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E-Blast Archive Issue

Welcome to the South Carolina Bar's E-Blast!

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.


YLD recognized with Awards of Achievement
The Young Lawyers Division was recognized in two categories at the 2009-10 ABA Awards of Achievement at the ABA Annual Meeting in San Francisco. The Minority Pre-Law Conference placed second in the Minority category, and the 2010 Bar Convention at Kiawah placed second in the Service to the Bar category.
To view a complete list of recipients, click here.

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 using the U.S. Mail or e-mail by noon on Thursday, September 30. Contact the Commission directly with questions at (803) 212-6623. To view the list of candidate, click here.

Lawyers Desk Book delivery update
The 2010-2011 Lawyers Desk Book is available for purchase. Print and CD-ROM versions are $25 plus tax. Visit www.scbar.org/deskbook for ordering options.

Seminar site cancellation
The Florence satellite location for Trial and Error: A Day of Litigation Skills and Lawyer-Client Ethics featuring Jim Blackburn on August 20 has been canceled.

Young Lawyers Division featured seminar
The Bar's Young Lawyers Division, the CLE Division and the S.C. Association of Certified Public Accountants are presenting Not Just Business as Usual: How Attorneys and CPAs Can Partner to Advise Clients in the New Business Era on Thursday, Sept. 2, at the Capital City Club in Columbia. This exciting half-day conference will provide unique continuing education and essential networking opportunities for young professionals. The sessions and speakers were selected by a team of CPAs and attorneys resulting in a cost-effective conference designed by members for members which will provide ample return on the registration fee and time investments. Take advantage of a trip to Columbia and stay for USC's first home football game against the University of Southern Mississippi! This seminar qualifies for 3.25 MCLE credit hours, including up to 1.0 LEPR credit hours. Register today on the Bar's website.

Black Lawyers retreat upcoming
The S.C. Black Lawyers Association will hold its annual retreat September 30 through October 2 at the Columbia Marriott Hotel. For more information contact Lynne W. Rogers at (803) 788-0408 or rogersscbla@aol.com.

Cy pres awards can benefit the Foundation
Why is the Bar Foundation a perfect fit for a cy pres award? There is no possibility for a conflict of interest for the Court or the defendant. The Bar Foundation is structured to ensure accountability for the expenditure of funds, has provided more than $41 million in grants and is a proven collaborator and leader in the justice community. Funds can be used to target a specific project if desired allowing for consensus between the plaintiff, defendant and the Court. Read more about cy pres on the Bar Foundation website or request a copy of our brochure. Your Bar Foundation is the only statewide entity that funds the advancement of justice by improving access, education and accountability. Please join us.

Advance Sheet update
August 11, 2010
Wilson was convicted of criminal domestic violence of a high and aggravated nature (CDVHAN) and kidnapping. On appeal, Wilson argued the trial court erred in failing to grant his motion for a mistrial due to the admission of evidence of prior bad acts. As a threshold issue, the Court of Appeals addressed the State's argument that Wilson's allegation was not preserved since he was required to move to strike the offensive testimony, request or accept the trial court's offer of a curative charge and then if unsatisfied renew his motion for a mistrial. The court disagreed, finding that because Wilson's objection was overruled he was not required to make another motion for mistrial or under any obligation to accept a curative charge. Addressing the merits, the court found no indication of prejudice in the record and affirmed the trial court's denial of Wilson's motion for mistrial. 
State v. Wilson
, No. 4723, is online.

Orr appealed his convictions for first-degree criminal sexual conduct with a minor and committing a lewd act upon a minor. The court held that Orr's motion for a mistrial was not preserved for review; the trial court did not abuse its discretion in excluding Orr's wife's testimony regarding infidelity in their marriage; and Orr's chain of custody argument was not preserved for review since Orr's objection at trial was based on hearsay, not an insufficient chain of custody. 

State v. Orr
, No. 4724, is online

The court examined the effect of a mistrial on appealability in a case with multiple claims and multiple defendants, where the court directs a verdict on some of the claims, but not all. The City of Georgetown (the City) alleged the trial court erred in denying its directed verdict motions on David Ashenfelder's causes of action for conversion and prescriptive easement. Ashenfelder alleged the trial court erred in granting directed verdicts on his causes of action prior to the declaration of a mistrial. The court held that because the trial court denied the City's motions for directed verdict, the City's issues are not immediately appealable. The court used Ashenfelder's cross-appeal as an opportunity to address the effect of SCRCP 54(b). The court found that the directed verdicts on Ashenfelder's claims remained subject to revision, and there was no written order directing the clerk to enter judgment, as required by the Rules of Civil Procedure. The court dismissed the appeal without prejudice. 

