OPINIONS

Continued From Page 21 ment, he does not explain why he could not have reviewed the documents within the 60-day period provided by the court.

We affirm the district court’s denial of plaintiff’s Rule 60(b) motion to set aside the settlement and reopen the case, which plaintiff filed more than a month past the 60-day period granted by the district court.

Plaintiff also alleges mediator misconduct, based on the mediator’s threat that, if plaintiff did not settle, defendant would conduct further intrusive surveillance. Presumably, plaintiff is contending that the mediator was influencing defendant to conduct more surveillance. Even if true, plaintiff does not explain why the threat of further surveillance caused him to settle prematurely but did not deter him from filing to reopen his case.

Because plaintiff’s claims of error were known to him at the time he settled his case, the district court did not abuse its discretion in denying plaintiff’s motion to reopen.

Zahariev v. Hartford Life & Accident Insurance Co. (Lawyers Weekly No. 003003-23, 7 pp.) (Per Curiam) No. 22-1209. Appealed from USDC at Beaufort, S.C. (Richard Mark Gergel, J.) Kiril Zahariev, pro se; Nikole Crow and Lewis Gregory Cook Horton for appellee. 4th Cir. Unpub.

Civil Practice

Stored Communications Act –Personal Email – Work Computer

There is conflicting evidence as to whether a defendant-employer’s acquisition of an independent contractor’s personal emails occurred unintentionally or intentionally. Consequently, defendants are not entitled to summary judgment under the Stored Communications Act.

We vacate the district court’s grant of summary judgment for defendants.

Facts

Plaintiff worked as an independent contractor for defendant EmergencyMD, LLC. EmergencyMD agreed to allow plaintiff to use her personal Gmail account for her EmergencyMD communications. Plaintiff accessed her Gmail account on EmergencyMD’s computers.

Plaintiff agreed to EmergencyMD’s Electronic Communication Policy:

“All information created, sent, received, or stored on the company’s electronic resources is company property. Such information is not the private property of any employee and employees should have no expectation of privacy in the use or contents of the company’s electronic resources. Passwords do not confer any right of privacy upon any employee of the company. Employees should understand that the company may monitor the usage of its electronic resources and may access, review, and disclose information stored on its electronic resources, including messages, personal e-mail communications sent and received on the employer’s computers but using private email accounts, and other data, at any time, with or without advance notice to the user or the user’s consent.”

Plaintiff left EmergencyMD and went to work for another company. Litigation ensued, including EmergencyMD’s claims of misappropriation of trade secrets. Plaintiff contends EmergencyMD used printouts of her personal emails in the underlying litigation, in violation of the Stored Communications Act (SCA).

Discussion

At issue is whether plaintiff has shown that defendants intentionally, and without authorization, accessed a facility through which electronic communication service was provided.

There is evidence that Megan Montagano, an employee of an EmergencyMD affiliate, inadvertently discovered plaintiff’s emails and printed them out, believing Montagano’s own email account had been hacked. However, there is also evidence that an EmergencyMD employee discovered that plaintiff’s Gmail account had been left open on an EmergencyMD computer and informed another EmergencyMD employee and Montagano, and that plaintiff’s personal emails were printed out thereafter. A jury could credit the latter evidence over the former.

We have not previously addressed the question of whether an unintentional initial discovery of plaintiff’s emails would shield a defendant from liability under the SCA for the subsequent decision to review and print the emails. In any event, the evidence of defendants’ conduct after the initial discovery that plaintiff’s account was open creates a question of fact as to whether defendants intentionally accessed plaintiff’s emails.

We have not had occasion to interpret the term “authorization” as it is used in the SCA. But the term is commonly understood to involve knowing, intentional action. Unintentionally failing to log out of a computer seems at odds with the meaning of authorization. Perhaps it was careless. But did it authorize EmergencyMD to review plaintiff’s private emails? There is at least a question of fact on this issue.

In addition, we see nothing in EmergencyMD’s Electronic Communication Policy to suggest an employee’s use of the company’s shared computer to access her Gmail account for work purposes authorizes EmergencyMD to access and use emails created on a private Gmail account after the employee has been terminated. Furthermore, the record does not establish that plaintiff’s pre-termination emails were created or sent on EmergencyMD’s computers. Also, emails from a Gmail account are not stored on EmergencyMD’s electronic resources; instead, they are stored in Google’s cloud system. There is at least a question of fact as to whether EmergencyMD’s Electronic Communication Policy applies to the emails on plaintiff’s private Gmail account, even if she used that account in doing her job.

