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This page is a compilation of some of the recent developments in our firm’s Practice Areas. To check for updates in your area of interest, simply click on the Practice Area to your left.

Litigation

Gissel v. Hart, 382 S.C. 235, 676 S.E.2d 320 (2009).
Opinion No. 26639, decided April 20, 2009.

In Gissel v. Hart, 373 S.C. 281, 644 S.E.2d 772 (Ct. App. 2007), several mobile home purchasers sued a mobile home dealership, naming both the dealership and several individuals as defendants. The dealership settled and an arbitrator awarded damages against the individual defendants. The South Carolina Court of Appeals found that the plaintiffs’ complaint did not clearly assert claims against the individual defendants in their individual capacities rather than as representatives of the dealership and partially vacated the arbitrator’s award on that basis. However, the South Carolina Supreme Court reversed, holding that it was error to look to the allegations of the complaint in order to determine whether the award was proper.

Cribb v. Spatholt, 382 S.C. 490, 676 S.E.2d 714 (Ct. App. 2009).
Opinion No. 4520, decided March 24, 2009.

In 2005, Edward Cribb was hired as a consultant for a restaurant in Calabash, North Carolina. Just over one year later, he was terminated from his position and filed this action against the restaurant and its owners, asserting multiple causes of action including breach of contract. The trial court dismissed the case for lack of personal jurisdiction over the defendants, all of whom were residents of North Carolina. On appeal, the South Carolina Court of Appeals reversed, holding that Edward’s contract was “to be performed” in South Carolina, at least partially, and therefore that South Carolina courts could properly exercise jurisdiction over the defendants pursuant to S.C. Code Ann. § 36-2-803(7).

Cribb v. Spatholt, 382 S.C. 475, 676 S.E.2d 706 (Ct. App. 2009).
Opinion No. 4519, decided March 24, 2009.

In 2005, Buddy Cribb was hired as the general manager of a restaurant in Calabash, North Carolina. Just over one year later, he was terminated from his position and filed this action against the restaurant and its owners, asserting multiple causes of action including breach of contract. The trial court dismissed the case for lack of personal jurisdiction over the defendants, all of whom were residents of North Carolina. On appeal, the South Carolina Court of Appeals affirmed, holding that Buddy’s contract with the restaurant was not “to be performed” in South Carolina but was merely negotiated in South Carolina. The court also held that while the “power” prong of the jurisdictional due process analysis was satisfied because the restaurant had sufficient “minimum contacts” with South Carolina, exercising jurisdiction over the case would offend due process because adjudication of the case in South Carolina would not be fair to the defendants.

Slavchev v. Royal Caribbean Cruises, Ltd., 559 F.3d 251 (4th Cir. 2009).
Docket No. 07-2036, decided March 11, 2009.

The plaintiff, a Bulgarian citizen, sued his former employer, a cruise line, for breach of contract and related claims arising out of an alleged oral contract to provide him compensation for a disability he suffered during his employment. The district court granted summary judgment to the cruise line on the grounds that the plaintiff failed to prove the existence of a contract. On appeal, the United States Court of Appeals for the Fourth Circuit vacated the district court’s decision and remanded with instructions to dismiss for lack of subject matter jurisdiction. The court noted that because the cruise line was incorporated in Liberia, the case involved a claim by an alien against a corporation with dual citizenship, and therefore held that federal courts lacked subject matter jurisdiction because there was not complete diversity between the parties.

Laffitte v. Bridgestone Corp., 381 S.C. 460, 674 S.E.2d 154 (2009).
Opinion No. 26606, decided March 2, 2009.

A vehicle was involved in a fatal accident after the tread of its left rear tire separated from the tire, allegedly causing the vehicle to roll over. In the products liability action that followed, the plaintiffs sought to compel the defendant tire manufacturer to reveal its proprietary skim stock formula used in manufacturing tires. The trial court ordered the manufacturer to reveal the formula, and the manufacturer sought immediate review by the South Carolina Supreme Court in its original jurisdiction. The court found that the circumstances justified the rare immediate review of a discovery order and subsequently reversed the trial court. The court held that a three-part balancing test that incorporates a “relevant and necessary” standard governs the discovery of trade secrets. The information sought must be relevant not only to the general subject matter of the litigation but also to the specific issues involved in the litigation. Moreover, the party seeking the information must demonstrate with specificity how the lack of the information presents a real, unjust threat to the party’s presentation of its case on the merits. Applying these principles, the court found that the plaintiff was not entitled to discovery of the manufacturer’s skim stock formula.

Judy v. Martin, 381 S.C. 455, 674 S.E.2d 151 (2009).
Opinion No. 26604, decided February 23, 2009.

In 2000, the defendant filed an action against the plaintiff in magistrate’s court and the plaintiff filed a counterclaim in an amount over the jurisdictional limit of the magistrate. The plaintiff failed to appear at the trial, the magistrate entered a verdict for the defendant, and the plaintiff appealed to the circuit court. The circuit court affirmed the magistrate’s judgment and the plaintiff did not appeal the circuit court’s order. Four years later, in an attempt to satisfy the magistrate’s judgment, the defendant had a Notice of Levy issued on a piece of property owned by the plaintiff. The plaintiff then filed this declaratory judgment action seeking to have the magistrate’s judgment declared void ab initio for lack of jurisdiction. The master-in-equity found for the defendant, and the South Carolina Supreme Court affirmed. The court held that the circuit court’s unchallenged disposition on the magistrate’s jurisdiction was the law of the case and declined to reopen the issue in this subsequent action.

Horry County v. Ray, 382 S.C. 76, 674 S.E.2d 519 (Ct. App. 2009).
Opinion No. 4501, decided February 10, 2009.

A parcel of property was sold at a foreclosure sale, but the checks the purchaser tendered to the county turned out to be fraudulent, so the county filed a lis pendens on the property. Subsequently, the purchaser gave a mortgage on the property to a bank, which investigated the title to the property and recorded its mortgage. A few days later, the county cancelled its lis pendens. The purchaser then defaulted on the mortgage and the bank sold the property. The proceeds of the sale were held in escrow while a special referee determined whether the bank or the county was entitled to the funds. After a trial, the special referee awarded the funds to the bank, finding that the county’s lis pendens was invalid because the county did not commence a lawsuit within twenty days after filing the lis pendens, and therefore that the county’s claim did not take priority over the bank’s mortgage. On appeal, the South Carolina Court of Appeals affirmed, agreeing with the special referee that the county’s failure to file suit within twenty days after filing the lis pendens, as required by statute, rendered the lis pendens invalid. Accordingly, the lis pendens could not have provided constructive notice to the bank of the county’s claim.

Richardson v. Donald Hawkins Construction, Inc., 381 S.C. 347, 673 S.E.2d 808 (2009).
Opinion No. 26575, decided February 9, 2009.

