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E-Blast Archive Issue

Welcome to the South Carolina Bar's E-Blast!
September 7, 2010
E-Blast highlights upcoming activities, legal information and links to the Bar's website at www.scbar.org.

The So
uth Carolina Bar is dedicated to advancing justice, professionalism and understanding of the law.

Convention website goes live
The 2011 Convention website went live today at www.scbar.org/convention. Visit this site for all Convention details, including a complete schedule at-a-glance, general information, hotel reservations, sponsors and exhibitors. Detailed seminar agendas and online registration will be coming soon. A brochure containing limited information as well as a registration form will be mailed in November. The 2011 Convention will be held January 20-23 at the Hilton Head Marriott Resort & Spa. Make hotel reservations today to ensure the room of your choice!

Help make mock trial rock!
It is that time of year again! The Law Related Education (LRE) Division is seeking volunteers for its growing mock trial programs, which teach middle and high school students about the legal system through trial role playing. Mock trial volunteers enjoy the thrill of competition while scoring and presiding over trials. LRE needs attorney volunteers to score the competitions, attorney coaches to help prepare the teams, and student volunteers to help behind the scenes. Competitions dates and locations are as follows:  November 13, Middle School Mock Trial Regional Competitions (Charleston, Columbia, Conway and Greenville); December 4, Middle School Mock Trial State Competition (Lexington); February 26, High School Mock Trial Regional Competitions (Charleston, Columbia, Conway and Greenville); and March 11-12, High School Mock Trial State Competition (Columbia). All attorney volunteers earn pro bono credit for their hours dedicated to the mock trial program. To learn more or volunteer, contact Cynthia H. Cothran at ccothran@scbar.org or at (803) 252-5139.

Council nominations
The Senior Lawyers Division is calling for nominations for the positions of President-Elect, Secretary-Treasurer and Regional Representatives from Regions I and III. These positions will become vacant on June 30, 2011. Nominees must be members of the Senior Lawyers Division in good standing. A nominee for Regional Representative must maintain his/her principal office in the judicial region to be represented. The Division's Nominating Committee is scheduled to meet prior to November 15 to consider all nominations. Members of the Division are encouraged to submit names to the Committee for consideration. Please forward recommendations to Tara Smith at tsmith@scbar.org or by calling (803) 799-6653, ext. 146, or toll free at (877) 797-2227, no later than October 25.

YLD continues work with Special Olympics
Special Olympics South Carolina is holding its 11th Annual Special Night for the Special Olympics on September 23 at 6:30 p.m. at the Daniel Island Club. As part of the 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 event. Tickets are $100 per person or $150 per couple. Please contact Taylor Stair at taylor.stair@elmorewall.com if you are interested in attending.

Interim Chief Magistrate designated for Marion County
By order of September 3 Judge Danny O. Barker is designated as Interim Chief Judge for Administrative Purposes of the Summary Courts for Marion County effective immediately and continuing through December 31, 2010. To view the full text of the order, click here.

Uniform traffic tickets
By order of September 3 magistrates and municipal judges will affix their signatures to the disposition portion of Uniform Traffic Tickets certifying the accuracy of the disposition of charges brought before them on those charging documents. To view the full text of the order, click here.

Bar Foundation helps student seize the day
Through a grant to the S.C. YMCA Youth in Government Program (YIG), students at title one schools are given the opportunity to participate in one of several model legislature and court conferences. In the 2010 grant cycle, three new title one schools were recruited, and 222 students received scholarship assistance. One participant said, "I've always been pretty eccentric, and I used to get ridiculed a lot for that. But in YIG, my eccentric nature was viewed as creativity. I learned that cliches are cliche for a reason. Phrases like 'carpe diem' and 'trust yourself' were things I said, but never felt. YIG gave all of those words meaning." Your Bar Foundation is the only statewide entity that funds the advancement of justice by improving access, education and accountability. Please join us.

