South Carolina Supreme Court Enacts New Pro Hac Vice Restrictions

South Carolina lawyers – and others who find themselves litigating cases in the Palmetto State – should be aware of the brand new pro hac vice rule (issued by the South Carolina Supreme Court just last week on December 9). The new rule limits pro hac vice applications and directs that more than six such applications may be too much. Here’s the full text of the order:

Pursuant to Article V, § 4, of the South Carolina Constitution, Rule 404(b) of the South Carolina Appellate Court Rules is amended to read:

(b)     Prohibitions on Admission Pro Hac Vice. An attorney may not appear pro hac vice if the attorney is regularly employed in South Carolina, or is regularly engaged in the practice of law or in substantial business or professional activities in South Carolina, unless the attorney has filed an application for admission under Rule 402, SCACR.  Notwithstanding any other provision herein, an attorney who files more than six applications for admission pro hac vice in a calendar year, including applications for purposes of Rule 404(h), is considered regularly engaged in the practice of law in South Carolina.

This amendment is effective immediately.

The full order itself can be found here.

Golfer Takes a Mulligan. Mayhem and Litigation Ensue.

There’s always one guy in the foursome who hits the ball six(teen) times and writes down a four.  He is the same guy whose ball miraculously lands on the edge of the fairway even though everyone in the group saw it drop directly into the middle of the woods without touching a branch.  He takes between 6 and 10 practice swings.  He often takes a “provisional,” which is really a mulligan, but when one calls it a provisional, it becomes an interesting type of shot that’s effect changes significantly from the time it is hit until the time that the player’s score is entered onto the card.  When provisional guy declares he is taking a provisional, he does so in a fashion similar to this: “I’m going to take a provisional. I’ll only take it if I can’t find my first one.”  The next step in the provisional process is usually:  1) the provisional guy will declare that he “lost his provisional but luckily he found his first one”; or 2) the provisional guy will not say anything and pretend that he never hit two balls in the first place.  The final step in the process is always the same – the provisional is not counted and it is as if the first tee shot never happened.

Point is, everyone who plays golf has this friend (note: if you don’t have this friend, you probably are this friend), and the good news is that you no longer must calendar the date that the statute of limitations will run on every one of his mulligans, at least in New Jersey.  Judge Vena’s recent opinion in Corino v. Kyle Duffy et al provides this provisional safety. In Corino, Thomas Schweizer and Bryan Chovanec decided to play a round of golf with Kyle Duffy on August 23, 2011 at Skyview Golf Club in Sparta, New Jersey.  On the 15th tee,  Duffy had one get away from him.  It is unclear where Duffy’s shot went, but he apparently did not like the outcome.  One thing is clear – Duffy has an awful slice, but a clear command of the aforementioned provisional maneuver.

Mr. Corino had the misfortune of being located on the 16th fairway when Duffy’s group was on the 15th.  The layout of the course apparently provided the basis for this misfortune, as the 16th hole ran parallel to the 15th hole.  Corino saw that all three members of Duffy’s group hit their tee shot, so Corino addressed his ball.  Unbeknownst to Corino, while he was taking practice swings, Duffy was laying a foundation for the provisional with his golfing buddies (Disclaimer – this part is not in the record.  All we know from the record is that Duffy took a provisional.  The rest is speculation on the part of the author of this post).  One does not take his time with a provisional. The quicker one steps up to hit a provisional, the less it seems like an extra stroke.  A provisional, like a card trick, should be executed with sleight of hand.  While Corino was hitting his shot on the 16th, Duffy quickly hit a provisional, which he (shockingly) sliced into the 16th fairway.  Apparently, no one yelled “fore”, so the errant golf ball was a bad surprise for Corino.  Duffy’s ball shattered Corino’s sunglasses and severely lacerated Corino’s eye.