The plaintiffs’ new home was severely damaged by a fire nearly two years after its construction. When it was discovered that the builder and/or its employees had likely started the fire, the plaintiffs sued the builder and several of its employees. One of the employees, Taylor, who had given four statements regarding his involvement in the fire, failed to answer the plaintiffs’ complaint and was held in default. Prior to trial, Taylor was killed in an unrelated car accident. At trial, the defense sought to admit two of Taylor’s statements which denied involvement in the fire. However, the trial court excluded the statements under Rule 403, SCRE, because Taylor, by virtue of his default, was deemed to have admitted the material allegations of the complaint, including that Taylor was involved in the fire. Therefore, admission of the statements into evidence would have been unduly prejudicial due to their likelihood of confusing the jury. The jury returned a verdict for the plaintiffs, but the South Carolina Court of Appeals reversed on the grounds that Taylor’s statements should have been admitted. However, the South Carolina Supreme Court reversed the Court of Appeals and reinstated the verdict, holding that the trial court did not abuse its discretion in refusing to admit the statements.

Allen v. C. Richard Dobson Builders, Inc., 595 F.Supp.2d 654 (D.S.C. 2009).
Decided January 28, 2009.
Practice Areas: Litigation

The plaintiffs hired a home inspector to inspect a home they were considering purchasing. The home inspector reported no problems with the home, and the plaintiffs subsequently purchased the home. Approximately three years later, the plaintiffs discovered numerous defects in the home and brought suit in state court against the builder and home inspector. The builder removed the case to the United States Court for the District of South Carolina, arguing that the plaintiffs’ naming of the home inspector, a South Carolina resident, was a sham designed to defeat diversity. The plaintiffs filed a motion to remand the case to state court, which the court granted. The court found that the plaintiffs had sufficiently stated one or more causes of action against the home inspector and that the builder had failed to carry its burden of establishing fraudulent joinder.

Crawford v. C. Richard Dobson Builders, Inc., 597 F.Supp.2d 605 (D.S.C. 2009).
Decided January 28, 2009.

The plaintiffs hired a home inspector to inspect a home they were considering purchasing. The home inspector reported no problems with the home, and the plaintiffs subsequently purchased the home. Approximately two years later, the plaintiffs discovered numerous defects in the home and brought suit in state court against the builder and home inspector. The builder removed the case to the United States Court for the District of South Carolina, arguing that the plaintiffs’ naming of the home inspector, a South Carolina resident, was a sham designed to defeat diversity. The plaintiffs filed a motion to remand the case to state court, which the court granted. The court found that the plaintiffs had sufficiently stated one or more causes of action against the home inspector and that the builder had failed to carry its burden of establishing fraudulent joinder.

McCullar v. Estate of Campbell, 381 S.C. 205, 672 S.E.2d 784 (2009).
Opinion No. 26589, decided January 26, 2009.

The plaintiffs brought this medical malpractice action against the estate of a deceased doctor, but the circuit court dismissed the case for lack of subject matter jurisdiction. The South Carolina Court of Appeals reversed, holding that because the complaint on its face alleged a tort cause of action, the plaintiffs’ claims were within the circuit court’s jurisdiction. On appeal, the South Carolina Supreme Court agreed with the Court of Appeals that the case was within the circuit court’s jurisdiction, but reversed the Court of Appeals’ decision and reinstated the circuit court’s dismissal of the suit on the grounds that the defendant estate had been closed several months before the suit was filed. Therefore, the defendant was nonexistent and the lawsuit against it was a nullity.

Curtis v. Blake, 381 S.C. 189, 672 S.E.2d 576 (2009).
Opinion No. 26583, decided January 20, 2009.

On the tenth day after a personal injury trial which resulted in a plaintiff’s verdict, the defendant served a Rule 59(b) motion for new trial by placing it in the mail. However, the motion was not filed by the clerk of court until the fifteenth day after trial. The plaintiff claimed the motion was untimely because it was not “made” within ten days after trial. The circuit court held that the motion was timely made, but denied the motion on the merits. The defendant appealed, but the South Carolina Court of Appeals dismissed the appeal on the grounds that it was untimely because the defendant’s motion for new trial was itself untimely and therefore did not toll the time for appeal. However, the South Carolina Supreme Court reversed, holding that the motion was “made” when it was placed in the mail for service on opposing counsel. Therefore, both the motion and the appeal were timely.

Ross Marine, LLC v. Query, Sautter & Gliserman, LLC, 380 S.C. 494, 671 S.E.2d 604 (2009).
Opinion No. 26578, decided January 12, 2009.

An employee recommended his personal attorneys to his employer, and the attorneys subsequently represented the employer in several legal matters. After the employer terminated the employee, the employee retained the attorneys to represent him in a suit against the employer. The employer sought an injunction prohibiting the attorneys from representing the employee, arguing that the attorneys had a conflict of interest. The trial court denied the injunction, holding that the employer failed to establish a conflict of interest. Both the South Carolina Court of Appeals and the South Carolina Supreme Court affirmed. However, while the case was pending, the employer had filed a separate lawsuit for injunctive relief against the attorneys. The trial court dismissed the new lawsuit on the merits and under the doctrine of collateral estoppel. On appeal, the South Carolina Supreme Court affirmed, holding that because the employer had a full and fair opportunity to litigate the conflict of interest in the first lawsuit, collateral estoppel barred the new lawsuit.

CFA Institute v. Institute of Chartered Financial Analysts of India, 551 F.3d 285 (4th Cir. 2009).
Docket No. 07-1970, decided January 9, 2009.

A trademark owner filed suit against a licensee, alleging trademark infringement, unfair competition, and breach of contract. When the licensee failed to appear, the district court entered a default judgment against the licensee. Over eight years later, the licensee moved vacate the default judgment on the grounds that the court lacked personal jurisdiction over the licensee. The district court vacated the default judgment, but reinstated it on a motion for reconsideration, finding that it had jurisdiction under Rule 4(k)(2) of the Federal Rules of Civil Procedure. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed on the grounds that the district court had personal jurisdiction over the licensee pursuant to the forum state’s long arm statute because the licensee had sufficient minimum contacts with the forum state.

Vista Antiques and Persian Rugs, Inc. v. Noaha, LLC, 2008 WL 5479587 (S.C. Ct. App. 2009).
Opinion No. 4446, decided January 9, 2009.

After the jury had been selected but before trial, the parties reached a settlement in this breach of contract case. The terms of the settlement were read into the record in open court as required by Rule 43(k), SCRCP. As read into the record, the settlement provided that the defendants would confess judgment for $165,000 to be paid within 18 months. Furthermore, $25,000 of the full amount was to be paid within 30 days. The plaintiff subsequently prepared a consent order and confession of judgment which called for installment payments and interest on the $140,000 remainder balance. The defendants tendered the initial $25,000 payment but refused to abide by the plaintiff’s proposed payment schedule or pay interest. The plaintiff filed a motion requesting an award of the full settlement amount on the grounds that the defendants had violated the settlement agreement. The circuit court granted the motion, but the South Carolina Court of Appeals reversed. The court held that pursuant to Rule 43(k), SCRCP, only those settlement terms which were read into the record in open court were enforceable. Because the record reflected no agreement regarding a payment schedule or interest payments, the defendants had not breached the settlement agreement and could only do so by failing to tender the remaining $140,000 within 18 months of the settlement hearing.

