Monday, December 21, 2009

Advance Sheets No. 55

Woah! First thing I see when looking at the Advance Sheets is King v. American General. I was very pleased with the Court's decision in this case a couple of months back and they have now substituted that decision after reconsideration. Admittedly, I am just as happy with the new opinion to reverse the trial court's decision as I was with the previous reversal. This is a class action that I worked on both during law school and after entering private practice, so there is an obvious bias on my part. I would like to say that this is a must read for anyone practicing real estate law or class action litigation. In reality, I am not sure how far beyond the actual case this decision will actually reach. It is very specific to the errors made by the trial court in this specific case.

Next up is Mikell v. County of Charleston. This was an appeal from a finding that the Charleston County Council properly enacted a zoning ordnance involving a Planned Development on Edisto Island. This is old family property dating back to 1715 and Charleston County allowed certain family members to rezone their property allowing for more dense development of their property contrary to the County's 1999 comprehensive land development plan. Other family members objected and the Master sustained their objection. The Court of Appeals reversed the Master and the Supreme Court reversed the Court of Appeals. The case basically turns upon statutory interpretation of zoning laws which the Supreme Court held to be clear. Judge Cooper was sitting as an acting justice and wrote a dissenting opinion. Worth a read if you deal with land use planning and zoning laws.

State v. Herring is an appeal from a murder conviction. Police entered the Suspect's property and looked into his garage to find his vehicle but not the Suspect himself. They then obtained a search warrant for the residence in which they apprehended the Suspect and found the murder weapon. Suspect claimed the peek into the garage was an unlawful search and the subsequent search of the residence to be fruit of that unlawful search. The trial court found that the peek was an unlawful search but that the subsequent search was unrelated. The Supreme Court found that the peek was a reasonable safety precaution for officers seeking a suspect they know to be armed and agreed that the subsequent residence search was not related to the peek due to the description police received identifying the suspect. Certainly a good read for criminal practitioners. Not sure how the case would work out had the police been searching for an unarmed suspect. One note: this case does involve a search warrant obtained by facsimile. The Court held that the statute regarding search warrants does not, in fact, require the swearing officer to actually appear before the magistrate but to be sworn by the magistrate and, apparently, swearing over the telephone is good enough. Might be a case of bad facts making bad law. Justices Kittredge and Pleicones concurred separately because they disagree with the majority concerning the initial "peek" search being legal. They felt exigent circumstance were not present warranting the peek.

State v. Anderson is an appeal from the Court of Appeals regarding a conviction of 1st-Degree Burglary. The Defendant asserts that the trial court erred in allowing the admission of an unauthenticated ten-print fingerprint card. Prints lifted from the crime scene matched fingerprints on record at SLED. The Defendant asserts that the trial court failed to follow the requirements of State v. Rich to the letter in admitting this evidence. A good read to familiarize yourself with the rules regarding authentication of master fingerprint cards both for the prosecution and defense perspective.

In re Anonymous Member of the Bar is a disciplinary matter involving law practice marketing through the use of discount coupons and use of the terms "expert" and "specialist". Draw a red flag on this one and read it well. The Court dismissed the charges regarding discount coupons but did address the proper method to distribute them.

LaSalle Bank National Association v. Davidson is an appeal from a foreclosure hearing in Dorchester County in which the trial judge did not attend the final hearing. The Court held that failure of the judge to attend the final hearing is a violation of the parties' procedural due process and a nullity. This one steams my blood better than a nuclear reactor heats water. An "empty ritual" is how the bank described court hearings.

Sapp v. Ford Motor Co and Smith v. Ford Motor Company are consolidated appeals regarding the economic loss rule limiting tort claims. The Court affirmed the judgments in favor of Ford Motor and overruled its decision in Colleton Preparatory v. Hoover Universal to the extent that it expands the exception to the economic loss rule beyond that described in Kennedy v. Columbia Lumber & Mfg. So the exception to the economic loss rule is strictly limited to residential property construction only. Justice Beatty filed a separate opinion concurring only in the result, not the reasoning. Justice Waller also limited his concurrence to the result only but did not join Justice Beatty's opinion. This is a confusing concept and you should take a look at the opinions because you may very well need to try to make some sense of it in the future.