Corino’s injuries were severe and not funny, but the fact that Corino joined Duffy’s golfing buddies in the ensuing lawsuit provides some comic relief to an otherwise dire situation.  Corino sued Schweizer and Chovenac for allowing Duffy to take a provisional and for not yelling fore.  Schweizer and Chovenac filed summary judgment motions.  After reviewing the official rules of golf and New Jersey golf case law, the judge determined that it was Duffy’s duty to yell “fore” (or to provide some other warning), and that the other two golf buddies were in the clear.  Summary judgment was granted and the claims against Duffy’s golfing buddies were dismissed. Great result for Schweizer and Chovenac, but does this holding have broader implications?  Do the rules of golf now preempt principles of common law negligence?  Does the violation of a rule of golf provide a basis for a negligence per se claim?  Is every hacker on the golf course now imputed with knowledge of the rules of golf?  Can someone be jailed for slowing down the group behind him or her? (the last one is wishful thinking).

(Hat tip: TortsProf Blog).

Today – December 15 – Is The Deadline To Comply With The South Carolina Supreme Court’s AIS Registration Order

As we reported on November 5, the South Carolina Supreme Court has ordered that all bar members update their registration information with the court’s Attorney Information System (“AIS”).

The deadline to do so, as per the terms of the court’s order, is today: December 15, 2013.

If you are a South Carolina bar member, and you have not yet updated your AIS information, you’d best do so today.

For easy reference, here’s the the text of the full order:

The South Carolina Judicial Department is currently developing an e-filing system to allow the electronic filing of documents in the courts of this State.  This system will rely, in part, on the information already maintained by the Attorney Information System (AIS), and lawyers will ultimately use their AIS user name and password to access the web-based portal for e-filing.  In preparation for e-filing, it is necessary to make various security enhancements to AIS.  This includes requiring stronger passwords.

Accordingly, between the date of this order and December 15, 2013, every member of the South Carolina Bar (including those holding limited certificates to practice law), and every foreign legal consultant licensed under Rule 424 of the South Carolina Appellate Court Rules (SCACR), must log-on to AIS and:

(1)  Change their password to a stronger password meeting the requirements specified in AIS.  Once logged-on, the lawyer or consultant will immediately be prompted to update their password and will be provided with detailed information on the complexity required for that password.

(2)  Choose and answer updated security questions.  The lawyer or consultant will be automatically prompted to provide this information once a new password is entered.

(3)  Update and verify their information in AIS, including their contact information.  Lawyers and consultants are reminded that the contact information in AIS, including the required e-mail address, is the official contact information for them.  Rule 410(e), SCACR (“The mailing and e-mail address shown in the AIS shall be used for the purpose of notifying and serving the member.”).

Lawyers and foreign legal consultants who have not changed their password and security questions, and verified their AIS information, will not be allowed to pay their license fees for 2014 until they have done so.  This may result in the lawyer or consultant being suspended under Rule 419, SCACR.

To see the Supreme Court’s order itself, please see here.

Friday Links

“There’s the jewel thief — He’s escaping in the stolen ‘Flying Patrolman ‘Copter!” yells someone on the cover of Mr. District Attorney #60, published way, way back in 1957. Here’s our question: Why is the district attorney on the roof of the building apparently chasing a jewel thief? Isn’t he making himself a witness to a crime which would preclude him from prosecuting the thief?

It is Friday the 13th. Yikes. We thought about using the cover of one of the many Friday The 13th comic book adaptations in today’s post, but they were all too violent.

Okay, so, Macaulay Culkin released a pizza themed tribute to the Velvet Underground. Much confusion followed. Take a listen right here.

What happens when a brewery sues a moonshine maker for trademark infringement? See here. (Hat tip: Beer Pulse).

Thanks to the TortsProf blog for linking our recent interview with Professor William Janssen.

Rest in peace, T.R. Fehrenbach. If you’re into Texas history, you must go read his masterpiece, Lone Star: A History Of Texas And The Texans.

Hot Queso Jurisprudence in Pennsylvania

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Last week, his piece, “The Perils of Queso: Pennsylvania Federal Court Addresses Hot Cheese Claims,” was published by the American Bar Association Section of Litigation Products Liability Committee’s New & Developments site.

We’ve written about hot coffee, and we’ve even written about hot melted cheese on this site back in the day. But when this new hot queso case arrived, we knew we had to cover it.