Ex Parte Jackson, 381 S.C. 253, 672 S.E.2d 585 (Ct. App. 2009).
Opinion No. 4477, decided January 8, 2009.

The City of Columbia sought injunctive relief against a property owner for storing junk and debris on her property in violation of local ordinances, and the trial court granted the requested relief. Several months later, the City brought a petition for a rule to show cause as to why the property owner should not be held in contempt for continuing to store junk and debris on her property in violation of the trial court’s order. The trial court held the property owner, who defended herself pro se, in contempt and sentenced her to ninety days imprisonment. On appeal, the South Carolina Court of Appeals reversed, holding that where a defendant appears pro se in a case involving criminal contempt, the court must first determine whether the defendant knowingly and intelligently waived his or her Sixth Amendment right to counsel. Because the trial court failed to advise the property owner of her right to counsel or of the dangers of self-representation, it could not have determined whether she knowingly and intelligently waived her right to counsel.

McClurg v. Deaton, 380 S.C. 563, 671 S.E.2d 87 (Ct. App. 2008).
Opinion No. 4458, decided November 20, 2008.

The plaintiff was injured in an automobile accident and hired an attorney to assist her in recovering from the at-fault driver and his employer. The plaintiff’s attorney negotiated with the employer’s insurer for several years, but a final agreement was never reached. During negotiations, the plaintiff’s attorney told the insurer that he would provide them with a courtesy copy of any complaint filed against the employer. Subsequently, the plaintiff’s attorney filed a summons and complaint which named only the at-fault driver as a defendant, but he did not notify the employer or the insurer. The summons and complaint were served on the at-fault driver, who lived out-of-state, by certified mail through the Department of Motor Vehicles. A return receipt indicated service was received by the at-fault driver, but he never answered or appeared and a default judgment was entered against him. Both the at-fault driver and his employer, as intervenor, sought relief from the default judgment pursuant to Rule 60(b), SCRCP. The trial court denied the Rule 60(b) motions, and the South Carolina Court of Appeals affirmed. The court held that the commitment by the plaintiff’s attorney to send a courtesy copy of any complaint was unenforceable. Moreover, the court found that the at-fault driver and his employer failed to establish a meritorious defense and that the at-fault driver failed to present evidence supporting his claim that he was never served.

Fowler v. Hunter, 380 S.C. 121, 668 S.E.2d 803 (Ct. App. 2008).
Opinion No. 4422, decided October 28, 2008.

The plaintiffs were injured when the motorcycle they were riding was struck by a car. After they filed suit against the at-fault driver, it was discovered that, due to a computer error by the issuing agency, the umbrella policy on the car did not provide automobile liability coverage. The plaintiffs and the driver filed various claims against the insurance company and the issuing agency. The parties eventually settled most of their claims, except for the driver’s professional negligence claim against the issuing agency, which the driver assigned to the plaintiffs, and the insurance company’s indemnification claim against the issuing agency. The trial court granted summary judgment to the issuing agency on the professional negligence claim on the grounds that the plaintiffs could not prove damages because the claim had been assigned to them by the party who suffered the actual injury: the driver. The trial court also granted summary judgment on the indemnification claim. On appeal, the South Carolina Court of Appeals reversed both rulings. The court departed from the common law in holding that professional negligence claims are assignable so long as the risk of collusion is minimized. The court also found that genuine issues of material fact existed which precluded summary judgment on the indemnification claim.

Youmans ex rel. Elmore v. S.C. Dep’t of Transportation, 380 S.C. 263, 670 S.E.2d 1 (Ct. App. 2008).
Opinion No. 4437, decided September 24, 2008.

A teenage driver was killed in a single vehicle accident in Allendale County. His mother brought wrongful death and survival actions against the South Carolina Department of Transportation (SCDOT), alleging that poor road conditions caused the accident. At the conclusion of the trial, the jury deliberated for 45 minutes and returned verdicts for the plaintiff of $2 million on the survival claim and $9 million on the wrongful death claim. The trial judge reduced the verdicts to $300,000 each pursuant to the South Carolina Tort Claims Act, for a total judgment of $600,000. Ten months later, the trial judge granted SCDOT’s motion for a new trial under the Thirteenth Juror doctrine, based primarily on his determination that the jury could not have fully deliberated the case in 45 minutes. On appeal, the South Carolina Court of Appeals reversed, holding that the brevity of jury deliberations is not, by itself, sufficient grounds to grant a new trial. Therefore, the court reinstated the $600,000 judgment against SCDOT.

Zurcher v. Bilton, 379 S.C. 132, 666 S.E.2d 224 (2008).
Opinion No. 26531, decided August 11, 2008.

The plaintiff and the defendant were involved in a physical altercation at an automobile dealership. As a result, the plaintiff was charged with assault and battery. He entered an Alford plea—a plea of guilty accompanied by an assertion of innocence—and was assessed a fine. Subsequently, the defendant filed a motion for summary judgment in the plaintiff’s civil action, in which the plaintiff asserted several causes of action, including assault and battery, all of which hinged on whether the plaintiff had assaulted the defendant. The trial court entered summary judgment on the basis of collateral estoppel. On appeal, the South Carolina Supreme Court affirmed, holding that the entry of a guilty plea in a criminal proceeding collaterally estops the party from litigating the issue in a subsequent civil action based on the same facts underlying the plea. The fact that the plaintiff’s plea was an Alford plea made no difference.

S.C. Dep’t of Disabilities & Special Needs v. Hoover Universal, Inc., 535 F.3d 300 (4th Cir. 2008).
Docket No. 07-1190, decided July 30, 2008.

The South Carolina Department of Mental Health, the South Carolina Department of Disabilities and Special Needs, and the South Carolina State Budget and Control Board—Insurance Reserve Fund brought this products liability action in federal court against a Michigan corporation, invoking diversity jurisdiction. The district court granted the defendant’s motions for summary judgment based on the statute of repose and various statutes of limitations. While the summary judgment orders were on appeal, the plaintiffs filed a motion to vacate the summary judgment orders for lack of subject matter jurisdiction, alleging that they were arms of the State of South Carolina, and therefore were not “citizens” for purposes of diversity jurisdiction. The district court granted the motion and dismissed the case for lack of subject matter jurisdiction. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed. The court found that under the four-factor test discussed in Maryland Stadium Authority v. Ellerbe Becket Inc., 407 F.3d 255 (4th Cir. 2005), all plaintiffs were arms or alter egos of the State of South Carolina and therefore could not be considered “citizens” for purposes of diversity jurisdiction.

