South Carolina Lawyers Weekly August 1, 2022

SCLAWYERSWEEKLY.COM VOLUME 20 NUMBER 15 ■

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$4.2M settlement for estate of woman killed by pest treatment ■ BY HEATH HAMACHER

residents proud. And they can tie a federal building to the very local community in which it sits.”

The artists are chosen from a National Artist Registry, a database of American artists who have submitted samples of their work to be reviewed by panels of experts for possible selection. Artists who receive commissions work with the building architects and others in a collaborative design team to integrate the artwork into the overall plan for a building. The program is

The estate of a woman who died after a thermal pest treatment was applied to her home has settled its wrongful death claim for $4.2 million.

Attorneys for the estate of 63-year-old Sharon Brockington said that in August 2018, a Terminix Services technician applied a bed bug heat treatment to her small apartment and told her that she could reenter in two to four hours (consistent with chemical J. Michael treatments) rather Baxley than the requisite 12 hours for heat treatments.

Brockington’s landlord found her dead inside the apartment the following day.

“An autopsy revealed the cause of death was hyper- Douglas thermia from ex- Jennings Jr. posure to extreme heat resulting in multi-organ failure,” the attorneys wrote in an email to Lawyers Weekly. “Temperatures in the apartment were recorded at 109 degrees more than 20 hours after the heat treatment.”

The attorneys argued that Brockington died when heat radiated back into the apartment overnight from excess heat energy from the

See Artwork Page 2 ►

S e e Tr e a t m e n t P a g e 6 ►

Artist Joyce Kozloff created a suite of ceramic tile and glass mosaics that feature present-day Google Earth aerial views of textile mills in communities served by the courthouse. Credit: Tom Vinetz.

Artwork brings culture to life at courthouses ■ STAFF REPORT Several new courthouses coming online as a result of a $948 million investment by Congress in recent years are getting an aesthetic touch thanks to the federal government’s Art in Architecture program, according to a post on the USCourts.gov website.

Run by the General Services Administration (GSA), the agency responsible for building courthouses and other federal buildings, the program makes it possible to display museum-quality artwork in

places frequented by the public “to create a lasting cultural legacy for the nation,” the GSA says.

“At their best, public art projects at courthouses invite those who are passing by or through the courthouse to pause and reflect on that art. It may draw a smile or an angling of the head,” said U.S. District Judge Jeffrey J. Helmick, who chairs the Judicial Conference’s Space and Facilities Committee. “The projects can reflect the history and flavor of the region.

They can honor the identity of the community in a way to make its

Elevator death leads to $20M settlement ■ BY HEATH HAMACHER The estate of a man killed after falling approximately 60 feet from an elevator he was working on has settled its claims for wrongful death and negligence, among others, for $20 million.

Attorneys for Lennox Hinckson said that the 65-year-old immigrated from Guyana in the 1980s and made a career in America installing, servicing, and maintaining elevators. Hinckson worked for Alimak Elevator Company and traveled the country working on industrial eleva-

tors. The North Charleston resident was working locally in December 2019, providing “stand by” service during a corporate tour of Holcim’s Holly Hill cement plant when the incident occurred.

Two of Hinckson’s attorneys, David Yarborough and Perry Buckner of Yarborough Applegate in Charleston, said that Hinckson was performing an impromptu repair job on a preheater elevator stopping short of the fourthfloor landing, adjusting a limit switch.

The attorneys said that Holcim’s personnel failed to abide by their third-party contractor

safety policies and procedures to provide Hinckson a safe workplace by notifying the control room operators, who typically limit and restrict access to workers in certain areas, that Hinckson was on site.

“Holcim employees were working in and around the pre-heater tower area and using the subject elevator there without restriction,” the attorneys wrote in an email to Lawyers Weekly.

“No warning signs, barricades, or other notifications were in place to warn that elevator repair See Elevator Page 8 ►

INSIDE COMMENTARY

ANALYSIS

VERDICTS & SETTLEMENTS

Surprise! Office birthday bust serves as warning to employers

COA reverses conviction on failure to provide jury with definitions

Bars, drunk driver pay $7.36M in wrongful deaths

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S O U T H C A R O L I N A L A W Y E R S W E E K LY I Au gu s t 1, 2022

LAWYERS IN THE NEWS Associate joins Greenville firm Haynsworth Sinkler Boyd P.A. has announced that Brandi Porter has joined the firm’s Greenville office as an associate.

Porter advises clients on real estate-related matters, including drafting and negotiating purchase and sale agreements, deeds and mortgages. She has experience providing legal guidance regarding the governance of community associations.

Before joining Haynsworth Sinkler Boyd, Porter was an attorney with a Carolinas-based law firm. She also served as staff attorney for the Charleston County Aviation Authority, advising on corporate matters.

She earned her Juris Doctor from

the Charleston School of Law and her Bachelor’s Degree from Queens University of Charlotte.

Haynsworth Sinkler Boyd provides business, litigation and financial legal services to local, national and international clients.

Greenville firm hires attorney

Poulin | Willey | Anastopoulo has announced the hiring of Kristie Shaw as its new attorney in its Greenville, S.C., office.

Shaw comes from The Shaw Law Firm LLC. She received her J.D. from University of South Carolina Law School, obtained an MBA from Davenport University, and a bachelor’s degree from the University of Albany.

Shumaker expands line with new hire Shumaker has expanded its Real Estate and Development Service Line with the addition of Senior Attorney Elizabeth S. Moore, who has more than 20 years of real estate law experience.

“Elizabeth will be of considerable value to Shumaker’s real estate practice,” said Partner and Real Estate and Development Regional Service Line Leader Trey Baker.

“She brings an impressive level of experience to our growing team.”

Moore focuses on all aspects of residential and commercial real estate transactions, business acquisitions, and formations. She enjoys working closely with all parties in a

transaction, whether they are firsttime homebuyers or sophisticated investors, ensuring they are fully informed at all stages of the transaction.

Moore represents individual clients and entities with acquisitions, development, dispositions, and financing of commercial and residential properties throughout South Carolina and in connection with the representation, preparation, and negotiation of contracts, easements, leases, and other agreements.

Additionally, Moore has extensive experience in title curative work and in representing lenders and servicers in residential and commercial mortgage foreclosure actions and in bankruptcy proceedings.

ARTWORK / Artwork brings culture to life at courthouses C o nt inu e d f r o m 1 ►

funded by setting aside one half of 1 percent of a project’s estimated construction cost for the art.

Greenville, S.C.

Artist Joyce Kozloff created a work celebrating the history of

mapmaking and the Upstate South Carolina region’s history as a hub of textile production in the United States. Her suite of 17 ceramic tile and glass mosaic panels depict present-day Google Earth aerial views of textile mills. At the top of each map, the artist painted a textile pattern that was produced at

the mill. The maps are paired with textile artwork that was traditionally handmade by women in the region, such as quilts made in the 19th Century.

Incorporating artwork into public spaces dates to the mid-19th Century, when murals and sculptures were commissioned for fed-

eral buildings and reflected a bias in favor of European artists and styles, according to GSA’s history of the Art in Architecture program.

The New Deal in the 1930s created federal arts programs emphasizing American artists and architects, reflecting “a desire to establish a distinctly American national culture.”

Surprise! Office birthday bust serves as warning to employers ■ BY STEPHEN SCOTT BridgeTower Media Newswires Last month, we threw a berrythemed first birthday party for my daughter. It was a blast and the “smash cake” was a hit. But I was shocked at its cost when we could have simply grabbed a Hostess cupcake and likely achieved the same level of joy and sugar crash.

Yet as I paid for the smash cake and flipped through Twitter, I saw a headline out of Kentucky that grounded me on the potential cost of a celebration. The tweet informed me of a $450,000 bill associated with a surprise office birthday party gone awry.

In this case, it had less to do with the fact that the employer threw a surprise party than with how it handled the situation — and particularly the fallout.

This case presents important reminders for employers about how disabilities should be handled in the workplace — and how a similar fate can be avoided.

Worst birthday party ever?

For the longest time, I always thought my dad’s gift of different kinds of ketchup for a ketchupthemed surprise birthday (okay, I was really into chicken strips as a little kid … and, I guess, still am) would be the mark of the worst birthday party ever. But after reading the facts of this recent case I’ve changed my opinion.

This case stemmed from a surprise birthday party thrown by Gravity Diagnostics LLC for lab worker Kevin Berling. According to his lawsuit, Berling suffered from an anxiety disorder and specifically asked his office manager not to celebrate his birthday party in the office.

Coincidentally, the office manager was out of the office on Berling’s big day and his co-workers decided to plan him a surprise

birthday celebration. When Berling caught wind of it, he alleged that he suffered a panic attack and spent his lunch period hiding out in his car.

But what happened next was particularly damning for the employer. According to Berling, his managers subsequently called him into a meeting and scolded and belittled him for his reaction. In fact, according to media reports, Berling said he was accused of “stealing his co-workers’ joy.”

This in turn led Berling to suffer another panic attack; he then attempted to de-escalate the situation by clenching his fists. According to the lawsuit, his behavior alarmed the managers, who feared Berling might respond violently.

He says they asked him to immediately leave the property. He alleged that the company terminated him several days later.

Berling sued his ex-employer for disability discrimination, and by the time the case went to the jury, the only claim to decide was whether Gravity Diagnostics failed to reasonably accommodate his disability.

Ultimately, the jury awarded Berling $450,000 — $120,000 in lost wages and benefits, $30,000 in future lost earnings, and $300,000 for pain and suffering, mental anguish, embarrassment, humiliation, mortification and loss of selfesteem.

At some point soon, the court will tack on reasonable attorneys’ fees and costs, which could considerably increase the final tally that Gravity Diagnostics must pony up.

All in all, that’s a costly payout for a birthday cake and some decorations.

