August 20, 2014 South Carolina Court of Appeals published opinions

State v Pope 

Pope move to suppress a scale and some crack cocaine found during a warrantless search of a vehicle and objected to the introduction of these items based on chain of custody. The circuit court denied the motion overruled the objection and let the items into evidence. Pope was convicted of possessing the crack. The panel affirmed. It held the corroborated tips from the incarcerated informant provided reasonable suspicion to stop the vehicle and the passenger’s observed bending over to apparently put something under the seat provided probable cause to search the vehicle. The panel also held the testimony that the scale was the same scale and a complete chain of custody for the crack supported admitting the items.

Bloody Point Property Owners Association, Inc. v Ashton 

Association foreclosed on Ashton’s property to collect unpaid association fees. After a default judgment was entered a third party purchased the property at a judicial sale. Ashton moved to set the sale aside. The master in equity refused and the panel affirmed.  It held the third party was a bona fide purchaser as he paid value and had no knowledge of Ashton’s claim that service by publication was ineffective in this matter. It also held there was substantial evidence supporting the master’s ruling that the purchase price was more than 10% of the property’s value and thus did not shock the court’s conscience.

The Milton P. Dementre Family Limited Partnership v Beckmann 

On remand from the Court of Appeals, the master in equity ruled Partnership did not have title to certain lots in Foley beach. The panel affirmed in part and vacated in part. It affirmed the master’s ruling that the parties did not stipulate that Partnership had title to the lots and affirmed the rejection of Beckman’s affirmative defenses as Partnership was not prejudiced by that ruling. The panel vacated the ruling that the state owned the lots and that Beckmann had rights to his pier as beyond the cope of remand. The panel finally affirmed the ruling that Partnership failed to prove title as the lots in question were not on the plats submitted as evidence in support.

Solanki v Wal-Mart Store #2806 

Wal-Mart employees attempted to swipe Solanki’s card several times then resorted to manually entering the information using a stenciled copy. The information entered belonged to a different person. Wal-Mart turned over the information about the transaction to the sheriff’s office which led to Solanki’s arrest. Solanki sued and obtained a judgment for actual and punitive damages. Wal-Mart appealed the punitive damages award. The panel, 2-1 affirmed. The majority held the evidence presented was sufficient to send the issue of punitive damages to the jury as the actions of Wal-Mart here could be reckless, willful or wanton. The majority also held that the trial judge properly upheld the punitive damages award as Wal-Mart’s action created the evidence for the arrest, Wal-Mart could have explained the reason the odd charge to the other person’s card took place, the award will encourage better oversight by retailers and Wal-Mart can afford to pay the award. The dissent argued that the weirdness of the transaction was insufficient for the issue of punitive damages to go to the jury and that no evidence at all was presented which demonstrates anything beyond a negligent entry of a credit card number.

State v McCombs 

The State sought to introduce evidence of a prior molestation at McCombs’ trial for lewd act against a child. The circuit court ruled the dissimilarities outweighed the similarities and denied the State’s motion. The State appealed and the panel reversed. It held that the similarities, including same sex of the victims, similar ages,  neighborhood residence, setting and the acts and behavior of McCombs, outweighed the minor dissimilarities and thus under Rule of evidence 404(b), the evidence should be allowed.

State v Blakney

Blakney was found to have violated his community supervision and placed on a new two year term of supervision. He was accused of violating the terms of his new program. The second circuit court ruled he had served the thirty month sentence actually given by the sentencing court and ordered the community supervision terminated. The panel, 2-1, affirmed in part, reversed n part and remanded. The majority held that under South Carolina Code 24-13-560(D), Blakney was actually sentenced to the minimum 15 years as the sentencing court lacked authority to suspend any part of it. Thus, Blakney can be required to serve up to fifteen years on community service or in prison unless he makes it through two years without a violation. The dissent argued that while the majority correctly construed the statute, the second circuit court decision should be affirmed as the state only wanted a five year sentence and the state should be held to its word.

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August 20, 2014 South Carolina Supreme Court opinions

Stevens & Wilkinson of South Carolina Inc. v City of Columbia I

Stevens provided architectural services to City on a hotel project. Stevens sent a letter offering to continue to provide services after the initial period and City authorized payment of fees. Stevens sued alleging further fees were due. The circuit court entered partial summary judgment ruling a contract existed based on offer by Stevens and acceptance by City. The Court of Appeals affirmed on the grounds that City counteroffered by authorizing payment and Stevens accepted by performance. The Court affirmed as modified holding that because City admitted a contract existed, the only issue on appeal, it was barred from erasing the counteroffer theory as it was not raised ion the circuit court. The case was remanded to determine the terms of the contract.