Ashenfelder v. City of Georgetown,
No. 4725, is online

Draine argued that the circuit court erred by refusing to reform his automobile insurance policy with the Government Employees Insurance Company (GEICO) to provide for uninsured motorist (UIM) coverage in an amount equal to his liability coverage. Draine contended that if an insurer provides an existing insured with a UIM offer form when the insured renews his coverage, the insurer must add optional UIM coverage if the insured does not timely return the form, even if the insured had previously rejected UIM coverage. In support, Draine relied on S.C. Code Ann. Section 38-77-350(E) (2002) which sets forth specific requirements regarding the offering of optional coverages, such as UIM. The court disagreed and affirmed the circuit court's decision. 

Gov't Employees Ins. Co. v. Draine
, No. 4726, is online.  

August 16, 2010

The Supreme Court affirmed Appellant Winkler's sentence of death. The Court held that an audiotape recording of Victim's son was properly admitted as a prior inconsistent statement under Rule 801(d)(1)(B), SCRE. The Court also held that the trial court did not err in allowing the jury to read the transcript of the 911 tape while listening to it; the trial court did not abuse its discretion in denying Appellant's request to proceed pro se at the sentencing phase of the trial; Faretta warnings were not warranted in this case; there was no error in admitting mitigation evidence over Appellant's objection; and the trial court properly denied Appellant's motion for a directed verdict. 
State v. Winkler
, No. 26857, is available online.

In this lawsuit to reform an auto insurance policy to provide underinsured motorist coverage (UIM), the issue was whether Lumbermens Mutual Casualty Company, doing business as Kemper Insurance Company (Lumbermens), made a meaningful offer of UIM to Cintas Corporation (Cintas). The circuit court granted Lumbermens' motion for summary judgment, finding that Lumbermens made a meaningful offer of UIM coverage to Cintas. On appeal, the Court affirmed as modified, holding that the state specific form provided by Lumbermens did not comply with the requirements set forth in S.C. Code Ann. Section 38-77-350(A). The court then examined whether a meaningful offer was made under
State Farm Mut. Auto. Ins. Co. v. Wannamaker, 291 S.C. 518, 354 S.E.2d 555 (1987). The court found no doubt that Lumbermens informed Cintas of its option to purchase UIM coverage, and so a meaningful offer was made.
Ray v. Austin,
No. 26858, is available online.
Justice Pleicones concurred in a separate opinion.

In this case, Matthew Kundinger (Appellant) enrolled a default judgment against Louis and Linda Frazer (the Frazers) before the Frazers closed a refinance mortgage with Matrix Financial Services Corporation (Matrix). The Frazers declared bankruptcy, and Matrix foreclosed. In Matrix's foreclosure action, the master-in-equity granted Matrix equitable subrogation giving the refinance mortgage priority over Appellant's judgment lien. The Court reversed, holding that (1) Matrix had not satisfied the elements of equitable subrogation because it did not have secondary liability for the initial mortgage; and (2) Matrix is not entitled to an equitable remedy because it failed to have attorney supervision for the loan closing and thus came to the court with unclean hands.

Matrix Fin. Serv. Corp. v. Frazer
, No. 26859, is available online.
Justice Kittredge concurred in result in a separate opinion, and Justice Pleicones dissented in a separate opinion.

In this direct appeal from a jury verdict in a products liability matter, the Court affirmed in part, reversed in part and remanded for a new trial. The Court held that in a product liability action asserting strict liability and negligence, when the strict liability claim is dismissed due to the absence of an element shared by the companion negligence claim, the negligence claim should be dismissed as well. The Court agreed with Ford's assertion that there is no separate "failure to test claim" apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous. Among its other holdings, the Court found that Branham presented sufficient evidence of a design defect known to Ford at or prior to the date of manufacture to withstand a directed verdict motion; the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design; when assessing liability in a design defect claim against a manufacturer, the judgment and ultimate decision of the manufacturer must be evaluated based on what was known or "reasonably attainable" at the time of manufacture; the use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper; post-manufacture evidence of similar incidents is not admissible to prove liability; the closing argument of Branham's counsel was designed to inflame and prejudice the jury; it was error for the trial court to require the jury to apportion liability between two defendants when the cause of action arose before July 1, 2005; and the punitive damages award did not withstand constitutional scrutiny because the charge violated the "harm to others" prohibition and because evidence of the salaries and compensation of the defendant corporation's officers introduced an arbitrary factor in the jury's consideration and assessment of punitive damages. Ford's final challenge assigning error to the trial court's failure to realign defendant Hale as a plaintiff was not preserved for review, but the Court addressed it as a novel question and held that the trial court has the authority to realign parties at any stage of the action.

Branham v. Ford Motor Co
., No. 26860, is available online.
Justice Pleicones concurred in part and dissented in part in a separate opinion, in which Justice Waller concurred.

