences for failing to do these things would certainly include barring appellants from filing late dis-
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covery requests, disallowing any late dispositive motions, and ordering the case to proceed per the scheduling order. The proper action remains up to the circuit court in the first instance. We hold only that it was an abuse of discretion to dismiss appellants’ case with prejudice. South Carolina Public Interest Foundation v. Richland County (Lawyers Weekly No. 011-083-21, 9 pp.) (Blake Hewitt, J.) Appealed from Richland County Circuit Court (Thomas Cooper, J.) James Carpenter for appellants; Elizabeth Van Doren Gray, Robert Tyson, Benjamin Rogers Gooding and Andrew Lindemann for respondents. S.C. App.
Arbitration $50,000 Floor – Definition Section – Whole Contract Even though a reading of the definition section of the parties’ dispute resolution agreement could support plaintiff’s argument that only clams of exactly $50,000 are subject to arbitration, since the agreement both begins and ends by stating the parties’ desire to “have all disagreements resolved through the dispute resolution program,” a reading of the contract as a whole reveals that the parties agreed to arbitrate any dispute totaling $50,000 or more. We reverse the circuit court’s denial of defendants’ motion to compel arbitration. The agreement defines “dispute” as “any claim ... totaling $50,000 individually or in the aggregate…” The defini-
tion specifies that the agreement does not cover smaller claims. Yet, the agreement begins by stating the parties’ desire to “have all disagreements resolved through the dispute resolution program.” In similar fashion, the agreement closes with a reference to the parties “agreeing to have all disagreements resolved through the dispute resolution program.” The obvious intention is that most disputes will go through arbitration—claims of lesser value are defined to not even be “disputes”—and one cannot come away from the agreement without the idea that the parties intended for the agreement to comprehensively describe how they would handle all of their disputes and disagreements. But plaintiff argues, and the circuit court found, that the parties only agreed on how they would handle two classes of claims: claims worth less than $50,000 and claims for exactly $50,000. We cannot agree. That interpretation results in an idiosyncratic agreement that does not remotely accomplish its stated purpose. Putting aside the practical question of how one would enforce a contract binding someone to arbitrate claims with precisely $50,000 in controversy—could a plaintiff simply plead damages of one cent more or less and completely avoid arbitration?—the agreement’s purpose was directly advertised as covering all disagreements, not discussing some and ignoring others. We are convinced the right approach is to read the agreement as comprehensive. We do not think it is sensible to read it as an agreement that is all donut-hole and no donut. Affirmed. Herrington v. SSC Seneca Op-
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12 / OPINION DIGESTS erating Co. (Lawyers Weekly No. 011-084-21, 6 pp.) (Blake Hewitt, J.) Appealed from Oconee County Circuit Court (Scott Sprouse, J.) Stephen Brown, Jay Davis and Russell Hines for appellants; Raymond Wooten for respondent. SC. App.
Criminal Practice PCR – Alibi Witnesses – DNA Match Where petitioner’s trial counsel testified repeatedly that he did not know why he chose not to call petitioner’s alibi witnesses, we see no support in the record for the post-conviction relief court’s finding that, because trial counsel “articulated, both at the PCR hearing and at the time of trial, a strategic reason for choosing not to call alibi witnesses, [i.e., having the final closing argument], his performance cannot be found ineffective.” We reverse the PCR court’s finding that petitioner received effective assistance of counsel, and we remand for a new trial. The victim was attacked between 6:00 and 6:30 a.m. on May 15, 2010. While there are minor discrepancies among the alibi witnesses’ testimonies regarding exactly what time petitioner woke up on May 15 and whether his mother worked the night of May 14, these discrepancies did not involve credibility issues, nor were they necessarily contradictory. Petitioner’s sister’s testimony could have provided petitioner with an alibi because she testified that she saw him at their Sumter home around 5:00 a.m., he was at the house between 6:00 a.m. and 7:00 a.m., and she did not see him leave his room until 9:00 a.m. when he let his cats outside. Thus, we can conceive of no valid trial strategy supporting trial counsel’s failure to call at least one of the alibi witnesses. The state presented evidence that petitioner’s DNA was found on one of the pieces of duct tape that the attackers used to bind the victim. This does not constitute “overwhelming evidence” such that it precludes a finding of prejudice. Other than his possible acquaintance with the victim (about a year and a half before the attack, both men worked in a vocational rehabilitation wood shop for three days), the DNA match from the duct tape was the only evidence presented at trial linking petitioner to the crime, and there could be other reasonable explanations for its presence. Petitioner was not a person of interest in the investigation until the DNA hit. Petitioner challenged the strength of the DNA evidence, and the testimony he elicited from the state’s forensic scientist may have been sufficient to raise a reasonable doubt regarding his guilt had he also presented evidence of an alibi. Had even one of petitioner’s alibi witnesses testified, there is a reasonable probability the result at trial would have been different. Reversed and remanded. Weldon v. State (Lawyers Weekly No. 011-085-21, 13 pp.) (Stephanie McDonald, J.) Appealed from the Circuit Court in Clarendon County (Jocelyn Newman, J.) Taylor Davis Gilliam for petitioner; Alan McCrory Wilson, Megan Harrigan Jameson and Brianna Lynn Schill for respondent. S.C. App.
