South Carolina Supreme Court Opinions 2-25-15

scsct

On Wednesday, February 25, 2015, the South Carolina Supreme Court handed down six opinions: State v. Samuel, Independence National Bank v. Buncombe Professional Park, In the Matter of Givens, In the Matter of Pennington, State v. Ortho-McNeil-Janssen Pharmaceuticals, and In the Matter of Brunty.

In State v. Samuel, the Petitioner was on trial for homicide by child abuse, relating to the death of a ten week old infant left in her care.  The petitioner took a polygraph and provided a series of 5 statements to the police. The trial court granted a motion to suppress the first of the 5 statements made by Petitioner in connection with the polygraph examination. The other 4 statements, made subsequent by the petitioner, produced similar evidence as the Statement 1. The prosecution immediately appealed this decision and was granted a reversal by the court of appeals. This Court vacated the court of appeals’ decision reversing the trial court’s suppression of the initial statement during pre-trial motions. The Court reasoned that “Petitioner’s statements made subsequent to Statement 1 were admitted by the trial court.” And that “[b]ecause those statements supplied essentially the same information and confession as Statement 1, the suppression of Statement 1 did not significantly impair the prosecution’s ability to try Petitioner’s case.” Thus the Court found that the trial court’s pre-trial order was not immediately appealable and vacated the order.

In Independence National Bank v. Buncombe Professional Park, the Court reversed the decision of the court of appeals, finding that the petititioner Bank established its right to equitable subrogation.

In 2007, DeClarlis, owner of respondent Buncombe Professional, LLC (“Buncombe”), executed a note and mortgage with Bank. Simultaneously, DeCarlis executed a personal guaranty and the Bank satisfied the existing first mortgage at closing.

Later Buncombe ceased payment on the 2007 mortgage and the Bank prepared a foreclosure suit. The Bank discovered DeCarlis held a second mortgage on the property executed and properly recorded in 2006. The same attorney represented both Bank and Buncombe in the 2007 mortgage closing and had notice of DeCarlis’s 2006 mortgage. Due to the attorney’s neglect in having DeCarlis execute a satisfaction, release or subordination of his 2006 mortgage, before the 2007 closing, the 2006 mortgage took priority over the Bank’s 2007 mortgage.

Bank brought this foreclosure action against both Buncombe and DeCarlis. The master reformed both mortgages, subordinating DeCarlis’ mortgage to the Bank’s. In a post-trial order, the master found Bank was equitably subrogated to the original first mortgage . . ., thus giving Bank’s 2007 mortgage priority over the 2006 DeCarlis mortgage on a second ground. The court of appeals reversed the master’s decision. This Court reversed the decision holding that the court of appeals erred in finding Bank had actual notice of DeCarlis’ 2006 mortgage by virtue of its agent’s actual knowledge of this lien. The Court reasoned that “[s]ince Bank had only constructive knowledge of that mortgage, . . . and otherwise met the requirements for equitable subrogation to the original first mortgage . . . the master correctly ordered that Bank’s 2007 mortgage was equitably subrogated to that mortgage and therefore had priority.

In the Matter of  Givens, the Court handed down a disciplinary opinion in which the Court suspends a lawyer from the practice of law for nine months for violations of Rules of Professional Conduct, Rule 407, SCACR: Rule 8.4 and the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1) and Rule 7(a)(4).

In the Matter of Pennington, the Court handed down a disciplinary opinion in which the Court publicly reprimands a lawyer for violations of Rules of Professional Conduct, Rule 407, SCACR: Rule 1.15(a); Rule 1.15(f); Rule 8.4(d); and Rule 417, SCACR. Respondent also violated Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR: Rule 7(a)(1).

State v. Ortho-McNiel-Janssen Pharmaceuticals was a direct appeal concerning the S.C. Unfair Trade Practices Act. The Court affirmed the liability judgment on the labeling claim but modified the judgment to limit the imposition of civil penalties to a period of three years from the date of the tolling agreement. The Court affirmed the liability judgement on the Dear Doctor Letter claim but remitted the civil penalties imposed. Accordingly, the Court affirmed in part, reversed in part and remanded for entry of judgment against Janssen in the amount of $136, 025.400.

In the Matter of Brunty, the Court disbarred respondent, imposed conditions his readmission, and ordered him to pay restitution.  Respondent was found to have violated the current version of then Rules of Professional Conduct, Rule 407, SCACR: Rule 1.7(b), 8.1(a), 8.4(d), and 8.4(e). Respondent was also determined to be in violation of Rules1.1  1.2, 1.3, 1.4, 1.5, 1.6, 1.7,1.8,  1.8(m), 1.15, 1.16, 1.16(d), 3.2, 5.5, 7.1, 7.3(a), 8.1(a), 8.1(b), 8.4, Rule 417, SCACR, the Lawyer’s Oath, Rule 402(k)(3) SCACR,. Respondent also violated Rules of Professional Conduct for several other states where barred.

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