S.C. Court of Appeals issues opinion on "substantial rights" for appellate purposes

In Brunson v. American Koyo Bearings, the Employer in a workers' compensation case sought review of a single Commissioner's decision by the full Commission. In its application for review and supporting memorandum, Employer did not challenge the compensability of one injury, but did challenge others. In a short order, t he Commission vacated the single commissioner's order and remanded for a de novo hearing.

The employee filed an appeal because he believed that the de novo hearing before the single commissioner would include all issues, including those not challenged in Employer's appeal to the Commission. The court of appeals ruled that a substantial right entitling employee to an immediate appeal was not involved because the de novo hearing would be limited "to those matters included in Employer's appeal to the Commission." Hence, the compensability of the unchallenged injury was not up for rehearing. Had it been, the court indicated that a substantial right would have been effected.

Unintended consequences of mini bottle repeal

As most of you know, last year South Carolina repealed its constitutional provision requiring use of mini bottles in bars. (Kinda scary that such a provision would be a part of fundamental law, but they don't call us backward for nothing......). As the state's bars begin the switch to free pour, it appears there are many more issues than just buying the big bottles. Many establishments are facing costs of remodeling, retraining, refiguring costs.

For instance, many bars will have to retrain their bartenders, folks who never have used a jigger. There never was a need to when all recipes required that bartenders open minibottles and dump them into glasses. Until now, liquor has been the most closely regulated substance in this state: one bottle, one drink. It was practically impossible for bartenders to vary the strength of a drink, or give their buddies a stiff one. And don't expect those prices to go down, even if the amount of booze in your drink goes down. (Hmmmm.... maybe the old constitutional provision wasn't so backward).

The Post and Courier has this article on the switch to free pour.

Fourth Circuit issues Clean Water Act opinion

In Ohio Valley Environmental v. Bulen, the Fourth Circuit using Chevron deference held that the Army Corps of Engineers complied with the Clean Water Act when it promulgated NWP 21. NWP 21 is a general permit for the discharge of dredged or fill material into the waters of the United States that allows projects to proceed only after receiving individualized authorization from the Corps. According to the court:

We conclude that the Corps complied with section 404(e) when it issued NWP 21. The Corps identified a category of activities, it determined that those activities would have a minimal environmental impact both separately and cumulatively, and it provided notice and opportunity for public hearing before issuing the permit. The Corps' issuance of NWP 21 thus fell within its authority under section 404(e).

S.C. Court of Appeals issues reverses trial court's dismissal of claim in probate court

In the case of In re Burch, defendant moved the circuit court to dismiss Gordon's action against the estate of George Burch for failure to present his claim within the proper time and on the proper form. Defendant argued that because Gordon did not file South Carolina Probate Court Form 371 before the claim period expired,Gordon did not properly present his claim against the estate, and his claim was barred. The court ruled as follows:

Form 371 may be necessary when the claimant intends to submit a claim to the personal representative but does not intend to commence an action against the personal representative--for example, when the claimant expects the personal representative to allow the claim. Form 371 may also be necessary when the claimant intends to commence a proceeding against the personal representative in a court other than probate court. In that case, Form 371 would put the probate court on notice of the proceeding, which would insure that the estate is not distributed before the claim is handled. In this case, however, the complaint accomplishes precisely what Form 371 is intended to accomplish. Therefore, the trial court erred when it held the requirements of section 62-3-804(2) can be satisfied only by filing Form 371 with the probate court.

Biden threatens an Alito Filibuster

The AP has this story on a possible filibuster.

Pundits speculate Alito will be a "federalist" justice

The Washington Post has this op-ed.

Home Gold CEO indicted

According to this article, the grand jury levied 10 charges against the former head of HomeGold Financial Inc., claiming his lies about his lavish lifestyle and the company's health contributed to the biggest financial collapse in state history.

Fourth Circuit issues qualified immunity opinion

In Wilson v. Flynn, the Fourth Circuit affirmed the district court's grant summary in favor of two police officers based on qualified immunity. At base, Officers Flynn and Butler arrived at the Wilson house and confronted a volatile domestic disturbance. Wilson was drunk, assaulted his wife, had a gun in the house, and actively resisted arrest. These factors supported the conclusion that the injuries Wilson suffered in the melee did not constitute a deprivation of a constitutional right. (As a result of the incident, the left side of Wilson's face was badly bruised and swollen, and he suffered a nasal fracture.)

The officers' use of force, according to the panel, was not objectively unreasonable under these circumstances.

Fourth Circuit issues ADA opinion

In Taylor v. Fed Ex, the Fourth Circuit affirmed the district court's grant of summary judgment in an ADA case. The panel agreed that Fed Ex did not violate the ADA when it failed to accommodate Taylor's his back impairment and terminated his employment. The panel agreed that Taylor was not disabled under the ADA.

The key to the court's opinion was that a vocational consultant estimated that Taylor's work experience and educational background qualified him for 3,281 job titles out of the 12,741 job titles listed in the Department of Labor's dictionary of occupational titles. Accordingly, his back impairment did not substantially limits his ability to work and therefore constitutes a disability under the ADA.

Wither USC Law?

Professor Bill Quirk has an excellent op-ed up on the problems at USC Law. According to Quirk, the quality of students is dropping and the good South Carolina students are going out-of-state where the tuition is cheaper and the law schools have higher rankings. Quirk's suggestions: Cut tuition and lower class size.

This is a good op-ed. South Carolina lawyers should take a look.

