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This page is a compilation of recent developments in our firm’s Practice Areas. Updates are presented chronologically below. To sort by Practice Area, select a Practice Area from the menu at left.

Ex Parte Wheeler v. Estate of Green, 381 S.C. 548, 673 S.E.2d 836 (Ct. App. 2009).
Opinion No. 4494, decided January 30, 2009.
Practice Areas: Probate Law

Under the decedent’s will, the personal representative of the estate was required to sell the decedent’s real property in the manner “most advantageous financially” to the decedent’s estate. A potential buyer named Powers expressed an interest in purchasing the decedent’s residence and asked the personal representative for a copy of the appraisal. An appraisal was conducted and valued the residence at $320,000, but the personal representative failed to send a copy of the appraisal to Powers. Subsequently, the personal representative accepted an offer from another buyer for $325,000 and petitioned the Probate Court for approval of the sale. Upon learning of the petition, Powers tendered a written offer to purchase the residence for $385,000. Powers and the beneficiaries of the decedent’s will answered the petition and alleged that the personal representative had breached her fiduciary duties by failing to consider Powers’ substantially higher offer. The Probate Court denied the petition, found that the personal representative had breached her fiduciary duties, and approved the sale of the residence to Powers. On appeal, the circuit court reversed and approved the personal representative’s petition. The South Carolina Court of Appeals affirmed, holding that because Powers did not actually make a formal offer on the residence in the four-plus months following the decedent’s death, the personal representative would likely have breached her fiduciary duties had she not accepted the initial (and sole) offer.

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.
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 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.

Widener v. Fort Mill Ford, 381 S.C. 522, 674 S.E.2d 172 (Ct. App. 2009).
Opinion No. 4490, decided January 27, 2009.
Practice Areas: Alternative Dispute Resolution

The plaintiff sued a car dealer for alleged violations of the South Carolina Unfair Trade Practices Act and the South Carolina Regulation of Manufacturers, Distributors, and Dealers Act. The dealer moved to dismiss or stay the litigation and to compel arbitration. The trial court dismissed the action and referred the dispute to arbitration, but the South Carolina Court of Appeals reversed. The court held that because the trial court dismissed the action rather than staying it, the order was final and appealable. The court further held that it was error for the trial court to dismiss the action because any future actions could be barred by the statute of limitations, and thus dismissal was prejudicial to the plaintiff. Therefore, the court remanded the case with instructions for the trial court to enter an order staying the action pending the arbitration proceedings.

Skipper v. Perrone, 382 S.C. 53, 674 S.E.2d 510 (Ct. App. 2009).
Opinion No. 4489, decided January 27, 2009.
Practice Areas: Real Estate

In 1993, the decedent signed a deed, for the stated consideration of ten dollars, conveying properties in Horry County to the defendants. The defendants recorded the deed soon thereafter and again in 1994. The decedent died in 1995, and the defendants were not beneficiaries of his will. The personal representative of the state sought to have the deed set aside on multiple grounds, including undue influence. The special referee found that the decedent was either incompetent or substantially impaired when the deed was executed and that the stated consideration was grossly inadequate. The South Carolina Court of Appeals affirmed, holding that although the party attacking a deed normally has the burden of proof, an inference of undue influence arose upon the personal representative’s presentation of evidence showing that the decedent was in a substantially weakened mental state at the time of the execution of the deed and that the stated consideration was grossly inadequate. Because the defendants failed to rebut the inference of undue influence, it was proper for the special referee to set aside the deed. The court also held that the personal representative’s delay in bringing the action did not prejudice the defendants and that the decedent’s failure to set aside the deed during his lifetime did not amount to a waiver of the right to contest the deed.

