S.C Highway Patrol takes to the air.... again

From the Times and Democrat:

The long arm of the law is even longer now that aerial traffic enforcement has been resumed in South Carolina. The South Carolina Highway Patrol issued 23 citations in its first two hours of aerial enforcement patrols of a five-mile stretch of Interstate 26 in Orangeburg and Calhoun counties.

SCHP Troop Seven initiated the aerial enforcement patrols from 11 a.m. to 1 p.m. on July 19 on the westbound side of Interstate 26 from the 154 mile marker to the 159 mile marker.

The patrols over this stretch of highway resulted in 18 speeding violations, four seat belt violations and one driver's license violation.

As a defendant, you know you are in trouble when the facts section of an opinion reads like this:

From an the opinion affirming the death penalty in the case of United States v. Fulks:

On June 11, 2002, Fulks and Evans were married. Fulks supported his new family in the same way he had supported himself for years -- by breaking into cars and stealing. And as he had with other women, Fulks often became violent with Evans, sometimes beating her severely and assaulting her sexually.

It is a long opinion, but you don't have to read any further than this to know the result.

Treble damages under Payment of Wages Act is discretionary according to S.C. Court of Appeals

The South Carolina Payment of Wages Act, in pertinent part, provides that "In case of any failure to pay wages due to an employee as required by Section 41-10-40 or 41-10-50 the employee may recover in a civil action an amount equal to three times the full amount of the unpaid wages, plus costs and reasonable attorney’s fees as the court may allow. " In Temple v. Tec-Fab, the trial judge ruled that this provision requires a judge to treble damages when the employer violates the Act. The Court of Appeals disagreed.

The Court of Appeals held the decision to treble damages is within the trial court's discretion and imposition of treble damages in those cases where there is a bona fide dispute would be unjust and harsh.

Registered Agent is not a "statutory agent" according to S.C. Supreme Court

In Harbor Island Owners' Association v. Preferred Island Properties, Inc., the South Carolina Supreme Court considered, among other things, whether a registered agent is a statutory agent under the South Carolina Rules of Civil Procedure. Rule 6(e) provides:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or upon a person designated by statute to accept service, five days shall be added to the prescribed period

This was significant because Preferred Island argued that a default judgment entered against it was a nullity because the affidavit of default was filed 34 days after service on its registered agent, making it invalid because Preferred Island still had one more day to answer under Rule 6(e).

The Supreme Court disagreed, holding that a "registered agent" is not a "person designated by statute to accept service" and that Rule 6(e) therefore did not apply.

S.C. Supreme Court issues opinion on proper service of process when the defendant refuses to answer the door

In BB&T v. Taylor, the Supreme Court considered what constitutes delivery of a copy of the summons and complaint to the individual personally where the process server has repeatedly attempted to serve process and during the attempt at issue believed an individual was inside the residence but never saw or communicated with the individual.

In Taylor, the process server stated in an affidavit that he posted the documents on the front door "after person(s) inside refused to answer door." In a subsequent affidavit, the process server stated he posted the documents on the front door after determining a person was present inside the residence, knocking and calling out to the alleged occupant, determining the alleged occupant would not communicate with him, confirming one of the vehicles at the residence belonged to Taylor, and calling out his intent to leave the papers.

According to the court, the service of process was insufficient:

Jones merely speculated that an individual of suitable age and discretion was inside Petitioner's residence and was refusing to communicate with him during his attempts to serve process. Also, Petitioner did not refuse to accept a copy of the summons and complaint, unlike the defendant in Patel. Rather, there are no facts in the record to indicate Petitioner was even aware of the process server and his attempts to serve her. Petitioner was not properly served under these facts because Jones never saw or spoke to anyone who resided in Petitioner's residence nor did anyone refuse acceptance before Jones attached the summons and complaint to Petitioner's front door.

S.C. Supreme Court clarifies error preservation under Rule 59(e)

In Prye v. Fox, the South Carolina Supreme Court offered further guidance on Rule 59(e) error preservation. In Prye, the Pryes raised the issue whether Attorney Hill acted outside the scope of his professional responsibilities by allegedly soliciting Fox to join in litigation against the Pyes and by filing the suit without Fox's knowledge. The Pyes asserted this theory both at the summary judgment hearing and the Rule 59(e) hearing. The trial judge, however, did not rule on the theory. The Supreme Court agreed with the Pryes that this issue was preserved.

Generally, an issue must be raised to and ruled upon by the circuit court to be preserved. However, an exception to this rule exists where an issue is raised but not ruled upon at a Rule 59(e) hearing. Because a lawyer cannot force a judge to rule on an issue, raising the matter in the Rule 59(e) motion is sufficient.

S.C. Supreme Court changes pro hac admission rules

Under the revised rules, if a lawyer files more than six applications for admission pro hac vice in a calendar year, including applications for purposes of Rule 404(h), he is considered regularly engaged in the practice of law in South Carolina. By regularly practicing in SC, he is not eligible for further pro hac admission.

The Case for Jim Haynes on the Fourth Circuit

Powerline Blog makes this case for Jim Haynes to sit on the Fourth Circuit.