Here’s the first three paragraphs of the article:

More than two decades after Stella Liebeck sued McDonald’s in the infamous hot coffee case, hot food and beverage cases continue to be litigated in state and federal courts. However, as recently noted by the U.S. District Court for the Eastern District of Pennsylvania, the difference between hot food and hot beverages may dictate varying results on summary judgment. See Freeman v. Ruby Tuesday, Inc., No. 12-2558, 2013 WL 4082235 (E.D. Pa. Aug. 12, 2013).

In that case, the plaintiff ordered a serving of hot beef queso dip, which the court described as “a hot appetizer which he knew was served hot.” The complaint—originally filed in state court before removal and available on PACER—described it as “an appetizer, which consisted of chips along with a dip . . . presented to plaintiff in a very hot and dangerous condition.” As he began to eat, the plaintiff allegedly burned his mouth and arm and sustained additional injuries when the purported trauma caused him to fall backwards. In the complaint, he claimed to suffer “serious and permanent orthopedic and neurological injuries.”

Judge Rufe was called upon to review the defendant restaurant’s motion to exclude the plaintiff’s purported food safety specialist and accompanying motion for summary judgment.

You knew we would have to reference the Liebeck case, right? For the full article, please see here.

First Circuit Gets Creative, Abnormal Use Applauds

Ever so often, an appellate court blesses us with an opinion that is witty and full of subtle humor. With its recent opinion in Bisbano v. Strine Printing Co., Inc., No. 13-1722 (8th Cir. Nov. 27, 2013), the First Circuit did just that. Before diving into the opinion, here is a quick statement of the facts. Bisbano was a commercial printing sales representative who championed a national drug store chain as a major client for nearly two decades. Bisbano worked for several printing firms over the years, bringing the client’s business along with him at each stop. Prior to his employment with Strine Printing Co. (“SPO”), Bisbano had secretly paid the car lease of a printing department employee of the chain while he was working for his former employer. During the course of an internal review of printing practices, the client discovered Bisbano’s roll in the apparent kickback and he confessed to the act. Nonetheless, the client decided that it would no longer do business with him. Shortly thereafter, SPO fired him. In turn, Bisbano filed suit against SPO, asserting claims of unjust enrichment, tortious interference with contract, breach of contract, and intentional and negligent misrepresentation. The district court granted SPO’s motion for summary judgment on each claim, and Bisbano appealed. In the well-drafted opening paragraphs of the opinion, the Eighth Circuit described the same as follows:

[S]ales techniques of this sort are by their nature clandestine; they cannot withstand the sunlight. If the employer learns about the kickback, the consequences are usually unpleasant. This case, in which defendants Michael Strine and his eponymous firm, Strine Printing Company (SPC), first hired and later fired the plaintiff, Richard Bisbano, turns on such a revelation.

When he was cashiered, the plaintiff did not go quietly into obscurity but, rather, brought suit for an oleaginous mass of perceived wrongs, including unjust enrichment, tortious interference with prospective contractual relations, breach of contract, breach of an implied covenant of good faith and fair dealing, and misrepresentation. The district court, deftly sorting wheat from chaff, granted summary judgment in favor of the defendants.

So, right off the bat, you see where this one is going. On appeal, the crux of Bisbano’s arguments were two-fold: (1) SPO interfered with his business relationship with the client by firing him, and (2) SPO misrepresented to him that he would remain employed with the company as long as he brought in the client’s business. The Court wasn’t sympathetic to either theory, finding that Bisbano’s assertions were factually inaccurate and not a basis for relief under any of the causes of action. The Court indicated that the client independently ended its relationship with Bisbano prior to any action by SPO and, thus, SPO did not interfere with the business relationship by firing him. As the Court eloquently stated:

It is a matter of chronology, not a question of disputed fact, that SPC could not have induced [the client] to break off a relationship that [the client] already had relegated to the scrap heap.

Likewise, the Court found that SPO neither breached the employment contract by firing him nor made any misrepresentations by promising to employ him as long as he brought in the client’s business because it had fulfilled its promise. Once the relationship with the client had ended, so to, did any responsibility SPO had to employ Bisbano. According to the Court:

[T]hese losses, by any leap of even the most agile imagination, cannot be said to flow from the plaintiff’s reliance on SPC’s representations. The losses unarguably flowed from [the client”]s discovery of the plaintiff’s corrupt relationship with a [an official of the client] and [the client’]s ensuing decision to sever all ties with the plaintiff. Seen in this light, the plaintiff was the author of his own misfortune.