S.C. Supreme Court holds that there is no statute of limitations in a paternity action

In Smith v. Doe, the supreme court held that there is no statute of limitations applicable to actions seeking to establish paternity. According to the Court: "The statutory authority read in conjunction with this Court's common law makes it clear that the legislature did not intend to impose a statute of limitations on paternity actions because the Legislature did not specifically include one in the statutory scheme."

Issues surrounding Governor's Medicaid proposal go to federal court

There is a direct challenge of Governor Sanford's plan to move the state's 1 million Medicaid recipients from state-administered, fee-for-service health care to managed health care, administered by private insurance companies. The arguments are as follows:

The plaintiffs--rural health clinics and a nonprofit group--say changes to Medicaid must be cleared by the General Assembly under the state Administrative Procedures Act, with adequate public notice and opportunity for input.

Sanford's attorneys say the Department of Health and Human Services is the "single state agency" that can set Medicaid policy and the Legislature has no jurisdiction in that process.

An article on the suit can be found here.

Radwill Murder Trial to Begin

The defendant has been in jail ten years awaiting trial. This is possibly the longest anyone in the nation has waited in jail for a trial to begin. The State newspaper has this story on the trial and murder.

Posting will be light this weekend

I'm attending the Federalist Society Convention in D.C. I'll be back in the office on Monday.

Maurice Bessinger loses SCUTPA case

In Bessinger v. Bi-Lo, the court of appeals affirmed that Bessinger could not proceed with a claim under the SCUTPA for the removal of his barbecue sauce from retail stores. The SCUTPA declares unlawful "unfair . . . acts or practices in the conduct of any trade or commerce." "An act is 'unfair' when it is offensive to public policy or when it is immoral, unethical, or oppressive." Bessinger alleged that retail grocers discontinued selling his products and removed the remaining items in stock from their shelves because Bessinger flew the Confederate battle Flag in front of his restaurants. The court of appeals held that the trial court properly dismissed Bessinger's claim. According to the court:

We agree with the trial court that the allegations in the complaint do not suggest Defendants committed acts that would be unfair under the SCUTPA. Assuming without deciding that Defendants terminated their business relationships with Plaintiffs solely because of Bessinger's statements, there is no First Amendment violation. Moreover, as free market participants, the defendant grocery store chains and their respective managers have the right to choose with whom they conduct their business. Although Plaintiffs are correct that this right "is not an absolute, unfettered privilege," recent case law indicates that in South Carolina the enactment of the SCUTPA has not affected this right. Moreover, we agree with Judge Anderson's statement that, despite Plaintiffs' assertion that their products were never unprofitable, the business decision to discontinue the sale of these items is best left to "the one who bears the risk of the decision." It follows, then, that the courts should not mandate that a private enterprise maintain an association that it believes is not conducive to any facet of its business, including its marketing, public image, and organizational structure.

Certified question answered on what is an occurrence

In Owners Insurance Co. v. Salmonsen, the Supreme Court was presented with the following certified question: To determine the number of occurrences for purposes of a commercial general liability insurance policy’s liability limit, will South Carolina adopt the majority or minority rule? The majority rule in interpreting the meaning of "occurrence" in a liability policy is the so-called "cause test" which focuses on the cause of the damage rather than the number of claimants or injuries. The minority view, on the other hand, focuses on the effect of the insured's action and considers each event or each injury a separate occurrence.

The Court declined to adopt either view and held that in this case involving a sale of defective synthetic stucco, "because the distributor has taken no distinct action giving rise to liability for each sale, we conclude under this policy definition that placing a defective product into the stream of commerce is one occurrence. "

Error Preservation and Rule 59(e)

Last week I spoke at the South Carolina Defense Trial Lawyers' conference on Rule 59(e). As we all know, Rule 59(e) presents great dangers to lawyers in seeking to preserve error in South Carolina. Here is a short summary on how to avoid Rule 59(e) pitfalls:

1. Raise all issues you want preserved in the initial post trial motion. If the judge rules on all issues, do not file a Rule 59(e) motion.

2. If the judge does not rule on all issues raised in the initial motion, you must file a Rule 59(e) motion. But only list the issues not originally ruled on.

3. If the trial judge raises a new issue when ruling on the first post-trial motion, you must file a Rule 59(e) motion to address the alteration of the original judgment.

4. When filing a successive motion, ask the judge to rule on it as quickly as possible because of tolling concerns.

Is Lindsey Graham prohibited from serving as a military judge?

According to USA Today:

The case before the U.S. Court of Appeals for the Armed Forces here involves Sen. Lindsey Graham, R-S.C., an Air Force Reserve colonel appointed two years ago to the lower Air Force Court of Criminal Appeals.

Lawyers for Airman 1st Class Charles Lane are seeking to throw out Lane's cocaine conviction on the grounds that Graham, one of three appellate judges who reviewed his case, is "constitutionally and ethically disqualified" to serve.

In court papers, Lane's lawyers argue that "Senator/Judge Graham cannot be an impartial and disinterested judge" because he is "politically accountable to his constituents for anything he does." Graham declined to comment on the case's merits. "We'll live with whatever the court says," he said.

Attorney General Henry McMaster challenges ACLU

In response to the ACLU's promise to bring suit against upstate governmental councils who pray in the name of Jesus, the Attorney General has announced that the state of South Carolina will defend the councils' position in court. According to McMaster: "The point is the ACLU's intent is to find fault with any prayer and that is contrary to the South Carolina and US Constitutions." We'll see how this legal battle shakes out.

Statutory Construction in South Carolina

For those of you having a case where an issue of statutory construction are key, please read Eagle Container v. County of Newberry which was decided yesterday by the Court of Appeals. This case has a good discussion of the principles of statutory construction and will likely become "the case" cited to when these issues arise.