South Carolina Legal Malpractice- Case Law Update

Johnson v. Alexander, Opinion No. 5208

On March 19, 2014, the South Carolina Court of Appeals issued an opinion in a legal malpractice action, Amber Johnson v. Stanley E. Alexander, Mario S. Inglese, and Charles Feeley.  The Court of Appeal reversed a trial court order on summary judgment finding that attorney Stanley Alexander committed legal malpractice in closing a real estate transaction.  In this case, Mr. Alexander relied on a title examination prepared by another attorney that failed to disclose that the property was subject to a tax sale based on the delinquent taxes.  Is so reasoning, the Court of Appeals agreed that a genuine issue of material fact existed as to whether Mr. Alexander was reasonable in relying upon the title examination that was conducted by another attorney.  The case held that relying on a bad title examination does not create legal malpractice as a matter of law.

Trial Attorneys Joel W. Collins and Robert F. Goings represented the prevailing party on appeal, attorney Stanley Alexander.

Click Here to Read the Opinion.


South Carolina Business Courts Update

S.C. Business Courts – Now Open for Business State-Wide

The South Carolina Supreme Court on January 3, 2014 expanded the Business Court to cover all counties in South Carolina.  Here is the Order of Chief Justice Toal that explains how the business court program works:

The Supreme Court of South Carolina

In re: Business Court Pilot Program Expansion Statewide

Administrative Order

Pursuant to the provisions of S.C. Const. Art. V § 4, I find that the South Carolina Business Court Pilot Program, established on September 2, 2007, by Order 2007-09-07-01,  and extended by Order 2009-10-13-01 and Order 2011-11-30-01, has successfully created an option to litigate complex business, corporate, and commercial matters in the circuit courts of this State and should be expanded statewide.

Expansion of the Business Court Pilot Program Statewide

1. It is ordered that the Business Court Pilot Program be expanded to cover all counties in South Carolina.  The State shall be divided into three Business Court Regions.  If a Business Court case is filed in any county within the Business Court Region, the Chief Justice may assign exclusive jurisdiction over the case to the Business Court Judge assigned to that region.  The Business Court Judge shall retain jurisdiction over the case regardless of where he or she is assigned to hold court and may schedule such hearings as may be necessary at any time without regard to whether there is a term of court scheduled.

Business Court Regions

2. The Business Court Regions are as follows:

Region 1:  Abbeville, Anderson, Cherokee, Chester, Fairfield, Greenville, Greenwood, Lancaster, Laurens, Newberry, Oconee, Pickens, Spartanburg, Union, and York Counties.

Region 2:  Aiken, Bamberg, Barnwell, Chesterfield, Clarendon, Darlington, Dillon, Edgefield, Florence, Kershaw, Lee, Lexington, Marion, Marlboro, McCormick, Richland, Saluda, Sumter, and Willamsburg Counties.

Region 3:  Allendale, Beaufort, Berkeley, Calhoun, Charleston, Colleton, Dorchester, Georgetown, Hampton, Horry, Jasper, and Orangeburg Counties.

Designation of the Business Court Judges

3. In addition to their other duties as circuit court judges, the following judges shall be assigned to preside over the Business Court Regions:

The Honorable Edward W. Miller — Region 1
The Honorable Clifton Newman — Region 2
The Honorable Roger M. Young, Sr. — Region 3

Jurisdiction of the Business Court

4. Without respect to the amount in controversy, civil matters in which the principal claim or claims are made under the following Titles of the South Carolina Code of Laws are appropriate matters to be assigned to the Business Court:

a. Title 33—South Carolina Business Corporation Act of 1988;
b. Title 35—South Carolina Uniform Securities Act of 2005;
c. Title 36, Chapter 8—South Carolina Uniform Commercial Code: Investment Securities;
d. Title 39, Chapter 3—Trade and Commerce: Trusts, Monopolies, and Restraints of Trade;
e. Title 39, Chapter 8—Trade and Commerce: The South Carolina Trade Secrets Act;
f.  Title 39, Chapter 15—Trade and Commerce: Labels and Trademarks; or,
g. for such other cases as the Chief Justice may determine.

