August 15, 2013
August 09, 2013
Welcome to the South Carolina Bar's E-Blast!
August 15, 2013
E-Blast highlights upcoming activities, legal information and links to the Bar's website at www.scbar.org.
Click here for the most recent CLE Edition, which highlights upcoming CLE opportunities.
2013-2014 Lawyers Desk Book now available!
The 2013-14 edition of the S.C. Bar Lawyers Desk Book is now available. Please note that member contact information was published as entered in the Supreme Court's Attorney Information System (AIS). All active Bar members were mailed a complimentary copy this week; please allow two weeks for delivery. Additional copies in print and CD format can be purchased for $25 each, plus tax. Order extra copies online or by calling (803) 799-6653, ext. 155.
Young Lawyers Division receives four ABA YLD Awards of Achievement
Congratulations to YLD, winner of four prestigious Awards of Achievement at the American Bar Association Annual Meeting! The awards included first place for Newsletter (S.C. Young Lawyer), second place for Service to the Public (iCivics), second place for Service to the Bar (Courthouse Keys) and special recognition for Minority Projects (BLSA Symposium and Career Fair). View the complete release here.
The Bar has been notified by its bank of an increase in the number of fraudulent, non-domestic checks. Foreign checks may not result in collected funds even within 30 days. Banks may be considering not giving credit on a foreign check until it is paid regardless of how long it takes. Bar members who receive foreign checks may wish to discuss the handling of that deposit with their banks.
BallotBox survey on behalf of the Judicial Merit Selection Commission for judicial candidates
The Judicial Merit Selection Commission requests input in the General Assembly's screening of the Fall 2013 Judicial candidates listed in this media release. The Commission must determine whether each candidate is qualified to serve, and in this regard, seeks the opinion of practicing attorneys, members of the judiciary and clerks of court as to each candidate's fitness for the bench. Please note that this request is separate and distinct from the phone survey responses which will still be requested of Bar members by the Bar's Judicial Qualifications Committee. However, the Commission will share the tabulated results with the Bar’s Judicial Qualifications Committee for this screening. BallotBox Online, LLC sent the electronic survey to Bar members today, Aug. 15.
JQC phone interviews regarding judicial candidates
Judicial Qualifications Committee (JQC) will begin its calls to the bench and bar on Thursday, Aug. 15. The information compiled by JQC is not attributed to those interviewed and is used to determine a collective opinion of the candidate. JQC policies provide that committee members complete at least 30 calls per candidate. Participation from Bar members who have experience with any of the candidates is highly encouraged and valued. You may be asked about multiple candidates in order to avoid duplicate calls. Thank you for your continued cooperation and support.
S.C. Supreme Court Historical Society membership drive underway
The Historical Society announces the start of its FY14 membership drive. Your membership provides exclusive publications and discounts on event tickets and books. A special project of the Bar Foundation, the Society works to preserve the state’s rich legal history. Visit the Society’s new website to choose the level of membership that’s right for you and download a membership form to submit to the Bar Foundation.
Symposium commemorating anniversary of Gideon v. Wainwright
The S.C. Commission on Indigent Defense and the Charleston School of Law are hosting a national symposium commemorating the 50th anniversary of the U.S. Supreme Court decision in Gideon v. Wainwright on Friday, Sept. 20, at the Charleston Museum. The event will feature prominent scholars and practitioners who will address the evolution of public defense, the increasing demands on the criminal defense practitioner, prospects for a “civil” Gideon, and challenges in adequately funding the Gideon promise. Many of the speakers argued key Supreme Court cases in the evolution of the right to counsel; the keynote speaker is Abe Krash of Arnold & Porter, LLP of Washington, D.C., who assisted Abe Fortas (counsel for Mr. Gideon) in preparing the Gideon appeal. The symposium is CLE accredited and is $75. For more information and to register, visit www.sccid.sc.gov or contact SCCID Executive Director Patton Adams at (803) 734-1344.
PMAP Tech Tip
Does your law office need a technology upgrade but you aren't sure where to start? Attend the final free PMAP webinar of the summer: Champagne Technology on a Beer Budget. The presentation, to be held Aug. 28 at noon, is designed to give you a master checklist of everything your practice needs from a technology perspective. Contact PMAP for free assistance with your law practice at firstname.lastname@example.org.
2013 Appellate Practice Project
The S.C. Commission on Indigent Defense announces the S.C. Court of Appeals 2013 Appellate Practice Project in cooperation with the S.C. Bar and with the approval of the S.C. Attorney General, Chief Justice of the S.C. Supreme Court and Chief Judge of the S.C. Court of Appeals. A requirement of participation is attendance at an Appellate Practice CLE seminar, to be held Oct. 24. View the complete release, details of the program and seminar agenda at www.sccid.sc.gov. To register, visit www.scbar.org/cle. All attorneys interested in appellate practice and representation are encouraged to learn about this innovative project.
