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Welcome to the South Carolina Bar's E-Blast!
June 21, 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.
Message from Bar President A. Marvin Quattlebaum Jr.
Lawyers have constitutional right to court appointment compensation; Bar's amicus position accepted
The South Carolina Bar is pleased that its position that lawyers have a constitutional right to be compensated for appointed cases has been accepted by the Court. The legal profession has historically risen to the defense of the disadvantaged to preserve justice and the rule of law in our society, and the state’s lawyers remain true to their calling. This ruling will promote more efficient procedures in our court system. See summary below.
The Bar recently received word about a scam attempt from a Bar member's e-mail account. Please visit the Scam Alert page on the Bar's website for the most recent alert. We will continue to notify members through E-Blast as we receive reports.
Advance Sheet update
June 15, 2011
The S.C. Court of Appeals found the circuit court erred in concluding the single commissioner's order was not sufficiently detailed to enable appellate review. The court also found the circuit court erred in concluding Respondent experienced an "unusual or extraordinary" condition in her particular employment.
Martinez v. Spartanburg Cnty., No. 4839, is available online.
Judge Few concurred in a separate opinion.
In this workers' compensation case, Appellants asserted that the appellate panel committed an error of law in concluding that the quadriplegic Claimant's heatstroke was within the range of compensable consequences of his original work-related injury. The court found that the appellate panel properly concluded that neither Claimant's decision to ride in his caregiver's car nor his caregiver's negligence was an independent, intervening cause sufficient to break the chain of causation. The court held that the appellate panel's finding was supported by substantial evidence.
Tims v. J.D. Kits Constr., No. 4840, is available online.
The court reversed the trial court's order granting summary judgment to Respondent because Respondent failed to show that the liquidated damages provision was an unenforceable penalty and the facts established that the provision was enforceable as a matter of law.
ERIE Ins. Co. v. The Winter Constr. Co., No. 4841, is available online.
The court affirmed the probate court order that held mutual fund shares were part of the estate. The plain language of the agreement showed Wachovia's authority to act for Decedent terminated upon Wachovia's "actual knowledge" of death, and the actions of either party would remain valid if those actions occurred before that time. The probate court properly found the transfer was not completed before Wachovia learned of Decedent's death.
Rider v. Estate of Rider, No. 4842, is available online.
The court affirmed the denial of a severance because there was no abuse of discretion; the ruling was supported by the evidence and not affected by an error of law. The court found: 1) the trial court did not err in admitting evidence of the gun because the State laid a proper foundation for admission of the gun and the evidence was relevant and highly probative, 2) the photo line-ups were not unduly suggestive and the identification process was so reliable that no substantial likelihood of misidentification existed, and 3) the trial court properly found that the magistrate had a substantial basis for concluding that probable cause existed. Accordingly, the evidence recovered was admissible under the inevitable discovery doctrine. The court affirmed the denial of Appellant's first mistrial motion, as the testimony was harmless in light of the overwhelming evidence of guilt presented at trial.
State v. Spears, No. 4843, is available online.
The court affirmed the trial court's denial of Appellant's motion to set aside a default judgment in favor of Respondent. The court found that the record contained evidence that attorney West acted with reasonable care in informing the Appellant he could not represent her. The court found the trial court did not abuse its discretion in finding the Appellant's negligence in failing to answer Respondent's complaint was not excusable under Rule 60(b), SCRCP. The court also found the Appellant failed to identify any errors of law made by the trial court.
ITC Commercial Funding, Inc. v. Crerar, No. 4844, is available online.
June 20, 2011
The S.C. Supreme Court affirmed the appellate court's reversal of the circuit court's refusal to dismiss the suit on the basis of res judicata. Given the probate court could have fully adjudicated the waste cause of action, Petitioner was precluded from initiating a second lawsuit in the circuit court as this cause of action could have been raised in the former suit. The Court held that Petitioner's election to proceed in probate court effectively waived his right to recover punitive damages.
