Monday, March 20, 2006

Light Blogging this week

I should be in trial all week. I'll have everything updated by this weekend.

Thursday, March 16, 2006

S.C. Supreme Court issues personal jurisdiction opinion

According to the supreme court in Minorplanet Systems USA Limited v. American Aire, Inc., a forum selection clause in a contract is sufficient to establish personal jurisdiction.

House approves SC eminent domain legislation

According to the AP:

The House approved legislation Wednesday that limits the power of governments to take property and requires that property owners be compensated if a zoning change or other regulatory decision reduces the value of their land.

This is a direct response to the Supreme Court's Kelo decision.

Monday, March 13, 2006

Judges from Azerbiajan observe SC courts

According to The State, nine judges on Azerbaijan's supreme and appellate courts are observing South Carolina courts this week.

The inefficient, wild-wild west South Carolina state court system a model for an emerging democracy? Let's hope not.

South Carolina woman lobbies for change in divorce law

According to The Sun News, the wife of a North Augusta man who killed their two sons and then committed suicide in January met with Gov. Mark Sanford this week in hopes of changing the state's divorce laws to potentially help other families. She believes that if she could have divorced her husband on grounds of mental cruelty, then she and her sons would have been out of the marriage.

Mental cruelty is not a ground for divorce in SC.

Thursday, March 09, 2006

S.C. Court of appeals holds that an injury arises out of employment where employee was working on his personal vehicle at work

In West v. Alliance, the Court of Appeals examined whether an injury sustained by Charles West arose out of his employment. At base, an explosion at work West while he performed repairs on his own truck during working hours and using his employer's equipment. The Court of Appeals that the injury arose out of and in the course of West's employment. According to the court:

Here, the record supports the finding--to the substantial evidence standard--that the truck would be utilized in Meylan’s operations following repairs. A shortage of trucks existed, and West had volunteered the use of his truck once it was restored to operable condition. According to West, whose testimony the Commission deemed credible, supervisor Williams "knew that I was wanting to use [the truck] for work." Williams authorized West to drive to West Virginia on company time and at company expense to bring the truck to the shop in Rock Hill, and permitted the truck to be kept at the shop. Williams knew the repairs were necessary to make the truck operational.

Wednesday, March 08, 2006

S.C. Supreme Court issues damages opinion

In Wilson v. Style Crest, homeowners sued alleging that the Defendants were liable for the failure of the anchor system to adequately secure their homes in high winds. They alleged the anchor systems do not meet federal and state standards. The Homeowners sought to recover the cost of the anchor systems, the cost to upgrade the anchor system to one which is effective, or the cost of a permanent foundation, approximately $2,500-$7,000 each. The trial court granted summary judgment primarily on the ground that the Homeowners have not suffered any actual damages.

The supreme court affirmed, noting that the pivotal issue was whether the Homeowners must prove an actual injury to person or property to bring their warranty and fraudulent concealment claims. The court noted that the "evidence showed the Homeowners received what they bargained for--an anchor system which has been effective in high winds. There is no evidence that the anchor systems have not, to date, been exactly what the Homeowners bargained for."
Hence, there were no damages.

S.C. Supreme Court issues Rule 43(k) Opinion

In Farnsworth v. Davis Heating, Farnsworth brought an action against Davis for breach of contract and negligence. During discovery, Farnsworth's attorney sent a letter to Davis's attorney indicating that Farnsworth would release Davis of all liability if Davis were to pay $22,000 to Farnsworth. There is no dispute that Farnsworth authorized her attorney to offer this settlement. Davis's attorney accepted the offer by signing the letter. Soon thereafter, Farnsworth decided that she wanted a trial. She notified Davis that she was rescinding the agreement. Davis thereafter filed a motion to compel Farnsworth to comply with the agreement. The trial court held that Rule 43(k) mandated that the agreement be enforced. The supreme court reversed.

Rule 43(k) provides that "No agreement between counsel affecting the proceedings in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record. "

The supreme court held that because none on the conditions discussed in the Rule were satisfied, the signed letter was not worth the paper it was written on.

