Friday, December 28, 2007

Prejudgment interest in South Carolina

In Dixie Bell, Inc. v. Redd, a breach of contract action arose when the parties failed to reach an agreement on the purchase price of Dixie Belle’s interest in another company. The case was tried to a jury and the jury returned a $100,000 verdict for Dixie Belle. The trial court awarded prejudgment interest on this sum. The Court of Appeals reversed. The Court held that prejudgment interest was improper because it has not been pled and that Dixie Belle’s damages,were unliquidated. In South Carolina prejudgment interest is only allowed on a liquidated sum. The claim was unliquidated because:

(1) there was no agreement between the parties as to a sum certain, (2) it could not be reduced to a sum certain by computation or formula, (3) the purchase price was not contractually stipulated, (4) it is not reduced to a sum certain by operation of law or a controlling statute, and (5) it could only be reduced to certainty by a jury determination. Furthermore, the conditions existing at the time the claim arose did not fix the measure of recovery.

On the whole, the opinion is a good discussion of the law of prejudgment interest in South Carolina.

Thursday, December 27, 2007

SC Supreme Court issues personal jurisdiction opinion

In Coggeshall v. Reproductive Fertility Clinics, the plaintiff underwent in vitro fertilization in a North Carolina clinic and then brought suit when the baby was born with Downs Syndrome. The trial court dismissed because of lack of personal jurisdiction and the Supreme Court affirmed. The Court held there were insufficient contacts with South Carolina to permit the exercise of personal jurisdiction. In a concurring opinion, Chief Justice Toal found that there was personal jurisdiction, but argued that plaintiff's were essentially seeking damages directly resulting from their child being born--a claim for wrongful life, which is not permitted in South Carolina.

Wednesday, December 26, 2007

Thirteenth juror doctrine may not be used to grant a new trial on damages

In Coward v. Roberson, after a verdict for the plaintiff and an award of damages, the circuit judge granted a new trial on damages alone based on the thirteenth juror doctrine. The Court of Appeals reversed, holding that "the grant of a new trial based on the thirteenth juror doctrine grants a new trial in toto" and that the "thirteenth juror doctrine is not the proper vehicle for ordering a new trial on a singular issue such as damages."

This opinion is a reminder on the limits of the Thirteenth Juror Doctrine.

Thursday, December 20, 2007

Truth as an affirmative defense

In Parrish v. Allison, the Court of Appeals reminds the bar that in a slander case truth must be pled and as an affirmative defense. It is not enough to argue truth, it must be pled in the answer.

Monday, December 17, 2007

Congress proposes to overhaul judicial pay and retirement

Here's the scoop on the proposed revisions.

Congress may be offering federal judges a major pay raise for the first time in 16 years, but lawmakers are also embracing a plan to deter senior judges from taking high-paying jobs in the private sector.The House Judiciary Committee approved a bill last week that will bump up salaries of all federal judges by a whopping 31 percent.But another provision in the bill would penalize any judges at retirement age who leave the bench for a high-paying job by reducing the amount of pension they receive.

(Hat tip to How Appealing)

Thursday, December 13, 2007

Sentencing Commission makes crack cocaine amendment retroactive

From the Commission's press release:

The United States Sentencing Commission unanimously voted today to give retroactive effect to a recent amendment to the Federal Sentencing Guidelines that reduces penalties for crack cocaine offenses. Retroactivity of the crack cocaine amendment will become effective on March 3, 2008.

Not every crack cocaine offender will be eligible for a lower sentence under the decision. A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered.

That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety. In addition, the overall impact is anticipated to occur incrementally over approximately 30 years, due to the limited nature of the guideline amendment and the fact that many crack cocaine offenders will still be required under Federal law to serve mandatory five- or ten-year sentences because of the amount of crack involved in their offense.