Criminal Practice Constitutional – Double Jeopardy – Mistrial – Alibi Defense – Notice – Evidence – Text & Facebook Messages – Authentication Defendant’s first trial ended in a
mistrial when defense counsel’s opening statement revealed an alibi defense of which defendant had failed to notify the state in advance. Defendant was charged with committing crimes on three different days; however, when the state requested notice of defendant’s intention to offer an alibi defense, the state’s request set out only one of those dates. This did not excuse defendant from notifying the state of his alibi defense. We affirm defendant’s convictions for murder, first-degree burglary, firstdegree arson and third-degree arson. Discovery provided to defendant referred to the approximate times of the offenses with which he was charged. Moreover, defendant clearly knew the time and place of the events at issue because his counsel came to trial prepared with four alibi witnesses ready to testify. While the better practice is for the state to include the time, date and place in any Rule 5, SCRCrP, alibi request, the failure to include the exact dates and times did not excuse defendant from giving the state advance notice of his intent to present an alibi defense. The circuit court considered the alternatives available to avoid a mistrial and properly examined the potential prejudice to each party likely to result. The circuit court’s grant of a mistrial in defendant’s first trial was not an abuse of discretion; therefore, double jeopardy did not bar defendant’s subsequent trial. The trial court erred in stating that the fact that messages were sent from defendant’s phone provided sufficient proof to establish that defendant authored them. The authentication of text and social media messages requires more than proving mere ownership of the device from which messages originated. However, the text messages between defendant and his co-conspirators were sufficiently authenticated by the fact that they were interspersed with acknowledged texts to defendant’s girlfriend and by his co-conspirator’s testimony regarding plans to rob the victim. There was less evidence authenticating Facebook messages from “Tommy Lee Kruspe.” To the extent the admission of the Facebook messages was erroneous, it was harmless because the messages were cumulative to a co-conspirator’s testimony regarding the conspirators’ planning of the burglaries. Affirmed. State v. Benton (Lawyers Weekly No. 011-086-21, 13 pp.) (Stephanie McDonald, J.) Appealed from the Circuit Court in Horry County (Steven John, J.) Robert Walker Humphrey and Robert Michael Dudek for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown, Tommy Evans and Jimmy Richardson for respondent. S.C. App.
S.C. COURT OF APPEALS, UNPUBLISHED
Tort/Negligence Sexual Assault & Battery – Evidence – Defendant’s Guilty Plea During the trial on plaintiff’s claims of sexual assault, sexual battery and intentional infliction of emotional distress, the trial court admitted evidence of defendant’s guilty plea from plaintiff’s complaint, defendant’s deposition testimony, and the transcript of defendant’s plea. Rule 43(g), SCRCP allows counsel for a party to read his plead-
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ings to the jury (as plaintiff’s counsel did here); Rule 32(a)(2), SCRCP, allows a party’s deposition to be used by an adverse party for any purpose; and under Rule 801(d)(2)(B), SCRE, defendant’s guilty plea was an admission by a party opponent after defendant stated in his deposition that he did not disagree with anything in the guilty plea transcript. Thus, the trial court did not err in admitting this evidence. We affirm judgment for plaintiff. The trial court did not err in denying defendant’s motion for JNOV because (1) the assault claim was supported by evidence showing defendant followed plaintiff toward the restroom in the Palmetto Club and pulled plaintiff’s to his ankles; (2) the battery claim was supported by evidence that defendant brushed plaintiff’s buttocks and grabbed plaintiff’s genitals; and (3) the intentional infliction of emotional distress claim was supported by evidence that (a) defendant consumed approximately 10 beers over several hours at plaintiff’s workplace, followed plaintiff toward the restroom, pulled plaintiff’s pants down, and grabbed plaintiff’s genitals and (b) multiple witnesses testified that they observed lingering signs of plaintiff’s emotional distress after the incident, and a psychiatrist testified that she diagnosed plaintiff with an anxiety disorder and post-traumatic stress disorder. Although the jury’s $100,000 verdict is generous, under our highly deferential standard of review, we will not disturb the trial court’s denial of defendant’s motion for a new trial. Stone v. McMaster (Lawyers Weekly No. 012-017-21, 6 pp.) (Per curiam) Appealed from Richland County Circuit Court (Clifton Newman, J.) Brian Dumas for appellant; Reece Williams and Yani Mouratev for respondent. S.C. App. Unpub.
