Opinions from the South Carolina Supreme Court

125px-SCSupreme_CourtSealOn August 24th, the South Carolina Supreme Court published seven opinions:

In the Matter of Spero C. Keretses and In the Matter of Eric G. Fosmire, the Court publically reprimands named attorneys for misconduct.

In the Matter of Joenathan Shelly Chaplin and In the Matter of Abigail P. Allocco, the Court suspends named attorneys and imposes other requirements.

In the Matter of George Thomas Samaha, III and In the Matter of Matthew Jeffrey Lester, the Court disbars named attorneys from the practice of law in this state.

Allegro v. Scully, Allegro, Inc (“Allegro”)  brought this suit seeking damages resulting from Emmitt Scully’s (“Scully”) departure from Allegro, in order to form a competing company with former Allegro employees.  The jury returned a verdict in favor of Allegro on all claims of civil conspiracy, breach of contract and breach of contract accompanied by a fraudulent act.  Petitioners, all former employees, moved for JNOV on all causes of action which the trial court denied. The court of appeals reversed and remanded for a new trial.

This Court addressed only whether the three claims should be included in the remand. The Court reversed the Court of Appeals’ finding and held that the trial court erred in denying the petitioners’ motions for a directed verdict on the claims of civil conspiracy, breach of contract, and breach of contract accompanied by a fraudulent act. Further, the Court reasoned that  those causes of action should have never been submitted to the jury because there were no material terms provided or alleged to find a contract on which Allegro can predicate its claims of breach of contract and breach of  contract accompanied by a fraudulent act.  Accordingly, the Court reversed the appellate court’s  decision and dismissed those causes of action and remanded for trial the remaining causes of actions.

On August 17th, the Court published two opinions:

In State v. Rearick, Appellant moved to bar subsequent prosecution on the charge of felony driving under the influence resulting in death on the ground a second trial would violate the Double Jeopardy Clause. This appeal was  following the circuit court’s judge’s declaration of a mistrial over defense counsel’s objection. This Court dismissed the appeal without prejudice as interlocutory.

In Parsons v. John Wieland Homes, the Court reversed the court of appeals’ finding  that because the arbitration clause was located within the Warranty, its scope was limited to the terms of the Warranty and therefore unenforceable in this matter. Additionally, the majority of the Court would have ruled that the outrageous torts exception doctrine survives, contrary to the holding stated in the “majority” opinion.

Justice Hearn and Justice Beatty concurred in part and dissented in part in a separate opinion.  Acting Justice Toal dissented in a separate opinion.

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Casetext’s CARA, the demise of Lexis.com, & Heinonline updates

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What is Casetext and what is CARA? 3 Geeks and a Blog provides an excellent description of both.  Greg Lambert posted the following:

What is CARA? CARA is a ‘brief-as-query’ legal research tool, in which instead of using a keyword query you drop an entire brief in as the input. Users can input a brief in either Word or PDF format. From my use of it, I would explain CARA as a tool to analyse your brief (or the other side’s brief) to find potential missing points of law, or alternative arguments not cited within the brief.

CARA data mines the inputted brief and uses the gathered information to form a sort of ‘mega-query’ that runs against Casetext’s database of case law. CARA takes a look at the brief and analyzes how much cited cases are discussed within the brief as well as the other text within the brief. Arredondo explained to me that “[t]he analysis CARA runs looks not only at direct citation relationships (Case A cites to Case B) but also ‘soft citation’ relationships – Case A doesn’t cite Case B directly, but Case C cites to both A and B.” He also says that, “CARA also discounts heavily cited procedural cases like Celotex” so that these citations do not skew the results. Attorneys and researchers upload their drafts to check for missing cases before filing and uploading their briefs, and they check their opponent’s briefs to see if there are missing cases that they might be able to exploit.

CARA outputs a list of cases, all linked to the full text on Casetext. The results are displayed along side:

  1. concise summary of case holding;
    2.most cited passage from the case;
    3.link to a law firm client alert discussing the case.