Judy v. Judy, No. 26987, is available online.
Chief Justice Toal dissented in a separate opinion in which Justice Pleicones concurred.
The Court reversed the decision of the Court of Appeals since the tort of negligent spoliation of evidence is not cognizable under South Carolina law. The Court reasoned that not allowing the tort is appropriate because: public policy considerations weigh heavily against adopting the tort in this State; the damages calculation is speculative; and there is potential for duplicative and inconsistent litigation.
Cole Vision Corp. v. Hobbs, No. 26988, is available online.
The Court held that the Town of James Island's Petition was not sufficient under Section 5-1-24. The Court affirmed the circuit court's conclusion that the incorporation scheme at issue here is not unconstitutional special legislation. The Court further affirmed the circuit court's holding that the term "publicly-owned property" does not require fee simple ownership by the federal, state or county governments. However, the Court reversed the circuit court's analysis of contiguity and held that it is not proper for an area seeking to incorporate to "run down" the length of a public road to add more properties to the proposed municipality.
Cabiness v. Town of James Island, No. 26989, is available online.
Justice Pleicones concurred in a separate opinion.
The Court affirmed the decision of the Administrative Law Court reversing the denial of Respondent's critical area permit application to construct a bridge over a portion of wetlands contained within his property on Fripp Island. The determination that the lot was a part of Fripp Island, based on the tidal datum introduced at trial, was a reasonable one which was supported by substantial evidence.
Risher v. S.C. Dept. of Health and Envtl. Control, No. 26990, is available online.
The U.S. Supreme Court held that where the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). However, the State must have alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order. Examples of the procedural safeguards include: (1) notice to the defendant that his "ability to pay" is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay. Under the circumstances, Turner's incarceration violated due process because he received neither counsel nor the benefit of alternative procedures like those the Court described, and thus the Court reversed the S.C. Supreme Court's decision.
Turner v. Rogers, 10-10, is available online.
Justice Thomas, with whom Justice Scalia joined, and with whom the Chief Justice and Justice Alito joined as to Parts I–B and II, dissented.
June 21, 2011
The S.C. Supreme Court accepted the South Carolina Bar's amicus curiae brief and held that "the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney's services constitute property entitling the attorney to just compensation." The amount of attorney's fees in complex appointed cases should be decided by the trial court on a case-by-case basis, subject to an abuse of discretion standard of review. The Court affirmed the trial court's decision, due to the unique circumstances presented in this case. The Court's holding is to apply to court-appointed cases after July 1, 2012.
Ex parte Brown, No. 26991, is available online.
Justice Pleicones dissented in a separate opinion.
By order of June 14 the Court reinstated William Ashley Boyd to the practice of law.
McWhirter, Bellinger & Associates, PA announces that John Meadors has joined the firm located at 1807 Hampton St., Columbia 29201. (803) 252-5523.
Nelson Mullins Riley & Scarborough announces that J. Benjamin Connell has joined the Charleston office as an associate located at 151 Meeting St., Ste. 600, 29401. (843) 853-5200.
Nexsen Pruet announces that James Rourke has joined the firm as an associate in its Columbia office located at 1230 Main St., Ste. 700, 29201. (803) 771-8900.
Lauren Williams and Abigail Walsh of Williams & Walsh, LLC announce that Michael P. O'Connell has become Of Counsel to the firm located at 125-A Wappoo Creek Dr., Ste. 202, Charleston 29412. (843) 722-0157.
Wood Jackson PLLC announces that J. Gary Eichelberger Jr. and Emily A. Moseley have become Of Counsel to the firm, and the firm's new address is 1330 St. Mary's St., Ste. 460, Raleigh, NC 27605.
Real Estate Practices Section Council Meeting, Conference Call
Unauthorized Practice of Law Committee Meeting, Bar Building
Professional Responsibility Committee Meeting, Bar Building
South Carolina Lawyer Editorial Board Meeting, Bar Building
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