Civil Practice Rule 11 Sanctions – Frivolous Counterclaims – Real Property – Land Sale Contract – Attorney’s Fees The defendant-buyer’s counterclaims for fraud, negligent misrepresentation and unfair trade practices were
frivolous because the plaintiff-sellers revealed the true condition of the property being sold. The master-in-equity erred in accepting defendant’s argument that her attorneys’ failure to raise possible counterclaims could constitute legal malpractice. Since defendant would not have been able to prove that she would have been successful in the underlying suit – as the claims of fraud, negligent misrepresentation and unfair trade practices were without merit – a failure by defense counsel to assert the counterclaims would not have supported a legal malpractice action. Fear of malpractice does not justify such frivolous filings. We reverse the master’s denial of sanctions and attorney’s fees and remand for determination consistent with this opinion. Although almost a year passed after the circuit ruled on plaintiffs’ motion for summary judgment before plaintiffs filed their motion for sanctions under Rule 11, SCRCP, since the action was still being decided on the merits, plaintiffs’ motion was timely. As the parties’ land sale contract clearly provided for plaintiffs’ recovery of attorney’s fees and costs in a forfeiture proceeding, the master erred in failing to award attorney’s fees and costs to plaintiffs. Plaintiffs requested alternative remedies of foreclosure and forfeiture. Because defendant acknowledged she had no equity in the property, the master enforced the forfeiture provision and terminated the contract. As the remedy plaintiffs received did not involve foreclosure, the master erred in relying on Rule 71, SCRCP, in holding attorney’s fees were part of the debt calculation that only could be recovered as a deficiency judgment. The contract said defendant “agrees to pay all costs and expenses, including a reasonable sum for attorney’s fees incurred by [plaintiffs] in terminating [defendant’s] rights under this Agreement or claims to the property or in enforcing any or all of the terms of this Agreement, and in appropriate judicial proceedings, if any are initiated to established [sic] maintain [plaintiffs’] right or title to, and possession of said property after breach by [defendant].” Plaintiffs were entitled to an award of attorney’s fees.
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Reversed and remanded. Strickland v. Temple (Lawyers Weekly No. 012-018-21, 7 pp.) (Per curiam) Appealed from Lexington County Circuit Court (James Spence, Masterin-Equity) Frederick Ivey Hall for appellants; Rolland Greenburg and Spencer Andrew Syrett for respondent. S.C. App. Unpub.
Civil Rights Labor & Employment – Taxation – Schools & School Boards – SRO Wages In his claim under 42 U.S.C. § 1983, a police officer alleges conspiratorial acts that not only disparaged his reputation but also deprived him of his right to free speech and association because he feared loss of employment. First, injuries to reputation are not cognizable under § 1983. Second, the officer maintains that, after a Facebook exchange with members of the Dorchester County Council, he “was involuntarily counseled and warned by the Chief and the Internal Affairs Sergeant of the Mt. Pleasant Police Department; [he] was required [by that Chief] to cease being the Administrator of the Concerned Citizens of Dorchester County Facebook page as a condition of his continued employment with the City of Mt. Pleasant.” The officer’s employer was the only actor
who could plausibly be construed as having impaired his constitutional rights, but the suit did not include his employer. Because the officer’s allegations either implicated only injury to reputation or were directed at a non-party, we affirm the circuit court’s dismissal of the officer’s § 1983 claim. We also affirm the dismissal of plaintiffs’ claim under S.C. Code Ann. § 12-37-220. Section 12-37-220 allows a taxpayer, with an owner-occupied residence, to claim he or she was improperly denied a tax exemption and to seek a refund. Where plaintiffs challenge expenditures of taxes – i.e., the payment of the wages of school resource officers – and where plaintiffs do not seek a refund of their taxes, plaintiffs have not stated a claim under § 12-37-220. Dorchester County Taxpayers Association v. Dorchester County (Lawyers Weekly No. 012-019-21, 9 pp.) (Per curiam) Appealed from Dorchester County Circuit Court (Kristi Lea Harrington, J.) Michael Rose and Andrew Gowder for appellants; David Leon Morrison, Drew Hamilton Butler, Anthony Rebollo, Carmen Vaughn Ganjehsani, Erik Doerring, Robert Widener, Kenneth Woodington, Thomas Kennedy Barlow, Kenneth Allen Davis, Tierney Felicia Dukes, Charles Boykin and Adam Jordan Mandell for respondents. S.C. App. Unpub.