Stevens & Wilkinson of South Carolina v City of Columbia II

Stevens and two contractors provided services to City on a hotel project. After the project was cancelled, Stevens and the contractors sued City arguing the memorandum of understanding was a binding contract or they were entitled to recover under quantum meruit. The circuit court granted summary judgment to City on all counts. The Court of Appeals reversed in part holding there was a genuine issue of material fact as to whether the memorandum of understanding was a contract and whether one claim for quantum meruit were established. The Court, 4-1, reversed. The majority looked to the four corners of the memorandum and held it was unambiguously not a contract as it stated it was agreement to enter into contracts in the future and lacked essential terms such as the amount to be paid to Stevens and the contractors. The majority also held that the quantum meruit claims failed as there was no evidence the plans created by contractor were used by the firm which ultimately built the hotel. The dissent argued that eh majority erroneous extended the parol evidence rule to incomplete writings and that the new rule affects the statue of frauds by barring certain methods of proving a contact was formed.

Williams v GEICO

A married couple died when their car was hit by a train. Williams in her role as personal representative of husband sued for a declaratory judgment that the face value of the insurance coverage should be paid. The circuit court ruled the contract unambiguously limited recovery to the statutory minimum and this limitation did violate public policy. The Court, with two justices dissenting in part, affirmed in part and reversed in part. All five justices agreed that contract, while poorly written, could only be understood when read as whole to limit the amount of money available when members of the same family are involved in the claim. Three justices held this limitation as to family members was void as against public policy as south Carolina Code 38-77-142 prohibits reductions in the declared value of the policy and it is arbitrary and capricious to exclude coverage based on familial status particularly s here when both family members are dead and cannot collude. The partial dissent argued the 38-77-142 is not applicable as it merely identifies who must be covered and the limitation at issue here is consistent with 38-77-140 and 56-9-20(d) and should thus be enforced. It also argued that the legislature, not the court should make any changes in this area and in any event the rule announced by the majority should be given prospective application only.

Hansen v Beachwood Development Group of South Carolina, LLC

Hansen sued Group alleging it was liable for breach of contract and tort claims based on the acts of its promoter. The trial court denied Group’s motion for directed verdict and the jury returned a verdict for Hansen. The Court reversed. It held there was no evidence that Hansen entered into a contract with Group or that Group was in any way benefited by Hansen’s contracts with the promoter. The Court adopted the prevailing rule that corporations and limited liability companies cannot be liable for the pre-creation acts of the promoter and held Group was not liable as a matter of law

Sloan v South Carolina Department of Revenue

Sloan field a freedom of information request with Department. After Department failed to respond in a timely manner, Sloan brought suit pursuant to South Carolina Code 30-4-100 seeking declaratory and injunctive relief and attorney fees. Department provided the requested documents after suit was field and the circuit court summarily ended the case. The Court, with two justices dissenting in part, affirmed in part, reversed in part and remanded. The Court held that the delivery of the documents mooted the declaratory and injunctive claims as Sloan had received all he was entitled to receive, three justices held that the circuit court erred in dismissing the attorney fees claim as 100(b) mandates fees to the prevailing party, Sloan was the prevailing party as he had to file suit to vindicate his rights and he is thus entitled to fees and costs and the case was remanded of determination of the amount. The dissent argued that the fees issue should be remanded for a full consideration of matter as fee awards are always discretionary.

Malloy v Thompson (Estate of Chamblee)

Malloy sued Thompson and Merrill Lynch alleging Thompson used Merrill Lynch to divert Chamblee’s assets thus denying Mallory his inheritance. Merrill lynch moved to compel arbitration which the circuit court denied. The Court affirmed. It held that because Malloy did not sign any contract and no third party theory obligating Malloy to arbitrate is satisfied here, arbitration cannot be compelled.

State v Collins

Collins was convicted of manslaughter and keeping dangerous animals based on his dogs attacking and killing a young boy. The Court of Appeals remanded for a new trial based on the admission of gruesome autopsy phots. The Court, with a tow justice plurality, two justice concurrence and one dissent, reversed. The plurality argued that that the Court of Appeals allowed its revulsion at the graphic photos lead it to an incorrect conclusion. The Court held that because the injuries and other elements of eh charges were I dispute and the photos assisted the jury in determining the facts, the photos were properly admitted. Alternatively, the plurality argued that the admission of the photos was harmless given Collins let his dogs run free, they attacked and killed one boy and attacked another and Collins was aware of the dogs’ violent propensities. The concurrence argued that the admission of the photos was erroneous as it did nothing but inflame the jury. However, it agreed that admission of the photos was harmless for reasons set out by the plurality. The dissent argued that the photos probative value was far exceeded by the prejudicial effect of gruesome wounds. It argued that the photos should be published as an example of what is beyond the bounds of what a jury may consider.

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Check Out the New Legal Technology Blog & the Future

lawyersastechnologistsThe Law Professors Blog Network recently launched a new blog, the Legal Technology Blog.  Jeannette Eicks and Oliver Goodenough, both of Vermont Law School, co-edit the blog with Stephanie Kimbro of Stanford and Michele Pistone of Villanova University School of Law.

Stephanie Kimbro recently published an interesting post, Basic Tech Skills that Should Exist in Law School Curricula.  She also co-authored an article on the topic with Ron Dolin, Course Correction:  Teaching Tomorrow’s Lawyers Legal Technology SkillsDolin developed the syllabus and taught the first course on legal informatics for Stanford Law School

According to Kimbro, some of the new roles and tasks for newly minted lawyers will include such things as:

*  legal knowledge engineer;

*  legal technologist;

*  legal process analyst;

*  legal project manager;

*  ODR practitioner;

*  legal management consultant; and

*  high risk manager.