Tuesday, December 11, 2007

SCOTUS gives district judges more discretion in sentencing

Linda Greenhouse has this report. Here is taste:

Judges still may not impose sentences above the range written into law by Congress or state legislatures. But the decision on Monday gives judges broad discretion to impose sentences higher or lower than the guidelines, which are not statutes and are issued by the United States Sentencing Commission.

SC Supreme Court finds no due process violation where man incarcerated with peitioner served on the jury

In Smith v. State, the SC supreme court upheld a decision of the PCR court denying petitioner post conviction relief. Juror Walling, who had been incarcerated with petitioner and who petitioner allegedly had a fight with, was seated on the jury. Only later after trial did Petitioner realize who Walling was. Petitioner discovered that he and Juror Walling had been incarcerated together at the Colleton County Detention Center in 1997. Petitioner made the connection when his cellmate noticed that Floyd Walling, the cellmate’s cousin, was listed as a juror on Petitioner’s trial transcript. At the PCR hearing, Petitioner testified he did not recognize Walling as the man he knew in prison because Walling had shaved his beard and was not wearing prison attire. Petitioner argued Wallings presence was a per se violation of his constitutional rights. The supreme court disagreed:

Here, it was reasonable for Juror Walling to remain silent when asked during voir dire whether any member of the jury pool was “related by blood or marriage or a close personal friend of [Petitioner].” At the PCR hearing, Juror Walling testified that he and Petitioner were not close friends. Petitioner corroborated Walling’s testimony when he acknowledged that he did not know Walling very well. Juror Walling also testified that he did not have any bias or prejudice against Petitioner, and he and the other members of the jury held the State to its burden of proof before finding Petitioner guilty of the two murder charges.

Based on Juror Walling’s testimony at the hearing, we believe that Walling did not intentionally conceal the existence of his prior relationship with Petitioner. Furthermore, because the disposition of this issue essentially involves a credibility determination as to whether Juror Walling intentionally concealed his prior relationship with Petitioner, we defer to the PCR judge’s findings. The PCR judge specifically found Juror Walling’s testimony to be “highly credible.” Accordingly, we affirm the judge’s holding that Petitioner did not suffer a per se violation of his due process right to a fair and impartial jury.

Monday, December 10, 2007

Book Review of My Grandfather's Son

Jeffrey Rosen has this review of Justice Thomas' new book.

Friday, December 07, 2007

Magna Carta for Sale

It would be pretty cool to own a copy of Magna Carta. Problem is that I'm a little short of the $20-30 million price tag.

Wednesday, December 05, 2007

SC Ct. of Appeals holds trial court did not error in permitting spectators to wear buttons bearing the victim's photo

In State v. Paige, Paige was convicted of manslaughter and requested a new trial because the trial judge denied his request to order the victim's family and friends to remove buttons with the victim's photograph on them. The Court of appeals applied an “actual or inherent prejudicial effect on the jury” test. After reviewing the record, the court found no prejudice.

The record shows the only mention of the buttons was prior to jury selection, and out of the presence of the jury venire, at which time defense counsel had to inquire whether the buttons did in fact depict a picture of the victim. There is no evidence of the size of the buttons, or the number of spectators who wore the buttons. While the trial court stated he would not require the individuals to remove the buttons, he insured that these spectators would not be called as witnesses, nor would they be seated in the front row. He further instructed that these individuals would not be allowed to make gestures, point to the pictures, or do anything in an attempt to influence the jury. Because no other mention was made of the buttons, this court cannot even determine that these spectators remained in the courtroom for the remainder of the trial or, if they did, whether they continued to wear the buttons. Simply put, there is absolutely no evidence of record that the jurors in this matter were ever exposed to these button photos, and, if they were, whether they could perceive that they depicted the victim. Accordingly, we find no actual or inherent prejudice to Paige based on the record before us.

Monday, December 03, 2007

SCOTUS to hear another Gitmo case

The New York Times has the latest on court's upcoming argument in Boumediene v. Bush, No. 06-1195.