Workers’ Compensation Physical Brain Damage – Lifetime Benefits – Uncontradicted Medical Evidence – Mobility Scooter After a 30-pound metal object fell 20 to 30 feet and struck appellant on the head and shoulder, appellant lost consciousness, was admitted into the intensive care unit of a hospital, and was diagnosed with a skull fracture and concussion, among other diagnoses. Neurologist Dr. George Sandoz could not have been more certain when he stated definitively that in his “opinion [appellant] suffered physical brain damage the severity of which renders him incapable of retuning to any form of gainful employment.” In the absence of any competent contrary evidence or opinion, the Workers’ Compensation Commission was not entitled to disregard Dr. Sandoz’s medical opinion. We reverse the Commission’s denial of lifetime benefits and of a mobility scooter. In finding that appellant did not prove he suffered physical brain damage pursuant to S.C. Code Ann. § 42-9-10(C), the Commission cited as evidence the following: (1) three brain scans performed by three different physicians; (2) appellant’s appearance at and participation in
two depositions; (3) appellant’s “attendance at most of his medical appointments on his own to which he also drove himself on his own”; (4) appellant’s service as treasurer of his union hall throughout 2012; and (5) the “lack of any medical evidence stated to a reasonable degree of medical certainty that [appellant] sustained brain damage that was permanent and severe.” The closest semblance to contrary medical evidence relied on by the Commission are the three brain scans. The three brain scans, conducted in 2011 before appellant’s condition worsened and he was diagnosed as having seizures, all yielded similar results of mild left frontal parietal fracture, with no intracranial hemorrhage. However, the brain scans, one of which was conducted by Dr. Sandoz, did not counter Dr. Sandoz’s later findings of severe physical brain damage; the other two physicians who conducted a scan did not opine as to whether appellant suffered physical brain damage. The brain scans alone are not diagnoses and are not the only diagnostic tool used by doctors in conducting their overall evaluation. Additionally, even though he conducted one of the brain scans, Dr. Sandoz was still of the opinion that appellant suffered physical brain damage. Moreover, the brain injury caused appellant to suffer from seizures that now require medication to con-
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14 / OPINION DIGESTS trol. He has been diagnosed with dementia and continues to suffer from headaches, migraines, irritability, anger and dizziness. Based on the foregoing, and in view of the substantial evidence in the record, we conclude that the Commission erred by finding appellant did not prove he suffered physical brain damage. In denying the mobility scooter prescribed by Dr. Sandoz, the Commission implied that Dr. Sandoz prescribed the scooter for unrelated lower back symptoms resulting from an injury that was not caused by the workplace accident. However, the fact that Dr. Sandoz prescribed the scooter four years into appellant’s treatment does not mean Dr. Sandoz prescribed the scooter for injuries unrelated to appellant’s workplace accident or that the scooter is not medically necessary. The only medical opinion available regarding the mobility scooter was that appellant needed the scooter because of injuries sustained as a result of his cervical cord injury caused by his workplace accident. Accordingly, we find the Commission erred by denying appellant the scooter prescribed by his authorized physician. Reversed. Benjamin v. Rexam Beverage Can Co. (Lawyers Weekly No. 012-020-21, 11 pp.) (Per curiam) Appealed from the Workers’ Compensation Commission. Jeffrey Christopher Chandler and Stephen Benjamin Samuels for appellant; Jason Wendell Lockhart and Helen Hiser for respondents. S.C. App. Unpub.
defendant. Foster v. Armstrong (Lawyers Weekly No. 012-022-21, 8 pp.) (Per curiam) Appealed from Horry County Circuit Court (Benjamin Culbertson & Larry Hyman, JJ.) Eric Marc Poulin, Lane Douglas Jefferies, Matthew Thomas Foss, Roy Willey and Kenneth Thomas David for appellant; Linda Weeks Gangi for respondent. S.C. App. Unpub.