Because attorneys are uploading drafts/work product, there is always a question of “who can see my draft?” Arredondo told me that “Casetext has applied stringent security to CARA. Inputted briefs are not stored; once the data is extracted the brief is deleted. The reports CARA generates are accessible under a unique URL with a long hash; only those possessing the link can see the report.”

A geek like me loves to learn about how the back-end of these systems work, so bear with me for a paragraph as I repeat Pablo’s explanation of how CARA processes the brief that you drop in for analysis. CARA uses what is called topic modeling system (latent semantic analysis) to sort results based on how well they match the topics in the brief.In law-librarian terms, this means that CARA uses the full text of the brief and compares it to the full text of existing cases, looking for similarities in both legal terms and regular nouns. It’s not magic, it’s math. But, sometimes math can look like magic. Alright… end of uber-geek discussion.

The second serious question that most of us ask when we see products like this is “does it replace Westlaw or Lexis?” The answer is simply, no, and it is not meant to. CARA is designed to supplement traditional research systems. It can catch cases you missed using regular tools or help you find cases that you would have found anyway, only much faster. In these modern days of “efficiency” in legal practice, getting to the answer, faster, is a competitive advantage, and that is what CARA sets out to do.

For those of you still using Lexis.com, LexisNexis recently announced that Lexis.com will disappear and be inaccessible as of December 31, 2016 for law school accounts.

Lastly HeinOnline recently updated its National Survey of State Laws.  New and updated chapters include topics on Civil Shoplifting, Interest Rates, Marijuana Laws, and Medical Records.

 

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Articles Worth Reading

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For your reading pleasure and information needs, check out the following articles:

1. 3 Recent Legal Tech Partnerships and What They Mean for the Industry ;

2. 5 Ways Firms Waste Money ;

3. 9 Tips for Becoming a Legal Pundit in the Media;

4. ABA Says New “Blueprint” Site Will Save Money for Small Firms ;

5. An Alternative Field Manual for Law Job Hunters ;

6. Federal Judge Blocks US From Enforcing Directive to Schools on Transgender Students and Bathrooms ;

7. Five Ways to Boost Potential for Law Firm Innovation;

8. Gaining the Power of Metrics means Looking at More than Just Legal Spend ;

9. Law Firms Won’t See Big Profit Bumps in 2016, Report Says ;

10. Legal Industry:  Wake Up & Smell the Data ;

11. New Legal Search Tool Finds Missing Pieces, Opposing Arguments ;

12. Report on the Future of Legal Services in the United States ;

13. State of the Legal Field Survey by BarBri ;

14. The ABA Should Embrace Change and Not Be “Left in the Dust” Executive Director Says ;

15. The Do’s and Don’ts of Law Firm Websites ;

16. The Success Metrics:  InOutsource Launches Business Intelligence for Law Firms ;

17.  The Voodoo and How-To of Lawyers’ Duty to Search the Internet ;

18. Using Social Media in Jury Selection:  Can Jurors Be Your “Friends?” ;

19. Why Is There a Disconnect Between What Firms Are Doing and What Clients Want? ; &

20. Why Won’t Law Firms Innovate?  Clients Don’t Make Them .

Happy reading!

 

 

 

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Spotlight on Courtroom View Network

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Check out the library’s study aid and trial advocacy library on LexisNexis Courtroom Cast, powered by Courtroom View Network.  This resource allows you to listen to audio of cases, view video of cases tried across the country, and view training libraries on trial advocacy, evidence and appellate advocacy.

To listen to cases, students can browse by subject area or casebook in the Audio Case Files portion of the database.  Students and faculty can watch cases, including opening and closing statements, witness testimony, and other general court activities in the Video library.  Training libraries on trial advocacy, evidence and appellate advocacy allow students and faculty to watch examples of direct and cross examination, view clips of the Federal Rules of Evidence as demonstrated in actual trials, and view instructions for petitioners and respondents to prepare for and anticipate questions from the bench in appellate arguments.

The school has an account for all students and faculty.  To utilize, sign up and create an account while you are on campus.  Once you’ve done this, the resource can be used anywhere that you have an Internet connection.  Instructions for obtaining an account can be found here.

