South Carolina Lawyers Weekly September 26, 2022

BULLISH ABOUT THE FUTURE

SC legal pioneer joins fi rm

■ BY JASON THOMAS jthomas@scbiznews.com

Saxton & Stump has announced that the Hon. Margaret B. Seymour has joined the firm in its Charleston office.

In 1998, President Bill Clinton nominated Seymour to a seat on the U.S. District Court for the District of South Carolina, according to a Saxton & Stump news release. She became the first AfricanAmerican woman to be named a U.S. District Court Judge in South Carolina.

Firm marks new beginning with BullStreet District office

■ BY JASON THOMAS jthomas@scbiznews.com

It’s a new beginning for a Columbia-based law firm.

Robinson Gray Stepp & Laffitte recently moved to WestLawn, the BullStreet District’s newest office building and the first mass timber commercial building in Columbia, according to a news release from the firm.

Featuring 79,000 square feet, WestLawn is the largest of its kind in South Carolina.

Created in partnership with Hughes Development Corp., mas-

ter developer of the BullStreet District, WestLawn gives Robinson Gray the room it needs for future expansion with an office layout that enhances workflow and collaboration and elevates client services, the release stated. The firm occupies the top two floors, including a private rooftop terrace on the fifth floor.

“We are extremely proud to be part of this dynamic BullStreet community,” said Cal Watson, the firm’s managing member, in the release. “We are already inspired by the energy of our surroundings and look forward to enhancing cli-

ent services through integrated technology and focus on collaboration.”

The building’s mass timber construction uses a renewable resource that adds texture and warmth, while reducing the structure’s carbon footprint, according to the release. There are currently fewer than 400 large mass timber buildings in the United States, according to The New York Times.

WestLawn was designed by globally renowned architectural firm Perkins&Will in collaboration

In 2012 she became the first African-American named chief judge for the U.S. District Court for the District of South Carolina, the release stated. Seymour, who retired from the bench in August 2022, will now join Saxton & Stump to offer her services as a mediator and arbitrator, as well as providing support to the firm’s Commercial Litigation, Title IX and Labor and Employment groups, putting to use her decades of legal experience both from behind and in front of the bench to help clients navigate complex legal issues, the release stated.

“We are thrilled to deepen our team in Charleston by adding Judge Seymour, who is one of the luminaries of the South Carolina legal community,” Saxton & Stump CEO

We all know that attorneys work long hours and are pulled in a million different directions. Add to the mix a global pandemic, and it’s understandable why many are feeling the stress at work.

They continue to persevere, though, exemplified by the honorees of the 2022 Leadership in Law. You can read about them inside these pages.

For the first time, attorneys surveyed in Bloomberg Law’s Attorney Workload and Hours survey report-

ed experiencing burnout in their job more than half the time, according to a March post on Bloomberg Law’s website.

Despite the pressure of an increase in cases due to COVID-19 — and all the changes wrought on the industry by a global pandemic — these honorees showed up and were dialed in to their clients, and their communities.

Inside you can read about what career they might have chosen had they not gotten into the legal profession; some of their career highlights

and which movie or TV show best portrays what it’s like to be an attorney. We have to have a little fun, right? And just a note: Honorees were selected after a nomination process via our website.

Got a recommendation for a Leader in Law? Feel free to contact me. Info is below.

As always, thanks for reading.

Jason Thomas is the interim editor of South Carolina Lawyers Weekly. Reach him via email at jthomas@scbiznews.com. in Law honorees

Robinson Gray Stepp & Lafitte recently moved into a new office at WestLawn, the Bull Street District’s newest office development, and the first mass timber commercial building in Columbia. Photo/Brian Knox and B. Knox Photograpy

Margaret Seymour

Baker Donelson launches Charleston office

■ BY JASON THOMAS jthomas@scbiznews.com

Baker Donelson has launched a new location in Charleston with the addition of four attorneys from two well-respected firms, accord ing to a Baker Donelson news re lease.

Joining Baker Donelson as shareholders in the Firm’s new Charleston location are corporate attorney J. Ashley Cooper and em ployment attorney Jennifer K. Dun lap, both previous ly with Parker Poe, and health law attorneys Alissa Flemingand Cath erine F. Wrenn, both previously with Womble Bond Dickinson.

This is Baker Donelson’s second new office in the Carolinas in less than a year. In October 2021, the Firm added a team of health care at torneys in Raleigh/ Research Triangle, launching its first North Caro lina location. Baker Donelson has maintained a location in Colum bia, South Carolina, since 2016.

“Charleston is a vibrant and fast-growing market that is criti cally important to serving our cli ents with South Carolina opera tions,” said Baker Donelson Chair and CEO Timothy M. Lupinacci in the release. “Establishing a foot hold there leverages our capabili ties in areas such as manufactur ing, global trade, health care, and energy. We’re proud to have such an outstanding group of attorneys launch our Charleston office, and we look forward to working with them as we continue to build on our presence across the Carolinas.”

In launching this new location, Baker Donelson has established temporary office space, but the firm plans a larger permanent of fice in the coming months to ac commodate further additions in Charleston.

Cooper, who will serve as man aging shareholder of the Charles ton office, chaired the Energy In dustry Team at his previous firm.

Associate joins Collins & Lacy

Philip S. Coury has joined Collins & Lacy’s Columbia office as an asso ciate in the Trucking/Transportation and Construction practice groups. Prior to join ing Collins & Lacy, Coury served in the Fifth Circuit Solicitor’s Office as Assistant Solicitor. There, he repre sented the State at all points of crimi nal prosecution and resolved more than 400 criminal cases in his first year.

In his role as Assistant Solici tor, Coury independently managed

He represents companies with energy interests before the Fed eral Energy Regulatory Commis sion (FERC), the North American Electric Reliability Corporation (NERC), and state utility com missions. He counsels clients on a range of compliance, transactional, and litigation matters. He works on new and emerging energy tech nologies and emerging solutions.

“I first learned of Baker Do nelson’s strong reputation when I worked in Washington, D.C. I

an average active caseload of 600. He was responsible for reviewing case facts, consulting with arrest ing agencies, interviewing witnesses and victims, determining the appro priate charge, indicting the charge for prosecution and bringing cases to trial.

“Philip brings trial experience, successful verdicts, and a history of handling a large volume of cases,” stated firm president, Christian Stegmaier. “At Collins & Lacy, he will be able to focus on serving our clients with high-quality legal work and excellent client communica tions. We are very pleased to wel come Philip to our team.”

Raised in Canton, Ohio, Philip is a graduate of the College of Charles ton and the University of South Car olina School of Law.

am excited to offer clients the ex panded resources of a national law firm that understands our market needs,” Cooper said in the release.

Dunlap is an employment attor ney with more than 20 years of ex perience in handling employment and business disputes in federal and state courts for clients in the manufacturing, technology, health care, banking and hospitality in dustries. She advises businesses on all issues related to employ ment, including drafting employ

ment agreements, handbooks, and policies.

The addition of Fleming and Wrenn marks the latest expansion of Baker Donelson’s nationally rec ognized Health Law practice. Be yond the addition of the six-lawyer health team in North Carolina, the Firm has made nine other health law hires across the firm’s foot print in the past year.

Fleming’s practice touches on almost every aspect of health care operations, including regulatory compliance; operations and risk management; certification; reim bursement and Medicare and Med icaid repayment audits and volun tary repayments; investigations and disclosures under the CMS and OIG self-disclosure protocols involving potential violations of the Fraud and Abuse Anti-kick back Statute; confidentiality of medical information and HIPAA; facility licensing; and certification of need.

Wrenn litigates cases for busi nesses and health care providers, including physicians, hospitals, skilled nursing facilities, and as sisted living facilities. Her practice includes advising clients on regula tory compliance and handling mat ters that involve Medicare fraud, wrongful death, personal injury, negligence, breach of contract, and breach of warranty.

Real estate attorney joins Morton & Gettys

Trent Womble, an experienced real estate attorney who is licensed in South Carolina and North Caro lina, has joined Morton & Gettys.

Womble has practiced in York County since 2017. Previously, he was a partner at a real estate law firm based in Fort Mill. His work included review ing title searches, surveys and title commitments, and overseeing proper execution of all documents necessary for real es tate closings in South Carolina and North Carolina.

He also represented commercial real estate clients, assisting with re finances and purchases, residential flips and swap closings. He has rep resented private lenders and closed construction loans. He represented a regional homebuilder, executing lot takedowns and handling homebuyer closings in York County and beyond.

Womble graduated cum laude from the Campbell University School of Law. He has served as an adjunct faculty member for his alma mater since 2014. He earned his bachelor’s degree from the University of North Carolina - Chapel Hill.