Clarendon County Sheriff's Dept and NAACP discuss recent hate crimes

Police and NAACP leaders sat down to discuss the recent attacks in Clarendon County where victims were targeted because they were black and poor. The suspects indicated that due to the victims' race, law enforcement would say the crimes simply didn't matter.

The suspects are facing a possible sentence of 100 years in prison.

A news article on the meeting with the NAACP and the hate crime issue can be found here.

Tough anti-smoking law to go into effect in August

Beginning Aug. 21, minors under age 18 caught with cigarettes or other tobacco products can be fined $25, required to complete an approved anti-smoking program or ordered to perform five hours of community service. Minors who don't follow court orders can have driving privileges restricted for 90 days.

A story on the pros and cons of the new law can be found here.

Calls for South Carolina to Enact Hate Crimes Statute

A recent attacks on two black women have led to calls for a South Carolina hate crimes statute. Two white men in Clarendon County sexually assaulted a black teen, stabbed her and left her for dead in a bathtub. Dustin L. Evans, 21, and Jeremy Shay Sweat, 24, have been charged with kidnapping, first-degree criminal sexual conduct and assault and battery with intent to kill in the attack on the 15-year-old girl. The two also have been charged with sexually assaulting and kidnapping a 45-year-old black woman from Summerton last month. Investigators say the women appear to have been targeted because of their race.

A news story on the attacks and hate crimes issues can be found here.

Senator Lindsey Graham at odds with Dubya on detainees and military tribunals

The International Herald Tribune has this story. Here is a taste:

Graham's position, which advocates using the existing military court-martial system as the basis for trying suspects, has drawn fire from many Republicans, who say it could cripple the government's ability to protect the nation by giving detainees too many rights and making it harder to use highly classified intelligence against them.

But drawing on his own experience and a deep personal loyalty to the military justice system, Graham is working across party lines to try to assemble a consensus behind his approach, saying it is sound on the levels of both law and national security.

Fourth Circuit Nominee Scrambles to Save Nomination

According to news accounts, Jim Haynes has backed off the torture opinions but it is unlikely that the nomination can be saved at this point. At this rate, the Fourth Circuit will probably not get another judge this year.

Black Lung Benefits - Statute of Limitations

In Consolidated Coal Co. v. Williams, the Fourth Circuit held that a medical opinion that was later deemed to be a misdiagnosis of pneumoconiosis by virtue of a denial of benefits cannot trigger the statute of limitations for a second claim for benefits. In other words, if a doctor diagnoses a miner with black lung and then the Benefits Review Board of the Dept. of Labor denies that miner's claim for black lung benefits, the statute of limitations for a second claim has not begun based on that doctor's determination since the initial diagnosis is characterized as a misdiagnosis.

Section 932 of Title 30 provides that any claim for black lung benefits "shall be filed within three years after whichever of the following occurs later - (1) a medical determination of total disability due to pneumoconiosis; or (2) March 1, 1978." The miner in this case received a positive medical diagnosis in 1995 and subsequently filed his first claim for benefits. The Board denied his request for benefits and then he filed a second claim in 2001 - six years after his initial diagnosis. According to case law, the Board's first denial of benefits must be accepted as final and correct. The first diagnosis in 1995 must be treated by the courts as a misdiagnosis in light of the denial of the miner's first claim. Therefore, the misdiagnosis had no effect on the statute of limitations in his second claim. His second claim was timely.

(Contributed by Kristina Cooper)

Section 1983 Claim Fails due to Qualified Immunity

In Carr v. Deeds, the Fourth Circuit upheld the District Court's grant to summary judgment for the defendants on the plaintiff's claims brought under section 1983. Plaintiff's section 1983 claims alleged that Trooper Deeds unconstitutionally employed excessive force against the decedent, and that Trooper Deeds and Trooper Bradley unconstitutionally employed deadly force during an attempted arrest of the decedent on July 10, 2001.

The court based its decision on qualified immunity, stating that police officers "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The court said that excessive force is examined under an "objective reasonableness standard," and under the circumstances, a reasonable officer could have believed that the decedent posed a significant threat to serious physical harm to them, their fellow officers, and any others who might encounter him during his flight.

(Contributed by Catherine Runion)

Sentencing Guidelines - Post-Booker

In United States v. Sullivan, the Fourt Circuit vacated the sentences of two individuals convicted of numerous charges related to a drug conspiracy in Beaufort, South Carolina. Both individuals appealed their convictions. While their appeals were pending, the Supreme Court decided United States v. Booker, which held that the US Sentencing Guidelines were advisory rather than mandatory and that any fact necessary to support a sentence exceeding the maximum authorized by the facts in the case must be established by a jury verdict or a guilty plea.

During the sentencing phase of Sullivan and Campbell, the district court conducted its own fact-finding and discovered that both individuals had been involved in the murders of two rival drug dealers. With that new information, the court enhanced the criminal sentences to life imprisonment. In light of Booker, the Fourth Circuit held that the sentences must be vacated and remanded for resentencing because the sentences depended on the murder references which were not supported by a prior conviction, a guilty plea, or a jury verdict.