How to avoid a similar fate What went so wrong with what was supposed to be a joyous occasion? Employers should consider

taking some simple steps in such circumstances: Listen to employees and beware of potential disabilities – There was some dispute in this case about whether Berling had explicitly informed his employer about his anxiety disorder. Regardless of what happened here, it’s a good reminder to be attuned to employees who may have disabilities and are seeking reasonable accommodations, even if not specifically couched in those terms.

An employee who expresses significant unease with an office social function may very well be signaling presence of some form of disability such as an anxiety disorder. A request to not throw a party or not participate in a similar workplace function could be construed by a court as a request for a reasonable accommodation if the employee ties such a request to something that is health related.

At a minimum, be aware that such an issue could trigger an obligation to engage in an interactive process via further discussion with employees.

Understand we are in a new, post-COVID-19 era – While many employees are excited about returning to offices, seeing co-workers again, and resuming social interactions at work, beware that this may not be a universal sentiment. In the post-pandemic world, many employees may still be cautious or even fearful about such interactions.

Train staff on proper ways to handle similar situations – Employees, especially HR folks and front-line supervisors and managers, should be trained to be attentive to such issues. They should know the specific steps to take in response to requests for reasonable accommodations and how to handle potential disabilities. Leaving employees to navigate these is-

sues on their own and figure things out “on the fly” is almost always a recipe for disaster.

Explore alternatives to immediate termination – Before taking any adverse action against an employee, consider working with appropriate staff to see whether there have been performance issues, disabilities, or any mitigating circumstances. This process should be well-documented and consistent across the board.

In this case, the company alleged that it was concerned about violent behavior by Berling and acted on its “zero tolerance” policy toward workplace violence in making the decision to discharge him.

Depending on the circumstances, removing an employee from the workplace may be the right call from a violence prevention standpoint. Other times, it may make sense to provide a “cooling off” period of paid leave to assess the situation further and determine the appropriate course of action – rather than immediately terminate the employee without having all the facts.

Can we still throw birthday parties?

Does this massive legal loss spell the end of office birthday parties as we know them?

Thankfully, no. Cases such as this generate a lot of attention due to their novelty. They also provide a good reminder for all employers to take a step back and contemplate how they would have handled a similar situation, and what they would have done differently.

Keeping the points above in mind may help you avoid a similar outcome and ending up with egg (or birthday cake) on your face.

Stephen Scott is an associate in the Portland office of Fisher Phillips. Contact him at 503-205-8094 or smscott@fisherphillips.com.

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Employment implications arising from Dobbs v. Jackson Women’s Health Organization ■ BY LISA MICHELLE KOHRING AND WESTON J. MUMME The U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization on June 24, 2022, overturning Roe v. Wade and Planned Parenthood v. Casey and holding that there is no right to abortion in the U.S. Constitution. In doing so, the court returned the authority to regulate abortion to the individual states. The Dobbs decision poses a unique set of challenges for employers, as state regulations on abortion will vary greatly from state to state.

Key Considerations for Employers

Employer-sponsored benefit plans are generally preempted by the Employee Retirement Income Security Act of 1974 (ERISA), but there are preemption exceptions included for state laws governing insurance coverage. Employers who purchase employee insurance coverage, as opposed to employers that self-fund employee insurance coverage, may see changes to reproductive healthcare coverage. It is likely that state-licensed insurance companies operating in states that prohibit or significantly restrict abortions will now limit or completely exclude employer coverage for abortion-related and other reproductive healthcare services.

Other insurance companies may limit coverage for abortion-related services for employees in states that prohibit abortions, even if the employee is willing to travel to a different state where such services are permitted. Employers should review their healthcare plans with internal decision-makers and human resources professionals, educate them about the types of coverage offered to employees, and provide guidance about responding to employee inquiries about coverage changes. Employers also may wish to consult with their insurance brokers to confirm whether their insurance plans may be modified in the future to exclude or limit abortion-related services for all or a select group of employees.

In the wake of the Dobbs opinion, some states have already imposed “trigger laws” imposing restrictions or outright bans on abortion. Others, such as Texas and Oklahoma, have additionally enacted laws criminalizing abortion. Importantly, some of these laws explicitly state that providing coverage or reimbursement of abortion expenses is considered aiding and abetting abortion. Employers considering increasing contributions for employee health savings accounts (HSAs), implementing health plan amendments or expanding plans that would cover travel and lodging expenses for employees who may choose to seek outof-state reproductive and abortion-related services should consider whether doing so may expose the employer to civil or criminal liability.

In the days ahead, there will undoubtedly be a wide array of emotional responses to the Dobbs decision. Employers should be mindful about how employees may react, the impact of differing viewpoints on employee morale and productivity, the possibility of an increase in requests for leave and potential employee resignations. Reviewing handbooks, policies and procedures as well as retraining managers and employees on company policies governing codes of conduct and anti-discrimination, harassment and retaliation will remind employees of appropriate conduct in the workplace.

Human resources professionals and supervisors should re-familiarize themselves with practices governing maintenance of confidential health information and the policies governing dress code and social media conduct. How will the company respond to an employee who comes to work with an anti-abortion message on his or her shirt? What about an employee who tweets out an offer to drive co-workers to get an abortion from a state that has criminalized such actions? Importantly, employers must ensure that policies and procedures are applied uniformly and that decision-makers know how to respond to these potential situations to mitigate potential liability and claims of discrimination.

Employers should also be mindful that certain

speech in the workplace may be protected, including speech about abortion. While the right to free speech under the First Amendment does not extend to private workplaces, other laws protect specific types of expression in the workplace such as the National Labor Relations Act (NLRA) and Title VII of the Civil Rights Act. The NLRA allows employees to seek better working conditions by discussing the terms and conditions of their employment without fear of retaliation. Traditionally, the NLRA’s protections are limited to employees engaging in protected concerted activity.

Under the Biden Administration, however, the National Labor Relations Board (NLRB) has taken a decidedly pro-union view of what constitutes protected concerted activity. Accordingly, it is possible that employee discussions regarding topics – such as an employer’s policy providing fringe benefits to women seeking reproductive and abortion-related healthcare services – may fall under the rubric of concerted protected activity.

Title VII serves to, among other things, protect employees from religious discrimination and requires employers make reasonable accommodations when necessary. Because the issue of abortion is closely intertwined with religious beliefs and practices, employers should take special care to ensure that no actions are taken against employees based on their religious beliefs for or against abortion and that all policies and procedures are applied equally irrespective of viewpoint.

Next Steps Employment issues and laws will continue to evolve in the aftermath of the Dobbs decision. Employers should consult with legal counsel to stay abreast of changes to the legal landscape and for guidance in making informed decisions and creating clear and consistent messaging to employees and the public.

Lisa Kohring and Weston J. Mumme are labor and employment attorneys at Holland & Knight, which has offices in Charlotte, N.C.

Starting a law firm: Not for the faint of heart, but worth it ■ BY BRIAN GREENE AND ERIC HURLOCKER BridgeTower Media Newswires We started a law firm 10 years ago with a pen, a piece of paper and a pitcher of beer. Little did we realize at the time how rewarding our partnership would be.

But for the same reasons it can be rewarding — you’re your own boss and your success is based on your efforts alone — it can also be terrifying. As we celebrate our first decade together, we wanted to share six important lessons we learned from our experience.

It’s really important to have a niche Lawyers who start their own firm face a threshold decision: Go deep or go broad?

We chose deep, and having a defined niche was one of the most important strategic moves we made to enable the growth of our firm. And we’re not alone. Many firms gain traction and momentum by narrowly focusing on discrete markets rather than trying to appeal to everyone.

One of the key benefits of having a niche is that it allows a small firm to reduce competition. And when a small firm is focusing only on one, or a small number, of substantive areas of the law, it can be seen as a viable alternative to larger firms for larger clients, whereas a generalist small practice may not be. That means competing on expertise, not price.

By competing on expertise, we found that we could be more profitable, which allowed us to grow into new practices and open new offices.

Collaborate, don’t compete Another important strategic decision we made was to view larger firms in our space as potential collaborators, not just competitors. We focus on building relationships — not burning bridges — with lawyers at larger firms. And over the years this has led to significant referral work coming our way when a large firm can’t serve a client due to a conflict or rate pressure.

Every lawyer and law firm can (and should) approach relationships with “adversaries” with a similar abundance mindset. Of course, vigorously represent the interests of your clients. But don’t overlook the fact that the legal community is small. And

strong relationships with colleagues within and outside of your firm can be your most valuable asset.

Run your firm like a business If you want to experience the autonomy and other benefits of practicing law on your own terms, you need to run your practice like a business. That can be a challenge for many lawyers who aren’t accustomed to things like hiring, firing, managing cash flows and vendors — things we’re not taught in law school, and that other people handle when you’re employed by a firm.

One of the ways to run a firm like a business is being strategic about the hiring of attorneys and staff. Small firms sometimes mistakenly hire people too soon based on faulty assumptions about potential growth.

It’s important to manage growth intentionally, which often means not just waiting until you feel stretched thin before hiring, but also knowing that the reason you’re stretched is going to continue.

It’s critical, in particular, to take your time and get things right with your first few hires given how much a bad hire can impact your firm when you’re small.

Pick the right partner If you’re going to start a firm with at least one partner, choose wisely. More than anything, make sure you have a shared vision.

Everyone wants their firm to be a success, but “success” can mean very different things to different people. For example: Do you want to make millions of dollars per year?

Do you want to be home for dinner at 6 p.m. every night and never miss your kids’ sports games and dance recitals?

How large of a firm do you want to build?

We talked about all this and more when forming our firm. We still talk about it today. The takeaway is that if the vision is not aligned, then the partnership won’t work.

Consistently market your firm and upgrade your relationships As a small firm, it’s easy to get caught up in an endless, up and down cycle: You get slow, you market like crazy. Work comes in, you stop marketing.

It’s exhausting and it’s no way to grow a firm.