State v. NV Sumatra Tobacco Trading Co., 379 S.C. 81, 666 S.E.2d 218 (2008).
Opinion No. 26522, decided July 21, 2008.

The State of South Carolina filed a complaint against an Indonesian cigarette manufacturer for its failure to comply with the Tobacco Escrow Fund Act. The manufacturer moved to dismiss for lack of personal jurisdiction, but the trial court denied the motion and later granted summary judgment to the State, awarding a civil penalty of over $300,000. On appeal, the manufacturer argued that the trial court erred by denying its motion to dismiss. However, the South Carolina Supreme Court held that the trial court was correct to find that South Carolina courts could exercise personal jurisdiction over the manufacturer. The court held that by selling millions of cigarettes in South Carolina and the rest of the United States, among other factors, that the manufacturer availed itself of conducting business in South Carolina and should have reasonably anticipated being haled into court in this state. The court also found that the exercise of personal jurisdiction over the manufacturer was “reasonable” and “fair” because the State’s interest in protecting itself through the Tobacco Escrow Fund outweighed any inconvenience suffered by the manufacturer in defending itself in South Carolina.

McNair v. Fairfield County, 379 S.C. 462, 665 S.E.2d 830 (Ct. App. 2008).
Opinion No. 4425, decided July 8, 2008.

Fairfield County served a condemnation notice on the plaintiff informing him that the county intended to condemn a tract of land he owned in order to extend a runway at the Fairfield County Airport. The plaintiff filed this action challenging the condemnation and sent discovery requests to the county. The county failed to adequately respond to the discovery requests, and the court granted the plaintiff’s motion to compel adequate discovery responses. Subsequently, the plaintiff’s attorney wrote the county six times over the next six months requesting that the county comply with the order, but the county failed to do so. Finally, the plaintiff moved for dismissal of the condemnation action and for sanctions against the county. At the hearing on the plaintiff’s motion, the trial court gave the parties forty-five days to reach an agreement or to submit proposed orders. The parties did not reach an agreement, so the plaintiff filed a proposed order, but the county did not. The trial court signed and entered the plaintiff’s proposed order dismissing the county’s condemnation action with prejudice. The trial court also denied the county’s motion for reconsideration. On appeal, the South Carolina Court of Appeals affirmed, finding that although the sanction for the county’s discovery abuse was harsh, the trial court had not abused its discretion in finding that the county’s actions were an affront to the integrity of the judicial system and therefore warranted dismissal.

Exxon Shipping Co. v. Baker, 128 S.Ct. 2605 (2008).
Docket No. 07-219, decided June 25, 2008.

Numerous plaintiffs brought an action against Exxon for damages arising out of the oil spill caused by grounding of the supertanker Exxon Valdez in 1989. A jury awarded compensatory damages of $507.5 million and punitive damages of $5 billion. The United States Court of Appeals for the Ninth Circuit reduced the punitive damages award to $2.5 billion, but the United States Supreme Court reduced the award even further. The Court held that under maritime common law, punitive damages should be limited to an amount equal to compensatory damages, thus establishing a maximum punitive damages ratio of 1:1 in maritime cases.

Melton v. Olenik, 379 S.C. 45, 664 S.E.2d 487 (Ct. App. 2008).
Opinion No. 4418, decided June 20, 2008.

The defendant failed to answer the complaint served by the plaintiff, and the plaintiff sought a default judgment against the defendant. The defendant subsequently moved to set aside the default for good cause, inadvertence, and excusable neglect. At the hearing on the defendant’s motion, the plaintiff brought an interpreter because both the plaintiff and defendant were Korean and not proficient in English. The defendant objected to the use of that particular interpreter and requested that the court appoint a court certified interpreter, but the trial judge decided instead to commence the hearing without an interpreter and ultimately entered a default judgment against the defendant. On appeal, the South Carolina Court of Appeals found that the trial judge’s refusal to appoint a qualified interpreter—or to alternatively make specific findings that waiver of the use of a qualified interpreter was in the best interest of the parties and of justice—was reversible error. Thus, the court remanded for a new hearing with a qualified interpreter or for the trial judge to make the necessary findings of waiver.

Power Products and Services Co. v. Kozma, 379 S.C. 423, 665 S.E.2d 660 (Ct. App. 2008).
Opinion No. 4417, decided June 20, 2008.

A Virginia corporation whose principal place of business is in South Carolina filed this action against multiple defendants, most of whom were former employees of the corporation, alleging multiple causes of action arising out of the defendants’ alleged misappropriation of trade secrets from the corporation. The defendants, all residents of Virginia, moved to dismiss for lack of personal jurisdiction, but the corporation argued that many of the alleged tortious acts took place in South Carolina and that the defendants had minimum contacts with South Carolina. The trial court granted the motion to dismiss, and on appeal, the South Carolina Court of Appeals affirmed. The court found that the corporation could not establish the “power prong” for determining whether due process minimum contacts exist because it alleged no facts supporting the conclusory allegation that the defendants misappropriated trade secrets in South Carolina. Nor could the corporation establish the “fairness prong” because the defendants were citizens and residents of Virginia, and any connections they may have had to South Carolina were insufficient to satisfy due process.

Taylor v. Sturgell, 128 S.Ct. 2161 (2008).
Docket No. 07-371, decided June 12, 2008.

An antique aircraft enthusiast requested documents from the Federal Aviation Administration (FAA) under the Freedom of Information Act (FOIA). The FAA denied his request, and the enthusiast filed an unsuccessful FOIA lawsuit to secure the documents. Shortly thereafter, the plaintiff submitted another FOIA request for the same documents to the FAA, and when the FAA did not respond, he filed this FOIA action. The district court held that the suit was barred by claim preclusion, and the United States Court of Appeals for the District of Columbia Circuit affirmed, holding that even though the plaintiff was a non-party to the earlier, unsuccessful suit, he was bound by the judgment because he was “virtually represented” by a party to the previous suit. However, the United States Supreme Court, rejecting a broad theory of “virtual representation,” held that a non-party may be bound by a previous judgment only in certain narrow circumstances, all but one of which were plainly not applicable in this case. Therefore, the Court vacated the lower court decisions and remanded for a determination of whether the remaining ground for non-party preclusion—-collusion to relitigate a previously decided claim—-was applicable.

Cole v. Raut, 378 S.C. 398, 663 S.E.2d 30 (2008).
Opinion No. 26503, decided June 9, 2008.