He and his wife Jackie live in Fort Mill with their three young sons. In his spare time, he enjoys running and coaching his oldest son in youth basketball.

Catherine Wrenn

Philip S.

Coury

Trent Womble

Timothy Lupnacci

Jennifer Dunlap, Ashley Cooper and Alissa Fleming. Photo/Baker Donelson

Charleston is a vibrant and fast-growing market that is critically important to serving our clients with South Carolina operations. Establishing a foothold there leverages our capabilities in areas such as manufacturing, global trade, health care, and energy. We’re proud to have such an outstanding group of attorneys launch our Charleston office.

Timothy M. Lupinacci, Baker Donelson chair and CEO

Rig driver settles for $6M in loose-wheel incident

■ BY HEATH HAMACHER

A tractor-trailer driver who escaped serious injury when his rig overturned after being struck by a loose wheel from another truck has settled his claims for $6 million, his attorneys report.

Robert Phillips and Eve Goodstein of McGowan Hood Felder & Phillips in Rock Hill report that their client was driving his 18-wheeler on the interstate at approximately 3 a.m. on Aug. 3, 2016, when a wheel separated from an 18-wheeler traveling in the oppo site direction. The wheel picked up speed, crossed the median, and split into two wheels and tires, one of which struck the plaintiff’s “left front steering wheel.”

“Being very dark at that hour, Plaintiff had no idea what caused the violent impact that caused Plain tiff’s truck to make a sudden right-side turn taking his tractor-trailer over the edge of the embankment,” the attorneys wrote in an email to Lawyers Weekly.

The plaintiff was trapped upside down for ap proximately three hours before being extracted, the attorneys said, adding that most of his injuries were soft-tissue injuries that did not require surgery.

The attorneys said that wheels generally should not separate from the tractor during normal opera tion but that they can do so when there is a lack of proper and regular maintenance and systematic in spection that allows loose lug nuts to go undetected and become looser with time.

“Interestingly enough, a 3-inch lug bolt was found over a mile and a half back up the interstate,” the at torneys wrote. “This would have been the area where the wheel likely began to separate from the tractor.”

The attorneys said that they became increasingly suspicious during discovery of the authenticity of re

cords produced by defense counsel.

There were con cerning discrepan cies and lapses in legally required daily driver logs, the attorneys said. “Additionally, one of the driver logs indicated the truck was in one state delivering goods, yet another report also impos sibly documented an inspection being performed n the very same truck, on the same day, hundreds of miles away,” the attorneys wrote.

The attorneys said that a forensic document ex aminer opined that most of the inspection and main tenance reports had been fabricated by whiting out and changing dates and other data in the reports.

It was “hardly contested” during depositions that the documents were fabricated, the attorneys said, but management claimed that it had no idea who fal sified the documents and even made claims of sabo tage.

The attorneys said that at mediation they focused on the significant trauma and emotional distress their client suffered, noting that a jury would likely award substantial and punitive damages because of the defendants’ failure to investigate and hold ac countable the person or persons who falsified the documents meant to keep the public safe.

Many details of the case, including names of the parties, venue, and defense counsel, have been with held pursuant to a confidentiality agreement.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $6 million

Injuries alleged: Soft tissue injuries, mental anguish

Case name: Withheld Court: Withheld

Mediator: Tom Wills of Charleston Date of settlement: November 2021

Special damages: $205,000 in past and $85,000 in future medical bills, primarily diag nostic and physical therapy

Most helpful experts: Tim Cheek of Charlotte (engineer/metallurgist), Gregory Wright of San Francisco (heavy vehicle maintenance and repair specialist), Michael Napier of Atlanta (trucking systems and regulatory compliance expert), Mickey Dawson of Spartanburg (fo rensic document examiner), Dr. Keith Ganci of Charlotte (neuropsychologist), Debbie Caskey of Destin, Florida (future medical care nurse), and Raymond Sauer of Clemson (economist for future medical care valuation)

Insurance carrier: Withheld

Attorney(s) for plaintiff: Robert Phillips and Eve Goodstein of McGowan Hood Felder & Phillips in Rock Hill

Attorney(s) for defendant: Withheld

$7.7 million awarded in deer stand electrocution case

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

The estate of a man who died after being elec trocuted in a deer stand while using a pole saw to trim tree limbs, and a man who survived the accident, were awarded a combined $7.7 million.

The estate argued that the defendants in the matter were aware of the dangerous condition and failed to remedy the situation as required under the law, National Electrical Safety Code, and various defendants’ policies. The defendants in the matter denied liability for the man’s death and comparative negligence was also alleged.

In 2017, two men were performing pre-hunt ing-season maintenance around a deer stand, a four-legged structure used for hunting, when the deceased man’s pole saw made contact

with electricity while “limbing” branches from a nearby tree.

The survivor of the accident al leged psychologi cal trauma and physical injury due to electrical shock he experi enced when attempting to help the deceased, and sued in a personal injury case.

The estate of the man who died was awarded $5 million; the survivor was awarded $2.7 mil lion.

Many of the details in the case have been with held due to a confidentiality agreement.

Is this a verdict or a settlement? Settlement

Type of case Negligence case: Survival and Wrongful Death

Amount: $7.7 million global

Injuries alleged: Electrocution death

Case name: Confidential Court: Confidential Case No.: Confidential

Date of verdict or settlement: February 2022 Attorney(s) for plaintiff and their firm(s): Andy Kunz of Elliott, Phelan & Kunz LLC (Georgetown, S.C.) and Gary Finklea of Finklea, Hendrick & Blake LLC (Florence, S.C.)

Attorney(s) for defendant and their firm(s): Confidential

Longtime airport director awarded Order of the Palmetto

■ BY ROSS NORTON rnorton@scbiznews.com

The longtime director of Green ville Downtown Airport has awarded the Order of the Palmetto, the state’s highest civilian honor.

Lt. Gov. Pamela S. Evette pre sented the Order of the Palmetto to Joseph R. Frasher on behalf of Gov. Henry McMaster at a Sept. 15 cer emony in Greenville.

The order is awarded to state citi zens to honor a lifetime of service and achievements of national or statewide significance. For Frasher, it honors 39 years of service to the state as the GMU airport director.

“We brag about the people of South Carolina and it is really the people of South Carolina that keeps attract ing business from all over the globe,” Evette said in a news release. “The people of S.C. that encourage people to move here because of the type of peo ple we are. We care about our neigh bors. We watch after our friends. We look after our family. Here in South Carolina, we are a close-knit family,

and in South Carolina we have an award we give. It is an award that can’t be bought. An award that you can’t schmooze your way into. You have to earn it.”

Frasher, who graduated from Greenville High School in 1975, al ways loved aviation and wanted to be a pilot, the news release said. He pursued a degree in airport manage ment from Auburn University but realized that all the management positions were filled by World War II veterans. He decided he would try law and graduated from the University of South Carolina, obtaining his juris doctorate in 1982. He was not happy practicing law and jumped at the op portunity at GMU when the director position opened in May 1983.

His accomplishments include in stallation of an FAA contract tower that helped make GMU the state’s busiest general aviation airport. He installed the first Engineered Mate rial Arresting System (EMAS) at a general aviation airport in the United States, a decision credited for saving the lives of five people when a plane’s

brakes failed in 2006.

“It has been a wonderful 39 and a half years,” he said in the news re lease. “I had the job of my dreams.

Nobody stays at a job this long any more but the commission has been kind enough to let me stay. I enjoyed every minute of it...”

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 Greenville office. (www.clarksonwalsh.com) We are a fast paced litigation office that specializes in the defense of individuals and businesses in all areas of civil litigation, including products liability, automobile negligence, construction, civil rights, professional negligence, insurance coverage and bad faith defense and premises liability. The firm is looking for an individual who can work well within a team structure, but can also work independently as the lead lawyer in litigated matters.

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

Robert Phillips

Andy Kunz Eve Goodstein

Gary Finklea

Getting ready for the end of the federal health emergency

■ BY JENNA K. GODLEWSKI AND ALICE V. HARRIS, Nexsen Pruet

The current extension of the fed eral public health emergency de clared as a result of the COVID-19 pandemic (“PHE”) will expire on Oct. 15, 2022. As the need wanes for the waivers and flexibilities implemented due to the PHE, there has been great speculation on when the PHE will end.

On Aug. 18, 2022, the Centers for Medicare & Medicaid Servic esclearly sent a message that the end is near and providers need to prepare for the “return to normal” business practices.