Domestic Relations
Real Property
Parent & Child – Visitation – Jurisdiction – N.C. Resident Child
Quiet Title – Credibility – Clear & Convincing Evidence
Although the parties were involved in a 2016 custody and visitation action in South Carolina, that action was terminated pursuant to a 2017 order. By the time respondent filed this action seeking visitation in 2018, the child had already lived in North Carolina for a year and South Carolina no longer had jurisdiction to hear the visitation matter. We reverse the family court’s denial of appellant’s motion to dismiss. Appellant’s weekend trips to visit her mother in South Carolina do not diminish the importance of her North Carolina residency in the context of a new action. Haire v. Ellis (Lawyers Weekly No. 012-021-21, 5 pp.) (Per curiam) Appealed from Marlboro County Family Court (Michael Holt, J.) Jason Scott Luck for appellant; Tiffany Haire, pro se. S.C. App. Unpub.
Despite confusing and often selfcontradictory testimony, the trial court could void a deed on the basis of misrepresentation. We affirm the trial court’s order quieting title in defendant Angie Stokes (Stokes).
Civil Practice Service of Process – Publication – Time & Place of Filing S.C. Code Ann. § 15-9-740 addresses service by publication, and it requires that service by publication state the time and place of the filing of the complaint. Because plaintiffs’ summons, as published, did not state the time and place of the filing of the complaint, the summons was not properly served by publication. The resulting lack of personal jurisdiction over defendant constitutes a meritorious defense for purposes of Rule 55(c), SCRCP. We affirm summary judgment for
Civil Practice Statutes of Limitations – Partnerships – Documents under Seal Plaintiff’s claims arise out of the parties’ financially unsuccessful partnership. Although the complaint mentions several purportedly sealed instruments, the causes of action alleged – breach of fiduciary duty, negligent misrepresentation, and to set aside a deed – are subject to a threeyear statute of limitations. Plaintiff’s counsel sent a demand letter to defendant on September 12, 2008, concerning defendant’s conduct with respect to the partnership and the real property, which is the same conduct underlying the claims in the complaint. Since plaintiff did not file his complaint until April 5, 2012, his claims are time-barred. We affirm summary judgment for defendant. Wilson v. Jayma (Lawyers Weekly No. 012-23-21, 6 pp.) (Per curiam) Appealed from Lancaster County Circuit Court (John Hayes, J.) Mark Wilson, pro se; Walter Keith Martens for respondent. S.C. App.
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While the circuit court’s order is far from a picture of clarity, we note that the court was attempting to untangle the dense thicket of transactions undertaken by Jerry, Stokes and other figures—all of it complicated by inconsistent and contradictory testimony. Under these circumstances, we defer to the findings of the circuit court on the issue of credibility. Even without specific findings to this effect, the order makes clear that the circuit court found Stokes’s testimony more credible than that of Jerry’s mother. Jerry’s obvious financial difficulties, his juggling of various business entities, the contradictory statements about the ownership of Hillcreek Farms, his mother’s decision to serve as a notary for a transaction in which she allegedly stood to benefit (setting aside for the moment its legality)—all of this is evidence in this case as well. This evidence contributes to the full picture that supports the circuit court’s conclusions and is in keeping with the lessons of human experience. In that context, the circuit court could find that there was clear and convincing evidence that Jerry, perhaps with the help of others, manipulated Stokes to his own ends. Furthermore, we agree with that finding. In order to find for plaintiffs, one would need to resolve in favor of plaintiffs all reasonable inferences about the circumstances of Jerry’s courtship of Stokes, the lack of evidence that the money went to any purpose other than Jerry’s enrichment, and the questions about why another notary was not used. Clear and convincing evidence is a high standard, but it does not require us to suspend disbelief. Affirmed. East Chateau Land Holding, LLC v. Stokes (Lawyers Weekly No. 012-024-21, 9 pp.) (Per curiam) Appealed from the Circuit Court in Lexington County (DeAndrea Benjamin, J.) Kelly Louise Burnside for appellants; Angie Delores Stokes, Candece Lorraine Stokes, and Joe Murray David, pro se. S.C. App.
Background
A man facing money troubles, Jerry Sanders, convinced an older woman, Stokes, to marry him. According to Stokes, Jerry gave her the house at 135 East Chateau Drive. On May 20, 2011, on behalf of plaintiff East Chateau Drive Land Holding, LLC (East Chateau), Stokes signed a deed transferring the property from East Chateau to herself. A reverse mortgage was taken on the property, ostensibly to pay for a big wedding. However, at a celebration at Lizard’s Thicket restaurant, Jerry’s sister handed Stokes some papers to sign and then said, “Congratulations, you’re now married.” There was never a big wedding. Defendants contended that what Stokes had signed was a deed transferring the property to plaintiff Hillcreek Farms, LLC. Although Stokes’ name appeared on the signature line, she denied signing the deed and claimed the signature was not hers. Finding that the deed was a product of misrepresentation, the trial court invalidated it and quieted title in favor of Stokes.