Management and Disposition Procedures for Business Court

5. Assignment of cases to the Business Court may be made by the Chief Justice sua sponte or at the request of counsel.

6. Counsel shall request assignment of a case to the Business Court no later than 180 days after the commencement of the action.  This requirement may be waived by the Business Court Judge.

7.  Counsel’s request for Business Court assignment must be made on SCCA BC Form 101 and filed in the appropriate county.  Counsel must forward a copy of SCCA BC Form 101 to the Business Court Judge assigned to that region.  Upon receipt of the SCCA BC Form 101, the Business Court Judge shall make a recommendation to the Chief Justice regarding assignment of the case to the Business Court.

8. The Chief Justice’s decision shall be indicated on SCCA BC Form 101, and copies of SCCA BC Form 101 shall be provided by Court Administration to counsel of record, the assigned Business Court Judge, Chief Judge for Administrative Purposes (civil), and Clerk of Court for the respective county.

9. If the Chief Justice approves the request, the Chief Justice shall assign exclusive jurisdiction over the case to the Business Court Judge assigned to the Business Court Region.  The Chief Justice has the discretion to assign a Business Court case arising from any county to any of the three Business Court Judges.

10. The Business Court Judge shall coordinate with the Chief Judge for Administrative Purposes (civil) of the respective county and Court Administration to schedule hearings and/or the trial.

11. The Chief Justice shall review the case load activity for the three designated Business Courts periodically during the pilot program to ensure efficiency and appropriate use of judicial resources.

Business Court Orders Available Online

12. The Business Court Judge shall issue written orders with respect to all decisions on motions to dismiss under Rule 12 of the South Carolina Rules of Civil Procedure and motions for summary judgment under Rule 56 of the South Carolina Rules of Civil Procedure.  The Business Court Judge is encouraged to issue written orders on other non-jury, pretrial matters.  All Business Court orders pursuant to motions to dismiss under Rule 12 of the South Carolina Rules of Civil Procedure and motions for summary judgment under Rule 56 of the South Carolina Rules of Civil Procedure shall be publicly available through the Judicial Department’s website athttp://www.sccourts.org/busCourt/index.cfm.

Effective Date

13. The Business Court Pilot Program, as established in Order 2007-09-07-01 and extended by Order 2009-10-13-01 and Order 2011-11-30-01, shall be extended for an additional two years, effective January 3, 2014, unless rescinded or modified by future order of the Chief Justice.

14. To the extent available in a Business Court forum, the use of technology by parties in matters assigned to the Business Court is encouraged. The Business Court Judge presiding over a matter shall make the final determination on whether the use of technology in any proceeding or conference is warranted.

s/Jean Hoefer Toal
Jean H. Toal
Chief Justice of South Carolina
Columbia, South Carolina
January 3, 2014


Personal Injury Mediation: 5 Things to Expect

mediation-injury-accident-what-to-expect

In South Carolina, mediation is mandatory in many counties in state court as a part of the pre-trial process. The federal court in South Carolina frequently orders parties to conduct mediation as part of a scheduling order. Mediation is a non-binding process designed to facilitate a settlement

Why mediation? Because it works in reaching a settlement, and works well. Mediation allows litigants to decide the outcome of their own cases without the risk of a jury or having your case or verdict overturned by a judge.