The CMS roadmaps for under standing the status of PHE waivers and flexibilities

During the COVID-19 PHE, CMS used a variety of tools in cluding emergency waivers, regu lations, enforcement discretion, and sub-regulatory guidance to en sure access to care while also giving health care provid ers needed flexibili ties to respond to COVID-19. CMS is now signaling that the end of the PHE is near, and, with it, many of the flex ibilities will end.

In a blog post called “Creat ing a Roadmap for the End of the COVID-19 Pub lic Health Emer gency,[1]” (“CMS Blog Post”) CMS reminded providers that many of the waivers and flexibilities will be ter minated when the PHE ends. CMS also confirmed that it will give a 60day notice prior to the termination of the PHE. Throughout the blog post, CMS advises providers to pre pare by returning to the health and safety protocols and billing prac tices in place prior to the pandemic.

During the PHE, CMS processed over 250,000 section 1135(b) waiv er requests, so the process of un winding the extensive waivers and flexibilities is complex. To assist providers with understanding the status of the waivers and flexibili ties, CMS released fact sheets[2] summarizing which waivers and flexibilities have already been ter minated, which have been made permanent, and which will end at the end of the PHE. There are over 35 CMS fact sheets which include fact sheets for the following provid ers:

• Physicians and other clinicians Hospitals and CAHs, ASCs and CMHCs

• Teaching hospitals, teaching physicians and medical residents

• Long-term care agencies (skilled nursing facilities and/or nursing fa cilities)

• Home health agencies

Hospice

• Inpatient rehabilitation facili ties

• Long-term care hospitals and extended neoplastic disease care hospitals

• Rural health clinics and feder ally qualified health centers

• Laboratories • Medicare shared savings pro grams

• Durable medical equipment, prosthetics, orthotics and supplies

• Medicare advantage and Part D plans

Ambulances

• End stage renal disease facili ties

CMS states in the CMS Blog Post that the waivers listed in the fact sheet for each provider type will be terminated when the PHE ends unless specifically stated oth erwise. As an example of extend ing a waiver, the use of Audio-Only Telehealth for certain services, has been extended for 151 days past the termination of the PHE.[3]

The CMS Blog Post also ad vises providers that it found addi tional requirements implemented for certain providers as a result of the PHE to be valuable and, there fore, will not be terminated with the PHE. For example, CMS has extended the requirement for long term care facilities to report resi dent and staff infections and deaths related to COVID-19 through De cember 2024.

Advice to providers: Prepare to implement a 60-day plan to be compliant when the federal PHE ends

It is likely the PHE will be ex tended past Oct. 15, 2022, since no tice has not yet been given that it will be terminated. However, due to the message conveyed in the CMS blog post, providers should create a “60-day plan” now to ensure compli ance with CMS policies and regula tions well in advance of the termi nation of the PHE. Core elements of a “60-day plan” plan should in

clude the following considerations:

• Understand the waivers and flex ibilities that are still being utilized by your organization, and whether they will expire with the end of the PHE, or have been temporarily or permanently extended.

Implement policies and proce dures that adhere to CMS policies and regulations that were in place prior to the pandemic.

• Educate and your providers and staff on the “new” policies and pro cedures and explain the importance of swift implementation.

• Conduct internal audits prior to the termination of the PHE to en sure the waivers and/or flexibilities are no longer being used.

• Ensure that any additional re quirements imposed on your orga nization during the PHE that are not expiring with the PHE are still being performed.

Risks of not preparing

It is very likely CMS will conduct audits in the future to ensure that providers are no longer utilizing waivers and flexibilities that have been terminated. To avoid overpay ments, civil monetary penalties, provider enrollment issues, admin istrative liability, and False Claim Act liability, providers must react quickly to be compliant with CMS policies that are shifting to the post-pandemic world.

Harris is an experienced health care, reimbursement, and com pliance attorney based in Nex sen Pruet’s Columbia, S.C., office, where she assists hospitals, health care systems, physician practices, skilled nursing facilities, hospice agencies, home health care agen cies and other health care provid ers with a wide variety of matters. Godlewski focuses solely on health care law and assists medical prac tices across the country on reim bursement, regulatory, and compli ance matters.

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Alice Harris

Jenna Godlewski

In August, the Centers for Medicare & Medicaid Services sent a message that the end is near for the federal public health emergency declared during COVID-19. Photo credit

Plaintiff awarded $28.5M in DUI hit-and-run

■ BY HAVILAND STEWART hstewart@nclawyersweekly.com

A man critically injured while riding his motorcycle after being struck by an alleged drunk driver was awarded over $28 million.

Plaintiff suffered catastrophic injuries on March 6, 2020, when he was involved in an automobile crash with defendant. According to the plaintiff’s council, Andrew Countryman of Countryman Law Firm, the plaintiff was riding a motorcycle on Dorchester Road in or near Dorchester County, South Carolina. At the same time, the defendant was driving a 2012 Jeep Patriot on Dorchester Road approaching Wescott Boulevard.

According to Countryman, both parties approached the intersection simultaneously. As they did, the defendant attempted to turn left from Dorchester Road onto Wescott Boulevard as Plaintiff was traversing through the intersection. The defendant, who was 20 at the time, was driving under the influence and failed to yield to the plaintiff’s right of way, according to the lawsuit. The defendant ran over the plaintiff and proceeded to flee the scene of the accident and drove to his nearby residence in North Charleston, S.C.

Approximately two hours after the accident, a breathalyzer test took place and shower the defendant had a BAC of .17. The defendant was then charged with a felony DUI with great bodily injury as well as leaving the scene of a collision with great bodily

injury.

“My client was almost killed, and spent about a month in the hospital,” Countryman said. “He had numerous surgeries, has hardware in his body, all over the place that will be there forever.

His life is irreparably changed and essentially ruined by the actions of this kid.”

The charges for plaintiff’s medical treatment total at $1,136,766.90.

Since the accident, the plaintiff has experienced significant change in his quality of life and has been unable to provide for himself due to his injuries. Plaintiff presented evidence that he worked as a pipe fitter making around $100,000 annually and has been unable to work in that or any other regular capacity since the accident. He was awarded lost income in the amount of $250,000. He also suffers severe memory and neurological problems because of his injuries, which render him permanently disabled and unlikely to procure or maintain regular employment in the future.

The total compensation for the injuries suffered by the plaintiff considers past, present, and future loss of income, medical expenses, as well as deprivation of normal life expectancy, alteration of lifestyle, psychological trauma, pain and suffering, and more.

*Is this a verdict or a settlement? Default judgement

*Type of case :Motor vehicle crash b/w drunk driver in a Jeep Patriot who ran over my client who was riding a motorcycle.

*Amount: $28,520,601.40

*Injuries alleged: Open fracture right wrist, Closed head injury, ICH (intracerebral hemorrhage), open nasal fracture, laceration of scrotum, hypotension, laceration left eyelid and periocular area, laceration of nose, pneumothorax right, altered mental status, pelvic fracture, respiratory failure, concussion, sacral fracture, pelvic hematoma, subarachnoid hemorrhage, acute post-hemorrhagic anemia, open fracture left radius, open fracture left ulna, closed fracture right radius, closed fracture right ulna, type III distal fracture of right radius, laceration of structure of nasal cavity, diffuse axonal brain injury, laceration of flexor muscle, fascia tendon of right little finger, displaces fracture of left ulna styloid process, other intraarticular fracture of lower right radius, other closed intraarticular fracture of distal end of left radius, dislocation of distal radioulnar joint of right wrist, fracture of radial shaft, sacroiliac joint dysfunction of right side, closed displaces zone II fracture of sacrum, closed fracture dislocation of pubic symphysis with diastas.

Case name: Jeffrey Briggs v. Connor GalloCourt: Dorchester, S.C., Court of Common Pleas

Case No.: 2020-CP-18-01587

Judge: Diane Goodstein

Date of settlement: 9/1/22

Bench or jury trial?: Bench

*Attorney(s) for plaintiff and their firm(s): Andrew W. Countryman Attorney(s) for defendant and their firm(s): N/A

*Was the opposing represented by counsel? No

*Were liability and/or damages contested? No. Defendant went into default and failed to attend damages hearing.

*Has the judgment been successfully collected? No

The plaintiff was rewarded a compensation of $28,520,601.40 for ac-

tual and punitive damages related to this accident.

Andrew Countryman

FUTURE / Firm moves into BullStreet office

with Robinson Gray. The interiors feature exposed wood ceilings and a system of steel columns and beams in innovative sculptural forms. WestLawn utilizes 10-foot-plus windows to maximize natural light and includes gigabit-speed internet.