Dervin v. State is an appeal from a Post Conviction Relief Hearing. The Court reversed and remanded for resentencing. Dervin was convicted of trafficking in more than 10 grams of cocaine, though the amount involved appears to have been more than 200 grams but less than 400 grams. Since the jury convicted her of trafficking in more than 10 grams, Dervin asserts the jury did not definitively find she had trafficked in 200 grams as required by US Supreme Court decisions. The Court agreed that she should have been sentenced for trafficking in more than 10 grams, not more than 200 grams, unless the jury specifically found the amount was more than 200 grams. Good to know for defense lawyers.

Some Appellate Court Rules amendments follow. Specifically, Rule 412, you know, the one involving your IOLTA, and Rule 608, the one involving your appointments to indigent representations. Definitely want to rad those amendments to see how they affect you.

The Court of Appeals had quite a few opinions issued as well.
Jeffrey v. Sunshine Recycling is a Worker's Comp claim and the substantial evidence rule. This one is convoluted. Better read this one if you do any Worker's Comp work. With the economy as it is, this might be very important for successful resolution for your clients.

Plantation A.D. v. Gerald Builders is an appeal from the trial court's grant of summary judgment to the Defendants based on lack of consideration in a purported contract. The trial court held that the purported contract unambiguously lacked consideration and denying parole evidence of consideration. The Court of Appeals reversed finding the contract was not unambiguous and that parole evidence should have been allowed. This one has some procedural issues for those with a healthy motions practice.

In re Walter M is a very sad tale; an appeal from a family court murder conviction of a minor who fatally shot a friend. Of note: this decision found that the recent State v. Belcher decision of the Supreme Court was not controlling, so this one might not be finished for a while.

Normandy Corp v. SCDOT is an appeal of a condemnation case and determination of the value of the condemned land due to the presence of wetlands. Normandy claims that the property is not wetlands and is of higher value. The Court affirmed the lower court ruling.

Some very interesting cases to peruse.

Monday, December 14, 2009

South Carolina Advance Sheets No.54

Just 4 published opinions in the advance sheets for today. One from the Supreme Court and three from the Court of Appeals.

Supreme Court:
Hooper v. Ebenezer Senior Services - An appeal from common pleas court of York County. Petitioner filed suit against respondent regarding the death of petitioner's decedent but was unable to accomplish service on respondent due to an apparent ownership change and inability to locate the registered agent for service of process. Citing the statute of limitations, the trial court dismissed the case and the Court of Appeals affirmed. The Supreme Court reversed and remanded on the grounds of equitable tolling; finding that there is no exhaustive of suitable circumstances to which equitable tolling should be limited and that, while equitable tolling should be used sparingly, it should be applied where the plaintiff fails to prosecute the matter through no fault of their own but that of the defendant. An important case on this procedural rule that everyone ought to read closely.

Court of Appeals:
Ervin v. Richland Memorial Hospital* - An appeal from the common pleas court of Richland County affirming the Appellate Panel of the Workers' Compensation Commission. Claimant alleged exposure to perfumes rendered her disabled. Employer claimed claimant's asthma was a preexisting condition and claimant was not injured on the job. The Commissioner hearing the matter ruled in favor of Claimant while the Appellant Panel reversed and the common pleas court affirmed. Probably very limited applicability unless you practice in the Worker's Comp field at all.

Shirley's Iron Works v. City of Union - An appeal from the common pleas court of Union County affirming in part and reversing in part the trial court's grant of summary judgment to the defendant. Defendant contracted to build a building to a general contractor but did not require a bond. General contractor retained Plaintiff as a subcontractor and Plaintiff claims it was not paid in full for its work. You really need to read this one because it is a bit complicated in its holding. Particularly if you get involved with litigation between municipalities and contractors,

Smith v. Smith - A cross appeal from the family court of Sumter County affirming in part and reversing in part the family court's final order regarding child support, visitation, etc. A very comprehensive decision regarding divorce cases that you should read.