Tuesday, March 07, 2006

SCOTUS upholds Solomon Amendment

In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Supreme Court ruled unanimously that military recruiters must be assured an equal opportunity with other employers to sign up students at the nation's law schools. This case concerned the Solomon Amendment.

The Solomon Amendment was the government's response to law school restrictions on the the access of military recruiters to students. The restrictions were put in place because of disagreement with the government policy on homosexuals in the military. Under the Solomon Amendment, if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds.

The Court held that the Solomon Amendment was an appropriate use of the spending power and that it does not violate the First Amendment.

Once again, he who takes the king's schilling must do the king's bidding.

Monday, March 06, 2006

Justice Toal calls sentencing in USA a national disgrace

According to Knight Ridder:

"Sentencing in the United States is a national disgrace," Supreme Court Chief Justice Jean Toal said Wednesday in her annual speech to the S.C. General Assembly.

The state's corrections director, lawmakers and others greeted the proposal favorably, though they offered different solutions.

From 1970 through 2000, the nation's prison population increased six-fold, Toal said. "This is a huge drain on state and local resources."

Toal held up North Carolina as a model for sentencing reform. In that state, she said, violent criminals receive longer sentences and non-violent offenders are serving shorter time

SC Administrative Judges dismiss hundreds of DUI cases

According the The State:

From Jan. 1 through Wednesday, S.C. Administrative Law Court hearing officers dismissed 421 cases statewide--nearly 70 percent of the 602 cases they heard--making it easier for those drivers to get back behind the wheel.

And while the dismissal rate for all of 2005 also was high--60 percent--the difference this year is that in the vast majority of the dismissed cases, the investigating police officers didn't show up for the administrative hearings because they weren't notified.

Police officers haven't been notified because the court and the state Department of Motor Vehicles can't agree who has that responsibility. A state law that went into effect Jan. 1 transferred oversight of the hearing officers from the department to the court.

Friday, March 03, 2006

Fourth Circuit issues a reminder opinion on removal and subject matter jurisdiction

In Payne v. Brake, the Fourth Circuit, inter alia, dealt with a claim that failure of all defendants to join in the removal petition deprives a district court of subject matter jurisdiction.

The Fourth Circuit rejected this claim and reminded the attorneys that "Failure of all defendants to join in the removal petition does not implicate the court's subject matter jurisdiction. Rather, it is merely an error in the removal process. As a result, a plaintiff who fails to make a timely objection waives the objection."

Thursday, March 02, 2006

Justice Toal issues state of the judiciary address

Justice Toal's address can be found here. According to Justice Toal, South Carolina has, per capita, the highest caseload on the trial bench of any state system in the country. She urged the General Assembly to create three new circuit judge slots.

Clemson University Newspaper plans to hold drawing for AK-47

Here are the specifics of the drawing. Seems like they get around lottery prohibitions by giving the tickets away for a suggested $5 donation. This could spark some interesting litigation.

Wednesday, March 01, 2006

SCOTUS issues antitrust opinion

In Texaco v. Dagher, the Court examined a joint venture between Texaco and Shell--Equilon Enterprises-- to refine and sell gasoline in the western United States under the original Texaco and Shell Oil brand names. Service station owners alleged unlawful price fixing when Equilon set a single price for both Texaco and Shell Oil brand gasoline.

The Court held there was no antitrust violation because the pricing decisions of a legitimate joint venture do not fall within the narrow category of activity that is per se unlawful under the Sherman Act.

SCOTUS rules that federal racketeering laws cannot be used against abortion protests

Yesterday, the Supreme Court ruled that federal extortion and racketeering laws cannot be used against anti-abortion demonstrators. A copy of the opinion can be found here.

The issue concerned the following language from the Hobbs Act:

whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or at-tempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section . . . .18 U. S. C. 951(a)

The Supreme Court analyzed the issue as follows:

The question, as we have said, concerns the meaning of the phrase that modifies the term"physical violence," namely, the words "in furtherance of a plan or purpose to do anything in violation of this section." Do those words refer to violence (1) that furthers a plan or purpose to affec[t] commerce . . . by robbery or extortion, or to violence (2) that furthers a plan or purpose simply to affec[t] commerce? We believe the former, more restrictive, reading of the text--he reading that ties the violence to robbery or extortion-- is correct.