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South Carolina Supreme Court Opinions

 

125px-SCSupreme_CourtSealToday, the South Carolina Supreme Court published two opinions:

In Roe v. Biddy, the Court dismissed the writ of certiorari as improvidently granted.

In the Matter of Justin J. Trapp, the Court suspended an attorney from the practice of law for one year, retroactive to the date of his interim suspension. The Respondent in the this matter was an attorney that was barred in 2009. In 2012, Respondent was appointed to a case to represent an applicant for a post-conviction relief (PCR). Respondent failed to answer any of the various correspondence that was sent to the address provided by respondent in the Attorney Information System (AIS). In 2014, the Attorney General’s office notified Respondent that the PCR case was on the court roster. The Respondent informed the Attorney General’s Office that he was not admitted to the S.C. Bar and did not practice law due to administrative suspensions by the Court for failure to pay license fees and to comply with continuing legal education requirements.  New counsel was appointed for the applicant.

The Office of Disciplinary Counsel notified Respondent that he was being investigated and requested a written response, to which Respondent failed to respond as required. The Respondent’s conduct was found to have violated the following Rules of Professional Conduct, Rule 407, SCACR: Rule 8.1(b), Rule 8.4(d), and Rule 8.4(e).  Respondent also admitted his conduct constituted grounds for discipline under Rule 7(a)(1), (3), (5),(6), and (7), RLDE.

 

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Welcome to Our Incoming 1Ls

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Law school classes begin on Monday, August 15th for our returning 2Ls, 3Ls, and 4Ls.  Law school starts early for our incoming 1Ls.   The staff of the Library and Information Technology want to extend a warm welcome to incoming and returning students.  We’re glad you’re here!

For the incoming 1Ls, we want to welcome you to Charleston, the Charleston School of Law, the Sol Blatt Jr. Law Library, and Orientation.   We’re looking forward to working with you throughout your law school career.  We will see you on Tuesday, August 9th, from 11:00 a.m. – 12:15 p.m., for library and IT Orientation.

At that session, we will make sure that your laptop connects wirelessly to the law school’s network, that you can print on law school printers, and that your CSOL email account functions.  You will also use Westlaw’s TWEN to locate faculty syllabi.  To accomplish this, we need for you to set up your Charleston School of Law email account and register WestlawNext and Lexis Advance accounts before our session.

You should have received an email from Lisa Smith-Butler which contained information about setting up your email account and registering your Westlaw and Lexis passwords.  If you have any problems with either, please contact me at lsbutler@charlestonlaw.edu or 843.377.2144.

Again, welcome and welcome back!

 

 

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Opinions from the South Carolina Court of Appeals

Court of AppealsOn Wednesday, the South Carolina Court of Appeals published six opinions:

Dorn v. Cohen centered around deciding the rights to a trusts established as a settlement for a medical malpractice claim between Abbie and Daniel Dorn and Cedars-Sinai Medical Center following the birth of their triplets (the Children).  The Trust listed Abbie as the sole primary beneficiary and Children as remainder beneficiaries after Abbie’s death; the Trusts named the Cohens, Abbie’s caretakers, as co-trustees.

The Dorns were divorced a few years later. Daniel Dorn filed a petition, on behalf of the Children to remove the Cohens as co-trustees of the Trust and sought a temporary restraining order (TRO) to prevent the Cohens from spending Trust money on anything other than Abbie’s medical needs. The Cohens filed a counter petition to have the terms of the Trusts reformed.

The probate court found that both petitions should be heard together in a single trial, and that both Children and DHHS should be named as parties in Cohen’s petition.  To avoid any conflict of interest, the court appointed a guardian ad litem (GAL) to independently represent Children, and a separate guardian ad litem for Abbie (Abbie’s GAL).  During the trial, Dorn argued that since Abbie was not a named party to his petition and that Abbie’s GAL nor her Appointed Attorney could call witnesses during the trial on Dorn’s petition. The probate court denied Dorn’s motion to exclude Appointed Attorney and Abbie’s GAL from calling witnesses on the basis that the underlying petition sought to remove the trustees of Abbie’s trust, making Abbie an interested party. Following a telephone status conference, the court issued an order continuing the incomplete trial and another order adding Abbie as a party to both petitions pursuant to Rule 19, SCRCP.