This week's advance sheets also included notice of proposed changes to Civil Procedure Rules 6 and 7 regarding time for filing memorandum supporting or opposing motions before the scheduled hearing. The changes would create a big change in motion's practice and would greatly reflect the local rules in federal court. If the motion is filed more than 30 days before the hearing: 1) a memorandum in support must be filed at least 20 days before the hearing, 2) a memorandum opposing the motion must be filed at least 10 days before the hearing, and 3) a responsive memorandum in support must be filed at least 2 days before the hearing. As always, if you wish to comment on the proposed rule change, the original and 7 copies must be filed with the Supreme Court Clerk. Deadline is December 29 with a public hearing on January 5 at 3:00 PM. I think it is a good change 9 out of 10 times. I am not 100% behind the idea of finalizing legal theory before the hearing, but how often is that the case?

*I would note that this opinion was written for the Court by Judge Paul Short, Jr., whom I clerked for while he was a circuit court judge.

Thursday, November 12, 2009

The Latest Faux Outrage

Conservatives are currently going batshit insane over what they believe is the Obama Administration's policy to purge the civil service ranks of all Bush political appointees who have burrowed into civil service jobs in the past five years.

It is a bald-faced lie.

First, a little background. There are federal laws regarding political appointees taking civil service positions and those laws are regulated by the OMB.

Well, regulated is a bit generous. OMB currently only regulates political appointees applying for competitive or sensitive civil service jobs. If the civil service job is not deemed competitive or sensitive, OMB does nothing to regulate political appointees taking those jobs even though the law says they should. These regulations are not strict; most political appointees seeking civil service jobs are cleared easily.

John Berry, the director of OMB, has issued a memo stating that that policy will change as of January 1. After that date, political appointees seeking any civil service job will be screened by OMB. Also, any person who left a political appointment within five years of seeking a civil service job will face similar, easy screenings.

Nothing about purging current civil servants who were once political appointees. And you can see where the five year bullshit came from.

Just more conservative bullshit. More lies.

Wednesday, October 28, 2009

The Tree of Liberty

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

Thomas Jefferson said those words a long time ago. But does anyone know what he was talking about? Do the tea baggers know what he was talking about when they proudly prance around in their Tree of Liberty t-shirts at their tea bag parties? Probably not.

Jefferson was referencing Shays' Rebellion in Massachusetts. Maybe the full Tree of Liberty Quote would be helpful for context.

"Yet where does this anarchy exist? Where did it ever exist, except in the single instance of Massachusetts? And can history produce an instance of a rebellion so honourably conducted? I say nothing of it's motives. They were founded in ignorance, not wickedness. God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. And what country can preserve its liberties, if it's rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure."

Jefferson's words still ring true today. The tea bag parties might not have been "honourably conducted," but they were founded in ignorance rather than wickedness. For the most part. For the record, Jefferson said it was OK to kill a couple of ignorant tea baggers every twenty years or so for the sake of liberty. Luckily, we have moved beyond the need for such violence against ignorant tea baggers these days. Also:

"A government big enough to give you everything you want, is strong enough to take everything you have."

These words in 20th century vernacular are not the words of 18th century Jefferson no matter what you might read on the editorial pages of the Charleston Post and Courier. Gerald Ford said these anti-American words while president.

Tuesday, October 27, 2009

Open Up Your Arms

This is a campaign by Iraq and Afghanistan Veterans of America and the band O.A.R.

This O.A.R.'s latest video:

Thursday, October 22, 2009

Medical Malpractice

People are making some absurd claims regarding the need for medical practice liability reform.

I have read claims that make the outrageous allegation that medical malpractice costs $500 billion per year. The amount of tangible money spent on medical malpractice insurance is quantifiable and less than 1% of total health care expenditures. Claims are paid out of those premiums so add nothing to the total costs.

So where does the remaining nearly $500 billion come from? Proponents of malpractice reform stoop so low as to allege that physicians in this country are committing a fraud so large as to be preposterous. They allege that physicians defraud this country of nearly $500 billion a year through defensive medical practices that are entirely frivolous in order to prevent malpractice claims.

The idea is ludicrous and defamatory to our great medical professionals, most of whom never come close to committing malpractice. First of all, defensive medicine cannot prevent malpractice. Ever. Tests or either part of the standard of care, in which case they are not defensive, or they are not part of the standard of care, in which case they do not prevent malpractice. Second, there are a myriad of reasons a physician would order a test so it is impossible to label tests as solely to prevent malpractice claims and thus outrageously claim malpractice costs $500 billion.