It takes discipline and effort, but a better way is to consistently engage in marketing, and the best forms of marketing involve developing relationships with clients and referral sources.

Over the years, we’ve invested in our brand and related advertising. But the highest return on investment has been from the initiatives we’ve undertaken to directly interact with people. We have a breakfast every other week with key contacts in Richmond. We host a big cocktail party every year at one of the main retail energy conferences. We recently started a book club with clients. Some ideas work better than others, but we’re not shy about putting ourselves out there.

It goes without saying that you have to do great work and build trust to generate work. You also have to stay top of mind, and that means consistently engaging in marketing and networking.

Give back and focus on community One of the most rewarding aspects of this entrepreneurial journey is having the ability to give back to the community. It’s pretty cool to see your firm’s name (which happens to include YOUR name!) on a local Little League team you’ve sponsored.

Being in a position of leading a law firm also allows you to address issues impacting the legal community you work in, not just the community you live in. Even small firms can make a big impact. For example, we recently endowed a $100,000 scholarship at the University of Richmond School of Law which is geared toward law students with diverse cultural and ethnic backgrounds. It’s the best investment we’ve made.

Lesson: Whatever value you add to the various communities you’re immersed in, you’ll get much more back in return.

Starting and running a law firm has not been easy —nor should it be —but even if we had the chance we wouldn’t do it differently. If you’re considering hanging a shingle of your own, hopefully these six lessons will help put your firm on a path to success.

Brian Greene and Eric Hurlocker are the founders of the Richmond, Va.-headquartered law firm GreeneHurlocker.

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S O U T H C A R O L I N A L A W Y E R S W E E K LY I Au gu s t 1, 2022

COA reverses conviction on failure to provide jury with definitions ■ BY CORREY E. STEPHENSON BridgeTower Media Newswires A trial court erred when it refused to instruct the jury on the definition of second-degree criminal domestic violence (CDV) and moderate bodily injury as part of its first-degree CDV jury instruction, a panel of the South Carolina Court of Appeals has ruled, reversing the defendant’s conviction for criminal domestic violence of a high and aggravated nature (CDVHAN).

Olandio R. Workman was indicted by a Greenville County grand jury for CDVHAN, kidnapping and possession of a weapon during the commission of a violent crime for events that occurred between Aug. 27 and 29, 2016.

At trial, Workman’s wife testified that he returned home on a Saturday evening and accused her of cheating on him. He demanded she turn over her cellphone, repeatedly slapped and punched her and was constantly “smacking” her in the face.

She testified that this continual abuse lasted through the next day and night, and that Workman did not allow her to sleep or eat. The couple’s two young children, aged two and six at the time, were also in the house.

Workman carried a firearm throughout the weekend to intimidate and threaten her, his wife testified. Before he left for work on Monday, he did something outside and then told her that the house would explode if she opened any of the doors or windows while he was gone.

On Monday evening, Workman informed her that law enforcement was outside their home, and she said he instructed her to put makeup on her bruises and lie down in the bedroom with the kids. When law enforcement entered, she initially lied because she thought Workman was still inside the house and would harm the children.

Workman waived the right to testify and declined to present any other testimony or evidence.

He requested that the trial court define second-degree CDV and moderate bodily injury as part of the first-degree CDV instruction given to the jury, but the court denied the request.

While deliberating, the jury submitted several questions to the trial court, including the difference between CDVHAN and first-degree CDV and the difference between peril and fear of great bodily injury. Workman continued to request instructions on the definition of second-degree CDV and moderate bodily injury.

The jury found Workman guilty of CDVHAN, kidnapping and possession of a weapon during the commission of a violent crime. He appealed.

In an opinion authored by Judge Aphrodite K. Konduros, the panel reversed.

“Because the supreme court has not opted to find the failure to give instructions harmless when the jury convicted of the higher offense, we will not find the error in

failing to give a complete charge on the lesser offense harmless here,” she wrote. “Accordingly, the trial court’s error in giving an incomplete charge on first-degree CDV was not harmless despite the jury’s conviction of Workman of the offense of CDVHAN.” Jury needed definitions Workman argued that the jury needed the definitions of seconddegree CDV and moderate bodily injury because both terms are used in the first-degree CDV statute and the degree of the injury inflicted on the victim was a critical determining factor in the case.

He also told the court that the jury’s submission of several questions demonstrated that the failure to define the terms caused the jury to struggle with the difference between CDVHAN and first-degree CDV. Konduros agreed.

“The supreme court has held a trial court erred in failing to give a defendant’s requested charge that was a correct statement of the law when the trial court’s given charge did not adequately cover the substance of the defendant’s request,” she said.

A defendant is guilty of first-degree CDV if in addition to violating Section 16-25-20(A) – which makes it unlawful to cause physical harm or injury to a person’s own household member or offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril – if one of several other enumerated factors are met, including “(5) the defendant committed second-degree CDV … .”

“The trial court erred in its jury instruction on first-degree CDV by not defining second-degree CDV,” Konduros wrote. “Although the trial court’s instruction was a correct statement of law, the jury likely would not have known what the trial court meant when it referenced second-degree CDV during the instruction.”

Because the trial court did not define second-degree CDV nor moderate bodily injury, the jury could not have understood subpart (A)(5) of the first-degree CDV statute, she said.

“The evidence supported a jury instruction on the definition of second-degree CDV under section 1625-20(B)(5) of the first-degree CDV statute,” Konduros said. “Additionally, because second-degree CDV uses the term moderate bodily injury, the court also should have given the statutorily provided definition of that term. Accordingly, the trial court erred in failing to give the definition of second-degree CDV.” Error wasn’t harmless Even if the trial court erred, the state contended any error was harmless because Workman could not show prejudice as the jury found him guilty of the greater offense – CDVHAN – and never reached first-degree CDV. Although the supreme court has not explicitly ruled on harmlessness in these situations, “[o]ur su-

preme court has reversed convictions in which the trial court failed to charge a lesser included offense supported by the evidence, thus implicitly rejecting the theory that a jury’s conviction of a higher offense shows the error was harmless,” Konduros wrote.

She reviewed the law from other jurisdictions, noting that some states have expressly determined when the trial court has failed to charge a lesser included offense in similar situations such error is not harmless simply because the jury convicted a defendant of the higher offense; others have recognized a distinction in finding harmless error that hinges on whether the jury is charged with an intermediate offense or not; and a few states have gone further in noncapital cases to find even if the jury is not instructed on an intermediate charge, the error can still be harmless.

Additionally, some courts have seemed to find an error in failing to charge the jury with a lesser included offense supported by the evidence can never be harmless.

South Carolina lacked law directly on point, Konduros said. In State v. Lowry, the trial court instructed the jury as to murder and self-defense, but declined to charge the jury as to voluntary manslaughter. Lowry was found guilty of murder but the state’s highest court reversed the conviction, finding the evidence supported a jury instruction on voluntary manslaughter.

Similarly, in State v. Casey, the supreme court reversed the trial court’s refusal to instruct the jury on involuntary manslaughter, reversing the defendant’s conviction for murder.

“In the present case, the trial court charged a lesser included offense, but that charge was incomplete,” she wrote. “Although, the jury had the options of finding Workman guilty of CDVHAN, guilty of the lesser included offense of first-degree CDV, or finding him not guilty, the instruction for firstdegree CDV was incomplete. In the Lowry and Casey cases, if the supreme court had agreed with the harmless error theory expressed by the State, it could have found the error in giving the lesser jury instruction harmless and affirmed the convictions instead of reversing them.”

Because the supreme court has not opted to find the failure to give instructions harmless when the jury convicted of the higher offense in prior cases, Konduros declined to find the error in failing to give a complete charge on the lesser offense harmless for Workman.

The panel reversed his conviction and remanded.

A spokesperson from the Attorney General’s Office declined to comment, as the case remains pending.

Kathrine Haggard Hudgins of the appellate defender’s office in Columbia did not respond to a request for comment.

The 16-page decision is State v.

Workman. The full text of the opinion is available online at nclawyersweekly.com.

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S O U T H C A R O L I N A L A W Y E R S W E E K LY I Aug ust 1, 2022

VERDICTS & SETTLEMENTS / 5

Bars, drunk driver pay $7.36M in wrongful deaths ■ BY HEATH HAMACHER The estates of two men who died when a drunk driver broadsided their car at more than 70 mph has settled its wrongful death claims for $7.36 million, the estates’ attorneys report.

Cousins Timothy Jennings and Christopher Jennings were killed on Feb. 5, 2021, as they backed into a driveway in Spartanburg County, according to one of Timothy Jennings’ attorneys, Kenneth Berger of Columbia. Timothy, 44, was also represented by Brad Lanford of the Law Office of Kenneth Berger and Toyya Brawley Gray of Columbia. Christopher Jennings was represented by Stanley Myers of Moore Bradley Myers in Columbia.

Berger said defendant William Shetley was out drinking with several YMCA co-workers before the crash. After visiting a bar and having two beers, Shetley went to RJ Rockers and drank more beer, liquor, and whiskey, Berger said, adding that the bartender who served Shetley admitted that she did not know what his blood alcohol content (BAC) would have been while he was at the bar.

“In fact, she testified that the proof for Jim Beam was roughly equivalent to that of wine, demonstrating a lack of training and understanding,” Berger said. “Her fellow bartender admitted under oath that he did not know whether it was legal to serve an intoxicated patron.”

Berger added that neither bartender remembered being trained on drink count or basic rules for responsible alcohol service and that video from the bar “showed that these rules were clearly violated.”

Shetley and his co-workers soon headed next door to the Main Street Pub, where Berger said he most likely drank liquor. There were no receipts or video from the bar, but witness testimony and a retrograde extrapolation based on Shetley’s later BAC indicated that Shetley drank after leaving RJ Rockers.

“The only bar Will went to after RJ Rockers that night was Main Street Pub, further

supporting the fact that he was served alcohol at this third establishment,” Berger said.