Conference on Ensuring an Independent and Diverse State Judiciary
The League of Women Voters in S.C. is sponsoring the Conference on Ensuring an Independent and Diverse State Judiciary on October 8 from 1 to 5:30 p.m. at the Charleston Museum Auditorium located at 360 Meeting St. The conference is free and will focus on the importance of an independent and diverse judiciary in South Carolina and examine the impact of the judicial selection process on reaching that goal. Contact Barbara Zia at ziab1@comcast.net or Constance Anastopoulo at canastopoulo@charlestonlaw.edu for more information. Register by October 5 at (803) 251-2726 or angelwarren@msn.com. A reception will follow the conference at Alluette's Jazz Cafe located at 137 Calhoun St.

Advance Sheet update

September 1, 2010
Appellant Fletcher underwent a subclavian bypass performed by Drs. Brothers and Rios. After the surgery, Appellant suffered damage to the thoracic artery and phrenic nerve. Appellant subsequently brought the medical malpractice claim against Respondent Medical University of South Carolina alleging Drs. Brothers and Rios were negligent in performing the surgery and she was not properly advised on the risks associated with subclavian bypass. The Court of Appeals affirmed the directed verdict for Respondent on negligent performance of procedure because the complication itself is not evidence of negligence and there is no evidence establishing how the doctors deviated from the standard of care. The court reversed the directed verdict for Respondent on the informed consent claim. Appellant provided a modicum of expert testimony that Respondent's agents deviated from the accepted standard of care. Appellant's own testimony is some evidence that proceeding with the surgery was unreasonable in light of the risks and potential outcome.
Fletcher v. Medical University of South Carolina, No. 4732, is available online.

In this domestic relations case, the court held the family court did not err in failing to find Respondent husband was voluntarily underemployed and impute income to him based upon loans, a truck and a residence provided by his employer because Appellant wife did not request a finding on this fact and the family court did not rule on this point. The court modified the family court’s award imputing income to Appellant based on a wage of $10 dollars per hour and a 40-hour work week to a 40-hour work week at the rate of $5.85 per hour (the minimum wage at the time of the family court hearing). The court noted Appellant's parental and educational commitments and lack of recent work experience, but recognized Appellant had shown a lack of initiative in finding any employment. Based on the modification of Appellant's income, the court adjusted computation of child support and alimony awards.
Marchant v. Marchant, No. 4734, is available online.
   
In this workers' compensation case, the court affirmed the circuit court's holding that Appellant Liberty Mutual Insurance Corporation's cancellation of William Crews, Inc.'s policy was invalid. The court held the appellate panel was incorrect in finding that Appellant's cancellation of an insurance policy was proper because Respondent William Crews was in full compliance with the policy and there was no provision in the policy or the Assigned Risk Plan (the Plan) allowing cancellation of a current policy due to an alleged failure to comply with the requirements of a previous policy. The court affirmed the circuit court's finding that Appellant did not act reasonably in providing an opportunity to cure, noting the Plan requires a servicing carrier to provide an opportunity to cure and to work with the employer on problems relating to coverage and service. Because Appellant's cancellation of Respondent's insurance policy was invalid, the following are irrelevant: Appellant's compliance with statutory notice requirements about the cancellation; the finding by the appellate panel that Appellant's failure to return unearned premiums to Respondent did not invalidate the cancellation; and the appellate panel's decision to allow ARG to transfer its own liability to the fund. The court declined to rule on the issue of estoppel.
Crews v. Liberty Mutual Insurance Corp., No. 4735, is available online.

September 7, 2010

The Supreme Court affirmed the circuit court's holding that S.C. Ambulatory Surgery Center (Surgery Centers) did not establish the necessary independent right to a "contested case" under Section 1-23-310(3) of the APA. Surgery Centers failed to set forth any specific argument that S.C. Workers' Compensation Commission's (the Commission) actions fell within the ambit of criteria required for a "contested case." The Court reversed the circuit court's determination that the Commission was required to promulgate a new regulation and provide Surgery Centers an opportunity to be heard before adopting the Advisory Committee's recommended schedule, instead holding the Commission's actions were specifically authorized by existing Regulation 67-1304 and did not implicate the private right to warrant the due process protections of Article I, Section 22, of the S.C. Constitution.
S.C. Ambulatory Surgery Ctr. Ass'n v. S.C. Workers' Comp. Comm'n, No. 26875, is available online.
Justice Hearn and Justice Kittredge dissented in a separate opinion.

