Civil Procedure

August - October 2014

Missing Witness Rule
A party’s invocation of the missing witness rule should be limited to fact witnesses and should not be applied to opinion witnesses, particularly psychiatric experts. The S.C. Supreme Court reiterated the fact that witnesses must be under the control of the party failing to call them (e.g. an agent, employee, relation or associate).
In the Matter of the Care and Treatment of Gonzalez, Op. No. 27443 (S.C. Sup. Ct. filed September 3, 2014) (Shearouse Adv. Sh. No. 35 at 31).

May - July 2014

It is inappropriate for courts to review the decisions of school administrators and school districts regarding how a student’s grade point average and class rank should be calculated, except on allegations of corruption, bad faith or a clear abuse of power.
Palms v. School District of Greenville, Op. No. 5237 (S.C. Ct. App. filed May 30, 2014) (Shearouse Adv. Sh. No. 22 at 76).

January - February 2014

A failure to comply with the nonclaim statute would not divest either the probate court or the circuit court of subject matter jurisdiction with respect to issues arising out of the probate of an estate.
Beach First National Bank v. Estate of Gurnham, Op. No. 27360 (S.C. Sup. Ct. filed February 26, 2014) (Shearouse Adv. Sh. No. 8 at 64).

Jury trial waivers
The S.C. Supreme Court took the opportunity to modify the proper analysis for determining the trial of legal and equitable issues in complaints and counterclaims. See Wachovia Bank v. Blackburn, Op. No. 27359 (S.C. Sup. Ct. filed February 26, 2014) (Shearouse Adv. Sh. No. 8 at 59).
Wachovia Bank v. Blackburn, Op. No. 27359 (S.C. Sup. Ct. filed February 26, 2014) (Shearouse Adv. Sh. No. 8 at 53).

November 2013 - January 2014

Service of process
An insurance policy that provides for a method of service of process, other than that set forth in S.C. Code Section 15-9-270, is valid and binding on insurers.
White Oak Manor, Inc. v. Lexington Insurance Co., Op. No. 27351 (S.C. Sup. Ct. filed January 15, 2014) (Shearouse Adv. Sh. No. 2 at 77).

September - November 2013

Unlike an order granting a request for immunity under the Protection of Persons and Property Act (the Act), an order denying a request for immunity under the Act is not immediately appealable because it is not a final order in the case.
State v. Isaac, Op. No. 27302 (S.C. Sup. Ct. filed August 21, 2013) (Shearouse Adv. Sh. No. 37 at 15).

June - September 2013

Collateral estoppel
The doctrine of collateral estoppel cannot be applied to default judgments because the essential element requiring that the claim sought to be precluded actually have been litigated in the earlier action is not met.

Kunst v. Loree, Op. No. 5163 (S.C. Ct. App. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 106).

After a case has been removed from the federal court, jurisdiction can proceed in state court only after a certified remand order has been sent to ensure that the federal court has indeed ceased to exercise jurisdiction over the merits of the case.
Limehouse v. Hulsey, Op. No. 27279 (S.C. Sup. Ct. filed June 26, 2013) (Shearouse Adv. Sh. No. 28 at 73).


The removal of a state court case to federal court tolls the time period for filing responsive pleadings.
Limehouse v. Hulsey, Op. No. 27279 (S.C. Sup. Ct. filed June 26, 2013) (Shearouse Adv. Sh. No. 28 at 73).

February - April 2013

Motion to disqualify
The denial of a motion to disqualify an attorney is not immediately appealable.
EnerSys Delaware, Inc. v. Hopkins, No. 27225 (S.C. Sup. Ct., Feb. 27, 2013) (Shearouse Adv. Sh. No. 9).

Sixth Amendment
For the purposes of Section 14-7-480 of the S.C. Code, persons aged 65 or older are not a "distinctive group" pursuant to the Sixth Amendment.
State v. Stanko, No. 27224 (S.C. Sup. Ct., Feb. 27, 2013) (Shearouse Adv. Sh. No. 9). 

Service by publication
An affidavit must include some factual basis upon which the court issuing the order of service by publication can find that the defendant cannot be found, after due diligence, within the state.
Caldwell v. Wiquist, No. 5105 (S.C. Ct. App., March 27, 2013) (Shearouse Adv. Sh. No. 14).