Mediation has been highly successful at resolving many lawsuits as a form of alternative dispute resolution, especially in personal injury cases such as business torts, automobile accidents, falls, and injuries caused by defective products. Oftentimes mediation is the first opportunity where the parties can meaningfully sit down and discuss the merits of case in an attempt to reach a settlement through negotiation. *While mediation is often productive, mediation can fail if the parties are not properly prepared of what to expect.*

If you are attending a mediation as a plaintiff (the injured party) in a personal injury lawsuit, here are 5 things to expect:

  1. Expect to hear statements from the opposing party that you disagree with. At the beginning of most mediations, the parties and their lawyers will gather in conference room together for opening statements. You and your attorney will be on one side of the table. The defendant, the defendant’s attorney, and usually a representative from the defendant’s insurance company will sit on the other side. The mediator, who is neutral, will sit at the head of the table. Your attorney will present your side of the case. The defense attorney will then make statements that will challenge your view of the facts and the value of your case. This is his or her job. Do not be offended.
  2. Expect the parties to be far apart at the beginning. At the early stages of the negotiations, you can expect the parties to be far apart. You can count on “low ball” offers from the defense, or offers that too low to consider. The defense can expect your starting point to be too high, as well. Remember to be patient. As with any negotiations, it’s not where you start, it’s where you end!
  3. Expect the process to be lengthy. A successful mediation can take anywhere from a few hours or a full day. In our experience, the average mediation time is between 4-6 hours. The process takes time because the mediator will be meeting privately with the parties in separate rooms in order to gather information about the case. The mediator will deliver offers and demands back and forth between all interested parties.
  4. Expect the mediator not to pick a side. The mediator is not your attorney or your advocate. The mediator’s only “client” is the “settlement.” In order for a mediator to facilitate a settlement, he must be neutral and fair to all parties. The mediator cannot “pick” one side over the other.
  5. Expect to compromise.  Mediation cannot work without compromise. If you want to reach a settlement, then you must be willing to make concessions that are reasonable and fair. Mediation is a “give and take” process that allows you to maximize your rewards and minimize your risks through a negotiated settlement. Without compromise, you can expect your case to end in court.

Columbia Personal Injury Mediation Attorney

If you or a loved one has sustained personal injuries from the negligence or fault of another, it’s important to hire an experienced personal injury attorney to protect your rights. Many personal injury lawsuits are settled at mediation. If you have any questions about the mediation process, please call us today at (803) 350-9230 and we will be happy to answer your questions.


Civil Conspiracy in South Carolina

What is Civil Conspiracy in South Carolina?

By: Robert F. Goings

South Carolina law has established a civil cause of action known as “civil conspiracy.”  Civil conspiracy can be alleged in certain injury or business litigation cases.  The law of civil conspiracy has evolved over the years in South Carolina, and in sometimes, this claim can prove particularly useful to a plaintiff in establishing liability against multiple defendants.

Here are the 3 elements of a South Carolina civil conspiracy claim:

First Element: The Combination of Two or More People and/or Entities

The actions of two or more individuals or legal entities are required.  To establish a conspiracy, evidence, direct or circumstantial, must be produced from which a party may reasonably infer the joint assent of the minds of two or more parties to the prosecution of the unlawful enterprise. Importantly, in South Carolina, a company or corporation cannot conspire with itself. The combination of an employee acting on behalf of a company does not meet the requirement of two or more persons/entities. Stated differently, a civil conspiracy cannot exist when the alleged acts arise in the context of a principal-agent relationship because by virtue of the relationship such acts do not involve separate entities.

Second Element: For the Purpose of Injuring the Plaintiff

The “essential consideration” in civil conspiracy is not whether lawful or unlawful acts or means are employed to further the conspiracy, but whether the primary purpose or object of the combination is to injure the plaintiff.  The purpose of the acts must be to foreseeably cause injury to the plaintiff.  The commission of an unlawful act is not a necessary element of the tort.

Third Element: Special Damages

Appellate cases in South Carolina indicate that special damages must be separate and distinct from the damages sought in any other cause of action.  An obvious reason for this requirement is to prevent double recovery.  Although, it is unclear whether special damages in this context means damages that are economic and quantifiable in nature, instead of non-economic damages such as a pain and suffering, loss of enjoyment of life, damage to reputation, etc.