June 12, 2013 South Carolina Court of Appeals published opinions

Graham v Welch Roberts and Amburn, LLP

Graham sued Welch alleging professional malpractice for Welch’s failure to pay an outstanding tax debt. The trail court granted summary judgment ruling the three year limitation period had run. The panel affirmed. It held that once Graham received an invoice which stated the funds he sent to Welch to pay the tax debt were instead used to pay for accounting services, he was on notice that he may have a claim against Welch. As the lawsuit was filed five years after eh alleged negligence, judgment was properly granted to Welch.

Hembree v $1,847.00

State and local police seized marijuana, currency and a pistol form a motor home. Hembree, the local solicitor, brought suit pursuant to South Carolina Code 42-53-520(a) to forfeit the motor home, currency and pistol. The trial court ordered the currency and pistol, returned. As to the motor home, the trial court acknowledged less than one pound of marijuana was seized and thus forfeiture was not authorized under the “conveyance” subsection (6) of the forfeiture statute. However, it ruled the motor home “contained” the marijuana under subsection (3) and was property used in drug trafficking under subsection (4) and ordered it forfeited. It also dismissed counterclaims against the state agency. The Panel reversed in part and affirmed in part. It held that to allow forfeiture where the one pound threshold is not met would render the one pound portion of the statute superfluous. Thus, to avoid this result, the panel construed the statute to exclude motor vehicles from the container and property provisions thus giving each part of the statute effect. The panel affirmed the dismissal of the counterclaims holding that the state agency was not a party and the claims could therefore not be litigated in this suit.

Carlson v South Carolina State Plastering, LLC

Carlson sued their home builder and subcontractors for construction defects. After the trial court ruled on a threshold matter, the developer and building moved to arbitrate. The trial court ruled they waivered their right to arbitrate and denied the motion. The panel reversed. It held that there was no waiver as the developer and builder had a valid reason to wait to file its motion given the trial court’s insistence that the threshold matter be handled first, there had been no discovery in this case (and it would inequitable to consider discovery in different related cases) and there was no prejudice. The panel also rejected an unconscionability argument holding the clause was identified in the sales contract, was not part of an adhesion contract, did not waive any remedies or rights and applied mutually to all parties. The panel rejected a merger argument holding the arbitration clause was not indented to be superseded by the deed. It finally held that the clause encompassed all controversies including those involving construction defects.

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