WestLawn’s first floor will house retail stores, with the remaining floors offering Class A office space. Public green spaces are included in the exterior design plans, which reflect the new urbanist vision of a walkable, vibrant district for Bull Street, the largest urban redevelop ment project on the East Coast.

“WestLawn’s development was a wonderful partnership with Robin son Gray and some of the best ar chitects, engineers and contractors anywhere,” said Robert Hughes, president of Hughes Development Corporation, the master developer of the BullStreet District. “Its de sign and use of renewable resources and green spaces represent the fu ture of urban office architecture. We are excited to have it in Columbia, and look forward to Robinson Gray’s continued success in this signature building.”

Robinson Gray’s mission is to provide exceptional client service, to promote excellence among at torneys and staff, and to encourage

SC LEGAL / SC legal pioneer joins Charleston firm

Continued from 1 ►

James Saxton said in the release. “We strive to grow by delivering the highest quality of services possible to our clients, and someone as deep ly connected to South Carolina as Judge Seymour will help us uphold that standard.”

Seymour’s career began in Wash ington, D.C., where she worked as an equal opportunity specialist for the U.S. Department of Health, Education and Welfare from 1972 to 1979 while earning her law degree from Ameri can University, Washington College of Law, in 1977, the release stated.

After serving in the same position at the U.S. Equal Opportunity Com mission, she began her law career as an attorney for the Office of Civil Rights for the U.S. Department of Education from 1980 to 1988, accord ing to the release. After a short stint

in private practice, she returned to public sector work as an assistant U.S. attorney for the District of South Carolina from 1990 to 1996. Twice during that time, she was named the interim U.S. attorney for the district.

In 1996, Seymour was named as a United States Magistrate Judge in South Carolina, the release stated. In 1998, she was nominated and confirmed by the Senate to U.S. Dis trict Court for the District of South Carolina, ultimately serving as chief judge and later taking senior status. Judge Seymour will also be part of Optimal Dispute Resolutions, a Sax ton & Stump partner company that works with parties who are pursu ing alternative dispute resolutions to avoid a lengthy and costly court trial, according to the release. The company is led by the Hon. Lawrence F. Stengel (Ret.) who leads a team of neutrals who handle both general

and niche-specific matters. Seymour will add her experience specifically to handling disputes involving class actions, complex civil litigation, em ployment and commercial disputes.

She joins the Saxton & Stump office in Charleston, which recent ly added attorneys Alice Paylor, Elizabeth “Beth” Palmer, and Bijan Ghom, as well as other associates and paralegals

“Saxton & Stump has quickly made a name for itself in the Charles ton area and in all of South Caroli na,” Judge Seymour said. “I’m eager to start the next stage of my career during this exciting time for the firm in South Carolina and throughout its entire footprint.”

Saxton & Stump’s strategic growth outlook

Saxton & Stump has grown to a team of more than 150 profession als, including more than 90 attor

neys. This year, the firm has added a Philadelphia office, new services and established groups dedicated to investigations and criminal defense and environmental, workplace safety and utilities. In addition to bolster ing their infrastructure, they have also grown key existing practice ar eas such as healthcare, senior care, real estate, government affairs and trusts and estates. The firm, which has been adding attorneys this year in South Carolina, was also named the fastest growing law firm in Penn sylvania by The Legal Intelligencer, having added 53 professionals in 2021, including 22 attorneys.

Saxton & Stump provides solu tions for complex legal issues and partners with clients to create a roadmap for their success. The firm is committed to empowering clients by delivering five-star service and results-focused advice.

Transportation agency names new chief of staff

Justin Powell is set to be the new chief of staff for the South Carolina Department of Transportation.

In his new role, Powell will be charged with the oversight and exe cution of a number of strategic initia tives with the agency, according to an SCDOT news release.

“I’m pleased to appoint Mr. Pow ell as the Chief of Staff. This agency has made incredible progress on our strategic 10-Year plan and I know Justin’s leadership in this capacity will further the SCDOT’s initiatives,” Secretary of Transportation Christy A. Hall said in the release.

Powell was appointed by Hall in 2019 to be the department’s deputy secretary for finance and administra tion, according to the release.

Justin Powell

Previously, Pow ell served as assis tant county admin istrator in Horry County where he provided financial leadership to the County’s $500 mil lion roads sales tax program, doubled lo cal funding for tran sit, and managed a project to restore freight rail service to a three-county region, the release stated In addition, Powell has also worked at other local government agencies including the City of Greenville, Dorchester Coun ty, and Fairfax County, Va.

Powell has a master’s degree in public administration from the Uni

versity of North Carolina at Chapel Hill, and a bachelor’s degree from Wofford College.

In a related announcement, Mad eleine (Maggie) Hendry will be step ping in as the acting deputy secre tary for finance and administration, having served as chief of financial planning since 2019, according to the release. Hendry has served in increas ingly senior roles for the agency since 2014, including chief of professional services and project fund manager.

As acting deputy secretary for fi nance and administration, Hendry will manage a $2.7 billion annual bud get, and direct the agency’s financial, procurement, information technology, and local government functions which support the construction and mainte

nance of the nation’s fourth largest state-owned highway system, the re lease stated.

“Ms. Hendry has a long track re cord of supporting the 10-year plan to assure successful implementation and I have every confidence she will continue the progress we have seen since 2017,” Hall said in the release.

Hendry previously worked in sev eral managerial capacities in finance, procurement, and information tech nology with the South Carolina State Budget and Control Board, now the Department of Administration, the release stated.

Hendry has an MBA from Win throp University, and a bachelor’s degree from the University of South Carolina.

professionalism and inclusion in the firm, the Bar, and the community.

WestLawn is located between Starbucks and Segra Park on Pick

ens Street between Freed Street and Matilda Evans Street.

WestLawn, where Robinson Gray recently opened its new office, boasts 79,000 square feet of office space, and is the first develop ment of its kind in Columbia that uses a renewable resource, thus reducing its carbon footprint . Photo/Brian Knox at B. Knox Photography

Forty Under 40 winners celebrated at Charleston Gaillard Center

■ BY JENNY PETERSON

Forty outstanding individuals were recognized for their business accomplishments and community service at a cocktail reception at the Gaillard Center on Thursday, Sept. 15.

They’re volunteers, non-profit board members, foster parents, founders of non-profits that help children and the community and pioneers in their fields.

Even more outstanding? They’re all under 40 years old.

More than 250 people attended the Charleston Regional Business Journal’s “Forty Under 40” event, celebrating those young people’s accomplishments while feasting on prime rib and a mashed potatoes bar. The event was sponsored by Charleston Southern University and the Charleston Gaillard Cen ter.

Each nominee was called to the stage and their resumes and com munity service highlighted by em cees Quinn Gaines — a past Forty Under 40 winner and director of business development for Choate Construction’s South Carolina Divi sion — and Jason Thomas, execu tive editor of SC Biz News.

While the nominees work in a wide variety of industries — real estate, architecture, transportation, legal and health services, property management, hospitality — all of them have a deep passion for giving back to their community.

Collectively, the nominees dedi cate their time and support the fol lowing organizations: The Susan G. Komen dragon boat race, Teacher’s Supply Closet, Green Heart Project, American Red Cross, Chase After the Cure, Girls on the Run, Make-aWish Foundation, Dee Norton Child Advocacy Center, Next Child Fund, One80Place, Goose Creek Planning Commission, financial literacy orga nization Increasing HOPE and the Junior League of Summerville.

Many nominees use their busi ness skills to help the community,

like Max N. Gruetzmacher, member attorney at Motley Rice, who has of fered legal services for Dee Norton Child Advocacy Center, Charleston HALOS, Lowcountry Food Bank, Charleston WaterKeeper, Charles ton Animal Society, Palmetto Paws and Charleston Legal Access.

Doing good through their work, Nichole Johnson, a local missions ministry leader at Seacoast Church, runs a warming shelter for home less people in West Ashley. Devon Andrews, director of policy and part nerships at the Charleston Parks Conservancy, created community initiatives like Books on Buses, Books for Babies programs, Free and Fresh Fridge initiative.

Personal missions include the creation of new important non-prof its. Zach Volousky, vice president and financial consultant at South

State Investment Services, cofounded Pickle’s People, which sup ports children and families that are undergoing a recent childhood can cer diagnosis, following his young daughter’s Leukemia diagnosis.

Marcus Bryant, a formerly home less youth, founded Compass Col legiate Academy, a free charter school in North Charleston, and has dedicated his service to empowering marginalized communities.