July - October 2012

Filing an action
Rule 3(a), SCRCP and Section 15-3-20(B), when read together and in consideration of legislative intent, provide that an action is commenced upon filing the summons and complaint if service is made within the statute of limitations, and if filing but not service is accomplished within the statute of limitations, then service must be made within 120 days of filing.
Mims v. Babcock Center, No. 29160 (S.C. Sup. Ct., Aug. 15, 2012) (Shearouse Adv. Sh. No. 28)

May - June 2012

The “two issue rule” bars appeals of claims if a further ground for liability was not appealed.
Atlantic Coast Builders & Contractors v. Lewis, No. 27044 (S.C. Sup. Ct., May 16, 2012) (Shearouse Adv. Sh. No. 17)

Forum non conveniens
Motions to dismiss based on forum non conveniens are not immediately appealable per S.C. Code Section 14-3-330.
Burkey v. Noce, No. 4971 (S.C. Ct. App., May 9, 2012) (Shearouse Adv. Sh. No. 16)

Interlocutory orders
An interlocutory order requiring a plaintiff, at the request of a named defendant, to remove him from the suit and substitute different defendants is immediately appealable per S.C. Code Section 14-3-330(2)(a) because it affects a substantial right.
Neeltec Enterprises v. Long, No. 27125 (S.C. Sup. Ct., May 16, 2012) (Shearouse Adv. Sh. No. 17)

Subject matter jurisdiction
In a settlement agreement pursuant to a divorce, per S.C. Code Ann. Sections 20-3-690 and 63-3-530, the family court has jurisdiction over a contract that is part of divorce proceedings if the contract does not expressly deny the court continuing jurisdiction.
Hammer v. Hammer, No. 4980 (S.C. Ct. App. June 6, 2012) (Shearouse Adv. Sh. No. 19)

Subject matter jurisdiction
Pursuant to state rules, a master-in-equity does not have subject matter jurisdiction to rule on a motion to strike the jury demand.
Wells Fargo Bank v. Smith, No. 4988 (S.C. Ct. App. June 13, 2012) (Shearouse Adv. Sh. No. 20)

March - May 2012

Directed verdict
Where no evidence is presented from which the jury can reasonably and naturally infer the defendant’s intent to commit the underlying offense as specified in the statute, a motion for directed verdict as to that offense should be granted.
State v. Atieh, No. 4966 (S.C. Ct. App., Apr. 25, 2012) (Shearouse Adv. Sh. No. 14)

A party is not unilaterally entitled to select the doctor for an independent medical examination, especially where the party’s preferred doctor has a prior relationship with the party. Rather, the court has the right to make an appointment.
Fairchild v. SCDOT, No. 27112 (S.C. Sup. Ct., Apr. 11, 2012) (Shearouse Adv. Sh. No. 13)

If a good faith effort is made to abide by the terms of a court-ordered injunction, then those enjoined cannot be held in contempt of court for disobeying the injunction absent a showing of intentional disobedience of the court’s order.
Ex parte: Lipscomb v. Stonington Development, No. 4961 (S.C. Ct. App., Apr. 4, 2012) (Shearouse Adv. Sh. No. 12)

To enjoin honor on a letter of credit for a fraud in the transaction claim, the beneficiary must have no colorable claim or basis in fact for asserting its rights under the letter of credit.
Hook Point v. Branch Banking, No. 27115 (S.C. Sup. Ct., Apr. 11, 2012) (Shearouse Adv. Sh. No. 13)

Motion for a new trial
A motion for a new trial absolute should be granted when a jury award is grossly excessive, based on matters outside of the evidence, and the jury does not follow instructions.
Wachovia v. Beane, No. 4962 (S.C. Ct. App., Apr. 4, 2012) (Shearouse Adv. Sh. No. 12)

January - March 2012

A high degree of deference should be given to a trial court in granting a motion for a continuance.
State v. Galimore, No. 4934 (S.C. Ct. App., Jan. 25, 2012) (Shearouse Adv. Sh. No. 3) 

Directed verdict

Where the issue of negligence exists for one party and not the other party, directed verdict and JNOV motions should be granted. Where the court should have directed the verdict, it is error to give the jury a jury charge of negligence.
Fettler v. Gentner, No. 4933 (S.C. Ct. App., Jan. 25, 2012) (Shearouse Adv. Sh. No. 3)

