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Welcome to the South Carolina Bar's E-Blast!
August 30, 2011
E-Blast highlights upcoming activities, legal information and links to the Bar's website at www.scbar.org.
The South Carolina Bar is dedicated to advancing justice, professionalism and understanding of the law.
Allen Gibson featured in Bar video series
C. Allen Gibson Jr. of Charleston is the next Bar member featured in the "Proud to be a South Carolina Lawyer" video series, designed to present a glimpse into the lives of S.C. lawyers. Click here to see the video, and "Like" the Bar on Facebook to see an additional video each week and share them with others.
Ethics Advisory Opinion summary
The Ethics Advisory Committee has issued a new opinion. The text of all opinions is available online at www.scbar.org/ethics.
11-06 In a standard real estate closing, absent additional facts and circumstances, a buyer’s lawyer preparing a settlement statement may add a reasonable payoff handling fee to the seller’s side of the statement even though the lawyer has not entered into a fee arrangement and does not have an attorney/client relationship with the seller. The lawyer may, alternatively, choose to seek actual reimbursement.
Bench and Bar survey
The Judicial Merit Selection Commission requests input in the General Assembly's screening of candidates for judicial office. The Commission must determine whether each candidate for judicial office is qualified to serve, and in this regard it seeks the opinion of practicing attorneys, members of the judiciary, clerks of court and sheriffs as to each candidate's fitness for the bench. Please note that this request is separate and distinct from the survey responses requested by the Bar's Judicial Qualifications Committee. Please return this questionnaire via U.S. Mail or e-mail by noon on Thursday, Sept. 29. Contact the Commission directly with questions at (803) 212-6623. To view the list of candidates, click here.
YLD sponsoring Special Olympics Gala
Special Olympics S.C. is holding its 12th Annual Special Night for the Special Olympics on Thursday, Sept. 29, at 6:30 p.m. at the Daniel Island Club. As part of the S.C. Bar's ongoing work with the organization, individual members of the Young Lawyers Division are committing funds to allow YLD to serve as a sponsor of the Charleston Special Olympics Gala. Tickets are available for $100 per person or $150 per couple. Please contact Taylor Stair at firstname.lastname@example.org if you are interested in attending.
Exploring the Business Side of Law Firms
How will your firm address cloud computing, court appointments, social networking and more? Find the answer to these and other issues facing lawyers today at “Exploring the Business Side of Law Firms” on Friday, Sept. 23, at the Columbia Marriott. Stephanie Kimbro, lawyer, blogger and author of Virtual Law Practice: How to Deliver Legal Services Online, is just one of the six ABA TECHSHOW alumni presenting a host of legal and practical topics. Exhibitors from the legal software and products world, including Tabs3, Clio and Rocket Matter, will join a variety of companies chosen for their focus on the business side of law practices. Don’t miss this unique opportunity to visit with software companies who rarely exhibit in South Carolina! This seminar qualifies for 6.0 MCLE credit hours, including 1.0 hour of ethics. Click here to register.
Advance Sheet update
August 24, 2011
The S.C. Court of Appeals found that the appellants cannot avoid the waivers in the promissory note and guaranty since, by signing the documents, the appellants are charged with having read their contents. However, the jury trial waivers in the promissory note and guaranty did not apply to the appellant’s counterclaims since the counterclaims arose out of the alleged pre-sale misrepresentations and fraud of Wachovia and not out of the note. Therefore, the waivers are outside of the scope of the counterclaims.
Wachovia Bank v. Blackburn, No. 4874, is available online.
The court found the trial court properly denied Bank of America’s (BOA) motion for JNOV on the respondents’ negligence claim since the evidence presented at trial yields more than one inference regarding whether BOA should have reasonably foreseen the theft of funds. At trial, BOA was referred to as "big," "the largest" bank in America and the "third largest bank in the world" on several occasions in the jury's presence. These references were brief and isolated, and the court found no prejudice in the statements. The court also found the evidence presented at trial was sufficient to warrant submitting the punitive damages issue to the jury. Based on the court’s review of the guideposts outlined in Mitchell, it concluded the punitive damages award was constitutionally proper.
Cody P. v. Bank of America N.A., No. 4875, is available online.
The court affirmed the circuit court's order granting partial summary judgment that the commission's finding is preclusive and held that the appellant’s affirmative defense failed as a matter of law. The court also affirmed the circuit court's order granting summary judgment on the appellant's counterclaims. However, the court reversed the circuit court's order granting partial summary judgment as to the causal connection between the filing of the workers' compensation claim and Crosby's firing and remanded for further proceedings consistent with this opinion.
Crosby v. Prysmian Communications, No. 4876, is available online.
The court found the family court did not err in allowing the child to move to Florida with the mother because it based its decision on the best interests of the child. Further, the family court did not err in awarding attorney's fees or in the amount of attorney's fees since it considered all of the appropriate factors and stated why those factors supported awarding the mother attorney's fees, and the record contains evidence to support each of the family court's findings. The family court was fully within its rights to change its decision in the written order since the initial ruling was oral.
McComb v. Conrad, No. 4877, is available online.
The court found the trial court erred in failing to find for the buyer for its claim of unjust enrichment because the buyer met the requirements to recover under the theory of restitution. Accordingly, the court reversed the trial court's determination that the buyer was not entitled to restitution and awarded the buyer $205,000. Since the court reversed the trial court's decision on unjust enrichment, it remanded to the trial court to determine attorney's fees and costs because the agreement permits the prevailing party to recover them.
JASDIP Props. S.C., LLC v. Estate of Richardson, No. 4878, is available online.
Judge Pieper dissented in a separate opinion.