The plaintiffs brought a medical negligence action against their obstetrician, alleging that the obstetrician’s negligence during the delivery of their son resulted in brain damage to and, ultimately, the death of the baby. At the close of evidence, the trial court permitted the obstetrician to amend her pleadings to assert the defense of assumption of the risk. The trial court then instructed the jury on the law of negligence and the doctrine of assumption of the risk. The jury rendered a defense verdict, but the South Carolina Court of Appeals reversed and remanded for a new trial, find that the trial court’s charge on assumption of the risk prejudiced the plaintiffs and was therefore erroneous. The South Carolina Supreme Court, however, reversed the Court of Appeals and reinstated the jury’s verdict. The court found that though the jury instruction on assumption of the risk was erroneous, it did not prejudice the plaintiffs in light of the entire jury charge, which included the general negligence instruction. Furthermore, the court found that the two-issue rule, which provides that a verdict will not be reversed where it is supported as to at least one of two or more issues or defenses, applied as an additional sustaining ground because the jury rendered a general defense verdict after hearing a properly submitted negligence claim and an erroneous charge on assumption of the risk.

Swicegood v. Lott, 379 S.C. 346, 665 S.E.2d 211 (Ct. App. 2008).
Opinion No. 4405, decided June 6, 2008.

A former officer brought suit against the Richland County Sheriff in his official capacity. The officer alleged multiple causes of action, but all except the abuse of process claim were dismissed on a summary judgment motion. A jury awarded the officer $150,000 and the sheriff appealed, arguing that his motions for directed verdict, judgment notwithstanding the verdict, and a new trial were wrongly denied. The South Carolina Court of Appeals affirmed, holding that: 1) the tort of abuse of process does not require a finding of actual malice or intent to harm, and therefore the sheriff was not entitled to sovereign immunity under the South Carolina Tort Claims Act; (2) the primary purpose of the sheriff’s tortious actions was to coerce or extort testimony from the officer, and therefore the sheriff was not entitled to assert the defense that the process was carried to its authorized conclusion; (3) the trial court was correct in finding that a jury question existed on the issue of proximate causation of damages; and (4) the trial court had not abused its discretion in refusing to grant a new trial.

RRR, Inc. v. Toggas, 378 S.C. 174, 662 S.E.2d 438 (Ct. App. 2008).
Opinion No. 4375, decided April 23, 2008.

The defendants contracted with a rental company to rent their beachfront condo to guests. When a dispute arose between the parties, the defendants made telephone calls to and left voicemail messages for the rental company’s employees using profane and threatening language. The defendants also made calls to the Chamber of Commerce, the sheriff’s department, the local newspaper, and the South Carolina Real Estate Commission. The rental company filed suit against the defendants after its business began to decline. A few months prior to trial, the defendants’ attorney was granted his request to withdraw from representation. The defendants did not hire a new attorney and proceeded pro se. When the case was called for trial, the Clerk of Court sent notice to the defendants, but they did not appear for trial. The jury entered a verdict against the defendants, whose subsequent motions to alter, amend, or vacate the judgment (for lack of notice) were denied. On appeal, the South Carolina Court of Appeals held that the trial judge did not abuse his discretion in finding that the defendants had notice of the trial and that they were not entitled to have the judgment set aside for excusable neglect. The court also found that the trial judge did not abuse his discretion by determining that the jury’s award of damages was appropriate given the defendants’ conduct. Finally, the court held that the defendants’ argument that there is no private right of action for unlawful use of a telephone was not preserved for appellate review. The South Carolina Supreme Court later held that the Court of Appeals erred by failing to consider the guideposts regarding punitive damage awards in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), but nevertheless affirmed, finding that the award was reasonable under Gore. See RRR, Inc. v. Toggas, 381 S.C. 490, 674 S.E.2d 170 (2009).

Wieters v. Bon-Secours-St. Francis Xavier Hospital, Inc., 378 S.C. 160, 662 S.E.2d 430 (Ct. App. 2008).
Opinion No. 4374, decided April 23, 2008.

A physician’s medical staff privileges were summarily suspended by his employer hospital. After the hospital reported the physician’s suspension to the National Practitioner Data Bank, as required by federal law, the physician sued the hospital and various hospital personnel for defamation. During depositions, the physician’s lawyer asked two witnesses to describe the circumstances that led to the suspension of other physicians during their service on peer review committees, but the defendants’ lawyers instructed them not to answer any such questions. The trial court issued an order compelling the witnesses to answer the questions and the defendants appealed. The South Carolina Court of Appeals noted that discovery orders are generally not immediately appealable, but held that in light of McGee v. Bruce Hospital System, 312 S.C. 58, 439 S.E.2d 257 (1993), in which the South Carolina Supreme Court held that a discovery order compelling a hospital to produce credentialing files was immediately appealable, the trial court’s discovery order in this case was likewise immediately appealable. On the merits, the court held that the Peer Review Statute, S.C. Code Ann. § 40-71-20, protected the requested information from discovery, and therefore the court reversed the discovery order. However, the South Carolina Supreme Court later vacated the Court of Appeals’ opinion on the grounds that the discovery order was not immediately appealable. See Wieters v. Bon-Secours-St. Francis Xavier Hospital, Inc., 381 S.C. 332, 673 S.E.2d 417 (2009).

Brenco v. S.C. Dep’t of Transportation, 377 S.C. 124, 659 S.E.2d 167 (2008).
Opinion No. 26461, decided March 24, 2008.

After a trial on the plaintiff’s causes of action for rescission of a deed, negligent misrepresentation, and inverse condemnation, the trial judge found for the defendant on all but the inverse condemnation claim. The plaintiff moved to reopen the case for the taking of additional testimony regarding the inverse condemnation claim, but the trial judge declined to reopen the case and subsequently found in the defendant’s favor on the inverse condemnation claim. The Court of Appeals reversed the trial judge’s refusal to reopen the case, but the South Carolina Supreme Court reversed, holding that the Court of Appeals applied the wrong standard in reviewing whether the trial judge abused his discretion. The court found no abuse of discretion in the trial judge’s refusal to reopen the case when the plaintiff could have provided the “additional” evidence at trial.

Englert, Inc. v. LeafGuard USA, Inc., 377 S.C. 129, 659 S.E.2d 496 (2008).
Opinion No. 26460, decided March 24, 2008.

The parties entered into a contract regarding the licensing and sale of gutter systems. The contract also required the defendant to purchase a gutter fabrication machine which would be repurchased by the plaintiff upon the termination of the contract. The plaintiff sought to terminate the contract and eventually brought suit for claim and delivery of the machine, alleging that the defendant had failed to meet its sales quotas and was behind in its royalty payments. The defendant answered and asserted counterclaims including unfair and deceptive trade practices, breach of contract, breach of contract accompanied by a fraudulent act, and fraud. The circuit court granted partial summary judgment to the plaintiff, holding that because the contract had been terminated, the plaintiff had the right to repossess the machine. However, the South Carolina Supreme Court reversed, holding that the defendant’s counterclaims and affirmative defenses created issues of material fact regarding the plaintiff’s claims.

Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008).
Opinion No. 4358, decided March 13, 2008.