Petitioner Tindall was convicted of trafficking cocaine in excess of four hundred grams, sentenced to 25 years imprisonment and assessed a $250,000 fine. On certiorari, he challenged the court of appeals rulings affirming the trial court's denial of his motions to suppress the cocaine and his statement to police. The Court reversed, finding the police officer's actions after completion of the license and registration computer check exceeded the scope of the initial traffic stop.  The continued stop beyond this point, without reasonable suspicion, constituted an illegal detention, and the evidence and statement should have been suppressed. 

State v. Tindall
, No. 26861, is available online.
Justice Kittredge dissented in a separate opinion in which Acting Justice Moore concurs.


In this heirs' property dispute, the Court reviewed the decisions of the court of appeals in four related cases. The Court affirmed, finding that the circuit court properly granted the Respondent's motion for summary judgment. Even assuming Petitioners sufficiently established their extrinsic fraud claim to avoid the three-year statute of limitations provided for in S.C. Code Section 15-67-90, the Court held the doctrine of laches operated to bar their claim. 
Robinson v. Estate of Harris, No. 26862, is online;
Robinson v. Estate of Harris, No. 26863, is online;
Robinson v. Estate of Harris, No. 26864, is online;
Robinson v. Estate of Harris, No. 26865, is online.

This case concerned a three-acre tract of land known as Huxfield Cemetery and which party, Appellant Huxfield Cemetery Association or Respondents, may maintain control over the property. The special referee treated this dispute as an action to try title and ruled that because Respondents had superior title over Appellant, Respondents were entitled to maintain control over the cemetery and permitted to charge a burial fee. The Court reversed the special referee's order and held that Appellant has the right to maintain and control Huxfield Cemetery.
Huxfield Cemetery Ass'n v. Elliott, No. 26866, is available online.

In this medical malpractice suit, the Appellant contended that a decedent's estate may revive a previously barred claim by invoking the three-year statute of limitations applicable to a wrongful death action. The Court affirmed the circuit court's finding that the estate may not pursue a wrongful death action where the decedent, prior to death, was barred from seeking damages for injuries that caused his death.
Estate of Stokes v. Pee Dee Family Physicians, LLP, No. 26867, is available online.

In this death penalty case, Appellant Starnes argued the trial court erred in failing to give a voluntary manslaughter charge, raised issues regarding a capital defendant's right to self-representation and asserted he did not knowingly and voluntarily waive his right to counsel. The Court affirmed Appellant's death sentence and held that Appellant was not entitled to a voluntary manslaughter charge and knowingly and voluntarily waived his right to counsel.
State v. Starnes, No. 26868, is available online.
Justice Pleicones dissented in a separate opinion.

Respondent Wood was injured in an automobile accident during the course and scope of his employment with Appellant Grinnell Corporation (Grinnell). Wood was operating a vehicle owned by Grinnell and insured by its carrier, American Home Assurance Company (American Home). Wood successfully brought a claim against Grinnell for workers' compensation coverage. Wood also sought UM and UIM coverage in a civil law suit. The issue on appeal arose from a declaratory judgment action in which the trial court granted summary judgment to Wood, finding that American Home failed to make a meaningful offer of UM and UIM to Grinnell. The trial court ordered the reformation of the policy to include additional UM and UIM coverage. The court of appeals affirmed. The Supreme Court reversed, finding that under the particular facts and circumstances of this case, American Home made a meaningful offer of UM and UIM coverage to Grinnell.
Grinnell Corp. v. Wood, No. 26869, is available online.
Justice Pleicones concurred in a separate opinion.

Steven V. Bixby was charged with the murder of Abbeville County Deputy Sheriff Danny Wilson and Abbeville County Magistrate's Constable Donnie Ouzts. The jury found him guilty of all charges and recommended that he be sentenced to death. The Court disagreed with the eight issues Bixby presented on appeal and affirmed.
State v. Bixby, No. 26871, is available online.
Justice Pleicones dissented in a separate opinion in which Justice Waller concurred.


Reinstatement
By order of August 12 the Court reinstated Rachel Scott Decker as an Active Member of the Bar.

Firm announcements
Bruner Powell Robbins Wall & Mullins, LLC announces that Ronald E. Robbins is retiring. The firm's name has changed to Bruner Powell Wall & Mullins, LLC located at P.O. Box 61110, Columbia 29260. (803) 252-7693.

Adrian Gabriel Dejeu announces that he has joined the Law Office of Matthew P. Pinckney, LLC located at 414-B Monument St., Greenwood 29648. (864) 538-6528.

The Hood Law Firm, LLC
announces that Laura McCall Saunders has joined the firm as an associate located at 172 Meeting St., Charleston 29401. (843) 722-1630.

Mark David Neill
has joined the Neill Law Firm with a mailing address of P.O. Box 2810, Murrells Inlet 29576. (843) 651-8580.

The Rosen Law Firm, LLC announces Chris Paton has joined the firm as an associate located at 18 Broad St., Ste. 201, Charleston 29401. (843) 377-1700.