Main Street Pub was represented by Kenneth Brad Lanford Denny Major Berger of Haynsworth Sinkler Boyd in Columbia.

Major did not immediately respond to a message seeking comment.

After leaving the Main Street Toyya Brawley Stanley Myers Pub, Berger Gray said, Shetley sped his “oversized Dodge Ram truck” down the county’s roadways, driving erratically and tailgating before illegally passing a vehicle and slamming into the Jennings’ car. Berger said that Timothy left behind a wife and five children, while 38-year-old Christopher was married with three children.

Berger said that insurance carriers for the two establishments and Shetley responsibly paid their policy limits in response to a timesensitive settlement offer.

“Though money is a cheap alternative to life, the settlement allowed the families some financial security in the wake of insecurities brought on by the deaths of husbands and fathers,” Berger said.

Gray, Timothy’s other attorney, said that he always put his family first and that his death left a “huge void” in their lives. And had the defendant bars properly trained their bartenders properly, Gray added, he would still be alive.

“However, those establishments failed miserably in the responsible service of alcohol that night, and the Jennings family is forced to for-

SETTLEMENT REPORT — DRAM SHOP/ WRONGFUL DEATH

Amount: $7.36 million Injuries alleged: Death of two plaintiffs Case name: Jennings v. RJ Rockers et al.

Court: Spartanburg County Circuit Court Case No.: 2021-CP-42-01891 Judge: Grace Knie Date of settlement: June 30 Most helpful experts: Dr. David Eagerton (forensic toxicologist) Insurance carriers: Hanover Insurance for RJ Rockers, Cincinnati Insurance for Main Street Pub, and Progressive Insurance for William Shetley Attorneys for plaintiff: Kenneth Berger and Brad Lanford of the Law Office of Kenneth Berger in Columbia and Toyya Brawley Gray of Columbia Attorneys for defendant: Rogers Harrell of Murphy & Grantland in Columbia for RJ Rockers, Denny Major of Haynsworth Sinkler Boyd in Columbia for Main Street Pub, and Michael Coulter of Clarkson Walsh Coulter in Greenville for William Shetley ever live with the consequences of those failures,” Gray said. “I am grateful we were able to help Tim’s widow and children achieve some measure of justice for the senseless, tragic, and completely avoidable loss of their husband and father.”

Rogers Harrell of Murphy & Grantland in Columbia represented RJ Rockers and Michael Coulter of Clarkson Walsh Coulter in Greenville represented William Shetley. Neither attorney immediately responded to a message seeking comment.

Court records show that Shetley was charged with felony driving under the influence resulting in death. Those charges are pending.

The ins and outs of no-poach provisions ■ BY BARRY ROSEN BridgeTower Media Newswires No-poach provisions are agreements that prohibit one company from hiring another company’s employees. This article addresses whether no-poach provisions violate applicable antitrust laws, and more specifically, the conditions under which no-poach provisions are legal.

No-poach provisions are often horizontal restraints; that is, they constitute an agreement between or among competitors restricting the way in which they will compete with one another. Horizontal restraints are often unreasonable per se under federal antitrust principles, meaning they are deemed illegal without any inquiry into their anti- or pro-competitive effects.

However, if a horizontal restraint qualifies as an “ancillary” restraint, it is analyzed under the rule of reason, to determine if it is or is not legal. To qualify as an ancillary restraint, the restraint must be subordinate and collateral to a separate, legitimate transaction.

Ancillary restraints are then determined to be permissible or impermissible, depending upon: (1) whether the challenged restraint has a substantial anticom-

petitive effect that harms consumers in the relevant market; (2) the procompetitive rationale for the restraint; and (3) whether procompetitive efficiencies could be reasonably achieved through less anticompetitive means.

Key appellate case In August 2021, a federal appellate court, in Aya Healthcare Services, Inc. v. AMN Healthcare, Inc., issued an opinion regarding a no-poach provision in a contract between a provider of travel nursing services and a health care staffing agency. The court began by finding that the restraint was ancillary to an otherwise legitimate relationship of one company using the staff of another company.

To respond to rapidly growing demand for travel nurses, which demand AMN was itself unable to supply, AMN contracted with Aya and other staffing agencies to provide additional nurses to meet that demand.

However, in exchange for the spillover assignments, Aya agreed, among other things, not to solicit AMN’s employees.

Therefore, the restraint allowed competitors to give spillover assignments to other competitors without risking their established networks of traveling nurses.

Accordingly, the court found the

no-poach provision legal because the restraint was reasonably necessary to the parties’ pro-competitive collaboration and resulted in greater productivity.

Also, the court found no substantial anti-competitive effects that harmed consumers in the market, such as an increase in prices resulting from the no-poach provision.

Although the court refused to find antitrust liability resulting

from the no-poach provision in Aya Healthcare Services, public opinion against no-poach provisions and other noncompetition agreements is growing and, therefore, one should expect more litigation in this area.

Barry F. Rosen is chairman and CEO of Gordon Feinblatt LLC. He heads the firm’s health care practice group and can be reached at brosen@gfrlaw.com.

Clarkson, Walsh & Coulter, a well-established insurance defense litigation firm with offices in Greenville, South Carolina and Charleston, South Carolina, seeks to hire a licensed South Carolina attorney for its Charleston office. We are a fast paced litigation office that specializes in the defense of individuals and businesses in all areas of civil litigation, including construction litigation, premises liability, insurance coverage and bad faith defense, and automobile negligence. The ideal candidate for this position will have 1-3 years of litigation experience.

Please submit a cover letter, resume, and writing sample in confidence to jcarver@clarksonwalsh.com.

6 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Au gu s t 1, 2022

How to tap into the source of inspiration ■ BY KAREN NATZEL BridgeTower Media Newswires I have had clients tell me, “Karen, it’s work. It’s not supposed to be fun.”

I have heard employees lament, “Work is a 4-letter word.”

And we have all heard the refrain “TGIF!” When I speak of fun in the context of work, I am not talking about happy hours or team-building activities (although, for the record, I have nothing against either of those).

I am speaking to our relationship to our work — how it nourishes or drains us and how it inspires or deflates us. Joy can be found when our work brings us a deep sense of satisfaction — from learning, achieving, contributing, or connecting.

For those of us who have followed organizing consultant Marie Kondo’s guidance on tidying up, “discovering what sparks joy for you” may already resonate with you. If so, you can think of it as Marie Kondo-ing your work life!

When I sat down to write this column, I asked myself, “What are my clients facing?” I scribbled “Overwhelmed. Overextended. Overcommitted. Overstimulated. Overloaded.” No doubt, generally over it!

What contributes to this and, more importantly, how can we regain some sense of balance, equanimity, or even enthusiasm?

A good place to begin is examination of what gives us energy and what depletes us. I know I am energized by free thinking, the exploration of new places or ideas, opportunities for creative expression and a challenge. My energy dips when something feels overanalyzed, too detail-oriented or bogged down in process.

I am also energized when I leverage my strengths and tap into my values — as living in alignment with them creates a sense of ease. Knowing that I value learning and am energized by discovery, I make sure to build in ways I experience that in my work. I have said “yes” to projects that stretched my comfort zone, I have researched ideas in my domain of organizational development to continue sharpening my knowledge, and I have attended workshops to build my skills. Knowing that I get stoked when a client flourishes in

his/her leadership capacity tells me that cultivating the potential in others is a source of joy for me.

Equally important is recognizing what kind of work or environment that is not conducive to helping you shine. You might find there are seemingly contradictory forces at play. For example, I can simultaneously value autonomy and collaboration, making it important to understand the ingredients that are my unique recipe for joy. Knowing our specific motivators is a start in creating a work world that satisfies those needs.

When I’m asked about training on time management, I like to dig deeper to discover the problems we are trying to solve. Often, we unearth challenges around managing the plethora of priorities we have (or our organization has) committed to; we struggle to focus — whether that’s a result of working from home or being swept up by the gravitational pull of electronic notifications; we struggle to delegate — whether that’s our need for control or lack of resources to whom to share the work; and we struggle to maintain healthy boundaries — whether that’s our desire to feel valued for our contribution, an overdeveloped sense of responsibility, or an unhealthy organizational cultural expectation.

Finding flow In listening to a recent TED talk on “how to stop languishing and start finding flow,” I was riveted by Adam Grant’s spot-on explanation of a condition so many are experiencing. Grant tells us that the best prediction of well-being is not optimism (darn it, that’s my go-to!), but flow.

In the zone. Total absorption in an activity. It’s where we build momentum. It is as if we are transported to another place.

Generation of peak flow requires our active participation. Grant maps out three criteria for manifesting that experience: Mastery: One of the strongest factors in daily motivation is a sense of progress – even small wins build momentum.

Mindfulness: Focusing our full attention on a single task.

Mattering: Knowing that you make a difference.

In his talk, Grant notes that people check their email 74 times a day

inspiration pic from depositphotos.com

and switch tasks every 10 minutes!

He coins the term “time confetti” — taking what could be meaningful moments of our lives and shredding them into useless, tiny pieces. He calls this the “enemy of energy and excellence.”

Finding purpose in your work can also contribute to “mattering.” It’s knowing that what you do matters; that you are contributing to something greater than yourself.

Finding flow requires creating space for it. That might mean securing blocks of time on your calendar that are sacred, uninterrupted, quality and focused. That requires clarity of what’s important, what feeds you and the courage and discipline to maintain that boundary.

When our GPS waypoints are dialed in to what brings us joy, to what is aligned with our strengths and values, then our true north will guide us in creating flow — and peak performance.

Tips What brings you joy? You don’t have to confine your definition to your work; find what ignites your spirit, no matter how simple or small.

Where/when do you experience

TREATMENT /

$4.2M settlement for estate of woman killed by pest treatment C o nt inu e d f r o m 1 ►

treatment stored in the walls, subfloor, and infrastructure. They claimed that the technician was inadequately trained in deploying pest treatments and had insufficient knowledge of safety standards.