Dorn and Children (Appellants) appealed the probate court’s order adding Abbie as a party to the circuit court. The circuit court dismissed the appeals finding that Appellants’ appeals were not immediately appealable because no final decision had been rendered in the case. Appellants’ appealed to the Court of Appeals. This Court affirmed the circuit court’s finding that the court did not err in dismissing the appeal as not immediately appealable.

In the Winthrop University Trustees v. Pickens Roofing, Pickens Roofing (Pickens) appealed the jury’s award of over $7.2 million to Winthrop University Trustees (Winthrop) for damages arising from an extensive roof fire. On appeal, Pickens argues that the circuit court erred in (1) denying its motion for a new trial absolute based on the court’s refusal to strike a juror for cause; (2) denying its directed verdict motion as to liability; (3) failing to properly recharge the jury on proximate cause; (4) bifurcating the liability and damages phases of trial; (5) denying its directed verdict motion as to damages; and (6) failing to adjust the jury’s damages verdict to reflect Winthrop’s comparative negligence.

This Court affirmed the decision of the circuit court.

In the Callawassie Island v. Dennis, Ronnie and Jeanette Dennis (Appellants) appealed the circuit court’s grant of summary judgment in favor of the Callawassie Island Members Club.

Appellants purchased property on Callawassie Island and membership the Callawassie Island Club (CIC). The CIC members purchased the club’s assets, changed membership rules, and renamed the club Callawassie Island Members Club (CIMC). The appellants stopped paying their dues to CIMC and tendered a resignation. CIMC filed a breach of contract actions for unpaid dues, fees, assessments, and other charges.

This Court found the circuit court erred in granting summary judgment because there is some ambiguity in the governing documents a to whether club members are liable for dues accruing after resignation. The Court found that due to the genuine issue of fact relating to whether Appellants were obligated to pay dues post-resignation this precluding judgment for Callawassie as a matter of law. Accordingly, the Court reversed the circuit court’s holding and remanded the case back to the court.

State v. Porch was an appeal of a conviction for murder. Appellant argued the trial court erred in failing to void the State’s arrest warrant and limiting Porch’s testimony in violation of the Confrontation Clause.

This Court affirmed the finding of the trial court on both issues.

Vicary v. Town of Awendaw, the Town of Awendaw (the Town) appeals the circuit court’s final order, arguing the court erred in finding (1) Lynne Vicary, Kent Prause, and the South Carolina Coastal Conservation League had standing; (2) the Town never received a proper petition requesting the 2004 annexation; (3) the Town falsely claimed it had a proper petition to annex United States Forest Service (the Forest Service) property; (4) the Town was estopped from asserting a statute of limitations defense; and (5) the statutory time period for challenging the 2004 annexation was tolled.

This Court reversed the circuit court’s determination that Respondents had standing and did not address the Town’s remaining issues.

In First South Bank v. Rosenberg, the estate of Philip J. Brust appeals the circuit court’s grant of summary judgment in favor of First South Bank (First South) as well as its denial of Brust’s motion to amend his answer and counterclaim. Brust argues the court erred in (1) granting First South’s motion for summary judgment because it ignored questions of fact regarding the scope of authority granted under a specific limited power of attorney (the POA), Brust’s knowledge of a guaranty’s scope, the effect of subsequent loan modifications, and Brust’s proposed counterclaims against First South; and (2) denying Brust’s motion to amend because it incorrectly relied upon the doctrine of res judicata rather than deciding the motion under Rule 15, SCRCP.

The Court affirmed as modified, holding inter alia, that Brust failed to demonstrate a genuine issue of material fact as to ambiguity of the POA in question. The Court therefore rejected Brust’s argument that Rosenberg had no actual authority to execute, finding the POA’s language unambiguously granted Rosenberg the authority “to execute any and all documents . . . or to execute or amend any document, instrument, or thing, which may be involved in the financing of [the Property].”

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