Breaking down barriers in health care, Jill Dunnigan, manager of Pro vider Network Management for Se lect Health of South Carolina, served as the company’s first culturally and linguistically appropriate services coordinator. She learned about the problem of cultural and linguistic barriers while studying in Spain during college, where she experi enced the struggles one encounters

when using a health care system in a non-native language and culture. Dr. Cerrissa Hugie was recognized as the first female Black psychiatric nurse practitioner to open her own practice in Charleston.

Celebrating the local community, Dawn Boren, senior management specialist at Boeing, writes a chil dren’s book series called Stories of the Gullah Geechee Children in her free time.

“Beautiful beaches, an historic downtown and great weather do not make a community — people like these 40 young people do,” said Thomas. “It takes many people vol unteering their time and talent to build a strong, rich, vibrant, caring community. The selfless examples, the breadth and depth of commu nity service and volunteer work rep resented tonight, is truly inspiring.”

Grant to help SC nonprofit expand services

■ CHRISTINA LEE KNAUSS, cknauss@scbiznews.com

Turn90, a nonprofit that equips men to succeed after prison by pro viding a route to a career-path job, has received a $50,000 grant from Power:Ed, a philanthropic project of SC Student Loan.

The funds will be used to hire two new staff members to lead expansion of the program’s services into the Up state in 2023, according to a news re lease. Turn90 currently is operating in Charleston and Columbia.

According to statistics compiled by Turn90, Greenville County current ly receives the most men returning home from state prison at 10.4%, with Spartanburg County second-highest at 9.4%.

Nationwide, according to Turn90, 62% of people returning home from prison are rearrested within three years, but only 22% of Turn90 gradu ates have been rearrested, and only one of more than 100 graduates has ever been re-incarcerated.

“Power:Ed’s mission is to create opportunities and change lives by

supporting successful programs that reduce barriers to education and career readiness for South Carolin ians,” said Claire Gibbons, director of Power:Ed. “Turn90 is achieving just

Turn90’s program helps men de

velop social, emotional and workforce skills. It combines cognitive behavior al classes with transitional work, sup portive services and job placement.

“This partnership with Power:Ed is a huge step forward, not only for Turn90 but for all of South Carolina,” said Amy Barch, founder and execu tive director of Turn 90. “When peo ple are released from prison with a pathway to livable wage employment, benefits and opportunities for growth, they are less likely to return to crimi nal behavior.”

In the second quarter of this fis cal year, Power:Ed has awarded six grants totaling nearly $219,000 to workforce and development nonprof its in the state, including Turn90. Grants are administered quarterly and the deadline for the next round of funding is Oct. 1.

Founded in 2019, Power:Ed fo cuses on creating opportunities for South Carolina’s youth and adults by supporting low-income, minority and first generation students, improving access to college and degree comple tion and creating pathways to quality workforce opportunities.

that, and we are proud to support their growth plans and provide that last funding needed for statewide ex pansion.”

The 2022 Forty Under 40 class snaps a photo during a recent awards ceremony at the Gaillard Center in downtown Charleston. This is the 25th year that the Charleston Regional Business Journal (published by BridgeTower Media, SCLW’s parent company) has recogized 40 people under 40 years old making a difference in the workplace and in their communities. Photo/Ariel Perez

Turn90, a nonprofit that equips men to succeed after prison by providing a route to a career-path job, was awarded $50,000 by Power:Ed. Photo/Provided

Opinions

Criminal Practice

Rehaif Error – No Prejudice – Sentenc ing – Mental Health Issues

The government failed to offer evi dence that defendant knew he was a convicted felon at the time he pos sessed firearms and ammunition. Although this was plain error under Rehaif v. United States, 139 S. Ct. 2191 (2019), defendant has not shown that his substantial rights were af fected. Defendant stipulated that, on the date of the offense, he had been convicted of a crime punishable by imprisonment for a term exceeding one year and thus could not lawfully possess a firearm or ammunition. Al though defendant proffers on appeal his mental illness and the nature of his South Carolina Youthful Offender Act sentence as reasons why knowl edge of his prohibited status should not be imputed to him, he has not sug gested he would have presented these matters – or any other evidence – as factual bases at trial for contradicting the evidence that he knew he was a felon and could not possess firearms or ammunition.

We affirm the criminal judgment against defendant.

The district court acknowledged the violent and serious nature of de fendant’s conduct, disagreed with the notion that he was a minimal or mi nor participant, and explained how he differed from his co-defendants. Nev ertheless, the court stated it had ac counted for defendant’s mental health difficulties and learning issues and afforded defendant a downward vari ance from the guidelines range of 502 to 567 months’ imprisonment based on his history of mental health issues. Accordingly, in sentencing defendant to 480 months, the district court ex plicitly considered defendant’s mental health issues and found him less de serving of the level of incapacitating punishment suggested by the guide lines as a result.

United States v. Hardiman (Law yers Weekly No. 003-037-22, 8 pp.) (Per Curiam) 19-4407. Appealed from USDC at Florence, S.C. (Bryan Har well, J.) Elizabeth Franklin-Best for appellant; Corey Ellis for appellee. 4th Cir. Unpub.

Judges

Discipline – Angry Outbursts – Public Reprimand

During a time when both his son and his wife were suffering from health issues, the respondent-magis trate judge (1) used profanity while scolding an attorney appearing before him and (2) yelled at a scheduling clerk for failing to provide him time ly notice of a jury trial. Respondent thereby violated judicial canons re quiring a judge (1) to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and (2) to be patient, digni

fied and courteous to litigants, law yers and others with whom the judge deals in an official capacity.

Respondent is publicly reprimand ed and ordered to complete an addi tional 20 hours of anger management counseling.

In re Martin (Lawyers Weekly No. 010-031-22, 4 pp.) (Per Curiam) John Nichols and Sara Morris for the Of fice of Disciplinary Counsel; Robert Jamison Tinsley for respondent. S.C. S. Ct.

Domestic Relations

Alimony – ‘Supported Spouse’ – Un defined – Descriptive Term

Our alimony statute, S.C. Code Ann. § 20-3-130(C), repeatedly uses but does not define the term “support ed spouse.” We agree with the defen dant-Husband that this is merely a descriptive term delineating the per son actually receiving alimony. We decline the plaintiff-Wife’s invitation to augment the language of the stat ute by requiring an alimony recipient to establish that he or she has active ly reduced his or her earning capacity in order to support the marriage.

We affirm the Court of Appeals’ decision, which – in order to correct a mathematical error – reduced Hus band’s alimony award from $3,000 to $2,700 per month.

We do agree with Wife that our jurisprudence has, at times, overem phasized the standard of living factor in deciding whether to award alimo ny. This is only one of the 12 statu tory factors that shapes an alimony award. In the record before us, there is nothing to suggest that the family court overemphasized this consider ation.

We also decline Wife’s invitation to reduce the alimony award further. The family court awarded Husband a smaller share of the marital estate but awarded alimony. Thus, reduc ing Husband’s alimony award risks unfairly altering the overall balance struck by the family court in reaching its decision.

Dissent

(Few, J.) The bench and the bar hold two incorrect views of the law of alimony: (1) that there is a “pref erence” for periodic alimony and (2) that periodic alimony may end only upon the remarriage of the supported spouse, the death of either spouse, or a family court’s determination in a later action that a substantial, unan ticipated change in circumstances has occurred.

Our courts’ “preference” for peri odic alimony predates the compre hensive amendments to § 20-3-130 in 1990. In light of the array of options now available and the ever-changing family dynamic, I find it inappropri ate to recognize any preference for one type of alimony over any other.

Given evidence that Husband’s in come is likely to increase, the absence of any evidence that Wife’s income is

likely to increase, and the certainty that Husband’s child support obliga tion will come to an end, the family court should take advantage of the statute’s provision allowing for an alimony award “to be reviewed and revised as circumstances may dictate in the future.”

I would deny alimony altogether. Given that the award will not be re versed, I would reduce the award to $2,000 per month and recommend “review and revision” of the award when the parties’ youngest child turns 18.

Rudick v. Rudick (Lawyers Weekly No. 010-032-22, 16 pp.) (Kaye Hearn, J.) (John Few, J., dissenting) Ap pealed from Darlington County Fam ily Court (Cely Anne Brigman, J.) On writ of certiorari to the Court of Ap peals. Gregory Samuel Forman and Karl Huggins Smith for petitioner; Marian Dawn Nettles and Kevin Mitchell Barth for respondent. S.C. S. Ct.