Even if you assume that defensive practices exist, the CBO estimates that eliminating malpractice would save Medicare approximately $54 billion over 10 years. That is $5.4 billion a year in a system that spends about $1.5 trillion. $15 billion is 1% of $1.5 trillion and $5 billion is just one-third of that 1%. That is not real cost savings.

But here is the kicker. Medical expenses account for the largest element of medical malpractice damages. Single payer universal Medicare eliminates the need for medical expenses as a part of malpractice damages. It would also carry over to almost all other personal injury lawsuits. Universal Medicare would be the single most effective way to "reform" personal injury lawsuits.

Concierge Medicine

Or whatever you prefer to call it. There isn't really a good name for it because, really, it is what every general medical practice should be about.

Basically, you pay a retainer to a general practicioner . . . maybe $1500 per year. In return, the physician limits the number of patients in their practice, say to 300. That guarantees the physician revenue of $450,000 to cover their annual "fixed" expenses, assuming a maximum of 300 patients is actually achieved. Other than getting your foot in the office door, that annual fee includes a complete annual physical examination. But hopefully you won't need additional visits.

If you do get sick, you pay for office visits and tests and such as normal. The key thing is to focus on that annual physical and prevent illnesses before they occur. By reducing the patient load, physicians are better able to focus on prevention rather than cure. By guaranteeing a certain level of revenue, you can hopefully encourage people to become general practice physicians focused on preventive medicine.

If you were to add in the benefits of an active health club membership with a professional trainer, a health lifestyle for this country becomes an obtainable goal. It would be a good start.

I would like to see a health care reform bill that expands Medicare coverage to every legal resident of this country. It should include provisions for the above, concierge medical fees and health club membership with monthly monitoring by a professional trainer. This would rein in costs by helping people to be healthy and prevent illness. Anything less, in my opinion, would be a failure. And it would be a lot cheaper than many would imagine.

Monday, October 19, 2009


An adjective.
Favorable to or in accord with concepts of maximum individual freedom possibly, especially as guaranteed by law and secured by government.

Monday, September 14, 2009

What Their Words Reveal

I've been hearing a lot of noise from a very small minority of physicians who are just tore up with some kind of superior stupid. Take for instance this excerpt from a letter to the editors:

"Private health insurance pays about half of what physicians bill, Medicare pays about 20 percent and Medicaid pays even less."

So basically all of the payers in health care think physicians charge too much and refuse to pay those charges. That is what this statement means. And we know physicians charge too much because no one pays them what they charge yet they remain viable businesses.

And the always dubious claims regarding tort reform are just plain outrageous. Physicians paid around $10 billion in malpractice premiums last year. And payouts on malpractice claims were around $5 billion. Neither of these figures is a significant portion of U.S. health care costs. Yet, tort reform is once again being presented as a must-be-addressed issue by those who otherwise oppose all health care reform. Ande since $10 billion isn't enough to control health care costs, the tort reformers are relying mainly on an intangible boogeyman named Defensive Medicine.

The kindest thing that can be said about Defensive Medicine is that it is a strawman. It is not only intangible, but almost completely hypothetical in nature. Tort reform advocates claim that this bogeyman accounts for 10% of health care costs, $300 billion. Malpractice payouts accounts for $5 billion, but tort reformers want you to think that physicians spent 60 times that amount to prevent having to pay $5 billion. Really?

Now, I said the kindest thing that could be said about Defensive Medicine is that it is a strawman. But I am not feeling particularly kind toward tort reformers. If a physician orders a test merely to prevent a lawsuit . . . I cannot even complete that thought it is so outrageous. The physician hasn't prevented anything.

A malpractice claim is preciated upon a violation of the standard of care. If the standard of care does not call for a certain test, then ordering that test is not defensive. It is frivolous and unethical. If the standard of care does call for a test to be performed, then ordering that test is not defensive. It is the standard of care.

So if a physician claims to practice Defensive Medicine, remember that that physician is admitting to engage in Frivolous Medicine and confessing to unethical practices.