Discussion
A party seeking to invalidate a deed for fraud or misrepresentation must prove the allegation by clear and convincing evidence.
U.S. DISTRICT COURT
Environmental Civil Practice – Class Certification – Predominance – Liability In support of her motion to certify a plaintiff class, plaintiff alleges that defendant bought part of a tract of land that is contaminated by polychlorinated biphenyls (PCB) and that defendant failed to prevent the migration of PCB to surrounding properties. Showing that defendant proximately caused an injury to a putative class member is necessarily a highly individualized determination requiring each class member to show that his property contains PCBs and that the PCBs came from defendant’s portion of the contaminated site and not from some other source. Plaintiff has not shown predominance, i.e., that her proposed class is sufficiently cohesive to warrant adjudication by representation. The court denies plaintiff’s motion for class certification. Once plaintiff shows that PCBs in fact exist on the putative class members’ properties, plaintiff will have to show that the alleged combination of
defendant’s actions and omissions on its land caused the PCBs to flow onto the putative class members’ properties. However, the prior owner, Burlington Industries, used PCBs for years prior to defendant purchasing part of Burlington’s site. Further, properties of individual class members are not all the same distance from defendant’s land, do not have the same topography, and it cannot be said the combination of acts and omissions affected them all in the same way. Moreover, plaintiff submitted that she intends to prove causation through an expert, who will testify that “stormwater, land-disturbing activities, failure to remediate, insufficient remediation, that those combinations of actions or inactions more likely than not [caused] PCBs [sic] contamination throughout the drainage corridor…” But because the expert’s deposition is ongoing, plaintiff failed to present to the court any common evidence that “does say” that same thing. At the certification stage, it is necessary for the evidence, testimony, or common method of proof to be presented to the court to ensure that it is actually common to all putative class members. Even though there are general questions of fact or law that are common to certain elements of plaintiff’s claims, there are significant and important individualized questions that must be answered before defendant’s liability can be determined. In light of these important individualized determinations, the court cannot conclude that plaintiff has met her burden of showing that common questions predominate. Even if plaintiff establishes through common proof that defendant knew of the existence of PCBs on its property (either before or at the time of purchase), it had a duty to warn property owners of the existence of those PCBs, and its actions or omissions resulted in the movement of the PCBs, this common proof does not alone establish defendant’s liability on any of plaintiff’s three causes of action (negligence, trespass and nuisance). Plaintiff must be able to answer the individualized questions raised above affirmatively before liability is established. The court also declines to grant issue certification, finding a bellwether trial approach, accompanied by collateral estoppel where applicable, to be a fair alternative. Motion denied. Tillman v. Highland Industries (Lawyers Weekly No. 002-013-21, 38 pp.) (Sherri Lydon, J.) 4:19-cv-02563. Christopher James Moore, Edward John Waelde, John Harrell, Joshua Slavin, Raymond Mullman, William Camden Lewis, Gary Poliakoff, Richard Gleissner and Robert William Harrell for plaintiff; Ethan Robert Ware, Francis Knowlton, Jessica King, Kevin Joseph Malloy, Richard Hood Willis, Ashleigh Rayanna Wilson and Ruth Ann Levy. D.S.C.