Civil Practice

Rule 11 Sanctions – Represented Client

Where plaintiff was represented by an experienced attorney who care fully and independently vetted plain tiff’s allegations and claims before determining she had a viable cause of action against respondents, and where there is no evidence that plain tiff harassed or otherwise coerced her attorney into filing the complaint against respondents, the trial court abused its discretion when it sanc tioned plaintiff personally. Although Rule 11, SCRCP, allows for the pos sibility of sanctions against a client, it is not intended to be used as a weapon against a client represented by coun sel, whose job it is to be knowledge able of the law and advise a lay client on the best course of action. Reversed.

Kovach v. Whitley (Lawyers Week ly No. 010-033-22, 5 pp.) (Per Curi am) Appealed from Berkeley County Circuit Court (Jean Hoefer Toal, J.) Dawes Cooke and Christopher Mark Kovach for petitioner; Jeffrey Breit, Joshua Steven Whitley and William Howell Morrison for respondents. S.C. S. Ct.

Criminal Practice

Third-Party Guilt – Constitutional –Double Jeopardy – Search & Seizure

Even though (1) defendant iden tified David Felder as the victim’s assailant, (2) Felder matched the description of the assailant as to significant details provided by wit nesses, (3) Felder’s guilt was incon sistent with defendant’s guilt, (4) Felder lived within walking distance of the crime scene and was found in the area within hours of the victim’s death, and (5) Felder’s jacket tested positive for gunshot residue, the cir

cuit court did not err in excluding evidence of third-party guilt. We affirm defendant’s convictions for murder, first-degree burglary, at tempted armed robbery and posses sion of a weapon during the commis sion of a violent crime.

Although Felder gave shifting alibis, defendant presented no wit nesses suggesting Felder claimed responsibility for the crimes nor oth erwise offered evidence of Felder’s guilt to the exclusion of defendant.

Defendant’s appearance was more in line with more details given by wit nesses than Felder’s was. Critically, when officers showed witnesses pho tographs of Felder from the date of the murder, both stated he was not the person they saw running from or near the victim’s home.

Other than bare suspicion and the close proximity of his home, there is simply no evidence to suggest Felder was the perpetrator. As evidence in the record supports the circuit court’s denial of defendant’s motion to introduce evidence of third-party guilt, we find no abuse of discretion.

At defendant’s first trial, a note from the jury indicated that the jury had agreed that defendant was not guilty of armed robbery, but they could not reach a unanimous deci sion as to the remaining charges. At this point, no action was taken other than the court’s giving of an Allen charge. Thereafter, the jury resumed deliberations, but the foreperson later reported that the jury had “just not been able to come to a unanimous decision on any of the indictments.”

Where defense counsel failed to raise the issue of the jury’s note dur ing the first trial, the first circuit court therefore made no ruling ad dressing the information in the jury note or otherwise specifically ad dressing the armed robbery indict ment. As in Blueford v. Arkansas, 566 U.S. 599 (2012), the first jury did not acquit defendant of armed robbery. When the jury was unable to return a verdict, the circuit court properly declared a mistrial and dis charged the jury. As a consequence, the Double Jeopardy Clause did not stand in the way of a second trial on the same offenses.

At defendant’s second trial, the circuit court did not err in denying defendant’s motion to dismiss the armed robbery indictment.

Finally, defendant argues that the bullets recovered from his bedroom should have been suppressed be cause they were seized pursuant to a warrant which was not supported by probable cause. We disagree.

It is true that witnesses’ descrip tions of the person seen fleeing the scene of the crime varied. However, all of the witnesses described the perpetrator as a medium-build black male, dressed in dark clothing, and between the ages of 18 and 30. When shown still photos taken from sur veillance video, the witnesses un equivocally identified defendant.

Moreover, the person fleeing the scene dropped an iPhone which was determined to belong to defendant. The circuit court did not err in deny ing defendant’s motion to suppress the evidence seized from his home and iPhone.

Affirmed.

State v. Brown (Lawyers Weekly No. 011-060-22, 21 pp.) (Stepha nie McDonald, J.) Appealed from Charleston County Circuit Court (J.C. Nicholson, J.) Susan Barber Hackett for appellant; Alan McCro ry Wilson, Donald Zelenka, Melody Jane Brown, Julianna Battenfield and Caroline Scrantom for respon dent. S.C. App.

Criminal Practice

PPPA – 25 Stab Wounds – Victim’s Pending Charges – Imperfect Defense – Premature Deliberations

In order to be granted immunity under the Protection of Persons and Property Act, defendant was re quired to show that he reasonably believed his actions were necessary to prevent death or great bodily injury. Defendant testified that he stabbed Jamie Galloway once in the shoulder and that caused Gallo way to fall off of defendant’s broth er and stop fighting. Defendant did not explain Galloway’s other 24 stab wounds. Even if defendant were entitled to intervene on behalf of his brother, he was not entitled

to continue stabbing Galloway after Galloway stopped fighting.

We affirm the trial court’s find ing that defendant was not entitled to immunity. We affirm defendant’s convictions for murder and posses sion of a weapon during the com mission of a violent crime.

At the time of his death, Gal loway had been charged with two counts of attempted murder. One of the people he had shot, Orville Edwards, would have testified for defendant about the facts leading to the charges against the victim. In response, the state would then have offered testimony that Gal loway had acted in self-defense. The trial court refused to allow Ed wards to testify.

While testimony about the spe cific facts of Galloway’s attempted murder charges was probative of his violent nature, its probative value was limited because it would have been cumulative to evidence the trial court deemed admissible. The trial court admitted evidence that Galloway was out on bond for attempted murder charges at the time of his death for shooting two people; additionally, defendant tes tified that he knew Galloway was out on bond for attempted murder for shooting two people and that Galloway had previously struck him. This evidence sufficiently con veyed Galloway’s violent nature.

More importantly, subjecting the jury to conflicting testimony about the facts of Galloway’s attempted murder charges likely would have confused the jury, and that danger

substantially outweighed any pro bative value the testimony could have provided. Therefore, the trial court did not abuse its discretion by admitting evidence of Galloway’s attempted murder charges but pro hibiting witness testimony about the specific facts.

Even if South Carolina were to adopt the doctrine of imperfect defense, it would only entitle de fendant to a jury instruction on voluntary manslaughter, which defendant received. The trial court did not err by refusing to give de fendant’s requested jury instruc tion on imperfect defense.

Defendant knew premature jury deliberations had allegedly taken place because the trial court gave a curative instruction, yet defendant did not object to the trial court’s curative instruction, request that the trial court question the jury re garding premature deliberations, or move for a mistrial. Instead, de fendant waited until after the jury submitted its guilty verdict to raise the issue in a posttrial motion. Ac cordingly, defendant did not pre serve this issue for appellate re view.

Affirmed.

State v. Chhith-Berry (Lawyers Weekly No. 011-061-22, 17 pp.) (Aphrodite Konduros, J.) Appealed from Lexington County Circuit Court (Eugene Griffith, J.) Susan Barber Hackett for appellant; Alan McCrory Wilson, Donald Zelen ka, Melody Jane Brown, Anthony Mabry and Samuel Hubbard for re spondent. S.C. App.

Criminal Practice

In a case involving an early morn ing collision between defendant’s vehicle and the victim’s moped, the state’s evidence showed that defen dant’s speed was 110 mph 1.3 seconds before impact and 105.6 mph 0.8 sec onds before impact when the brake was applied. The circuit court did not err in admitting a computer animated recreation of the accident or in allow ing a physician’s assistant to review medical records and to testify about her interaction with defendant.

We affirm defendant’s conviction for driving under the influence result ing in death.

The animation was authenticated by accident reconstruction expert Sergeant James Booker, who ex plained in detail his method of creat ing the animation through accident reconstruction. The animation was relevant because it aided the jury in understanding the events of the ac cident.

As to whether it was a fair and ac curate representation, the animation showed the important elements of the accident in a very similar way to the scene as described by other testi mony and evidence. Sergeant Booker explained it was not possible to show the accident in the darkness of night.

He also explained the underlying

DUI – Computer Animated Recreation – Physician’s Assistant – Medical Records Review

analysis relating to the positions of defendant’s car and the victim’s mo ped in the animation. He testified about defendant’s speed immediate ly prior to impact and after impact. There was testimony about what hap pened to the victim during the acci dent and the position of the victim’s body after impact.

The animation fairly and accu rately portrayed the state’s version of events. Further, because the ani mation was not inaccurate, the trial court did not abuse its discretion in ruling the probative value of the ani mation substantially outweighed the danger of its prejudicial, confusing, or misleading effect on the jury.

With respect to the testimony of the physician’s assistant who treated defendant at the hospital, as permit ted by Rule 703, SCRE, the PA based her opinion on facts or data that she was made aware of and personally observed. These facts or data did not need to be admissible in evidence. Therefore, the trial court did not err in allowing the PA to give an opinion about defendant’s intoxication based on her review of defendant’s medical records.