See Page 23

Continued From Page 22

Finally, EmergencyMD almost certainly had a right, in the underlying litigation, to seek the emails in question. But there is at least a question of fact as to whether defendants ignored their legitimate litigation options and instead took steps prohibited by the SCA.

Vacated and remanded.

Carson v. EmergencyMD, LLC (Lawyers Weekly No., 003-004-23, 12 pp.) (Per Curiam) No. 22-1139. Appealed from USDC at Greenville, S.C. (Joseph Dawson, J.) Wesley Few for appellant; Mills Ariail for appellees. 4th Cir. Unpub.

Civil Practice

Rule 60(b) Motion – Untimely – Real Property – Partition by Sale

In December 2011, appellant’s sisters filed an action to partition real property they owned with appellant; the partition order was filed on July 19, 2013; this court remitted appellant’s appeal from the partition case on March 10, 2014; respondent Hammel purchased the property on June 23, 2015, and sold the property on May 22, 2018; and appellant brought this action to void the partition order on July 21, 2018. Appellant did not file this case within a reasonable time under Rule 60(b), SCRCP.

We affirm the circuit court’s grant of summary judgment for respondent.

The circuit court did not abuse its discretion in finding appellant did not file this case in a reasonable time because (1) appellant’s appeal from the partition order was remitted four years and four months prior to appellant’s filing of this case; (2) the claims appellant raised in this case are the same or extremely similar to those he previously raised in his motion for reconsideration of the partition order and that could have been raised in his appeal of the partition order had he pursued his appeal; and (3) the property was sold to respondent, and appellant admitted he learned of this sale approximately three years prior to his filing of this action.

Furthermore, appellant’s fraud-onthe-court claims are also barred by the doctrine of laches. Appellant delayed bringing this case for four years and four months after his appeal from the partition order was remitted and three years after he learned of the sale of the property. Appellant offered no explanation for his delay in bringing this case, and his claims in this case echo his arguments from his motion to reconsider the partition order, reflecting no new reasons for his claims in this action. Moreover, respondent, who bought the property for $385,000 and held the property for almost three years, would be prejudiced if appellant’s claims were not barred. Thus, we hold the circuit court did not abuse its discretion in finding the doctrine of laches barred appellant’s fraudon-the-court claims.

Houston v. Boone (Lawyers Weekly No. 012-010-23, 7 pp.) (Per Curiam) Appealed from Beaufort County Circuit Court (Edgar Dickson, J.) Charles Houston, pro se; Thomas Calvin Taylor, Kirby Darr Shealy and Cliff Moore for respondent. S.C. App. Unpub.

Corporate

Amalgamation – Real Property –Developers – Breach of Fiduciary Duty

The defendant-developers promised – at the outset of development and periodically throughout the time leading up to this lawsuit – to transfer certain amenities to the project’s homeowners’ association. However, the developers made consideration-less transfers of the amenities among several of their own entities while shifting course again and again before secretly selling the amenities to a third party. The development entities may be amalgamated for purposes of this action.

We affirm the Court of Appeals’ holding that a purported recreational easement is invalid; otherwise, we reverse.

There is more than enough evidence that the creation of the various entities here furthered the defendant-Develop- ers’ abilities to refrain from doing that which they repeatedly told the homeowners’ association (HOA) and the residents they would do: turn over the disputed amenities to the HOA. As we stated in Pertuis v. Front Roe Rests., Inc., 423 S.C. 640, 817 S.E.2d 273 (2018), “[T]he corporate structure should not shield . . . fraud, evasion of existing obligations, circumvention of statutes, monopolization, criminal conduct, and the like.”

The 1998 Property Report that Developers filed with the U.S. Department of Housing and Urban Development specifically provided that the HOA would own the disputed dock and park once the development was completed. Then, within a year, the plan changed, as Developers decided not to convey the amenities, including the community dock, completely disregarding the 1998 Property Report.