The court affirmed the circuit court's dismissal of Wise’s workers' compensation claim that arose from the same facts as a civil action he settled against a third party and a default judgment he obtained against his employer. The court opined that an appellate court can take judicial notice of something that was not before the trial court if it is indisputable. The summons and complaint and default judgment show that the claimant did file an action and recover against the employer, thus making that his exclusive remedy. Additionally, Wise filed suit and entered a settlement against a third party without providing any notice to the Fund or the Commission as required by statute, thus barring the workers' compensation action.
Stephen Brad Wise v. Richard Wise d/b/a Wise Services, No. 4879, is available online.
August 29, 2011
The Court held that Section 12-2-25(B)(1) of the S.C. Code (Supp. 2010) permits a single-member limited liability company to qualify for the four percent legal residence property tax ratio and remanded the case to the ALC for a determination of the refund due to CFRE and for a determination of which costs, if any, CFRE may receive. The Court affirmed the ALC's denial of sanctions against the assessor for its failure to respond to CFRE's discovery requests.
CFRE v. Greenville Cnty. Assesor, No. 27032, is available online.
The Court affirmed the order of the PCR judge, opining that there was evidence to support the dismissal of the petitioner's application for PCR. Considering the evidence the State presented during the guilt phase of trial, the petitioner could not show the outcome of the penalty phase would have been different had trial counsel conceded the petitioner's guilt in the guilt phase.
Terry v. State, No. 27033, is available online.
The Court considered an appeal from a grant of a directed verdict. The Court found that the trial court erred by directing a verdict against Stivers on the issue of capacity to contract and that the evidence under the proper standard of review presented a question of fact as to Higgins' capacity. The Court also held that the trial court erred in granting a directed verdict to SCFCU as to the other warranties contained in the contract as well as the amount of damages due SCFCU. While the Court recognized the option to remand the matter for further development of the additional warranty issues, it remanded for a new trial on liability and damages.
South Carolina Federal Credit Union v. Higgins, No. 27034, is available online.
In its original jurisdiction, the Court considered the constitutionality of Act 308 of the S.C. Acts of 2010. Because the Court found the General Assembly did not override the Governor's veto of Act 308 in accordance with the S.C. Constitution, the Court entered judgment for the plaintiff, the Board. The two-thirds mandate in Article IV, Section 21, of the S.C. Constitution requires two-thirds of a quorum. Accordingly, the Court held the Governor's veto of H. 4431 was sustained. The Court, therefore, entered judgment for the plaintiff. Having rendered judgment for the plaintiff, the Court did not need to reach the Article III, Section 34, special legislation challenge.
Board of Trustees of the School District of Fairfield Cnty. v. State, No. 27035, is available online.
Justice Beatty concurred in a separate opinion. Chief Justice Toal dissented in a separate opinion.
The Court reversed the circuit court's grant of summary judgment as to FACES's claims for breach of contract and breach of the duty of loyalty, finding there are material questions of fact whether respondent breached the revised contract by not returning to her home country and accepting another job, whether FACES suffered any actual as opposed to liquidated damages and whether the respondent breached the duty of loyalty implied in every employment contract. While the Court expressed no opinion as to the viability of the breach of the duty of loyalty claim as one independent of the breach of contract action, it found the circuit court erred in granting summary judgment because respondent did not seek summary judgment as to this claim.
Foreign Academic & Cultural Exchange Services Inc. v. Tripon, No. 27036 is available online.
Justice Hearn concurred in part and dissented in part in a separate opinion in which Justice Kittredge concurred.
By order of August 24 the Court placed Robert A. Gamble on interim suspension.
By order of August 24 the Court placed Kristie Ann McAuley on interim suspension.
By order of August 26 the Court appointed Mary Sharp to assume responsibility for the practice of recently suspended Craig J. Poff.
Coastal Law, LLC announces that Nick Thomas has joined the firm located at 231 King St., Charleston 29401. (843) 577-7401.
Ezizze Davis Foxworth announces the relocation of Ezizze Davis Foxworth, LLC to 580 Hwy. 701 N., Loris 29569. (843) 716-3500.
Haynsworth Sinkler Boyd, PA announces that Tara E. Nauful has relocated to the Charleston office located at 134 Meeting St., 29401, (843) 722-3366, and that Sarah P. Spruill has relocated to the Greenville office located at 75 Beattie Place, 29602, (864) 240-3220.
Hedrick Gardner Kincheloe & Garofalo, LLP announces that Lee Dixon has joined the firm located at 1301 Gervais St., Ste. 1900, Columbia 29201. (803) 727-1200.
McAngus Goudelock & Courie, LLC announces that Andrew L. Richardson has joined the firm located at 1320 Main St., 10th Floor, Columbia 29201. (803) 779-2300.
The S.C. Commission on Indigent Defense announces that Christopher D. Scalzo has been named Interim 10th Circuit Public Defender.
Jonathan Whitehead announces the opening of The Law Offices of Jonathan P. Whitehead, LLC located at 410 E. Butler Rd., Ste. E, Mauldin 29662. (864) 561-8011.
The York County Office of the Public Defender announces that Judah N. VanSyckel has been hired as an assistant public defender located at 1675-1E York Hwy., York 29745. (803) 628-3031.
Nathaniel Welch Morrisette Jr., 89, of Columbia died Aug. 22. His obituary can be found here.
Thomas B. Pollard Jr., 78, of Columbia died Aug. 23. His obituary can be found here.
William B. Regan, 75, of Charleston died Aug. 25. His obituary can be found here.
William McBrayer Wood, 69, of Charlotte died Aug. 23. His obituary can be found here.
Children's Law Committee Meeting, Bar Building
Practice and Procedure Committee Meeting, Conference Center
Board of Governors Meeting, Bar Building
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