The plaintiffs also asserted a spoliation of evidence claim, claiming that the technician violated company policy by failing to record and preserve the apartment’s temperatures during the heat treatment.

The attorneys noted that the case also featured a pharmacological issue of a patient taking medication that affected her ability to regulate body heat internally.

“Plaintiff … was prepared to argue at trial that Defendants had a responsibility to inquire about the health status of a customer before de-

ploying a thermal pest treatment into a residence,” they wrote.

Martin Driggers Jr. of Hartsville represented the defendants.

Driggers did not Mason King George immediately reJebaily spond to a request for comment.

Plaintiffs attorneys said that the defense argued that the technician followed usual practices for heat treatments and asserted comparative negligence and assumption of risk, arguing that Brockington should’ve noticed the extreme heat and stayed out of the apartment.

Brockington left behind two adult children and nine grandchildren, her attorneys said.

flow? (Clue: you lose track of time, you feel energized, creative, engaged) What traits/strengths do you possess that add value?

What nourishes you? What drains you?

How can you grow in your craft?

Block time on your calendar to give space and attention to a project, a task, a person. Try changing venues (I’m finishing this column at a local coffee shop!)

Identify your motivators and purpose. See how and where you show up makes a difference.

Have a bias for action. Don’t make it hard; make it happen. Reclaim your agency.

Name the barriers that block your joy. Find the courage to create boundaries that break through the languishing and generate flow.

If you can be deliberate about creating the conditions and criteria necessary in your work to thrive, you might just find the joy in your work.

Karen Natzel is a business therapist who helps leaders create healthy, vibrant and high-performing organizations. Contact her at 503-806-4361 or karen@natzel.net.

SETTLEMENT REPORT — WRONGFUL DEATH/ SURVIVAL

Amount: $4.2 million Injuries alleged: Death Case name: Makina Thomas and Estate of Sharon Brockinton v. Terminix Services, Terminix International Company, Darlington County Independent Housing Corporation, Superior Management, and the South Carolina Department of Mental Health Court: Darlington County Superior Court Case No.: 2020-CP-16-00693 Judge: Michael Holt Date of settlement: May 4 Attorneys for plaintiff: J. Michael Baxley, Douglas Jennings Jr., and Mason King of Douglas Jennings Law Firm in Bennettsville and George Jebaily of Florence Attorney for defendant: Martin Driggers of Hartsville

COMMENTARY / 7

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Aug ust 1, 2022

A force to consider in real estate transactions ■ BY CAULIN PRICE & STEVE MOORE BridgeTower Media Newswires Before March 2020, force majeure provisions in real estate contracts were seldom implemented, and sometimes received minimal attention in real estate contract negotiations. Such provisions are meant to cover contracting parties against unforeseeable events that are outside the control of those parties.

Now, however, the real estate industry is contending with two situations that could be considered typical force majeure events: the COVID-19 pandemic and Russia’s war with Ukraine. Despite the significant disruptions these events are causing to the industry, it is not a given that either would qualify as a force majeure event under a specific contract — that depends on the language of the provision at hand.

Parties to real estate contracts should fully consider force majeure provisions and strive to draft clear language that appropriately defines the events that constitute force majeure and whether —and how — the parties’ performance is excused or extended.

Generally, for an event to be considered force majeure it must be outside of the control of the parties, causing one or both of the parties to be unable to perform its obligations under the contract, in which case the provision operates to excuse the party that is unable to perform from its obligations under the contract (depending on the exact wording of the provision).

Similarly, a force majeure event may simply make performance too difficult or delay performance, with the force majeure provision allowing the party to extend the time for its performance.

In short, the force majeure provision is a contractual manifestation of the defenses of impossibility, impracticability, and frustration of purpose — defenses that provide a contracting party a defense to breach of contract actions if the contract is impossible or impracticable to perform, or if the purpose of the contract has been frustrated.

Commercial leases and contracts Force majeure provisions may be implicated in real estate contracts in several ways, but the two primary implications are commercial leases and contracts for real estate development.

Many commercial lease agreements contain a force majeure provision. Such provisions may protect the party that has a buildout obligation, so that if any of the work is delayed by force majeure, the responsible party has a way of extending the time for performance. The provision may also be used to excuse the tenant’s inability to continuously operate or remain open for business or to open by a certain date. Many commercial lease agreements will expressly carve out the payment of rent or other monetary obligations from the force majeure provision so that a party, usually the tenant, is never relieved of any monetary obligations, regardless of a force majeure event.

Force majeure can also come into play in real estate development if, for example, the ability to acquire labor or materials is hindered or delayed, which in turn may hinder or delay construction of improvements, such as industrial complexes, multifamily buildings, or retail shopping centers.

The force majeure provision may be used to either extend the time for performance or as a defense if one of the parties pursues a breach of contract action against the other for outright failing to perform.

The inclusion of a well-drafted force majeure provision is more vital than ever to parties to real estate contracts. When drafting such a provision, it is important to consider what types of inability to perform is excused.

For example, in commercial leases, the parties should consider whether the tenant’s inability to pay rent or the landlord’s inability to pay a tenant improvement allowance is ever excused because of a force majeure event.

But the parties should also consider whether delays in opening for business or remaining open should be covered by the provision. Because of the provision’s risk-allocation purpose, it is critically important to determine what contract obligations, if any, are covered.

Qualifying events What may be most important is considering what events qualify as force majeure. The parties can specifically identify events that qualify or do not qualify as force majeure, or the parties can more broadly define the types of events that would qualify.

Some courts have construed force majeure provisions narrowly and have been reluctant to cover events outside those expressly listed. Using COVID-19 and the Ukraine war as examples, the provision may generally apply to pandemics and/or epidemics and wars, though even those terms can be imprecise and imperfect.

Considering that we are two years into the COVID-19 pandemic, the parties could either expressly include its impacts as a force majeure event or exclude them (especially because the COVID-19 pandemic is hardly an unforeseen event anymore). This exercise can seem counterintuitive at times, as any events that the parties specifically consider and include in the force majeure provision are, by their inclusion, not unforeseen.

In any event, contracting parties are usually provided wide discretion in defining the terms of their relationship, so the parties should determine what events, if any, would excuse or allow a party to delay performance.

Conclusion Recent events have increased the relevance of force majeure provisions to parties entering commercial leases, real estate development transactions and other real estate transactions. So, when negotiating a transaction, the parties should consider the force majeure provision as a bargained-for (not standard) clause and should consider setting forth in the contract:

construction pic from depositphotos.com

what events qualify as force majeure events; what rights the parties have if a force majeure event occurs; what conditions must be satisfied to exercise such rights; and what types of performance may be delayed or excused by force majeure events.

Otherwise, parties risk a court holding that an event qualifies as

force majeure even if the parties did not intend for that to be the case and vice versa — events that the parties thought would qualify under a general clause may not.

Caulin Price and Steve Moore are members of Stoel Rives LLP’s real estate group. Contact them at caulin.price@stoel.com or steve. moore@stoel.com.

Tom McGrath’s Motorcycle Law Group, an established Personal injury law firm in South Carolina is looking for an attorney to join our Columbia team. We are seeking a person who has experience with all phases of litigation, whether insurance defense or Plaintiff ’s PI, including depositions, mediation, trial preparation and trial. Knowledge regarding health insurance and provider liens is a must. We are very involved in the community and we are looking for an attorney who is willing to be engaged with the public. If you would enjoy not keeping up with billable hours, wearing jeans to work on days that don’t involve court and utilizing your skills in a supportive informal atmosphere, then you will like working with us.

Our firm is very passionate about helping injured motorists.

Our clients receive immediate returned phone calls, informative and accurate information, regular monthly updates from the attorney regarding their case.

We provide excellent health insurance, retirement benefits and much more, plus the ability to become a partner in a short amount of time. Please provide a cover letter that includes information about you and please include if you own and ride a motorcycle as well as your prior working experience and resume with employment references. Please send to Liz@motorcyclelawgroup.com and Matt@motorcyclelawgroup.com Job Type: Full-time Pay: $ Salary commensurate with experience.

8 / COMMENTARY

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Au gu s t 1, 2022

Is it a constitutional violation to mute defendants during video sentencing?

■ BY NICOLE BLACK BridgeTower Media Newswires The past few years have drastically impacted the way that the world operates. The shift to remote work was a sudden and drastic change, but whether it will be a permanent one remains to be seen.

The overnight transition to virtual interactions was particularly impactful on our court system.

Because a complete standstill was not an option, routine appearances and extended trials alike shifted to online videoconferencing platforms.

That move to online proceedings was a bumpy — and interesting — journey. Since the start of the pandemic, I’ve written a lot about remote work and virtual court appearances, ranging from the ethical issues presented to the outrageous gaffes that occurred during online legal proceedings. Virtual court has provided ample fodder for my writings and I’m happy to say that it’s the gift that keeps on giving.

Case in point: U.S. v. Braman, No. 21-1354. In this case, which was handed down by the U.S. Court of Appeals for the Eighth Circuit in May, the court considered whether the district court committed plain error by muting the defendant twice during his virtual sentencing hearing, once before he was sentenced and once afterward. The defendant asserted that by muting him before his sentence was imposed, the trial court violated his right to counsel and that the second muting negatively impacted his right to meaningful allocution.

In reaching its decision, the court first addressed the rationale

behind the trial judge’s actions.

The court explained that the behavior of a defendant can affect his rights at trial, “The right to be physically present at trial can be lost if the defendant ‘insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.’”

Next, the court noted that, contrary to the defendant’s claim, his Sixth Amendment rights were not implicated when the trial court muted him during his virtual sentencing since muting is not akin to physical removal, “What this argument ignores is context — we are reviewing a sentencing proceeding during which Braman was not physically removed.”