Next, Developers attempted to change from outright HOA ownership to mere HOA access by granting the HOA a recreational easement, despite not actually owning the property at the time. In an amended property report in 2000, the community dock was removed from the list of amenities owned by the HOA, thus purporting to accomplish the change from ownership to access without any input or consideration of the interests of the residents and the HOA.

Between 2006 and 2007, Developers had yet to turn over the community dock or boat ramp, and openly acknowledged, “The docks are too controversial and taking away even part of this community amenity would cause trouble.”

Shifting course again, in 2008, Chad Besenfelder, Developers’ manager, wrote, “We are ready to deed this community dock and ramp to the homeowners and wish to comply with regulations.”

Ultimately, Developers reversed themselves yet again, and decided to sell the docks to Mike Russo without informing the HOA because they wanted to “keep the transaction quiet because of all the brew ha hah (sic) and filings.” Developers

See Page 24

Continued From Page 23 even went a step further when, instead of disclosing the outright sale of the properties to Russo, they told the president of the HOA that Russo was simply taking over management of the lots and amenities.

Thus, the evidence shows that, not only were the various entities intertwined and acting in concert with each other, but their conduct also demonstrates “bad faith, abuse, fraud, wrongdoing, or injustice resulting from the blurring of the entities’ legal distinctions.” Pertuis Although the jury elected not to award punitive damages, its verdict did include a finding that the Developers’ conduct was “willful and wanton.”

Accordingly, the Court of Appeals erred in declining to apply the single-business enterprise theory. Because the trial court did not err in amalgamating the different entities, there is no need for a remand.

Breach of Fiduciary Duty

With regard to plaintiffs’ claim of breach of fiduciary duty, the Court of Appeals focused too narrowly on the Developers’ failure to convey the disputed properties, ignoring the plethora of other evidence presented of the Developers’ bad faith, broken promises, and self-dealing, all of which support the jury’s verdict on the homeowners’ breach of fiduciary duty cause of action.

Developers owe fiduciary duties to homeowners and homeowners’ associations regarding common areas. One in a fiduciary relationship with another party must not act to make use of that relationship to benefit his own personal interests.

Here, there was sufficient evidence of bad faith, promises made and broken, and self-dealing presented in addition to the breach of contract, to warrant submission of the fiduciary claim to the jury. This nefarious conduct includes, but is not limited to, the secretive sale to Russo, a false representation regarding the property’s rightful ownership, and an easement granted to third parties when the property had been promised to the HOA. This kind of conduct, though springing from contract, constitutes breaches of fiduciary duty.

We reverse the Court of Appeals and reinstate the jury verdict as to plaintiffs’ claim of breach of fiduciary duty.

Affirmed in part, reversed in part.

Walbeck v. I’On Co. (Lawyers Weekly No. 010-010-23, 21 pp. (Kaye Hearn, J.) On writ of certiorari to the Court of Appeals. Appealed from Charleston County Circuit Court (Stephanie McDonald, J.) Justin O’Toole Lucey, Joshua Fletcher Evans and Dabny Lynn for petitioners; Brian Duffy, Julie Lauren Moore and Patrick Coleman Wooten for respondents. S.C. S. Ct.

Criminal Practice

CSC with a Child – Forensic Interview – Limited Cross-Examination –Interview Techniques

Defendant’s problems with a prosecution witness’s forensic interview techniques should have been brought up outside the presence of the jury, while the trial court was deciding the issue of admissibility. The trial court properly declined to allow defendant to cross-examine the witness about her interview techniques before the jury.

We affirm defendant’s conviction for first-degree criminal sexual conduct (CSC) with a minor.

Defendant argues the circuit court erred in preventing him from cross-examining the interviewer about her methodology and “suggestive interviewing technique.” He asserts recent decisions—particularly State v. Anderson, 413 S.C. 212, 776 S.E.2d 76 (2015), and State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013)—do not preclude his cross-examination because he was not seeking the interviewer’s opinion on the alleged victim’s truthfulness. Instead, he says, he was seeking to highlight the ways the interviewer may have inadvertently affected the nature and scope of the disclosure.

Our disagreement with defendant’s argument is driven by the fact that the law contemplates challenges to the interview method being hashed out in front of the judge and away from the jury. S.C. Code Ann. § 17-23-175(A)(4) says a recorded interview is only admissible if the court finds, after a hearing, “that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness.”

