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.