The plaintiff’s mouth was severely burned during surgery by an overheated surgical drill. He subsequently filed this medical malpractice action against the surgeon. The circuit court granted a directed verdict in favor of the surgeon at the close of the plaintiff’s case, but the South Carolina Court of Appeals reversed, finding that because the parties had stipulated that the drill was overheated and there was testimony in the record that the surgeon had notice that the drill was hot, a directed verdict was inappropriate. The court remanded for a new trial, noting also that it was error for the circuit court to exclude certain testimony regarding the notice issue because it was not offered to prove the truth of the matter asserted.

Austin v. Beaufort County Sheriff’s Office, 377 S.C. 31, 659 S.E.2d 122 (2008).
Opinion No. 26452, decided March 10, 2008.

The plaintiff filed suit against a sheriff’s office alleging that its destruction of evidence in a death case impaired her ability to bring a wrongful death action. The circuit court granted summary judgment to the sheriff’s office, and on appeal the plaintiff urged the South Carolina Supreme Court to adopt the tort of third party spoliation of evidence and allow the case to proceed. The court declined to do so under the facts of this case because even if it were to do so the plaintiff would be unable to prove the required elements because the sheriff’s office had no knowledge of a potential civil action, the sheriff’s office had no duty to preserve the evidence after it had completed its criminal investigation, and the plaintiff could not show that the destroyed evidence was vital to her ability to prevail in the potential civil action.

Hooper v. Ebenezer Senior Services and Rehabilitation Center, 377 S.C. 217, 659 S.E.2d 213 (Ct. App. 2008).
Opinion No. 4350, decided March 10, 2008.

The plaintiff filed a negligence and wrongful death action against a nursing home, but the circuit court dismissed the action because it was not served within 120 days of filing. On appeal, the South Carolina Court of Appeals upheld the dismissal because the rules and statutes regarding service are clear that service must be made within 120 days of filing and the plaintiff admittedly served the defendant 129 days after filing. The court also rejected the plaintiff’s argument that the doctrine of equitable tolling should apply, finding that the extraordinary circumstances required for the invocation of that doctrine were not present in this case. Furthermore, the court rejected the plaintiff’s argument that the defendant should be estopped from asserting the statute of limitations as a defense because it failed to keep its registered agent information up-to-date. The court found no evidence that the defendant’s failure to update its registered agent information was intended to defraud or conceal facts from the plaintiff.

Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156 (4th Cir. 2008).
Docket No. 07-1046, decided March 5, 2008.

A mining company challenged the constitutionality of a state “dewatering act,” arguing that it violated the Due Process and Takings Clauses of the United States Constitution. However, the company had previously challenged the constitutionality of the act in state court. Because the state supreme court rendered a final judgment on the merits—it found that the law was constitutional—and the company could have brought its due process claims in the state court action, the United States Court of Appeals for the Fourth Circuit upheld the district court’s finding that the doctrine of res judicata barred the company’s due process claims. The court also found that the company failed to show that an unconstitutional taking had occurred and upheld the district court’s abstention under the Younger doctrine.

Fields v. J. Haynes Waters Builders, Inc., 376 S.C. 545, 658 S.E.2d 80 (2008).
Opinion No. 26443, decided February 25, 2008.

The plaintiffs sued the builder of their home and several manufacturers who had provided the materials used in the construction of the home. At trial, the judge refused to qualify one of the plaintiffs’ experts witnesses on the basis that the witness failed to comply with South Carolina’s home inspection licensing requirements, excluded a second bid for the repair of the plaintiffs’ home as inadmissible hearsay, charged the jury that a general contractor is not automatically liable for the negligence of a subcontractor, directed a verdict in favor of the builder on the plaintiffs’ strict liability claim, and refused to order a new trial or grant judgment notwithstanding the verdict. The South Carolina Supreme Court affirmed, holding that whatever errors the trial judge made, they were harmless. Specifically, the court held that it was error not to qualify the plaintiff’s expert because his failure to comply with state licensing requirements was merely one factor in the qualification analysis, but that the error was harmless because the expert’s testimony would have been cumulative.

Watters v. Terminix Service, Inc., 376 S.C. 632, 658 S.E.2d 110 (Ct. App. 2008).
Opinion No. 4347, decided February 25, 2008.

The buyer of a home filed an action for fraud, negligent misrepresentation, and indemnification against the seller and the provider of a termite letter, claiming that they failed to disclose moisture damage to the home. The circuit court granted summary judgment for failure to bring the lawsuit within the time required by the statute of limitations—three years in this case—and the South Carolina Court of Appeals affirmed because the buyer had notice of the moisture damage at least four years prior to filing the lawsuit.

Singleton v. Sherer, 377 S.C. 185, 659 S.E.2d 196 (Ct. App. 2008).
Opinion No. 4346, decided February 25, 2008.

The plaintiff filed this action seeking damages from the defendants for injuries he sustained from a raccoon bite while on the defendants’ property. The circuit court granted summary judgment to the defendants, and the South Carolina Court of Appeals affirmed. First, the court found that the plaintiff was a licensee on the defendants’ property rather than an invitee, and therefore the defendants had no duty to warn the plaintiff of any hidden and latent dangers posed by the raccoon. Second, the court also found that there was no issue of material fact as to the proximate cause of the plaintiff’s injuries because the plaintiff entered the property and attempted to capture the raccoon despite being warned not to try and catch the raccoon by himself. Finally, the court found that the plaintiff’s claim was barred by the doctrine of assumption of the risk because he freely and voluntarily exposed himself to a known danger, even admitting that his actions were “pretty stupid,” and thus he was more than 50% at fault in causing his injuries.

Brooks v. GAF Materials Corp., 532 F.Supp.2d 779 (D.S.C. 2008).
Decided January 31, 2008.

The plaintiffs filed a lawsuit in state court alleging damages as a result of the defendant’s defective roofing materials. They later filed an amended complaint asserting a class action. The amended complaint stated that the total class damages would not exceed $5 million and that the individual recovery of any single class member would not exceed $74,999. The defendant removed the case to federal court, but the plaintiffs moved to remand on the grounds that the federal court lacked subject matter jurisdiction because the amount in controversy requirements of $75,000 for the individual class members and $5 million for the entire class were not satisfied. The defendants argued that the court should independently review the amount in controversy because the plaintiffs were not limited to the recovery requested in their complaint, but the United States District Court for the District of South Carolina held that the plaintiffs could limit the damages alleged in their complaint to avoid removal. Thus, the court remanded the case back to state court with instructions that any damages awarded must not exceed those requested in the complaint.

Walton v. Mazda of Rock Hill, 376 S.C. 301, 657 S.E.2d 67 (Ct. App. 2008).
Opinion No. 4306, decided January 10, 2008.