According to the court, it was the defendant’s Fifth Amendment due process rights that were potentially affected, not his Sixth Amendment right to confront witnesses. The court explained that “(a)s no witness was testifying and Braman did not object factually to the PSR, the Confrontation Clause was simply not at issue … ‘(T)he right to be present at proceedings that lack testimony (usually true of sentencings) comes from the Fifth Amendment’s Due Process Clause.’”

Having determined that Due Process Clause analysis applied, the court turned to the assessment of whether muting the defendant prior to his sentencing violated his Fifth Amendment right to due process. The court concluded that was not the case, “The matters discussed while he was muted were the § 3553(a) sentencing factors, the conditions of his supervised release, and his right to appeal. The

Zoom pic from depositphotos.Com

muting did not adversely affect counsel’s ability to urge a favorable sentence.”

Finally, the court analyzed the defendant’s claim regarding the second muting. The court determined that the post-sentencing muting did not impact his right to a meaningful allocution since the trial court afforded Braman two opportunities to speak. Even though the second allocution occurred after he was sentenced, it nevertheless provided an opportunity to be heard since it “retain[ed] the potential to affect the sentence.”

Once again, the pandemic’s effects on the administration of justice have provided a unique legal

issue that otherwise might not have arisen. I have no doubt that there will be plenty more to come even as we return to a semblance of normal. While not everyone would agree, I, for one, think that many of the temporary effects of the pandemic, including virtual court proceedings for more routine appearances, will become permanent. Of course, only time will tell if I’m correct.

Nicole Black is a Rochester attorney, author, journalist and the legal technology evangelist at MyCase legal practice management software. She can be contacted at niki.black@mycase.com.

ELEVATOR / Elevator death leads to $20M settlement C o nt inu e d f r o m 1 ►

work would be performed.”

The attorneys said neither the plant supervisors nor the safety team had discussed Hinckson’s presence on the property during any safety or planning meetings.

“In fact, the Holcim employee typically responsible for coordinating safety protocols for Alimak contractors like Lennox Hinckson was on vacation on this specific day,” the attorneys wrote.

Shortly after Hinckson began his work from atop the elevator cab, the attorneys said, a Holcim employee called the elevator from a lower floor. The “unexpected, downward descension” caused catastrophic crush injuries to Hinckson, who fell approximately 60 feet and died almost instantly.

After meeting with representatives of the Mine Safety and Health Administration in New York, plaintiff’s counsel filed suit against Holcim and four individual defendants.

“A preliminary investigation demonstrated that Holcim had a poor safety record with respect to MSHA fines and regulations,” the attorneys wrote. It was also discovered that Holcim had been issued and paid fines related to the investigation into Lennox Hinckson’s death.”

The attorneys said that litigating against “Big Concrete” was challenging. After discovering that Holcim’s corporate management was immediately involved in the death investigation, the attorneys sought records of the

company’s internal investigation and communications. Over the defense’s objection and after extensive briefing, the attorneys said, the court ordered the defendants to produce the evidence.

“This proved to be a significant turning point in the case and demonstrated that the defense of the case didn’t necessarily align with the internal corporate investigation,” the attorneys wrote.

The defendants were represented by G. Mark Phillips Jr., Sam Outten, and Jonathan Knicely of Nelson Mullins Riley & Scarborough in Charleston, Greenville, and Columbia, respectively.

But in their email, plaintiffs’ lawyers Yarborough and Applegate wrote that the defense blamed Hinckson for failing to properly restrict power to the elevator. But the depositions of more than a dozen Holcim employees paint Hinckson as someone who took safety very seriously.

“Counsel was successful in getting many of these deponents to admit that Holcim did not abide by their own policies and procedures relating to contractor safety,” the attorneys wrote. “Additionally, it became clear that Holcim had enacted a multitude of new policies in light of Lennox’s death to make the plant safer for third-party contractors.

The plaintiffs were also represented by Greg Deluca of Deluca Maucher in Goose Creek and David Williams of Williams & Williams in Orangeburg.

SETTLEMENT REPORT — WRONGFUL DEATH/ PREMISES LIABILITY

Amount: $20 million Injuries alleged: Death, conscious pain and suffering, grief, trauma, loss of companionship Case name: Sonia Antoine and the Estate of Lennox Hinckson v. Holcim (U.S.), Inc. et al.

Court: Orangeburg County Circuit Court Case No.: 2020-CP-38-00265 Mediator: Kurt Rozelski Date of settlement: June 2022 Most helpful experts: Jack Spadaro (mine safety), Dr. Kim Collins (pathologist), Oliver Wood, Ph.D. (economist), Stephanie Borzendowski (human factors), and Michael Sutton (accident reconstruction/engineering) Insurance carriers: Chubb, Zurich North America, and Allianz Attorneys for plaintiff: David Yarborough and Perry Buckner of Yarborough Applegate in Charleston, Greg Deluca of Deluca Maucher in Goose Creek, and David Williams of Williams & Williams in Orangeburg Attorneys for defendant: G. Mark Phillips Jr., Sam Outten, and Jonathan Knicely of Nelson Mullins Riley & Scarborough in Charleston, Greenville, and Columbia, respectively

OPINION DIGESTS / 9

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Aug ust 1, 2022

Opinions Civil Rights False Arrest – Probable Cause – Child Abuse – Acquittal Although plaintiff was eventually acquitted on charges that he had abused eight-week-old E.W., his only complaints about statements in the affidavit supporting the warrant for his arrest are directed at statements that his “admissions are consistent with the injuries reported by the examining medical personnel” and that, when he threw the baby, E.W.’s mother “heard audible cracking.” Even disregarding these statements, the affidavit’s description of the baby’s extensive injuries and of plaintiff’s admissions to his abuse of the child were sufficient to provide probable cause for the issuance of the warrant for plaintiff’s arrest.

We affirm summary judgment for the defendant-law enforcement officers.

E.W.’s injuries included a laceration to her lip, bruises on her head and back, 16 broken ribs, a broken clavicle, fractures – in different stages of healing – to both legs, a shattered pelvis and a brain bleed.

In his interview with police, plaintiff admitted that he dropped the baby twice, threw her onto a couch, “squeezed” her to get her to stop crying, hit her head on a doorknob, and sat on her leg. He explained that he had been feeling “short tempered” and had not meant to hurt the baby.

Absent the statements plaintiff complains about, the affidavits set forth that the officers knew that (1) E.W. had suffered physical abuse, (2) plaintiff had been with her before she was admitted to the hospital, and (3) plaintiff had confessed to committing several acts of physical abuse on E.W. Both plaintiff and Ashley Stanley, the baby’s mother, had informed officers that the baby screamed when plaintiff came near her, and plaintiff never implicated Stanley in the abuse but instead claimed that she was a good mother. Under the totality of these circumstances, which were set forth in the affidavits supporting the arrest warrants, we hold that the officers had information amounting to much more than a “bare suspicion” that plaintiff had committed a crime and, thus, had probable cause to arrest him.

Affirmed.

Wolfe v. City of North Charleston (Lawyers Weekly No. 003-029-22, 9 pp.) (Per Curiam) No. 21-7335. Appealed from USDC at Charleston, S.C. (Richard Mark Gergel, J.) Jason Scott Luck for appellant; Robin Jackson for appellees. 4th Cir. Unpub.

Criminal Practice Felon in Possession – Defendant’s Knowledge – Controlled Substances Amount The trial court plainly erred by failing to instruct the jury that the

government had to prove that defendant Young knew he was a convicted felon at the time he possessed a firearm. However, defendant Young (1) stipulated that he had a felony conviction; (2) never disputed his felon status; (3) testified that (a) he was a convicted felon, (b) this meant he could not be in a house with guns, and (c) he had guns moved out of his house because he did not want to be charged with possessing them; (4) had received and served sentences longer than one year prior to the offense; and (5) has not proffered on appeal any sufficient argument or representation that he would have presented a factual basis at trial for contradicting the evidence that he knew he was a felon. Under these circumstances, Young has failed to show that, absent the error, there is a reasonable probability that he would have been acquitted.

We affirm defendants’ convictions and sentences for drug distribution and firearm offenses.

United States v. Gordon (Lawyers Weekly No. 003-030-22, 7 pp.) (Per Curiam) No 19-4845. Appealed from USDC at Columbia, S.C. (Michelle Childs, J.) Scarlet Moore and John Ervin for appellants; Peter McCoy and Kathleen Michelle Stoughton for appellee. 4th Cir. Unpub.

Criminal Practice Jury Instructions – Lesser-Included Offense – Statutory Definitions – Harmless Error Analysis In its jury instructions for criminal domestic violence of a high and aggravated nature, the trial court read the statute governing the lesser-included offense of first-degree criminal domestic violence (CDV).

Because that statute referred to the lesser offense of second-degree CDV, the trial court should have also defined second-degree CDV, as well as a term used in the second-degree CDV statute: “moderate bodily injury.”

We reverse defendant’s convictions for criminal domestic violence of a high and aggravated nature (CDVHAN).

After a weekend of abusing his wife in their home, defendant was charged with CDVHAN. At his trial, the court agreed to instruct the jury on the lesser-included offense of first-degree CDV by reading the statute. The first-degree CDV statute refers to second-degree CDV, and the second-degree CDV statute refers to “moderate bodily injury,” but the trial court defined neither.

Under these circumstances, the record supported a jury instruction on the definition of second-degree CDV under S.C. Code Ann. § 16-2520(B)(5). And because the seconddegree CDV statute uses the term “moderate bodily injury,” the court also should have given the statutorily provided definition of that term.

The trial court erred in failing to

give the definition of second-degree CDV. We reverse defendant’s conviction for CDVHAN. The state contends, “Because the jury found [defendant] guilty of the greater offense, any deficiency in the definition of the lower offense is harmless.” We disagree.