Support provided for Bar Foundation’s Charleston Gathering
The legal community and Bar Foundation friends have come together to support the Bar Foundation’s 2013 Charleston Gathering on Aug. 28 at 8:30 a.m. at the Harbour Club. Thank you to Nancy Bloodgood; Buist Byars & Taylor, LLC; Dixon Hughes Goodman, LLP; Hellman Yates & Tisdale; Parker Poe Adams & Bernstein, LLP; Pratt-Thomas Walker, PA; Ramsdale Law Firm, LLC; Rosen Hagood; Rosen Litigation Technology Consulting; and Turner Padget Graham & Laney, PA for helping us host this great event for our grantees. Special thanks to Regions Bank for its generous support. To RSVP for the Charleston Gathering, which includes a free breakfast and 0.5 MCLE credit toward the mental health and substance abuse requirement, call (803) 765-0517 or e-mail email@example.com.
Columbia attorney William C. Hubbard was installed as ABA President-Elect for 2013-14, and Charlotte, NC attorney Kenneth E. Young won a seat as a Delegate At-Large in the ABA House of Delegates.
Advance Sheet update
August 14, 2013
In this insurance policy dispute, the S.C. Supreme Court reversed, finding the policy was not ambiguous, nor was the disputed provision a violation of public policy. The Court further held the collateral source rule did not apply and there is no underinsured motorist property damage coverage available.
Bardsley v. Government Employees Ins. Co., Op. No. 27295 (S.C. Sup. Ct. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 16), is available online.
Justices Pleicones and Beatty concurred in result only.
Logan appealed his conviction for attempted criminal sexual misconduct in the first degree, asserting the trial court erred in providing the circumstantial evidence charge the Court articulated in State v. Grippon, 327 S.C. 79, 489 S.E.2d 462 (1997). The Court affirmed, concluding the trial court did not err in providing the charge, but, for the benefit of the bench and bar, articulated a circumstantial evidence charge that reflects the proper balance between the State’s burden and the jury’s responsibility. See Shearouse Adv. Sh. No. 36 at 41.
State v. Logan, Op. No. 27296 (S.C. Sup. Ct. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 27), is available online.
Justice Kittredge concurred in result in a separate opinion in which Justice Pleicones concurred.
In this criminal appeal, the Court held the S.C. Court of Appeals correctly affirmed the trial court’s finding that the traffic stop was not unlawfully extended, the officer had reasonable suspicion for an additional seizure, and Provet’s consent to search the vehicle was voluntary. The Court further clarified that off-topic questioning by a law enforcement officer during the course of a traffic stop does not constitute a separate seizure for purposes of the Fourth Amendment, so long as the off-topic questioning does not measurably extend the duration of the stop.
State v. Provet, Op. No. 27297 (S.C. Sup. Ct. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 44), is available online.
Justice Beatty concurred in result only.
In this construction dispute, the Court reversed the decision of the trial court, finding it erred in holding the parties’ transaction had an insufficient nexus to interstate commerce to warrant arbitration under the Federal Arbitration Act.
Cape Romain Contractors, Inc. v. Wanda E., LLC, Op. No. 27298 (S.C. Sup. Ct. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 55), is available online.
On certification from the U.S. District Court for the District of South Carolina, the Court held: the damages recoverable for a temporary trespass or nuisance claim are limited to the lost rental value of the property; a trespass exists only when an intrusion is made by a physical, tangible thing; and damages recoverable for a permanent trespass or nuisance claim are limited to the full market value of the property. The Court further stressed that for a negligence claim based on offensive odors to be possible, the claim must satisfy all the elements of negligence. The Court was unable to make a definitive determination as to whether establishing the standard of care of a landfill operator in regards to offensive odors requires expert testimony, but offered guidelines for making such a determination and entrusted that determination to the discretion of the trial judge.
Babb v. Lee County Landfill, SC, LLC, Op. No. 27299 (S.C. Sup. Ct. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 65), is available online.
In this direct appeal, the Court reversed the circuit court’s order vacating an arbitration award on the ground of the arbitrator’s “evident partiality,” pursuant to S.C. Code Section 15-48-130(a)(2) (2005) of the S.C. Uniform Arbitration Act. The Court held a party seeking vacatur must be able to demonstrate that a reasonable person would conclude the arbitrator was partial to the other party to the arbitration. To determine if a claimant has demonstrated evident partiality, a court should examine the following four factors: the extent and character of the personal interest, pecuniary or otherwise, of the arbitrator in the proceeding; the directness of the relationship between the arbitrator and the party he is alleged to favor; the connection of that relationship to the arbitration; and the proximity in time between the relationship and the arbitration proceeding. The Court opined the facts here do not give rise to any objective finding of partiality and thus do not justify vacatur under the statute. Accordingly, the circuit court’s decision to set aside the arbitration award under these circumstances constitutes reversible error.
