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.