Directed verdict
It is proper for a court to deny a motion for a directed verdict on the charge of felony DUI when evidence exists for the jury to determine that the defendant committed an act prohibited by law or failed to observe a duty imposed by law.
State v. Galimore, No. 4934 (S.C. Ct. App., Jan. 25, 2012) (Shearouse Adv. Sh. No. 3)

Directed verdict
A directed verdict is appropriate where a party concedes liability fails to meet the industry standard of care for negligence. A motion for directed verdict for a party should not be granted when the party is equitably estopped from asserting a defense and the opposing party can establish a claim of damages.
Magnolia North POA v. Heritage Communities, Inc., No. 4943 (S.C. Ct. App., Feb. 15, 2012) (Shearouse Adv. Sh. No. 6)

If a claim is not conclusory, frivolous or attenuated, there is a due process requirement for the person asserting the claim to receive an opportunity to conduct adequate discovery on this question and confront adverse witnesses.
Graham Law Firm v. Makawi, No. 27086 (S.C. Sup. Ct., Jan. 17, 2012) (Shearouse Adv. Sh. No. 2)

Jury charge
Where a challenged jury instruction accurately reflects all elements required to be established for a damages award on a negligence claim, the trial court does not commit error in giving this charge. Additionally, a jury charge advising a jury to award punitive damages does not violate due process rights.
Magnolia North POA v. Heritage Communities, Inc., No. 4943 (S.C. Ct. App., Feb. 15, 2012) (Shearouse Adv. Sh. No. 6)

Jury strikes
When a race-neutral explanation for striking a juror is contradicted by not striking another juror whom that explanation would also cover, the explanation is not accepted.
State v. Taylor, No. 4920 (S.C. Ct. App., Dec. 21, 2011) (Shearouse Adv. Sh. No. 46) 

Preservation of an issue
When a case is remanded from the U.S. Supreme Court to consider an issue further, if that issue was not raised to or ruled upon in any of the S.C. state court proceedings before it was included in a petition for a writ of certiorari, the issue is procedurally barred as a matter of state law and the original state opinion is reinstated. 
Herron v. Century BMW, No. 26805 (S.C. Sup. Ct., refiled Dec. 19, 2011) (Shearouse Adv. Sh. No. 45) 

Service of process
Like a corporation, individuals may authorize an agent for service of process. However, the class of persons with such authorization is limited.
Graham Law Firm v. Makawi, No. 27086 (S.C. Sup. Ct., Jan. 17, 2012) (Shearouse Adv. Sh. No. 2)

Oct. 2011 - Jan. 2012

Service of process 
Where proper service of process is reduced to “he said/she said,” the court found no reversible error in siding with the process server.
Wilder v. Blue Ribbon Taxicab Corp., No. 4910 (S.C. Ct. App., Nov. 9, 2011) (Shearouse Adv. Sh. No. 40).

Standing to appeal 
Rule 201(b) limits the ability to appeal to only aggrieved parties, which refers to a substantial grievance, a denial of some personal or property right or the imposition on a party of a burden or obligation. 
N. Am. Rescue Prods., Inc. v. Richardson, No. 4909 (S.C. Ct. App., Nov. 9, 2011) (Shearouse Adv. Sh. No. 40). 

Statute of limitations
The statute of limitations for a legal malpractice action is three years and subject to the discovery rule. The statute does not begin to run when the party receives a final ruling from the court, but rather when the party knows or should have known by the exercise of reasonable diligence that a cause of action arose from the wrongful conduct.
Kimmer v. Wright, No. 4902 (S.C. Ct. App., Nov. 2, 2011) (Shearouse Adv. Sh. No. 39).

Zoning Board appeals 
The sole preservation requirement for a first-level appeal of a zoning board's decision is that an appellant must set forth his issues on appeal in a written petition and file that petition with the circuit court before the 30-day filing period expires.
Newton v. Zoning Bd. of Appeals for Beaufort Cnty., No. 4907 (S.C. Ct. App., Nov. 9, 2011) (Shearouse Adv. Sh. No. 40).

July - Oct. 2011

A party’s removal of a case to federal court for the second time and on the same grounds as the initial removal, after it was already remanded, is a sanctionable offense under Rule 11. In this case, the second removal was not based on good grounds and was interposed solely for delay. However, the trial judge abused his discretion when he required the appellants to pay more than costs and fees.
Ex Parte Bon Secours v. Weiters, No. 27016 (S.C. Sup. Ct., Aug. 1, 2011) (Shearouse Adv. Sh. No. 25).