Affirmed.

State v. Nelson (Lawyers Weekly No. 012-023-22, 8 pp.) (Per Curiam) Appealed from Beaufort County Cir cuit Court (Carmen Mullen, J.) Adam Sinclair Ruffin and Kathrine Hag gard Hudgins for appellant; Alan McCrory Wilson, William Blitch, Jonathan Scott Matthews and Isaac McDuffie Stone for respondent. S.C. App. Unpub.

Criminal Practice

Drug Offenses – Constructive Posses sion – Intent to Distribute – Firearm Possession

The government demonstrated that defendant had dominion and control over the premises in which contraband was discovered and knowledge of the existence of the con traband. Moreover, the government provided substantial evidence that defendant both purchased and sold significant amounts of cocaine and marijuana from and to several indi viduals on multiple occasions.

We affirm defendant’s convictions of conspiracy to possess with the in tent to distribute and to distribute at least 500 grams but less than five kilograms of cocaine and less than 50 kilograms of marijuana, possession with the intent to distribute mari juana, and possession of firearms and ammunition by a convicted felon.

Rehaif v. United States, 139 S. Ct. 2191 (2019), only requires the gov ernment to prove knowledge of felon status, not knowledge that felon sta tus prohibits firearm possession, as defendant argues here. We discern no Rehaif error.

United States v. Clark (Lawyers Weekly No. 003-038-22, 5 pp.) (Per Curiam) No. 20-4597. Appealed from USDC at Orangeburg, S.C. (Terry Wooten, S.J.) Darren Haley for appel lant; Rhett DeHart, Jane Taylor and Katherine Hollingsworth Flynn for appellee. 4th Cir. Unpub.

Civil Forfeiture Statutes – Facial Chal lenge – Due Process & Excessive Fines

In a civil forfeiture case, the state

need only show probable cause to believe the seized property has a substantial connection to criminal activity; then, the burden shifts to a claimant to prove by a preponderance of the evidence that the property was innocently owned. Although the wis dom of this procedure may be ques tionable, we cannot find that our civil forfeiture statutes are facially uncon stitutional.

We reverse the circuit court’s dec laration that S.C. Code Ann. §§ 44-53520 and -530 facially violate the Due Process and Excessive Fines Clauses of the U.S. Constitution and S.C. Const. art. I, § 15. Remanded for fur ther proceedings.

After the execution of arrest and search warrants, respondent Travis Green was charged with and convict ed of several drug offenses. During the execution of the search warrant, law enforcement seized $20,771 in U.S. currency. Green seeks the return on the currency, and the circuit court agreed with him that our civil forfei ture statutes are facially unconstitu tional.

Due Process

We apply the test from Mathews v. Eldridge, 424 U.S. 319 (1976), to determine whether the statutes vio late due process. The Mathews test examines the procedural due process of a legal proceeding by considering (1) the private interest affected by the proceeding, (2) the risk of error created by the chosen procedure and (3) the countervailing governmental interest supporting the challenged procedure.

There is no dispute that an indi vidual has a legitimate interest in his property.

As to the risk of error, not only must the state show probable cause, but a solicitor must also file a forfei ture petition within a reasonable pe riod of time after seizure. Those with an interest in the seized property are given notice and are entitled to a jury trial in which they can cross-examine the state’s witnesses and present evi dence if they choose. Though Green might prefer that the state have a heightened standard of proof, that de cision is for the General Assembly to make, not this court.

With respect to the government’s interest in the challenged procedure, we have held that civil asset forfei ture is a legitimate exercise of the state’s police powers and that forfei ture serves a deterrent purpose both by preventing the further illicit use of the property and by imposing an eco nomic penalty, thereby rendering the illegal behavior unprofitable. Accord ingly, the government has a strong, legitimate interest in forfeiting prop erty connected to criminal activity.

Although Green argues that the government does not have an interest in depriving an innocent person of his property, the remedy in such a situ ation is to contest the forfeiture and mount an as-applied challenge.

While § 44-53-530(e)’s allocation of seized property (75 percent to the law enforcement agency, 20 percent to the prosecuting agency and five percent to the State Treasurer) might cast a shadow on the fairness of any given civil asset forfeiture, this is not enough to overcome the strong presumption of constitutional valid ity that envelops Green’s facial chal lenge.

By statutorily requiring the so licitor to commence a forfeiture pro ceeding “within a reasonable time,” the General Assembly has balanced an owner’s right to reclaim his prop

erty with the government’s desire to obtain forfeiture of contraband. Al though “reasonable time” is not de fined, due process does not require perfect process.

Moreover, if a state official fails to timely commence forfeiture proceed ings, that failure is a defect involving a particular seizure and should be re dressed in that particular case, but it does not allow us to hold the statutory scheme is unconstitutional under all its applications. In such a case, a prop erty owner may bring his or her own action based on an innocent owner defense. Accordingly, the circuit court erred in facially invalidating §§ 44-53520 and -530 based on the absence of provisions requiring a pre-seizure or prompt post-seizure hearing.

Excessive Fines

Because a claim that forfeiture vio lates the Excessive Fines Clause is inherently fact-intensive, it fits well within the scope of an as-applied chal lenge, not within the scope of a facial challenge.

However, we follow numerous oth er courts that have updated their tests for whether a forfeiture constitutes an excessive fine, and we modify the test from Medlock v. One 1985 Jeep Cher okee VIN 1JCWB7828FT129001, 322 S.C. 127, 470 S.E.2d 373 (1996), to expressly require an inquiry into whether a forfeiture is grossly dispro portionate to the underlying criminal offense.

In conclusion, Green has failed to overcome the high threshold for find ing a statute facially unconstitutional.

Reversed and remanded.

Dissent

(Beatty, C.J.) South Carolina’s civil forfeiture scheme, as currently for mulated, unconstitutionally places a burden on individuals to prove their innocence in violation of due process requirements under our state and federal constitutions, thus rendering it facially invalid. As a result, I would affirm the circuit court on this point. Because even a conviction for a drug-related offense cannot automati cally sever an individual’s fundamen tal property rights under our state constitution, see S.C. Const. art. I, § 4, a statutory scheme that places an undue burden upon an individual to retain his or her property based on something even less than a convic tion cannot withstand constitutional scrutiny.

This court does not intrude upon legislative authority when it simply fulfills its appellate role of reviewing the constitutionality of existing legis lation and expressly leaves any future statutory changes to the General As sembly.

Richardson v. $20,771 (Law yers Weekly No. 010-037-22, 35 pp.) (George James, J.) (Donald Beatty, C.J., concurring in part & dissenting in part) Appealed from Horry Coun ty Circuit Court (Steven John, J.) James Richard Battle for appellant; Benjamin Alexander Hyman, Daniel Alban and Robert Frommer for re spondent; Susan King Dunn, Shirene Carole Hansotia, Jeremiah Williams, Jonathan Ference-Burke, Caitlin Gi aimo, Amreeta Susy Mathai, Olga Akselrod, Rodkangyil Danjuma, Leah Watson, Jay Curran, Michael Hanify, Jeffrey Dunlaevy, Roberet Daniel Alt, Jay Carson, Alan McCrory Wilson, Jeffrey Young, Robert Cook, Harley Littleton Kirkland, David Leggett, Alan Clemmons, Daniel Posner and Ari Herbert for amici curiae. S.C. S. Ct.

Arbitration

Unconscionability – Home Buyer’s Contract – Selection of Parties

In a take-it-or-leave-it home buy er’s contract, the defendant-builder included an arbitration clause with unconscionable provisions, most no tably giving the builder the exclu sive right to determine which parties would be included in the arbitration. We decline to strike the offending provisions; instead, we deem the ar bitration clause unenforceable. We affirm the Court of Appeals’ determination that the circuit court violated the rule of Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395 (1967), by consider ing the unconscionability of the con tract as a whole. However, the Court of Appeals declined to consider the arbitration provision on its own. We do so and hold it to be unconscionable. As a result, we reverse in part and re mand.

The plaintiff-home buyers filed this class action against the contrac tors and subcontractors that built their homes in Spring Grove Planta tion. Builder/seller Lennar Carolinas, LLC, moved to compel arbitration. Before the circuit court, plaintiffs suc cessfully opposed the motion based on unconscionability, but our Court of Appeals reversed.