The Court found it is the unauthorized practice of law for a non-lawyer to represent a business as prosecutor of a criminal misdemeanor charge other than a traffic offense in magistrate's court. Allowing a private party to prosecute a criminal action would conflict with the purpose of criminal law as a safeguard of the public interest. Petitioner cited S.C. Code Ann. Section 33-1-103; however, this statute merely comports with S.C. case law that allows a non-lawyer to represent a corporation in magistrate's court in certain civil actions and does not authorize representation in a criminal matter. The Court has previously permitted persons other than solicitors to prosecute criminal cases in magistrate's court, but these were law enforcement officers acting in the capacity of public officials who are sworn to uphold the law.
In the Matter of W. Barney Giese, No. 26876, is available online.
Justice Hearn and Chief Justice Toal dissented in a separate opinion.

The Court held the Court of Appeals erred in finding Respondent was entitled to a jury instruction on involuntary manslaughter because Respondent's brandishing of a weapon was unlawful conduct naturally tending to cause death or great bodily harm. Respondent admitted at trial he was not in imminent fear of death or serious bodily injury and therefore Respondent was not acting in self-defense.
State v. Rivera, No. 26877, is available online.
Justice Beatty and Justice Pleicones dissented in a separate opinion.

Petitioners James and Jan Shore contend the lack of an affidavit from Respondent Linda Mc Company, Inc. setting forth the exact amount due under a previous judgment renders the judgment void under S.C. Code Ann. Section 15-35-360. The Court disagreed, holding the language of Section 15-35-360 permits but does not require such an affidavit. The Court held Section 15-39-30 is not a statute of limitations but does operate similar to one under the factual circumstances; therefore, if a party takes action to enforce a judgment within the 10-year statutory period of active energy, the resulting order will be effective even if issued after the 10-year period has expired. The issues of whether the Court of Appeals' decision established an unworkable rule of procedure and estoppel were not preserved for review. The Court also held the case was not moot because there was an actual controversy between the parties and the circuit court did have subject matter jurisdiction.
Linda Mc Company, Inc. v. Shore, No. 26878, is available online.
Justice Beatty concurred in part and dissented in part in a separate opinion. Justice Pleicones dissented in a separate opinion.

Reinstatement
By order of August 31 the Court reinstated Castles Rochelle Hollis as an Inactive Member of the Bar.

Firm announcements

Tonya Copeland-Little announces the formation of Copeland-Little Law, LLC located at 524 West Carolina Ave., Hartsville 29550. (843) 332-3202.

McQueen Law Firm, PC
announces that Korey L. Henson has joined the firm located at 175 Alabama St., Spartanburg 29302. (864) 585-5021.

Shawn L. Reeves
announces the opening of his law office at 1201 Main St., Ste. 1980, Columbia 29201. (803) 608-4895.

Whitener & Wharton, PA
announces that Alexis S. Bell has joined the firm located at 2001 Park St., Columbia 29201. (803) 779-7830.

In memoriam

James Herbert Shelley, 66, of Hartsville died on September 1. To view his obituary visit The State website


David Arthur Soderlund, 65, of Goose Creek died on September 5. To view his obituary visit The Post and Courier website

Calendar
September 8

Environment & Natural Resources Section Council meeting, Conference Call

September 10
Elder Law Committee meeting, Bar Building

September 16
Board of Governors meeting, Bar Building
Senior Lawyers Division meeting, Nexsen Pruet, Columbia
Family Law Section Council meeting, Bar Building

September 17
Trial & Appellate Advocacy Section Council meeting, Conference Call