Pack v. S.C. Dep’t of Transportation, 381 S.C. 526, 673 S.E.2d 461 (Ct. App. 2009).
Opinion No. 4488, decided January 27, 2009.
Practice Areas: Workers' Compensation

The claimant was a driver with the South Carolina Department of Transportation’s roadside herbicide application crew. After exposure to liquid herbicide fumes, she collapsed and suffered various injuries. She sought workers’ compensation benefits from SCDOT, which began paying her temporary benefits. However, she sought a permanent award or a finding that she had not reached maximum medical improvement and was entitled to additional treatment. The single commissioner found that the claimant had not reached maximum medical improvement and that she had ongoing respiratory, psychological, and brain injuries. The Appellate Panel affirmed the single commissioner with an amended finding that the claimant had not suffered brain injuries. On appeal, the circuit court reversed the Appellate Panel and reinstated the single commissioner’s award. The South Carolina Court of Appeals affirmed the circuit court as to the claimant’s respiratory injury, but found that the circuit court had made improper findings of fact as to the brain injury. The court held that the circuit court erred in concluding that there was only one reasonable inference that could be drawn from the evidence regarding the brain injury, and therefore the court remanded the case to the Workers’ Compensation Commission for further fact-finding on that issue. As to the claim for psychological injuries, the court found that the Commission failed to establish a causal link between the claimant’s physical and psychological injuries and remanded for further fact-finding on that issue as well.

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

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.

Hancock v. Mid-South Management Co., 381 S.C. 326, 673 S.E.2d 801 (2009).
Opinion No. 26587, decided January 26, 2009.
Practice Areas: Premises Liability

The plaintiff slipped and fell in the parking lot of The Newberry Observer and subsequently filed this negligence action against the newspaper’s owner. The plaintiff alleged that the defendant failed to maintain safe premises, though she could not identify the exact cause of her fall. The trial court found that a change in elevation in the parking lot caused the plaintiff’s fall, but granted summary judgment in favor of the defendant on the grounds that the change in elevation either was not a dangerous condition or was so open and obvious that the defendant had no duty to warn of it. However, the South Carolina Supreme Court reversed, holding that testimony and affidavits submitted by the plaintiff showed that the parking lot was in a state of disrepair. The court held that when viewed in a light most favorable to the plaintiff, the evidence showed that the defendant knew or should have known that a dangerous condition existed on its premises and that invitees would have to encounter this condition. Thus, it was for a jury to decide whether the danger was open and obvious or whether the defendant should have anticipated that the danger might cause an invitee to fall and suffer injury.

Chastain v. Hiltabidle, 381 S.C. 508, 673 S.E.2d 826 (Ct. App. 2009).
Opinion No. 4487, decided January 22, 2009.
Practice Areas: Appellate, Real Estate

The plaintiffs purchased a house through the defendant real estate agency. The sale was contingent upon the sellers’ completion of a disclosure statement revealing known defects in the property, which the sellers completed. After the sale, two days of rain resulted in several inches of water intrusion onto the property, causing damage to the plaintiffs’ furniture and to the property itself. The plaintiffs filed suit against the real estate agency, alleging that the disclosure statement was inaccurate or incomplete. The trial court granted summary judgment to the agency, and the plaintiffs filed a motion for reconsideration in which they argued the trial court did not issue a detailed order reflecting its findings of fact and conclusions of law, did not rule on their due process argument based on Rule 7(a), SCRCP, and did not comply with the rule that novel issues should be decided with a full and complete record. The trial court subsequently issued a seven page explanation of its decision, and the plaintiffs filed another motion for reconsideration on essentially the same grounds. The motion was denied and the plaintiffs appealed. The South Carolina Court of Appeals affirmed, holding that the plaintiffs could not show any prejudice which resulted from the agency’s alleged failure to comply with Rule 7(b)(1), SCRCP. Moreover, summary judgment was appropriate because the plaintiffs presented no evidence that the agency had actual or constructive knowledge that the disclosure statement was inaccurate or incomplete. The court also held that although the plaintiffs’ motions for reconsideration were technically insufficient to preserve the Rule 7(b)(1) issue, the court would not apply the rules of error preservation so rigidly as to bar an otherwise properly presented issue.