Insurance Homeowners – Exclusion – Auto Accident – Wrongful Death – Alcohol Provided The homeowner’s policy issued by the plaintiff-insurer to defendant Godley’s parents excludes coverage for “bodily injury arising out of the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any motor
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vehicle or trailer.” Although no relevant South Carolina authority has addressed this issue, the court finds the exclusion to be unambiguous. Godley is alleged to have allowed a 19-year-old driver to consume alcohol at his parents’ house before she drove away from Godley’s home and struck and killed a pedestrian. The homeowner’s policy’s automobile exclusion excuses the insurer from defending Godley in the underlying state-court negligence action. The court grants summary judgment for the insurer. It has no duty to defend Godley in the underlying action. Because the insurer asks the court to declare whether it is obligated to defend Godley in the state-court negligence action—not just whether it would be obligated to indemnify the plaintiff in the underlying state-court action—the injury to the insurer is not too hypothetical and contingent in nature to establish standing. The court may, in its discretion enter a declaratory judgment in this action. The word “any” in the policy’s automobile exclusion is unambiguous. When the policy refers to “any motor vehicle,” it is referring to an indiscriminate automobile of any kind. The fact that the driver’s vehicle struck the pedestrian, as opposed to Godley’s vehicle, is of no consequence to the court’s analysis. At bottom, a vehicle striking the pedestrian caused his death. The automobile exclusion in the Godley policy is unambiguous and applies to any vehicle whatsoever, regardless of the motor vehicle owner’s identity or relationship with the insured. Even if Godley was a negligent host and allowed the underage driver to consume alcohol while at his parents’ home, the operation and use of an automobile caused the pedestrian’s death. Accordingly, the automobile exclusion applies and the insurer does not have a duty to defend Godley in the underlying negligence lawsuit. And, inasmuch as the insurer has no duty to defend Godley, it also has no duty to indemnify him. Motion granted. Allstate Vehicle & Property Insurance Co. v. Godley (Lawyers Weekly No. 002-014-21, 17 pp.) (Mary Geiger Lewis, J.) 3:20-cv01300. Alfred Johnston Cox and Janice Holmes for plaintiff; Lonnie Ray Doles, Trevor Alexander Cangelosi, Alexis McCumber, Eric Poulin, Matthew Thomas Foss and Roy Willey for defendants. D.S.C.
4TH U.S. CIRCUIT COURT OF APPEALS
Contract Claim against Navy foreclosed by prior settlement agreement Where a ship repair company previously signed a settlement agreement with the US Navy that contained a broad release, and it did not carve out any other claims, that release barred a breach of contract claim.
Background
East Coast Repair, a ship repair company, contracted with the U.S. Navy to repair three ships: the USS Thunderbolt, the USS Tempest and the USS Hurricane. In 2013,
the Navy claimed it was entitled to $474,600 in liquidated damages under the Tempest contract because East Coast delivered the Tempest late. Because the Navy had already paid all but $1,000 for East Coast’s work on the Tempest, it withheld $473,600 from East Coast under the Hurricane contract. In 2014, East Coast sued the United States under the Tempest contract in federal district court. In its complaint, East Coast referred specifically to the $473,600 setoff, stating that it “included those liquidated damages as part of its [request to the government contracting officer] and as part of the calculation of the damages requested hereunder since they were assessed on the TEMPEST.” While the litigation proceeded, East Coast submitted to the contracting officer a request for additional compensation under the Hurricane contract for its assertedly unexpected work on that ship. After six months without response, East Coast appealed to the Armed Services Board of Contract Appeals. It ultimately moved for summary judgment, seeking payment of the $473,600 “withheld from payments due under [the Hurricane] contract.” For reasons unclear from the record, East Coast later withdrew the summary judgment motion. East Coast and the government settled the Tempest suit in 2017. In the settlement agreement, each party released the other from liability in broad, but not identical, terms. Both releases contain an exception for retainage. The district court dismissed the Tempest suit with prejudice. In 2019, East Coast asserted a right to the same $473,600 in a third request to the government contracting officer. And in 2020, East Coast filed this action, claiming the government’s refusal to pay the $473,600 breached the Hurricane contract. The district court granted the government’s summary judgment motion, holding that (1) it lacked subject matter jurisdiction because East Coast made a binding choice to raise the setoff issue before the board and (2) the settlement agreement barred East Coast’s claims.
Analysis
East Coast released the government from liability for “any and all” claims “arising out of or in any way relating to the [Tempest] Contract.” The $473,600 setoff clearly “relates” to the Tempest contract because the Navy withheld that amount as liquidated damages on the Tempest contract. This court cannot read such a broad release to exclude a claim for a setoff taken as liquidated damages under the Tempest contract. And if this court had any doubt as to whether East Coast believed the setoff relates “in any way” to the Tempest contract, it need only look to East Coast’s complaint in the Tempest suit, which states that East Coast factored the $473,600 into its calculation of damages because the damages “were assessed on the TEMPEST.” East Coast insists, however, that this court read its release to give meaning to the difference in wording between its release and the government’s. East Coast regards it as significant that while it released any claims against the government “arising out of or in any way relating to the [Tempest] Contract,” the government released any claims against East Coast “arising out of or in any way relating to issues that were raised in the pleadings or could have
been raised in the pleadings” in the Tempest action. East Coast argues this court must construe this difference to mean that “the parties intentionally omitted” a release of a claim for the setoff. But as it conceded at oral argument, East Coast offers no evidence of the parties’ intent to do this in drafting the two releases. The difference in the language of the two releases alone does not require this court to accept this “strained interpretation” of the text. The absence of any reservation in the settlement agreement for the setoff further supports the conclusion that the settlement agreement bars East Coast’s claims. As the district court noted, the parties specifically included an exception in the settlement agreement for retainage and could have done the same for the setoff. Affirmed. East Coast Repair & Fabrication LLC v. United States (Lawyers Weekly No. 001-176-21, 8 pp.) (Diana Gribbon Motz, J.) Case No. 20-2146. Oct. 14, 2021. From E.D. Va. at Norfolk (Arenda Wright Allen, J.) Dustin Mitchell Paul for Appellant. Michael Anthony DiLauro for Appellee.