The plaintiff purchased a vehicle and a warranty agreement from a car dealership which would subsequently sell its assets to a third party. When the plaintiff brought the vehicle in for repair, the new owners refused to honor the warranty, and the plaintiff subsequently brought suit for breach of contract. The magistrate granted summary judgment to the defendants and the circuit court affirmed. On appeal, the South Carolina Court of Appeals rejected the plaintiff’s arguments that a magistrate does not have the authority to grant summary judgment and that the new dealership owners were subject to successor liability. The court found that Rule 81, SCRCP, extends summary judgment authority to magistrates, that there was no agreement for the new owners to assume the dealerships debts or obligations, that the sale of assets was not a consolidation, that the new dealership was not a mere continuation of the old dealership, and that the asset transfer was not fraudulent.

Rosenruist-Gestao E Servicos LDA v. Virgin Enterprises, Ltd., 511 F.3d 437 (4th Cir. 2007).
Docket No. 06-1588, decided December 27, 2007.

In this trademark dispute, a United States company served a subpoena on a Virginia attorney who represented a Portuguese company that was attempting to register a trademark in the United States. The subpoena was issued pursuant to 35 U.S.C. § 24, which gives federal courts the power to subpoena for deposition before a patent officer “any witness residing or being within” the issuing court’s district, and ordered the Portuguese company to designate an individual to be deposed on behalf of the company pursuant to Rule 30(b)(6), FRCP. The Portuguese company refused to name a 30(b)(6) designee on the grounds that none of its potential designees lived within the district of the issuing court and therefore could not be compelled to comply with the subpoena. However, the United States Court of Appeals for the Fourth Circuit held that the term “witness” applied to corporations as well as natural persons, and therefore because the Portuguese company had previously been determined by the district court to be “residing or being within” the district, it was required to name and produce a Rule 30(b)(6) designee.

Coggeshall v. Reproductive Endocrine Associates of Charlotte, 376 S.C. 12, 655 S.E.2d 476 (2007).
Opinion No. 26410, decided December 20, 2007.

The plaintiffs’ child was conceived through in vitro fertilization and was born with Down Syndrome. The plaintiffs subsequently sued their fertility clinic for failure to inform them of the availability of pre-implantation genetic testing, but the trial court dismissed the action for lack of personal jurisdiction because the fertility clinic is located in North Carolina. The South Carolina Supreme Court upheld the dismissal, holding that despite the fact that the clinic treated many South Carolina patients, its contacts with South Carolina are not substantial, continuous, and systematic to the extent necessary to justify the exercise of general jurisdiction. Furthermore, because the tortious activity occurred in North Carolina and because the contract between the parties was performed almost entirely in North Carolina, the exercise of specific jurisdiction was likewise unjustifiable.

Howard v. Roberson, 376 S.C. 143, 654 S.E.2d 877 (Ct. App. 2007).
Opinion No. 4326, decided December 20, 2007.

The plaintiff sought and a jury awarded damages for personal injuries sustained in an automobile accident. The plaintiff argued that the damages awarded were inadequate to compensate her for her pain and suffering and sought a new trial nisi additur. However, the trial judge invoked the Thirteenth Juror Doctrine and ordered a new trial on damages alone. The South Carolina Court of Appeals held that the Thirteenth Juror Doctrine may only be used to order a new trial in toto and that it is not an appropriate vehicle for ordering a new trial solely on the issue of damages. Therefore, the court reversed the trial court’s invocation of the Thirteenth Juror Doctrine and remanded for a ruling on the plaintiff’s motion for a new trial nisi additur, which the court found was never actually decided.

Dixie Bell, Inc. v. Redd, 376 S.C. 361, 656 S.E.2d 765 (Ct. App. 2007).
Opinion No. 4325, decided December 20, 2007.

In order to recover prejudgment interest, a plaintiff must specifically demand prejudgment interest in the pleadings. In this case, the plaintiff requested prejudgment interest in its initial pleadings, but later voluntarily dismissed all of its initial claims and submitted a new and different claim to the jury without requesting prejudgment interest on the new claim. The South Carolina Court of Appeals held that the plaintiff was not entitled to prejudgment interest because it failed to specifically request prejudgment interest on the new claim. The court also found that the plaintiff had not established that the amount of its damages was a sum certain or capable of being reduced to certainty as required by S.C. Code Ann. § 34-31-20(A), and that this too was fatal to its request for prejudgment interest.

Hunt v. Mortgage Electronic Registration, 522 F.Supp.2d 749 (D.S.C. 2007).
Decided November 20, 2007.

The plaintiff filed this action against multiple defendants asserting various causes of action arising from the foreclosure of her house. The defendants moved to dismiss based on the Colorado River abstention doctrine and for failure to state a claim upon which relief may be granted. The United States District Court for the District of South Carolina held that the plaintiff’s allegation that the defendants “stole her house” was insufficient to state a claim. Further, the court held that the pendency of a parallel case in state court and the existence of “exceptional circumstances” warranted abstention under the Colorado River doctrine.

Stearns Bank Nat. Ass’n v. Glenwood Falls, LP, 375 S.C. 423, 653 S.E.2d 274 (2007).
Opinion No. 26394, decided November 5, 2007.

The plaintiff obtained a default judgment of $1.3 million against the defendant, who subsequently filed motions under Rule 60(b), SCRCP, to set aside the default. Those motions were denied, as was the defendant’s motion under Rule 59, SCRCP, to reconsider the denials, and the defendant then appealed to the Court of Appeals. Months later, the defendant moved to stay the enforcement of the default judgment during the appeal. The circuit court denied the motion, but ordered that if the plaintiff desired to enforce the judgment during the pendency of the appeal, he must post a bond pursuant to S.C. Code Ann. § 18-9-130. The Supreme Court of South Carolina reversed the circuit court’s order because § 18-9-130 only applies to appeals from judgments directing the payment of money. Therefore, because the Rule 60(b) order did not direct the payment of money and because the defendant never sought a stay of the judgment pursuant to Rule 62(b), SCRCP, the plaintiff was entitled to enforce its judgment.

Hanahan v. John Hancock Life Ins. Co., 518 F.Supp.2d 780 (D.S.C. 2007).
Decided October 12, 2007.

The plaintiffs filed suit in state court against multiple defendants stemming from their alleged participation in a scheme of wrongful conversion of property. Within a few months of the filing of the complaint, all claims against South Carolina defendants had been settled or dismissed and the remaining defendants removed the case to federal court on the basis of diversity jurisdiction. The plaintiffs filed a motion to remand, arguing that two of the South Carolina defendants had not yet complied with the consent order releasing them from the case and were therefore still parties to the action, thus defeating diversity jurisdiction. The United States District Court for the District of South Carolina held that the plaintiffs had fully intended the consent order to release the South Carolina defendants from liability and that the allegation that they had not yet fulfilled their obligations under the order was insufficient to make them a continued party in interest to the litigation.

Paul L. Erickson, P.A. v. Boykin, 375 S.C. 204, 651 S.E.2d 606 (Ct. App. 2007).
Opinion No. 4264, decided June 27, 2007.