Forrester v. Penn Lyon Homes, Inc., 553 F.3d 340 (4th Cir. 2009).
Docket No. 07-2171, decided January 21, 2009.
Practice Areas: Alternative Dispute Resolution

The plaintiffs filed suit in state court asserting claims arising out of the construction and installation of a modular home. The defendants removed the action to federal court and filed an answer denying the material allegations of the complaint. The defendants’ answer did not assert mandatory arbitration as an affirmative defense. For the next two years, the parties engaged in extensive discovery, followed by failed settlement negotiations. After the settlement negotiations failed, the defendant filed a motion to compel arbitration on the basis of an arbitration provision in the plaintiff’s structural warranty. The district court denied the motion, holding that the defendants defaulted their right to arbitration by waiting over two years and until nearly all pretrial preparations had been completed to request arbitration. On appeal, the United States Court of Appeals for the Fourth Circuit affirmed. The court held that although under the Federal Arbitration Act delay and participation in litigation do not by themselves constitute default of the right to arbitrate, the defendants had so substantially utilized the litigation machinery that to permit arbitration would prejudice the plaintiffs, who had expended significant time and money responding to the defendants’ motions and preparing for trial.

Windham v. Riddle, 381 S.C. 192, 672 S.E.2d 578 (2009).
Opinion No. 26586, decided January 20, 2009.
Practice Areas: Real Estate

The plaintiff and the owners of an adjoining parcel of land bought their properties from a common owner. In 1992, the plaintiff and the common owner entered into an installment land sale contract which provided that the common owner would convey title to the plaintiff at the end of the repayment period. The contract also purported to reserve an easement to the common owner for irrigation purposes. However, the common owner did not actually deed the property to the plaintiff until the end of the repayment period in 1998, one year after the common owner had conveyed the adjoining parcel to the defendants. The 1998 deed, like the contract of sale, purported to reserve an easement to the common owner for irrigation purposes. The trial court found that the contract of sale had created an appurtenant easement which passed to the defendants when they purchased the adjoining parcel in 1997, but the South Carolina Supreme Court reversed. The court held that the contract of sale could not have created an easement because it did not actually transfer title to the plaintiff. The court likewise held that the 1998 deed to the plaintiff could not create an easement because the common owner had already conveyed the adjoining parcel to the defendants and therefore could not create an easement in favor of the adjoining parcel.

McGill v. Moore, 381 S.C. 179, 672 S.E.2d 571 (2009).
Opinion No. 26585, decided January 20, 2009.
Practice Areas: Contract Law, Real Estate

A purchaser made an offer to purchase a tract of land held by multiple owners, known and unknown, by way of intestate succession and devises from wills. The purchaser’s attorney prepared a contract of sale and distributed nine identical copies of the contract to various owners. The contract provided that closing would take place within thirty days after the last contract was signed. All but one of the contracts was signed, and of the eight signed contracts, five were closed. The purchaser filed suit seeking specific performance of the three contracts which were signed but never closed, but the master-in-equity found that the contract contained a condition precedent requiring all owners to sign a contract before the closing could take place. Thus, because one of the nine contracts was never signed, the purchaser was not entitled to specific performance. On appeal, the South Carolina Supreme Court affirmed, holding that the contract contained a condition precedent which could not be waived by the purchaser and which the purchaser could not circumvent by arguing substantial compliance.

Johnson v. Sonoco Products Co., 381 S.C. 172, 672 S.E.2d 567 (2009).
Opinion No. 26584, decided January 20, 2009.
Practice Areas: Appellate, Workers' Compensation

An employee filed a claim for workers’ compensation benefits. The single commissioner awarded benefits, but the Workers’ Compensation Commission reversed. On appeal, the circuit court reversed the commission and reinstated the single commissioner’s award. The South Carolina Court of Appeals affirmed the circuit court’s order, and the South Carolina Supreme Court denied certiorari. Prior to the conclusion of the appeal in the underlying case, the employee filed motions in the circuit court to compel payment of benefits and for sanctions against the employer. The employer objected on the grounds that the award of benefits was stayed during the appeal and that the circuit court lacked jurisdiction to consider the motions absent a remand. The circuit court rejected the employer’s arguments and awarded the requested relief. The employer subsequently paid the benefits, but challenged the award of sanctions on appeal. The South Carolina Supreme Court affirmed, holding that when the commission’s denial of benefits was reversed and an award made by the circuit court, the award was not stayed by the appeal. The court further held that because the circuit court retains jurisdiction over matters not affected by an appeal, it had the authority to enforce by appropriate sanctions matters not stayed by the appeal, including the award of benefits.

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

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.