4TH U.S. CIRCUIT COURT OF APPEALS, UNPUBLISHED
Criminal Practice Sentencing – Firearm – Crime of Violence – First Step Act The facts to which defendant admitted during his Rule 11, FRCrP, hearing satisfy the elements of both (1) conspiracy to commit Hobbs Act robbery, which is not a crime of violence under 18 U.S.C. § 924(c) and (2) Hobbs Act robbery, which is a crime of violence under § 924(c). A § 924(c) conviction based on one valid and one invalid predicate offense is sound. Defendant’s § 924(c) convictions are valid, so the district court did not err in dismissing defendant’s 28 U.S.C. § 2255 motion. We affirm the district court’s dismissal of defendant’s § 2255 motion. However, because the district court did not have the benefit of United States v. Lancaster, 997 F.3d 171 (4th Cir. 2021), and United States v. Chambers, 956 F.3d 667 (4th Cir. 2020), when considering a sentencing reduction under § 404(b) of the First Step Act of 2018, we remand for further consideration of defendant’s challenge to his career offender designation. United States v. Thompson (Per curiam) Case No. 19-7586. Oct. 4, 2021. From D.S.C. at Rock Hill. (Joseph Anderson, S.J.) Patrick Maurice Thompson, pro se; Brook Bowers Andrews for appellee. 4 pp.
Criminal Practice Sentencing – First Step Act – Offense of Conviction – Crack Cocaine Where defendant’s offense of conviction – conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base – is no longer a “controlled substance offense” under the U.S. Sentencing Guidelines, the district court procedurally erred by finding that defen-
dant “remains a career offender” and by relying on that reason in part to deny his motion for a sentence reduction under § 404 of the First Step Act of 2018. We vacate and remand for reconsideration of defendant’s motion after recalculating and considering his guidelines range without the career offender enhancement, in light of intervening case law and circumstances. United States v. Cabbagestalk (Per curiam) Case No. 20-6072. Oct. 4, 2021. From D.S.C. at Florence (Terry Wooten, S.J.) James Judell Cabbagestalk, pro se; Leesa Washington for appellee. 4 pp.
Criminal Practice Reliance on policy statement to deny compassionate release was error Where a provision of the sentencing manual is not binding on a court considering a compassionate release motion, it was error for the district court to deny the defendant’s First Step Act motion for release, based on the “threshold requirements” in the policy statement.
Background
Daniel Little appeals the district court’s order denying his motion for compassionate release pursuant to the First Step Act. On appeal, Little argues that the district court abused its discretion by finding that he had failed to establish extraordinary and compelling reasons justifying compassionate release.
Analysis
Little argues that the district court abused its discretion by relying on U.S. Sentencing Guidelines Manual § 1B1.13, p.s. (2018), to determine whether he had established extraordinary and compelling reasons for his release. The court agrees. USSG § 1B1.13, p.s. does not bind a district court when it considers a compassionate release motion brought by a defendant, and courts therefore may “consider any extraordinary and compelling reason for release that a defendant might raise.” Although the district court acknowledged that the policy statement was not binding in the context of Little’s motion, it nevertheless reframed Little’s argument to fit within the framework established in the policy statement, stating that Little’s medical conditions were well-controlled and that his condition was stable, without referencing the possible impact of COVID-19 on someone with those conditions. The court then denied Little’s motion on the basis that his medical conditions did not meet the “threshold requirements” set forth in the policy statement. This framing resulted in the district court failing to address Little’s true argument in support of his motion: that his medical conditions, in the context of the current pandemic, created extraordinary and compelling reasons that justified his release. Although the court expresses no opinion on the merits of Little’s argument, the district court abused its discretion by failing to fully address it. Vacated and remanded. United States v. Little (Per curiam) Case No. 21-6120. Sept. 27, 2021. From D.S.C. at Charleston (Richard Mark Gergel, J.) Jeremy A. Thompson for Appellant. M. Rhett DeHart for Appellee. 4 pp.
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