Well-played, First Circuit. Well-played, indeed.

Bigfoot Evidence Found in South Carolina Woods – Genuine Issue of Material Fact?

Litigation in the United States can often be a protracted affair.  Some of the more complex cases may span decades before reaching conclusion.  For example, the case of Bigfoot, or Sasquatch, has been pending for centuries without any real resolution.  According to the Encyclopedia Britannica, the first Bigfoot case, David Thompson v. Squatch was first initiated in 1811 by British explorer David Thompson.  Since then, the number of cases has snowballed and costly discoveryhas been conducted ever since by organizations such as the North American Wood Ape Conservancy.

Courts around the country have struggled with how to deal with Bigfoot.  Some courts have implicitly acknowledged Bigfoot’s existence and have equated it to a contract.  See Dumont Tel. Co. v. Power & Tel. Supply Co., C 13-3030-MWB, 2013 WL 4516428 (N.D. Iowa 2013) (“The contract at the heart of this case is a lot like Bigfoot . . .”).  Some courts have taken a more traditional, strict constructionist approach to interpretation of Bigfoot.  See, e.g., Doyle v. Commr., New Hampshire Dep’t of Resources &Econ. Dev., 37 A.3d 343, 345-46 (N.H. 2012) (“Bigfoot, also known as Sasquatch, is ‘a large, hairy humanlike creature believed by some persons to exist in the northwestern United States and western Canada. . . .’”)  Other courts have engaged in what some would call judicial activism on the issue and have concluded that Bigfoot simply does not exist.  Peracchi v. C.I.R., 143 F.3d 487, 491 (9th Cir. 1998) (“. . . negative basis, like Bigfoot, doesn’t exist.” ).  In any event, trial courts need resolution on the issue once and for all so they can decide Bigfoot-related evidentiary disputes and the like.  Park v. CAS Enterprises, Inc., CIV 08CV385 DMS NLS, 2010 WL 55888 (S.D. Cal. 2010) (“Ultimately, Park argues that there is no evidence the DB50 ever existed, and ultimately compares it to a ‘video of Sasquatch or the Loch Ness Monster, [where] actual proof of the DB50 is apparently impossible to capture on film.’”).  When courts are this divided, a decision needs to be made.

South Carolina is not typically thought of as a bellwether state; however, the state may now have the opportunity to resolve the Squatch issue once and for all in the recent case of CSPRI v. Squatch. According to reputable news sources covering the case, “[e]vidence of Bigfoot’s existence has been found in Oconee County [South Carolina], according to the Carolina Society for Paranormal Research and Investigation.” Legal scholars are engaging in heated debate about whether this newly discovered evidence will be sufficient to withstand the inevitable summary judgment motion.  In the state courts of South Carolina, “[s]ummary judgment is proper if, viewing the evidence in a light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Preservation Capital Consultants, LLC v. First Am. Title Ins. Co., 2012-209186, 2013 WL 6091617 (S.C. 2013).  So what is this bombshell evidence?  Is it enough to present a genuine issue of material fact as to the existence of Bigfoot?

Apparently the Carolina Society for Paranormal Research and Investigation (CSPRI) first determined that the woods of Oconee County, South Carolina would be a “perfect place” for Bigfoot.  They determined this based on the observation that Bigfoot constructed various “wood structures” and “nests” in the woods of Oconee County, and that footprints have been discovered which are “too large and wide to be normal human.”  According to CSPRI, “intertwined [tree] limbs” were also a dead giveaway because, among other things, “a bear has no thumbs . . .” Presumably, although it is not explicitly set forth in any of the information proved by CSPRI, Bigfoot does in fact have thumbs.

