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Week 5, 2021

Advance Sheet No. 5: Feb. 10, 2021

S.C. Supreme Court Published Decisions

In re Mark E. Schnee, Op. No. 28007 

Per Curiam: Feb. 10, 2021 

Finding Respondent’s misleading conduct and failure to maintain the dignity of the legal system in violation of the Lawyer’s Oath, found in SCACR Rule 402(h)(3), and considering the numerous instances of misconduct combined with Respondent’s deception of his clients, the courts, and ODC, the S.C. Supreme Court disbarred Respondent. 

Charges were filed against Respondent alleging various instances of misconduct, including failing to act competently and diligently on behalf of his clients, failing to communicate, failing to make reasonable efforts to expedite litigation, making false statements of fact to a tribunal, failing to refund unearned fees, and engaging in conduct involving dishonesty or misrepresentation. After reviewing the charges against Respondent at the first ODC Panel, the Court ruled that Respondent’s actions violated several Rules of Professional Conduct and were prepared to sanction him with a three-year suspension, along with paying costs and restitution to various clients. However, additional charges were brought after the first charges were filed with the Court, to which Respondent failed to submit written responses and to appear at the second Panel Hearing; therefore, the Court accepted the Panel’s recommendation to disbar Respondent. 

S.C. Pub. Int. Found. v. Calhoun Cnty. Council, Op. No. 28008

Justice Hearn: Feb. 10, 2021 

The Supreme Court held that the thirty-day limitations period of Section 4-10-330(F) of the Capital Project Sales Tax Act does not distinguish between procedural and substantive referendum challenges. Specifically, the Court focused on the language of § 4-10-330(F), which reads, “the results of the referendum . . . .” In giving the words “their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation[,]” State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010), the Court concluded that § 4-10-330(F) lacked qualifying language limiting the thirty-day limitations period to only procedural challenges. The Supreme Court, therefore, affirmed the decision of the circuit court and barred Appellants from appealing a referendum approved five months prior.  

S.C. Court of Appeals Published Decisions

Daily v. Daily, Op. No. 5801

Judge Williams: Feb. 10, 2021 

Appellant (“Father”) appealed a family court order awarding Respondent (“Mother”) sole custody of their two minor daughters, setting a parallel parenting plan and his visitation, finding him in contempt, and ordering him to pay a portion of Mother’s attorney’s fees and one-half of the guardian ad litem’s fees. The South Carolina Court of Appeals held that given Mother and Father’s relocations, their inability to communicate and make joint decisions, and record evidence showing the daughters were happy, healthy, and well-adjusted to their home and school, it was in the best interest of the daughters that Mother be granted sole custody. 

Next, the court examined the visitation schedule and Parenting Plan and found that, in their current form, it presents issues for the Mother and Father because they are unable to cooperate and communicate effectively together. The court, therefore, to serve the welfare and best interests of the daughters, modified the visitation schedule and Parenting Plan to add additional specifics. 

In holding Father in contempt for violating the Divorce Decree, the court reasoned that Father sending an email to Mother every fifteen minutes telling her how many minutes late she was to pick up the daughters and refusing to take Mather’s calls to try and resolve the issue was clear and convincing evidence of “non-productive or harassing communication.” 

And in holding Father in contempt for violating the [Psychological] Evaluation Order, the court reasoned that Father did not present any evidence showing that he was unable to comply despite a good faith effort, and his objections to the evaluation’s necessity and validity, even if in good faith, were not an excuse. 

The court held further that in Father prolonging litigation by refusing to comply with the psychological evaluation and his conduct during trial (evasiveness in responding to questions), the family court acted appropriately in awarding Mother attorney’s fees. However, due to Father’s above behavior, the court modified the award by increasing Mother’s awarded fees. 

Thus, the court affirmed as modified the family court’s decisions.       

Meritage Asset Mgmt., Inc. v. Freeland Constr., Op. No. 5802

Judge Williams: Feb. 10, 2021 

The South Carolina Court of Appeals held that when a governmental body violates § 29-6-250 of the Suppliers’ Payment Protection Act, the government’s liability to a subcontractor is limited to the amount remaining on its contract with the general contractor when the subcontractor notifies it of the general contractor’s nonpayment. Specifically, when the government fails to learn of the general contractor’s nonpayment to its subcontractor until after it has paid the general contractor the remaining amount on the contract, the government’s liability to the subcontractor is zero as a matter of law. Thus, the court affirmed the trial court’s grant of summary judgment to the government and denial of summary judgment to the subcontractor. 

Town of Arcadia Lakes v. S.C. Dep’t of Health and Envtl. Control, Op. No. 5803

Judge Hewitt: Feb. 10, 2021 

The South Carolina Court of Appeals held that the “civil action” requirement of State Action Statute § 15-77-300(A), allowing for fees and costs, does not apply to administrative cases. Further, the court concluded that SCALC Rule 72, allowing for the imposition of sanctions, applies only when a case is brought for the “sole” purpose of delay. The court found that administrative cases do not become “civil actions” until they leave the executive branch and enter the judicial branch for review. The court then examined SCALC Rule 72 and determined that while delay was a partial factor in bringing the action, it was not the sole reason for bringing the contested case. Thus, the court reversed the Administrative Law Court’s decision to award fees and costs and to impose sanctions. 

Carolina Ctr. Bldg. Corp. v. Enmark Stations, Inc., Op. No. 5804

 Judge Williams: Feb. 10, 2021 

The South Carolina Court of Appeals held that refusing to issue a writ of mandamus enforcing a letter, later rescinded through an email, was not in error. The court reasoned that because the drafter of the letter wrote an email later stating that the letter was premature and a new response would need to be formulated, the original letter was not a final decision appropriately enforced via writ of mandamus. 

The court further found all the elements of a prescriptive easement were satisfied. With regard to the elements of a prescriptive easement, the court held, in particular, that to show the identity of the thing enjoyed, one must not prove that the right of way terminates on public property. Nor are verbal threats without an accompanying physical act by the servient landowner sufficient to interrupt a claimant’s use of a prescriptive easement. Additionally, if the court concludes that the claimant’s use was continuous and uninterrupted, there arises a presumption of adverse use which must be rebutted by the servient landowner. This presumption typically may not be rebutted without documentary evidence of permission, the credibility and weight of which are exclusively for the master to determine; nor is it required for the claimant to intend to take ownership of that portion of the servient estate for the use to be adverse. The court reasoned further that exclusive use by a claimant is not a requirement to establish a prescriptive easement. Finally, the court declared that every prescriptive easement begins as a wrongful act and the elements do not require that the thing used or enjoyed satisfy all local ordinances. For these reasons the court affirmed the master’s decision.   

Jessica B. Thompson