Our Supreme Court has reversed convictions in which the trial court failed to charge a lesser included offense supported by the evidence, thus implicitly rejecting the theory that a jury’s conviction of a higher offense shows the error was harmless. However, the Supreme Court has not explicitly ruled on harmlessness in these situations.

Here, the trial court charged a lesser included offense, but that charge was incomplete. Although the jury had the options of finding defendant guilty of CDVHAN, guilty of the lesser included offense of first-degree CDV, or finding him not guilty, the instruction for firstdegree CDV was incomplete.

Because the Supreme Court has not opted to find the failure to give instructions harmless when the jury convicted of the higher offense, we will not find the error in failing to give a complete charge on the lesser offense harmless here.

Reversed and remanded.

State v. Workman (Lawyers Weekly No. 011-040-22, 16 pp.)

(Aphrodite Konduros, J.) Appealed from Greenville County Circuit Court (Alex Kinlaw, J.) Kathrine Haggard Hodgins for appellant; Alan McCrory Wilson, Joshua Abraham Edwards and William Walter Wilkins for respondent. S.C. App.

Criminal Practice Murder – Text Message – Hearsay – Harmless Error – Authentication No exception to the rule against hearsay permitted the admission into evidence of a text message received by the mother of the victim about defendant’s whereabouts near the time of the victim’s murder.

Although the trial court erred in admitting the text, given the overwhelming evidence against defendant, the error was harmless.

We affirm defendant’s convictions for murder and possession of a weapon during the commission of a violent crime.

Defendant, who was accompanied only by his girlfriend, shot and killed the victim, who was accompanied by several friends. The jury rejected defendant’s claim of self-defense.

Authentication

During the testimony of the victim’s mother, the state introduced a text message the mother received on the night of the shooting. The message indicated that defendant was behind the victim’s apartment. The state offered sufficient evidence to satisfy the authentication require-

ment of Rule 901, SCRE. The victim’s mother testified she received a text message from “Mr. Johnny McKnight” and stated McKnight was programmed into her phone under “Johnny Blaze.” The mother then identified a screenshot from her phone as the text message she received from McKnight. She also stated the screenshot of the text message had not been changed or altered and was a “fair and accurate” reflection of the text message she received from McKnight.

When asked how she was able to recognize the exhibit containing the screenshot of the message, the mother stated, “Because they [sic] programmed in my phone as Johnny Blaze, and the same text is in my phone.” Standing alone, this would not be sufficient to satisfy Rule 901’s authentication requirement.

However, the mother testified that prior to the admission of the text message, she received a phone call from and spoke to McKnight.

Although the trial court excluded her testimony regarding the contents of that discussion, the mother’s statements regarding this prior conversation with McKnight that same night provided circumstantial evidence sufficient to support a finding that the text message was what she claimed it to be.

Hearsay

Nevertheless, McKnight’s text message was an out-of-court statement offered to prove the truth of the matter asserted: defendant was behind the victim’s apartment. Thus, the text message was inadmissible absent an applicable exception to the general rule against hearsay.

The state did not argue that McKnight was unavailable to testify.

The text message was not admissible as a present sense impression.

The first sentence said McKnight had seen defendant’s girlfriend behind the victim’s apartment. The second and third sentences of the text message—”He probably hidn 2. Tryn sum”—did not constitute a present sense impression because they did not explain or describe an event or condition that McKnight personally perceived.

The first sentence of the text message did not require an explanation.

Thus, the text message was not admissible as a present sense impression.

Next, McKnight’s text message was not admissible as an excited utterance because the message did not indicate he witnessed a “startling event or condition” or “was under the stress of excitement caused by [an] event or condition” when he sent the text message to the victim’s mother.

Finally, McKnight’s text message was not admissible under Rule 803(3), SCRE, as a then existing mental, emotional, or physical condition because the message constiS e e P a g e 10 ►

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tuted a statement of McKnight’s belief rather than a statement of “intent, plan, motive, design, mental feeling, pain, [or] bodily health.”

The trial court erred in admitting McKnight’s text message into evidence; however, any error in admitting the text message was harmless.

Harmless Error The state disproved the elements of self-defense beyond a reasonable doubt and defendant’s guilt was conclusively proven such that no other rational conclusion could be reached. As to the element of fault in bringing on the difficulty, both the victim’s mother and police Captain Alexander Williams testified they encountered defendant a few days prior to the shooting when he told the mother, “[Y]ou better get you a black dress, because I’m going to kill your daughter.” Additionally, witness Kywana Bradley testified she heard someone trying to get into the victim’s apartment, and when the victim returned soon afterwards, defendant and his girlfriend were near the apartments.

Although defendant testified he was “scared” that he and his girlfriend would be hurt or seriously injured during the confrontation with the victim, the evidence conclusively showed no person of ordinary firmness and courage would have entertained the same belief.

Three friends accompanied the victim when she confronted defendant and his girlfriend. No one tried to strike defendant. Although defendant indicated the victim implied that she had a gun in her car, he never stated he saw anyone with a weapon or believed anyone was armed. Based on defendant’s testimony, the victim was the only one who made a threatening statement.

No person of ordinary firmness and courage would have entertained the belief that he was in imminent danger of death or serious bodily injury under these circumstances so as to justify the use of deadly force.

Furthermore, defendant could have avoided the danger without using deadly force. No one other than the unarmed victim—who weighed only 105 pounds—was threatening defendant with violence. Photographs from the scene show a large, open area, and witness Randy White testified no one prevented defendant from leaving. Therefore, the evidence conclusively showed defendant could have avoided the danger without using deadly force by simply leaving.

The trial court’s error in admitting the hearsay evidence was harmless because it could not reasonably have affected the outcome at trial.

Affirmed.

State v. Sanders (Lawyers Weekly No. 012-013-22, 12 pp.) (Per Curiam) Appealed from Hampton County Circuit Court (Carmen Mullen, J.) Susan Barber Hackett for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown, Douglas Ross, Julianna Battenfield and Isaac McDuffie Stone for respondent. S.C. App. Unpub.

Labor & Employment Title VII – Retaliation Claim – Poor Performance – Prior Documentation When timing is the only basis for a claim of retaliation, and when gradual adverse job actions began

well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise. Since plaintiff’s supervisor began documenting plaintiff’s performance issues months before she engaged in protected activity, plaintiff cannot establish that any adverse action she suffered was causally related to her protected activity.

We affirm the district court’s order adopting the magistrate judge’s recommendation and granting summary judgment for the defendantemployer.

Bullock v. Kendall (Lawyers Weekly No. 003-031-22, 5 pp.) (Per Curiam) No. 21-2111. Appealed from USDC at Columbia, S.C. (Mary Lewis, J.) Shannon Polvi for appellant; Corey Ellis and Kathleen Stoughton for appellee. 4th Cir. Unpub.

Domestic Relations Separate Maintenance & Support – Standing – Guardian & Conservator An adult daughter, who was her elderly father’s guardian and conservator, could file suit against her mother for the father’s separate maintenance and support.

We affirm the family court’s denial of the defendant-Wife’s motion to dismiss.

Facts

After a long and prosperous marriage, Wife and her Husband were both hospitalized in 2018. They lived separately thereafter.

Husband had been declared incompetent in 2015. Wife was his attorney-in-fact. However, in 2018, the probate court found that Wife did not have Husband’s best interests at heart and appointed the plaintiff-Daughter as conservator and guardian. Daughter then filed this suit for separate maintenance on her father’s behalf.

‘Personal’ Action

Wife argues that an action for separate maintenance is strictly personal and cannot be brought by Daughter. She cites Murray by Murray v. Murray, 310 S.C. 336, 426 S.E.2d 781 (1993), which followed the majority rule that, absent a clear grant of authority to do so, a guardian could not maintain an action to dissolve an incompetent person’s marriage. Murray explained, “The theory underlying the majority view is that a divorce action is so strictly personal and volitional that it cannot be maintained at the pleasure of a guardian, even if the result is to render the marriage indissoluble on behalf of the incompetent.”

Yet a suit for separate support and maintenance is meaningfully different from a suit for divorce. In Brewington v. Brewington, 280 S.C. 502, 313 S.E.2d 53 (Ct. App. 1984), we rejected as “inappropriate” the argument that separate maintenance and support is “personal” like a suit for divorce. While a suit for divorce ends the marital relationship, a suit for separate support and maintenance is sometimes necessary to enforce the marital obligation of support.

Daughter argues this proceeding is about granting Husband the financial means to care for himself because Wife refuses to use marital assets to support Husband. There is no challenge to the validity of Husband and Wife’s marriage.

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We reject Wife’s argument that Murray required the family court to dismiss this action.

Conflict of Interest

Wife argues that, if a separate maintenance suit could be brought on Husband’s behalf, only a guardian ad litem (GAL) could bring it.

She argues that Daughter has a conflict of interest because she is a potential beneficiary of Husband’s estate.

We reject this argument first because Daughter is a court-appointed conservator and guardian serving under the probate court’s supervision. Second, a GAL was appointed, and the GAL testified that the suit should proceed. The simple fact that Daughter was a potential beneficiary of her father’s estate does not mandate dismissal of this case that was brought solely for the purpose of securing funds necessary to provide for his well-being.

Affirmed.

Dover v. Ball (Lawyers Weekly No. 011-041-22, 5 pp.) (Blake Hewitt, J.) Appealed from Pickens County Family Court (Greg Seigler, J.) Keith Denny for appellant; Robert Scott Dover for respondent. S.C. App.

Criminal Practice Sex Offender Registration – Alford Plea – Equivocal Expert Testimony Although the state’s evaluator did not give an unequivocal recommendation that defendant should register as a sex offender, she did recommend requiring registration if the court believed the allegations against defendant were true.

She opined that the allegations – if true – were clear proof of a diagnosable sex-related disorder. If the state’s burden to show “good cause” proved lighter here, it was because defendant’s guilt was a key fact and defendant had already pled guilty.

We affirm the circuit court’s judgment requiring defendant to register as a sex offender.