(Contributed by Kristina Cooper)

Limitations Period for Execution of Judgment Not Tolled

In Home Port Rentals, Inc. v. Roger Moore, the South Carolina Supreme Court held that South Carolina's ten-year limitations period for execution is not tolled for time during which a judgment debtor is out of state.

In an action for declaratory judgment that occurred eleven years after the initial judgment was entered, the circuit court granted, and the Court of Appeals affirmed, summary judgment in favor of the judgment debtor because the judgment was more than ten years old. The Supreme Court granted a writ of certiorari, and affirmed the Court of Appeals' opinion, stating that the Court has consistently held that a judgment becomes stale and a judgment lien is extinguished after ten years. The Court noted that the right to execute on a judgment does not constitute a cause of action. In other words, execution is not initiated by bringing an action, such as the Petitioner's declaratory judgment action.

(Contributed by Catherine Runion)

Disclaiming the Implied Warranty of Habitability

In Kirkman v. Parex, the South Carolina Supreme Court reversed a Court of Appeals decision, which upheld a grant of summary judgment, because there remains a genuine issue of material fact concerning the lender's extent of involvement in the construction of a house. Perhaps more importantly, the Court held that the implied warranty of habitability can be disclaimed.

First Union financed a construction company's building of a house and subsequently foreclosed on the property when the construction company went out of business in mid-construction. In order to complete the house, First Union hired a contractor and then sold the completed property to the homeowners. In the deed conveying the property to the homeowners, First Union disclaimed the implied warranty of habitability and sold the property as-is. The homeowners asserted they were unaware of the disclaimer.

When the homeowners attempted to sell the property years later, they spent $45,000 to repair the artificial stucco (installed by the original construction company) and brought an action against First Union alleging it, as seller of the property, breached the implied warranty of habitability. The circuit court granted summary judgment to First Union, finding First Union was a "mere lender" and therefore had not impliedly warranted the habitability of the house. The Court of Appeals affirmed, relying on the "mere lender" theory in Kennedy v. Columbia Lumber and Mfg. Co. (a "mere lender" is not ordinarily liable under an implied warranty of habitability).

The S. C. Supreme Court reversed the decision and remanded for further findings. The Court found that the Court of Appeals improperly relied on Roundtree Villas, where it was held that a lender could be liable in tort, not contract, for faulty construction on the parts of the house on which the lender worked. However, in Roundtree Villas, the discussion of a lender's warranty liability was brief since none of the defendants in that case actually sold the house.

The S.C. Supreme Court also addressed the novel issue of whether the warranty of habitability can be disclaimed. The Court agreed with the Supreme Court of Alabama that principles of contract law allow a party to disclaim the implied warranty of habitability. However, the disclaimer is only permitted if it is "(1) conspicuous, (2) known to the buyer, and (3) specifically bargained for." The standard is meant to protect buyers and will be applied strictly.

(contributed by Kristina Cooper)

FDA Power Over Authorized Generics

In Mylan Pharmaceuticals, Inc. v. USFDA, the Fourth Circuit affirmed the district court's dismissal of Mylan Pharmaceuticals' petition to the FDA. Mylan's petition requested a ruling that under a provision of the Federal Food, Drug, and Cosmetic Act (FFDCA) an authorized generic drug could not be sold until Mylan's generic drug had been on the market for 180 days. The court concluded that the FFDCA does not grant the FDA the power to prohibit the marketing of generic drugs authorized by the pioneer drug maker during the 180-day exclusivity period afforded to a drug company in Mylan's position.

Mylan was the first applicant to file a paragraph IV Abbreviated New Drug Application (ANDA), presenting a drug that was the biological equivalent to Proctor & Gamble Pharmaceuticals' pioneer drug, Macrobid. Mylan's application was approved, and they were given the statutory 180-day exclusivity period created in the FFDCA, which allows the ANDA recipient to sell its drug without other generic competition for 180 days. Subsequent to Mylan's ANDA approval, Proctor & Gamble granted a third party a license to sell a generic version of the pioneer drug, Macrobid. This strategy appeals to the pioneer drug maker because the drug maker benefits from the sales of the authorized generic and authorizing the third party generic staves off possible competition from the ANDA applicant.

The authorized generic sales proved detrimental to Mylan's sales of their generic drug. The question before the Fourth Circuit in this case was whether the FFDCA empowers the FDA to prohibit sale of authorized generics during the 180-day exclusivity period. The court held that although the introduction of an authorized generic may reduce the benefit of the 180-day exclusivity period awarded to the first ANDA applicant, the FFDCA gives no legal basis for the FDA to prohibit the encroachment of authorized generics on that exclusivity.

(contributed by Catherine Runion)

Texas Redistricting

SCOTUS has declared most of Texas' redistricting plan constitutional. The court ruled broadly that the Constitution does not prohibit redrawing district lines when it advantages one party over another. However, writing for the majority, Justice Kennedy threw out a portion of the map that violates the Voting Rights Act of 1965 because of its effect on Latino voters. To read the full text of the 132 page opinion, see link below.

League of United Latin American Citizens v. Perry .

(Contributed by Catherine Runion & Kristina Cooper)