S.C. Dep’t of Transportation v. Hood, 381 S.C. 318, 672 S.E.2d 595 (Ct. App. 2009).
Opinion No. 4486, decided January 13, 2009.
Practice Areas: Real Estate

The South Carolina Department of Transportation (SCDOT) filed a notice of condemnation to acquire a 3.5-acre section of property for a highway project. Subsequently, SCDOT filed this action to determine the value of the property. Prior to trial, SCDOT moved to exclude evidence of prior unaccepted offers and unexercised options to purchase the condemned property, but the trial court denied the motion. At trial, the property owner introduced evidence of an expired unexercised option to purchase the property for $30,000 per acre, and the jury ultimately awarded the property owner approximately $28,500 per acre. On appeal, the South Carolina Court of Appeals reversed, holding that evidence of an unexercised option to purchase property is not admissible as evidence of the property’s value. The court likened unexercised options to unaccepted offers, which are inadmissible for valuation purposes.

S.C. Farm Bureau Mut. Ins. Co. v. Durham, 380 S.C. 506, 671 S.E.2d 610 (2009).
Opinion No. 26579, decided January 12, 2009.
Practice Areas: Insurance Coverage

Two homeowners drained their in-ground pool for cleaning, and subsequently the pool “floated,” meaning that it rose from its foundation and caused damage to both the pool and the surrounding deck. The homeowners filed a claim under their homeowner’s insurance policy, but their insurer denied coverage and filed this suit seeking a declaratory judgment that the policy provided no coverage for the claim. The insurer relied on a policy exclusion which excluded coverage for loss caused directly or indirectly by water damage, including water below the surface of the ground which exerts pressure on a swimming pool. The insurer argued that because expert testimony established that pressure from underground water caused the pool to “float,” the policy did not cover the claim. The circuit court found that the claim was covered by the policy, finding that the “cause” of the damage was the homeowners’ drainage of the pool, but the South Carolina Supreme Court reversed. The court found that it was error for the circuit court to apply legal causation principles because the exclusion specifically stated that it applied “regardless of any other cause or event contributing concurrently or in any sequence to the loss.” Thus, because pressure from underground water was indisputably one of the causes of the damage, the exclusion applied.

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.
Practice Areas: Legal Malpractice Defense, Litigation

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.

Turner v. Milliman, 381 S.C. 101, 671 S.E.2d 636 (Ct. App. 2009).
Opinion No. 4478, decided January 12, 2009.
Practice Areas: Personal Injury

Two insureds filed suit against their health insurer and its agent asserting fraud and negligent misrepresentation after the insurer increased its premiums to the point where the insureds could no longer afford the coverage. The insureds alleged that the agent had represented to them that the premiums on the group policy they purchased would not increase as dramatically as the premiums on individual insurance plans. The defendants moved for summary judgment on several grounds, including that the insureds claims were barred by the three-year statute of limitations and that in any event the agent’s alleged representations were insufficient to support claims for fraud or negligent misrepresentation. The trial court granted the motion and the South Carolina Court of Appeals affirmed. The court held that whether the statute of limitations had run was a factual question and that summary judgment should not have been granted on that issue. Nevertheless, the insured’s claims were not actionable even if true because the agent’s alleged representations were nothing more than his opinion about future events.

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.
Practice Areas: Litigation

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.
Practice Areas: Litigation

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.
Practice Areas: Litigation

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.

Bartley v. Allendale County School Dist., 381 S.C. 262, 672 S.E.2d 809 (Ct. App. 2009).
Opinion No. 4476, decided January 8, 2009.
Practice Areas: Workers' Compensation

The claimant, a special education teacher, sought workers’ compensation benefits after she was inadvertently injured by one of her students during recess. Feeling better, she began teaching in a different school district the following year, noting on a medical questionnaire that she had no bank or joint pain and no chronic illnesses. After a few months in her new position, she began experiencing new symptoms and filed an additional workers’ compensation claim. Her employer resisted the claim, asserting that the claimant’s symptoms began prior to the initial incident as a result of depression. The single commissioner found that the claimant suffered a neck injury from the initial incident, but that the claimant was not disabled as a result of the injury because she resumed working the following school year. The Appellate Panel and Circuit Court affirmed the single commissioner’s findings, as did the South Carolina Court of Appeals. The court held that the claimant failed to carry her burden of proof that her injuries resulted from or were aggravated by the initial incident.

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