A South Carolina couple hired a North Carolina attorney to represent them in legal matters in South Carolina. At the conclusion of the representation, the attorney claimed that the couple still owed him over $20,000 in legal fees and filed a collections action in North Carolina. The couple never appeared or answered the lawsuit, and judgment was entered by default. When the attorney attempted to enroll the judgment in South Carolina, the couple objected that the judgment was not entitled to full faith and credit because it was obtained without personal jurisdiction. The South Carolina Court of Appeals agreed that the attorney failed to meet his burden of proving that the foreign judgment was entitled to full faith and credit.

Ashley River Properties I, LLC v. Ashley River Properties II, LLC, 374 S.C. 271, 648 S.E.2d 295 (Ct. App. 2007).
Opinion No. 4260, decided June 21, 2007.

In this dispute over control of a limited liability company, the plaintiffs alleged that South Carolina courts had jurisdiction to review the actions of a New York arbitration board because the operating agreement provided that its arbitration clause was governed by the South Carolina Uniform Arbitration Act. However, the South Carolina Court of Appeals held that South Carolina lacked jurisdiction because the operating agreement expressly provided that it was governed by New York law and that New York courts had exclusive jurisdiction to hear disputes arising out of the agreement.

Plott v. Justin Enterprises, 374 S.C. 504, 649 S.E.2d 92 (Ct. App. 2007).
Opinion No. 4258, decided June 18, 2007.

In this property dispute, the defendant planted shrubs and built a wire fence on land where the plaintiffs claimed they had a right-of-way easement for the express purpose of commercially and economically benefiting their land. The defendant claimed that res judicata barred the plaintiffs from seeking relief, but the South Carolina Court of Appeals found that there was no evidence supporting a determination that in any prior action between the parties the issue of the plaintiffs’ rights in the easement had been litigated and decided. Furthermore, the plaintiffs were not collaterally estopped from litigating the issue because its resolution was not necessary to support the judgment from prior actions between the parties.

Lee v. Bunch, 373 S.C. 654, 647 S.E.2d 197 (2007).
Opinion No. 26334, decided June 11, 2007.

The driver of a motorcycle sued the driver of another automobile for injuries he sustained in a traffic accident between the parties. At trial, the plaintiff moved to exclude evidence of his pre-accident alcohol consumption on the grounds that it was overly prejudicial. The South Carolina Supreme Court upheld the denial of the motion because it was within the trial judge’s discretion to admit the evidence. Furthermore, the court held that it was not prejudicial to the plaintiff to allow the defendant to amend his answer to assert comparative negligence, nor was a defense verdict on the plaintiff’s wife’s loss of consortium claim inconsistent with a finding that the defendant was 30% at fault in the accident.

Bage, LLC v. Southeastern Roofing Co. of Spartanburg, Inc., 373 S.C. 457, 646 S.E.2d 153 (Ct. App. 2007).
Opinion No. 4240, decided April 23, 2007.

The plaintiff, owner of an office building, hired the defendant to re-roof the building. When leaks developed and the defendant failed to fix them, the owner sued and enlisted a process server to serve the complaint. When the process server arrived at the defendant’s office, the manager was not present, but instructed another employee over the phone to accept service. The defendant never filed an answer and judgment was entered by default. The defendant argued that service was improper because the employee who accepted service was not an authorized agent of the company. The South Carolina Court of Appeals disagreed and held that service was proper because the employee received express authorization from the defendant’s manager to accept service.

Gissel v. Hart, 373 S.C. 281, 644 S.E.2d 772 (Ct. App. 2007).
Opinion No. 4224, decided March 26, 2007.

Several mobile home purchasers sued a mobile home dealership, naming both the dealership and several individuals as defendants. The dealership settled and an arbitrator awarded damages against the individual defendants. The South Carolina Court of Appeals found that the plaintiffs’ complaint did not clearly assert claims against the individual defendants in their individual capacities rather than as representatives of the dealership. Therefore, the court vacated the portions of the arbitrator’s awards that purported to impose liability on the individual defendants in their individual, rather than representative, capacities. The South Carolina Supreme Court later reversed, holding that it was error to look to the allegations of the complaint in order to determine whether the award was proper. See Gissel v. Hart, 382 S.C. 235, 676 S.E.2d 320 (2009).

Mosseri, Mosseri, Castro v. Austin’s at the Beach, Inc., 372 S.C. 593, 642 S.E.2d 760 (Ct. App. 2007).
Opinion No. 4215, decided March 12, 2007.

A landlord filed an action for nonpayment of rent in magistrate’s court, alleging damages of less than the $7,500 jurisdictional limit for magistrate’s court. However, the defendant tenant filed counterclaims, alleged damages well in excess of $7,500, and attempted to remove the case to circuit court. The magistrate denied removal and retained jurisdiction pursuant to S.C. Code Ann. § 23-3-10(10), which provides that the jurisdictional limit does not apply to disputes involving “landlord and tenant and the possession of land.” However, the South Carolina Court of Appeals reversed, holding that the case should have been transferred to circuit court because the case did not involve a dispute over the possession of property.

Vaughn Development, Inc. v. Westvaco Development Corp., 372 S.C. 576, 642 S.E.2d 757 (Ct. App. 2007).
Opinion No. 4214, decided March 12, 2007.

In this breach of contract case, the South Carolina Court of Appeals court reversed a lower court’s award of prejudgment interest to the prevailing party. The court held that prejudgment interest may not be awarded where the measure of recovery was not fixed at the time the claim arose, but only where the amount of damages is certain or capable of being reduced to certainty.

Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping Corp., 549 U.S. 422 (2007).
Docket No. 06-102, decided March 5, 2007.

A Malaysian company sued a Chinese company in federal court. The district court dismissed the case on the grounds of forum non conveniens, a doctrine giving courts discretion to dismiss cases when trial in another jurisdiction would be fairer and more convenient, because a Chinese court would be a more appropriate venue. The Third Circuit reversed, finding that the district court could not dismiss the case on forum non conveniens grounds unless and until it determined that it had personal and subject-matter jurisdiction to hear the case. However, the United States Supreme Court held that a court need not resolve whether it has personal or subject-matter jurisdiction if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case.

Philip Morris USA v. Williams, 549 U.S. 346 (2007).
Docket No. 05-1256, decided February 20, 2007.

In this wrongful death case, a widow sued Philip Morris for its alleged negligence and deceit which allegedly led to the death of her husband, a heavy smoker. A jury awarded the widow $821,000 in compensatory damages and $79.5 million in punitive damages. The United States Supreme Court held that the trial court erred when it refused to instruct the jury that it could not consider the harm Philip Morris may have caused others but could only consider the harm caused to the widow and her husband. The Court stated that due process prohibits states from using punitive damage awards to punish defendants for injuries inflicted upon nonparties to the litigation.

 

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