June 26, 2013 South Carolina Supreme Court published opinions

In the Matter of William Jefferson McMillian III

McMillian pled guilty to fraudulently taking over $2,000.00 from his father. He agreed to discipline and the court suspended him for 3 years retroactive to his 2012 interim suspension and ordered him to pass the bar’s ethics course within 1 year.

In the Matter of Alice D. Potter

Potter agreed to discipline based on 9 counts involving failure to keep clients informed, failure to be diligent, failure to respond to Bar inquiries and three incidents of failure to return fees or pay agreed upon costs. The Court suspended Potter for 12 months and ordered her to pass the Bar’s ethics course and obtain treatment for depression.

Ross v Waccamaw Community Hospital

Ross sued for medical malpractice. The mandatory mediation under South Carolina Code 15-79-125 was not completed within the 120 window and no extension was sought. The trial judge ruled he lacked subject matter jurisdiction as a result and dismissed the case. The Court unanimously reversed. It held that the mediation requirement in 15-79-125 is not jurisdictional as there is no language in the statute so sating and a provision adopting rules for alternative dispute resolution incorporated a standard of favoring pretrial resolution. To require dismissal here would be an absurd result defendants could run out the clock and plaintiffs would have no recourse. The trial court had power under the statute to order mediation to occur or dismiss if the facts of the case justify such a course. Here, there was no justification to not order mediation and the trial court abused its discretion. The case was remanded for mediation.

Kristi Ripley, LLC v Emerald Investments, LLC

Kristi and Emerald engaged in a series of arbitrations and lawsuits for actions during a proposed development of marina property. Kristi moved to foreclose of Emerald’s interest in the development limited liability company which the trial court denied. The Court, with one justice concurring in result only, reversed and remanded for a foreclosure sale. It held the denial of the motion to foreclose was a final judgment as it resolved the whole case and thus the court had jurisdiction to hear the case. As to the merits, the court held that Kristi was acting as a judgment creditor and thus did not have the other remedies cited by the trial judge, foreclosure is not a drastic remedy nor is it a penalty. The court held the trial court should have granted foreclosure as there was no reasonable ground to believe the judgment debt would be paid. It noted that emerald is in its situation because it committed misconduct while Kristi acted reasonably and had been found to act reasonably both by arbitrators and judges.

Bone v U.S. Food Service  

On rehearing, Service argued that its appeal of an order remanding this workers compensation claim should heard. Three justices, one concurring in result only, held that appeals in the administrative context are governed by the Administrative Procedure Act which limits judicial review to final orders. Here, the case was remanded to determine the amount of the final award. Until that determination is made, there is no final judgment to review. The plurality noted this understanding of appellate jurisdiction has been recognized since at least 1994 and the authority relied upon by service predates the APA or involved a final judgment. The plurality reasoned that the legislature can change the rules if it so choses, but, regardless of fairness considerations, the language of the APA controls and there is no jurisdiction over the case at this time. Two dissenting justices argued that, while the APA controls the determination of jurisdiction, here there is a final order to review, the circuit court order of remand which finally decided compensability. The dissent argued that it made to sense that appealability can be destroyed because of the initial appellate reversal of a factual matter. It noted that the South Carolina Court of Appeals has applied a standard of decision on the merits involving a substantive right which has worked well. Additionally, employers can now be unfairly burdened with payment during appeals and even caught in an endless chain of remands which will never be final.

Limehouse v Hulsey

Hulsey removed Limehouse’s defamation case to federal court. It was remanded to state court, but, no certified copy of the order was mailed. The state court entered an order of default then limited Hulsey’s participation in the damages trail. The jury awarded Limehouse significant damages. A split panel of the South Carolina Court of Appeals afield. The Court, with one justice concurring in judgment, reversed. Rejecting the 4th Circuit’s interpretation of 28 USC 1447(c), the Court held that under the plain language and legislative history of the subsection, and consistent with the policy of giving federal district courts the opportunity to correct any erroneous remands and to give parties a bright line rule to know what court has and can exercise jurisdiction, both an order of remand and a certified copy to the state court are necessary before a state court’s suspended jurisdiction comes back into force. Because the certified copy did not arrive until after the rail in this matter, the order of default and judgment had to be voided and the case remanded to pick up form the point where the certified copy was received. For the benefit of the bench and bar the court also announced that the time to file a responsive pleading is tolled during the period from removal to receipt of the certified copy of the order and that defaulted parties continue to have only the limited right to cross examine witness and object to evidence in order for default to have real consequences.

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