Kimbro lists tasks that new law school graduates need to know how to do.  These include:

*  designing the information architecture of a law firm;

*  creating and understanding the basics of cloud practice management systems;

*  understanding and creating secure client technology portals;

*  understanding and creating remote collaboration technologies that will allow attorneys to communicate with colleagues from remote locations;

*  using technology for client development, including marketing and branding;

*  creating payment systems for the firm; and

*  using technology that speeds up the processing of legal work.

In her post, Kimbro also mentions the new Program for Legal Technology & Design .  This program describes it mission and purpose as “the development of access to justice tools….[the] teaching [of] students [to] design and develop new legal services….[and] documenting how innovation can be brought into law.”  It is an interesting perspective of the future tasks and functions that await new lawyers as technology continues its disruption in the legal field.

Hat Tip:  TaxProf Blog

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August 19, 2014 4th Circuit published opinions

United States v Stephens

Stephens moved to suppress a firearm found during a search based on evidence gathered from a CPS device attached by the police. The district court ruled that the GPS attachment was illegal under a then new United States Supreme Court decision prohibiting warrantless attachment of GPS devices, but, the good faith exception applied and denied the motion. The panel, 2-1, affirmed. The majority held that as of the date the GPS device was attached, binding Supreme Court precedent allowing the attachment of tracking devices in containers established the legal rule that warrants for GPS devices were not necessary. The majority noted that the federal courts of appeal to reach the issue so ruled as did the highest court in Maryland where the attachment occurred. As reliance on binding appellate authority later overruled is per se good faith, the district court correctly denied the motion. The dissent argued the motion should be granted as there was no binding authority which specifically authorized the attachment, the state of the law was influx and the officers acted recklessly in relying on their own beliefs instead of obtaining advice from the US attorney’s office.

EQT Production Company v Adair
Adair and other putative class representatives brought class actions against EQT and another methane gas producer alleging underpayment of royalties. The district court certified several classes some based on ownership, some on underpayment and one n breach of contract. The panel concluded the certifications were premature, vacated and remanded. It held the ownership classes were premature as the class could not be ascertained given the many changes in the twenty year since the original list of owners was created and the lack of a common answer to the issues of ownership given the need for deed by deed analysis. Similarly, the underpayment classes were premature given the need for individualized analysis and the diverse acts of the two producers towards various owners. Finally, the breach of contract class is premature as the district court failed to analyze the need for course of performance evidence and allegations of fraudulent concealment which will also need individualized determination. While expressing sympathy for owners who have received little to nothing from EQT and the other producer, the panel noted that class certification requires rigorous analysis and the district court failed to do that here.

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Articles Worth Reading

politenessCheck out the following:

1.  On Politeness as a Strategy

2.  How to be Polite

3.  Is Your Org Changing?

4.  Disruptive Technologies & Abundance

5.  Hit the Reset Button in Your Brain

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August 15, 2014 4th Circuit published opinions

Russell v Absolute Collection Services, Inc. 

Absolute appealed the judgment against it for violating the Fair Debt Collection Act, 15 USC 1692e, and state law based on collection letters to Russell after Russell paid the debt involved. The panel affirmed. It held Russell was not required to contest the validity of the debt under 1692g in order to sue under 1692e as the text of 1692e does not contain that requirement, it would inconsistent with the pro-consumer purpose of the act and would shield violators of 1692e when validity is not in dispute. The panel applied the least sophisticated consumer test and held the collection letters which demanded payment and threatened to report Russell as delinquent in payment violated 1692e as a mater of law. It finally held that the district court properly barred new evidence of good faith by Absolute as it was disclosed 20 months into the litigation, changed the factual basis for the defense and prejudiced Russell.

Wood v Crane Co. 

Wood sued Crane in sate court alleging damages from asbestos in two types of ship parts. Crane removed the case to federal court base don a federal defense as to one type of part. Woods disclaimed any damages from that type of part and the case was remanded to state court. The panel affirmed. It held that the court had jurisdiction under the federal removal statute as the statute applies to cases not claims. It held that the law of the 4th Circuit allows remand of cases when the basis for federal jurisdiction is eliminated which is what occurred here. Artful pleading cannot eliminate jurisdiction, but, when Wood disclaimed damages there was no federal question involved. Crane was also unable to allege a different basis for federal jurisdiction as the removal statute has a thirty day widow to raise all grounds for jurisdiction and failure to raise a ground in this time period waives the right.

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Upcoming Changes in Legal Education as Mandated by ABA


On Monday, August 11th, the ABA House of Delegates concurred with most of the proposed revisions to the ABA Standards and Rules of Procedure for Approval of Law Schools.  The National Law Journal summarized the changes as listed below.  Barry Currier, Managing Director for the American Bar Association, discussed in a memo the transition to and implementation of the revised standards.  The learning outcomes and assessment revisions received much discussion.    Check out some of the reports submitted to the Council here.    Other, additional, useful information is also available at the Council site.  lawschool_box

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