Crouch Construction Co., Inc. v. Causey, Op. No. 27300 (S.C. Sup. Ct. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 85), is available online.
The S.C. Court of Appeals held 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. Therefore, the court found the circuit court erred in ruling Kunst’s defamation claim was precluded under the doctrine of collateral estoppel based upon the default judgment rendered in the prior action. Accordingly, the court reversed the circuit court’s grant of summary judgment on Kunst’s defamation claim.
Kunst v. Loree, Op. No. 5163 (S.C. Ct. App. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 106), is available online.
Scott appealed his convictions, asserting the trial court improperly admitted evidence of prior sexual abuse allegations to show the existence of a common scheme or plan. The court affirmed, concluding the trial court did not abuse its discretion in admitting evidence of Scott’s bad acts occurring some 11 to 20 years prior to the crimes charged. The court determined the related testimony was sufficiently similar to the crime charged, and was neither too remote nor was its probative value substantially outweighed by the danger of unfair prejudice.
State v. Scott, Op. No. 5164 (S.C. Ct. App. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 115), is available online.
The court affirmed the family court’s order terminating the husband’s permanent periodic alimony after finding the husband cohabitated with his paramour in contravention of S.C. Code Section 23-3-130(B)(1). Given the husband’s financial situation and that it was his conduct that had brought the parties to court, the court also affirmed the family court’s denial of both parties’ request for attorney’s fees.
McKinney v. Pedery, Op. No. 5165 (S.C. Ct. App. filed August 14, 2013) (Shearouse Adv. Sh. No. 36 at 132), is available online.
Judge Konduros dissented in a separate opinion.
By order of August 12 the Court placed Brian N. Davis on interim suspension. The Court’s receiver, Gretchen Gleason, was appointed to protect the interests of Mr. Davis’ clients.
By order of August 14 the Court suspended Allan Riley Holmes Jr. from the practice of law for nine months (retroactive to Jan. 25, 2012, with additional conditions) for misconduct including commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.
Member removed from rolls
The Court removed Kevin Lynn McDougall from the roll of attorneys as he no longer meets the requirements of Rule 405, SCACR.
Mario Walter Schenkel, 69, of Spartanburg died July 17. His obituary can be found here.
The Hood Law Firm, LLC announces that C. Tyson Nettles, William M. O’Neil and H. Cooper Wilson III have become partners of the firm located at 172 Meeting St., Charleston 29401. (843) 577-4435.
Hull Barrett, PC announces that T. Paul Timmerman has joined the Aiken office located at 111 Park Ave., SW, 29801. (803) 648-4213.
J. Lewis Cromer & Associates, LLC announces that Ryan K. Hicks has joined the firm as an associate located at 1522 Lady St., Columbia 29201. (803) 799-9530.
King, Love & Smith, LLC announces the opening of a Greenwood office and that Brandon A. Smith has relocated to the Greenwood office located at 214 Waller Ave., Ste. 100, 29649. (864) 538-4076.
Murphy Law Firm, LLC announces that Ashley L. Hudson has joined the firm as an associate located at 136 W. Richardson Ave., Summerville 29483. (843) 832-1120.
Nexsen Pruet, LLC announces that Jonathan E. Schulz has joined the Charlotte, NC office located at 227 W. Trade St., Ste. 1550, 28202. (704) 339-0304.
Annual Meeting of Chairs, Embassy Suites (Columbia)
Memory Hold the Door Committee Meeting, Bar Building
Construction Law Section Council Meeting, Conference Call
Corporate, Banking and Securities Law Section Council Meeting, Conference Call
Military and Veterans' Law Section Council Meeting, Bar Building
Health Care Law Section Council Meeting, Conference Call
Tax Law Section Council Meeting, Conference Call
Government Law Section Council Meeting, Conference Call
Unauthorized Practice of Law Committee Meeting, Bar Building
Administrative and Regulatory Law Committee Meeting, Bar Building
Board of Governors Meeting, Bar Building
Elder Law Committee Meeting, Bar Building
Practice and Procedure Committee Meeting, Bar Building
Trial and Appellate Advocacy Section Counctil Meeting, Conference Call
Mock Trial Training, Bar Building
To be added or deleted from the E-Blast mailing list, please contact Donna Oelhafen in Membership Services at firstname.lastname@example.org or (803) 799-6653, ext. 171. To change your e-mail address, you must log on to AIS at www.sccourts.org/ais.