Unconscionability

Unconscionability is defined as the absence of meaningful choice on the part of one party due to one-sided con tract provisions, together with terms which are so oppressive that no rea sonable person would make them and no fair and honest person would ac cept them. In determining whether an absence of meaningful choice taints a contract term, such as an arbitra tion provision, courts must consider, among all facts and circumstances, the relative disparity in the parties’ bargaining power, the parties’ rela tive sophistication, and whether the plaintiffs are a substantial business concern of the defendant.

Given the take-it-or-leave-it na ture of the contracts, they are adhe sion contracts. Nevertheless, adhe sion contracts are not unconscionable if their terms are even-handed.

We also note that Lennar is signifi cantly more sophisticated than the plaintiff-home buyers and that Len nar enjoyed a much stronger bargain ing position than plaintiffs.

While several provisions of the arbitration clause are one-sided and unreasonable, we start with para graph 4: “Seller may, at its sole elec tion, include Seller’s contactors, sub contractors and suppliers, as well as any warranty company and insurer as parties in the mediation and arbi tration; and . . . the mediation and ar bitration will be limited to the parties specified herein.”

First, a plaintiff is the master of his own complaint and is the sole decider of whom to sue for his injuries. Para graph 4 strips plaintiffs of that right and overturns a firmly entrenched le gal principle.

Second, arbitration clause para graph 5 says the parties agree that no factual or legal finding made in arbitration is binding in any other arbitral or judicial proceeding “unless there is mutuality of parties.” Lennar can ensure there is never a “mutual ity of parties” by exercising its “sole election” in paragraph 4 to choose the parties to the arbitration.

Suppose Lennar is unable or un willing to compel the other named de fendants to arbitrate, instead forcing plaintiffs to litigate with the remain ing defendants in circuit court. In that case, it is possible for the arbitration defendants to blame the remaining circuit-court defendants for plaintiffs’ damages, and vice versa. Were the respective fact finders to agree with the defendants’ arguments to that effect, plaintiffs could lose in both fo rums merely because the fact finder believes the absent defendants to be at fault, and, critically, it is not plain tiffs’ choice that those defendants are absent.

Compounding the problem, para graph 5 prevents any findings of fact or conclusions of law in the arbitra tion to be binding in any subsequent arbitral or judicial proceeding insti tuted by plaintiffs to recover their damages fully. Thus, plaintiffs could not even use the fact that the arbitra tor had found Lennar was not at fault when pursuing liability against the remaining circuit-court defendants, or vice versa. This creation of a proce dural defense to liability for Lennar is wholly unreasonable and oppressive to plaintiffs.

We hold the arbitration clause is unconscionable and unenforceable as written.

Severance

We decline to sever the unconscio nable provisions of the arbitration clause. Were we to sever paragraph 4, we would be materially rewriting the contract by controlling who will – or will not – participate in arbitra tion. Moreover, once we sever the un conscionable terms in the arbitration clause, there is essentially nothing left.

Additionally, South Carolina has a deeply rooted and longstanding policy of protecting new home buyers. It is intolerable to allow builders to place defective and inferior construction into the stream of commerce.

Given the pervasive presence of oppressive terms in the arbitration provision, we find the severability clause here, in an unconscionable, adhesive home construction contract, is unenforceable as a matter of public policy. We are specifically concerned that honoring the severability clause

here creates an incentive for Lennar and other home builders to overreach, knowing that if the contract is found unconscionable, a narrower version will be substituted and enforced against an innocent, inexperienced homebuyer.

It is clear Lennar furnished a grossly one-sided contract and ar bitration provision, hoping a court would rescue the one-sided contract through a severability clause. We refuse to reward such misconduct, particularly in a home construction setting.

Affirmed in part, reversed in part and remanded.

Damico v. Lennar Carolinas, LLC (Lawyers Weekly No. 010-038-22, 23 pp.) (John Kittredge, J.) Appealed from Berkeley County Circuit Court (J.C. Nicholson, J.) On writ of certio rari to the Court of Appeals. Jesse Sanchez, John Calvin Hayes, Cath erine Dunn Meehan and Michael Jordan for petitioners; James Lynn Werner, Jenna Brooke Kiziah Mc Gee, Katon Edwards Dawson, Rob ert Trippett Boineau, Heath McAlvin Stewart, John Adam Ribock, Carmen Ganjehsani, James Elliott, Francis Heyward Grimball, Samia Hanafi Nettles, Theodore Manos, David Cooper Cleveland, Trey Matthew Ni colette, Rogers Edward Harrell, Ste ven Smith, Zachary James Closser, Samuel Melvil Wheeler, Brent Boyd, Timothy Newton, Alan Ross Belcher, Elizabeth Wieters, Christine Com panion Varnado, Erin DuBose Dean, Stephen Lynwood Brown, Cath erine Holland Chase, Preston Bruce Dawkins, Jenny Costa Honeycutt, Clarke DuBose, Stephen Hughes, Ronald Tate, Robert Batten Farrar, Sidney Markey Stubbs, David Shuler Black, Shanna Milcetich Stephens, Wade Coleman Lawrimore, John El liott Rogers, David Starr Cobb, Kathy Aboe Carlsten, Keith Emge, Scott Harris Winograd, Jeffrey Ross and Philip Paul Cristaldi for respondents. S.C. S. Ct.

Criminal Practice

ories of sexual abuse not only by defendant – Minor’s stepfather –when Minor was between the ages of five and ten, but also by Minor’s biological father when Minor was one or two years old. The trial court’s redaction of the latter por tion of Minor’s forensic interview, along with indirect bolstering tes timony by a prosecution witness, combine to require reversal.

We reverse and remand defen dant’s convictions for criminal sex ual conduct (CSC) with a minor in the first degree, CSC with a minor in the third degree and lewd act upon a child.

Prosecution witness Erica Van Wagner, Minor’s therapist, was qualified as an expert in the “treat ment of children where there’s a concern of sexual abuse and chil dren experiencing trauma.” Her testimony defining trauma focused cognitive behavioral therapy as “evidence based,” her discussion of Minor’s symptoms, her reasons for treating Minor, and her specific diagnosis of PTSD in the context of Minor’s sexual abuse overstepped the guidance provided in State v. Makins , 433 S.C. 494, 860 S.E.2d 666 (2021).

As to Minor’s forensic interview, because prior false allegations of sexual abuse are highly probative of a victim’s credibility, we find the circuit court erred in requiring redaction of the portions of the fo rensic interview video concerning Minor’s allegation of her biological father’s (Father’s) sexual abuse, which the circuit court recognized was likely false. The reason the circuit court ordered the redac tion—because a ten-year old would not be able to recall an incident that allegedly occurred when she was one or two years old—is the very reason defendant sought ad mission.

ing−was important to this analy sis. This error was not harmless because the state’s case turned on Minor’s credibility, as impacted by the influence of Minor’s mentally ill Mother.

Defendant was able to crossexamine Mother about the allega tion against Father, however, the circuit court limited this cross-ex amination, ruling defendant could question Mother only about what she told Minor about Mother’s re lationship with Father and the sexual abuse Mother suffered as a child.

Minor was two years old when Mother and Father separated. The facts of this case are unique in that Minor claims to have remembered events she could not possibly re member, and there is evidence in dicating Mother created these con cerns.

During a forensic interview, Mi nor recounted her purported mem

In defendant’s view, the proper analysis not only turned on the age of the victim when she re counted the prior abuse to the forensic interviewer, but also re quired consideration of when the conduct itself allegedly occurred. Whether the prior conduct alleged was something the victim could possibly remember—as opposed to an event conveyed to her by an adult perhaps engaged in coach

We recognize that proving the falsity of allegations such as these would be a difficult threshold task in most cases, and we share the circuit court’s concern that Mi nor likely based her allegations against Father on what Moth er told her. The fact that Minor claimed in the forensic interview to have an independent recollec tion of these incidents from such a young age calls into question the truthfulness of the remainder of her allegations, particularly when considered in conjunction with Mother’s mental health issues and Mother’s own admission that she told Minor her concerns about men in the context of criticizing the way Father changed Minor’s diaper as an infant. As the limited cross-ex amination of Mother did not cure the prejudice resulting from the erroneous redaction of the forensic interview video and the indirect bolstering in portions of Van Wag ner’s testimony, we reverse defen dant’s convictions and remand for a new trial.

State v. Betancourt (Lawyers Weekly No. 012-024-22, 11 pp.) (Per Curiam) Appealed from Greenville County Circuit Court (Donald Hocker, J.) William Yar borough and Lauren Carole Hobbis for appellant; Alan McCrory Wil son, David Spencer and William Walter Wilkins for respondent. S.C. App. Unpub.

CSC with a Minor – Credibility – Other Abuse Allegations – Expert’s Bolster ing