Anderson explains the interviewer should be called to testify in camera. There, the interviewer “must” testify to establish her training and background, the method or technique employed in the interview, and anything else relevant to the statute’s “trustworthiness” factors. If the court finds the interview admissible, the interviewer’s “sole purpose” in front of the jury is to lay the foundation for the interview. The discussion of techniques, including that the child was instructed about the importance of telling the truth, is not allowed. Although this testimony helps establish the “guarantees of trustworthiness,” it necessarily (albeit implicitly) bolsters the child’s credibility.

Defendant did not argue against any of the trustworthiness factors. He proposed to attack them not in front of the judge but before the jury. He cannot do so because whether particular questions were leading questions and whether the interviewer’s method was appropriate are part of the determination of whether the interview satisfies the statute’s criteria for admission. That is a question for the judge, not the jury.

Moreover, if defendant can attack method and training, the state must necessarily dispute defendant’s viewpoint, and it is difficult to envision how the state could dispute the attack without bolstering the child’s credibility.

The circuit court declined to allow questioning on topics prohibited by precedent, instructing instead that the interview was “fair game” for closing argument. This approach was sound and therefore not an abuse of discretion.

Affirmed.

See Page 25

Continued From Page 24

State v. Clark (Lawyers Weekly No. 011012-23, 10 pp.) (Blake Hewitt, J.) Appealed from Pickens County Circuit Court (Donald Hoeker, J.) Cameron Jane Blazer for appellant; Alan McCrory Wilson, Ambree Michele Muller and William Walter Wilkins for respondent. S.C. App.

Domestic Relations

Parent & Child – Custody Modification – No Change of Circumstances – GAL’s Testimony

Even though the guardian ad litem testified that the children were more comfortable with the defendant-Father and more stressed at the home of the plaintiff-Mother and their stepfather, since the children were thriving physically, mentally, socially, and academically while under Mother’s predominant care, and since Mother’s frequent moves – to larger houses or to be nearer the children’s schools – were neither prohibited by the parties’ divorce decree nor shown to be detrimental to the parties’ parenting plan, Father did not show a material change in circumstances to warrant a change of custody.

We reverse the family court’s order granting primary custody and child support to Father.

We express our concern with the family court requesting a recommendation from the guardian ad litem (GAL) because it should have only requested a recommendation in extraordinary circumstances, which were not present in this case. We are also concerned with the family court’s heavy reliance on the GAL’s report and testimony in its findings because a family court should determine the best interests of children after considering all the evidence presented at trial. At oral arguments, Father’s counsel only pointed to the family court’s determination that the 5-2-2-5 plan was rendered difficult to follow, but was unable to identify any other findings in the family court’s order establishing a change in circumstances favoring Father that derived from something other than the GAL’s testimony and report.

We note that Mother began this process by filing her own motion to modify custody. However, the record demonstrates that Father was a factor in the children’s success and was a positive influence.

Therefore, based upon the ample evidence demonstrating the children’s emotional, social, and academic success under the original joint custody agreement, both parties failed to demonstrate a substantial change in circumstances or that the best interests of the children would be served by a change in custody. Accordingly, we reverse the family court.

Grungo-Smith v. Grungo (Lawyers Weekly No. 011-013-23, 8 pp.) (James Lockemy, A.J.) Appealed from York County Family Court (Thomas Henry White, J.) John Brandt Rucker and Allyson Sue Rucker for appellant; James Honeycutt and James Richardson for respondent. S.C. App.

Labor & Employment

Public Employees – Unemployment Compensation – Resignation without Good Cause – Threat by Client

A month after she was threatened by a client, a social worker resigned. Because the social worker did not wait for the employer to complete its process of following up on her complaint, take her complaint up the chain of command, or show that she had been or would be penalized for failing to continue working with the threatening client, the Department of Employment and Workforce could find that the social worker had resigned without good cause.

We affirm the department’s ruling that the social worker was indefinitely ineligible for unemployment benefits.

Geohaghan v. South Carolina Department of Employment & Workforce (Lawyers Weekly No. 011-011-23, 16 pp.) (Paula Thomas, J.) Appealed from the Administrative Law Court (Shirley Robinson, ALJ) Adam Protheroe for appellant; Eugene Hamilton Matthews, Todd Stuart Timmons and Benjamin Thomas Cook for respondents. S.C. App.