After being charged with sex crimes, defendant pled guilty to first-degree assault and battery pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), meaning he did not actually admit his guilt.

Nevertheless, an Alford plea carries the same effect as a “regular” guilty plea or guilty verdict. The assault and battery indictment clearly delineated the sexual nature of the allegations.

State v. Fraley (Lawyers Weekly No. 011-042-22, 4 pp.) (Blake Hewitt, J.) Appealed from Spartanburg County Circuit Court (Derham Cole, J.) Stanley Case and Richard Vieth for appellant; Alan McCrory Wilson and Mark Reynolds Farthing for respondent.

S.C. App.

Workers’ Compensation Back Injury – General Disability Claim – Radiating Pain & Depression The Claimant suffered a compensable back injury and was assigned a 40 percent impairment rating to the spine and a 36 percent rating to the whole person. The record contains no fewer than 40 physician

notes about Claimant having nerve pain in places other than her back; furthermore, her treating physician not only added ten percent to his impairment rating for Claimant’s back because of her chronic pain, but he also diagnosed depression and referred her to a psychologist who confirmed a diagnosis of major depressive disorder. There is no doubt that the record contains ample markers of a colorable claim that the effects of Claimant’s back injury extend beyond her back.

We reverse and remand the Workers’ Compensation Commission’s decision, which simply proclaims, “This is a single-member injury affecting Claimant’s lower back only” and that Claimant was limited to the scheduled recovery statute. We remand for further proceedings, which should, at a minimum, evaluate the substance of Claimant’s general disability claim.

Since the Commission gave no reasoning in its order, we cannot say whether the Commission erred or was correct in its reasoning.

Although there is evidence of permanent and total disability in the record, we decline Claimant’s request that this court find she is permanently and totally disabled.

Weighing impairment ratings as part of arriving at a percentage of disability strikes us as a task that the Legislature envisioned entrusting to members of the Commission, not to us.

We also respectfully reject the employer’s argument that the blood clots in Claimant’s lungs are an intervening cause of her present ailments as a matter of law.

Reversed and remanded.

Pate v. College of Charleston (Lawyers Weekly No. 011-043-22, 7 pp.) (Blake Hewitt, J.) Appealed from the Workers’ Compensation Commission. Stephen Benjamin Samuels and Max Capper Sparwasser for appellant; Margaret Mary Urbanic, Mikell Holbrook Wyman, Page Hilton and Kirsten Leslie Barr for respondents. S.C. App.

Criminal Practice PCR – Constitutional – Ineffective Assistance Claim – Proffer Statement – Rule 410 Waiver – Polygraph Trial counsel did not provide ineffective assistance when he recommended that petitioner enter into a proffer agreement with the state, despite the fact that the agreement required petitioner to take a polygraph examination and allowed only the state to determine whether petitioner had been deceptive. Trial counsel could not have predicted that our Supreme Court would rule that criminal defendants can waive the protections of Rule 410(4), SCRE. We affirm the post-conviction relief court’s denial of petitioner’s application for PCR relief.

Facts

Petitioner was charged as an accessor to murder. Following trial counsel’s advice, petitioner entered into a proffer agreement with the state.

According to the solicitor originally assigned to the case, the state’s main evidence in this case was a report that someone saw a car similar S e e P a g e 11 ►

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to petitioner’s car enter and leave the area where officers discovered the victim’s body. During his proffer session, petitioner told the state – consistently with what he had told trial counsel – that he had heard and relayed to Mark Willard that drug dealers had placed a bounty on the victim for stealing money from them.

Petitioner admitted he knew Willard planned to kill the victim but that he did not know when Willard would do it. Petitioner and Willard each collected $5,000 for the victim’s death.

The solicitor stated he was “really stunned” when petitioner admitted he participated in a “murder for hire.” The solicitor recalled thinking he “made a big mistake” by offering the proffer agreement because it limited the purposes for which petitioner’s proffer session statement could be used. The solicitor believed petitioner had been truthful during the proffer session “because he was so forthright” and was surprised when he learned the polygraph results indicated petitioner had been deceptive. The solicitor testified the proffer agreement’s polygraph examination requirement would have been normal.

The SLED agent who reviewed the results of petitioner’s polygraph examination determined that petitioner had been deceptive when he (1) denied that he lied when he said Willard shot the victim and (2) denied that he shot the victim. As a result, the proffer agreement was declared void, and the state used petitioner’s proffer statements against him at trial. Petitioner was convicted of murder.

Analysis

Rule 410(4), SCRE, prohibits the admission of “any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty. . . .” When trial counsel advised petitioner to engage in a proffer session with the prosecution, trial counsel could not have known that our Supreme Court would rule that defendants could waive the protections of Rule 410(4). Since trial counsel articulated a valid reason for advising petitioner to enter a proffer agreement – the agreement would have mitigated the consequences

of petitioner’s pending accessory charges, the agreement would have prevented the state from bringing additional charges against petitioner for the victim’s murder, and trial counsel believed petitioner had been truthful to him – the post-conviction relief court properly determined that trial counsel’s performance was not deficient.

Even though the state had little evidence in this murder case, and even though trial counsel now believes he should have been more rigorous in understanding and arguing polygraph science, trial counsel did not provide ineffective assistance when he recommended that petitioner enter into the proffer agreement, which required petitioner to undergo a polygraph examination and designated the state as the only party that would determine if petitioner’s proffer session statement contained any inconsistency or deception.

While trial counsel admitted that, in hindsight, he might have advised petitioner differently and would have been more rigorous in understanding and arguing polygraph science, trial counsel maintained he thought the proffer agreement was the best option for petitioner because he was convinced petitioner had been truthful. Additionally, when trial counsel advised petitioner to enter the proffer agreement, it was not settled law in South Carolina that defendants could waive the protections of Rule 410, SCRE, for more than impeachment purposes. Trial counsel argued effectively enough to preserve that issue for direct appeal and could not have known our Supreme Court would ultimately rule defendants could waive those protections.

The PCR court properly determined trial counsel’s performance was not deficient because trial counsel articulated a valid reason for advising petitioner to enter the proffer agreement. Accordingly, the PCR court properly denied petitioner’s application for post-conviction relief.

Affirmed.

Wills v. State (Lawyers Weekly No. 011-044-22, 8 pp.) (Aphrodite Konduros, J.) Appealed from Horry County Circuit Court (William Seals, J.) William Yarborough and Lauren Hobbis for petitioner; Alan McCrory Wilson and Chelsey Faith Marto for respondent. S.C. App.

Domestic Relations Attorney’s Fees – Appeals – Remand Mandate – Ability to Pay The appellant-Father appealed the family court’s original order that he pay $34,864.63 of the respondent-Mother’s attorney’s fees, in the amount of $5,000 every 90 days, and we reversed and remanded for the family court to consider Father’s ability to pay. Instead, on remand, the family court concentrated on the fact that Mother had no income of her own and its belief that Father had ulterior motives in these proceedings as well as more income than he indicated in his financial declaration. Although the family court gave Father 91 months to pay the new $30,000 award, the entire award is almost 63 percent of Father’s annual income.

The family court did not sufficiently take into account Father’s ability to pay Mother’s attorney’s fees. We reduce Father’s obligation for Mother’s attorney’s fees to a total amount of $12,000, which is about 25 percent of Father’s yearly income, to be paid at a rate of $500 per month for a period of 24 months.

Duclos v. Duclos (Lawyers Weekly No. 012-014-22, 8 pp.) (Per Curiam) Appealed from Dorchester County Family Court (Jan Benature Bromell Holmes, J.) Thomas Ryan Phillips for appellant; Bernard Mack for respondent. S.C. App. Unpub.

Real Property Mortgages – Foreclosure – Administrative Order – Discovery – Appeals The respondent-mortgagee’s predecessor filed and served upon the petitioner-mortgagor a notice of foreclosure intervention. When petitioner failed to respond to the notice, the mortgagee filed and served petitioner with a notice of denial of loan modification. These actions complied with the South Carolina Supreme Court’s Administrative Order on Mortgage Foreclosure Actions. Subsequently, respondent’s predecessor engaged in a mortgage intervention process for four years.

Although respondent and its pre-

decessors sent correspondence to the wrong address on five occasions and directly contacted petitioner on one occasion after being notified that he was represented by counsel, considering petitioner’s counsel’s three changes of address, a predecessor’s merger with respondent, and the significant amount of correspondence exchanged between the parties, the evidence does not demonstrate that respondent’s actions constituted a failure to act in good faith during the foreclosure intervention process.

We affirm the master-in-equity’s orders in favor of respondent.

The master did not err in denying petitioner’s motion to compel discovery because the materials sought were irrelevant and overly broad.

First, the scope of the accounting records petitioner sought encompassed all of a mortgagee predecessor’s business—not just petitioner’s account—and therefore covered an overly-broad amount of information.

Further, petitioner failed to show how information pertaining to all of the predecessor’s accounts, personal employee information, or general training materials would have been relevant to this case. To support his defenses and counterclaims, petitioner had the burden of demonstrating respondent engaged in certain acts or omissions in its dealings with petitioner. Conduct respondent may have engaged in with non-parties was irrelevant to its dealings with petitioner.

Petitioner filed his initial notice of appeal while there were still matters pending before the master. Because some of the issues appealed could have affected the master’s authority to proceed with the foreclosure, the master erred in proceeding with the foreclosure. Nevertheless, because petitioner filed an amended notice of appeal to include the master’s order and judgment of foreclosure and sale, this error does not warrant reversal.

Affirmed.

Ditech Financial, LLC v. Snyder (Lawyers Weekly No. 012-015-22, 16 pp.) (Per Curiam) Appealed from Charleston County (Mikel Scarborough, Master-in-Equity) Jason Scott Luck for appellant; George Benjamin Milam, Jonathan Edward Schultz and Michael Casin Griffin for respondent. S.C. App. Unpub.

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