My take:  Since summary judgment is discretionary, this one is a toss-up.  Evidence of Bigfoot’s existence has been presented. There does not appear to be a challenge to CSPRI’s methodology or qualifications, so the decision will hinge upon whether the weight of evidence presented is sufficient. Personally, I still have questions.  Are these wood structures and nests, which were purportedly constructed by Bigfoot, currently occupied by a Bigfoot?  There is no evidence in the record that Bigfeet typically build homes and then abandon them.  Were they spec nests for which Bigfoot just couldn’t find a buyer?  The footprints found in the woods are above-average size for human feet, but what is the average size of the foot on an average Bigfoot? Why is Bigfoot twisting around all of the tree limbs in our South Carolina woods?  Is this destructive behavior typical of Bigfeet?  As it stands, I do not believe that this is enough to withstand a motion for summary judgment.

Perhaps sensing the same, CSPRI has scheduled a “full-blown hunt” for Bigfoot on December 14, 2013.  As additional discovery is already scheduled, the Judge may see the motion for summary judgment as premature and may revisit the issue after the full-blown hunt.

Gas Cans Under Fire, Again

We’ve previously written about the alleged dangers of portable gas cans and the 5 cent part that could make them safer.  Last week NBC’s Today Show ran an interesting segment showing some of the scientific testing that has been done with regards to the potential for explosion.   According to the segment, there have been 11 reported deaths and 1,200 emergency room visits involving gas can explosions during the pouring of gasoline since 1998. The  danger allegedly stems from what is known as “flashback.”   Tests conducted at Worcester Polytechnic Institute’s labs show that under certain limited conditions a flashback explosion can occur inside a plastic gas can, when gas vapor escaping the can contacts a source of ignition such as a flame or a spark.  From the testing, it appears that this only happens when there is a small amount fuel left in the can and it is tilted a severe angle.

The solution that has been proposed by a number of experts and plaintiff’s attorneys is a what is known as a “flame arrester.”  It is basically a metal mesh plug that keeps a flame ignited outside of the can from traveling into the can and causing an explosion.   The “gas can industry” is supposedly still looking into whether flame arresters are necessary or effective.   All gas cans currently have general safety warnings printed on them telling users to keep away from flames and electric motors.

The Consumer Products Safety Commission’s official position since 2009 has been that is that it is investigating whether flame arrester should be mandatory.  However,  a spokesperson from the CPSC recently told USA Today that they would like to see  standards commission incorporate flame arrestor technology in consumer gas cans.


Friday Links

You know, we usually feature law inspired comic book covers in our weekly edition of Friday Links, but today, we thought we’d showcase a legal themed beer label. What better name for a beer than voter fraud? Apparently, Asheville, North Carolina’s own Burial Beer Company teamed up with Oskar Blues Brewery – the Colorado brewery with a heavy presence in Western North Carolina – to create this new concoction. Unfortunately, we’ve yet to try it! For more on the Voter Fraud beer, see here and here.

Headline of the Week: “The Hells Angels Are Surprisingly Litigious.” Now those will be some eventful depositions, we suspect.

You can check out the December 2013 issue of the South Carolina Bar News here! On pages 18 and 19, you can see our own Stuart Mauney’s article on “Revisiting The Lawyers’ Epidemic: Why Lawyers Are Vulnerable To Depression, Suicide, And Substance Abuse.” (That article originally appeared right here at Abnormal Use back in October of this year.)

Samantha Gilman of The Charlotte Observer reports: “Workplace injuries and illnesses drop in North Carolina.”

Get this: A blog called iClass cited our prior post on a federal court using the word “selfie” in a judicial opinion. How about that?

Stop The Presses! New Laches Case In North Carolina!

Our longtime readers know that we here at Abnormal Use have a favorite affirmative defense: laches. In fact, we love laches, so much so that in March of this year we authored the post “Laches – The Saddest of All Affirmative Defenses.” In that fateful post, we observed:

Just as D minor is the saddest of all keys, laches is the most forlorn of affirmative defenses.  Nevertheless, it has always been our favorite, and our dream is to one day win summary judgment based solely on our invocation of laches. But even after all of these years, we are still waiting for such a victory. Why does laches get no respect in dispositive motions?  As an affirmative defense, it’s something slightly less than the statute of limitations defense, which bars claims based on the passage of a set number of years.  Laches, as we all know, means that a party should be prevented from recovery because he or she has sat on their rights for too long, even though that period of time that they waited, may still be within the statute of limitations.

Well, guess what? Earlier this week, our own North Carolina Court of Appeals released a significant laches opinions.  See John Wm. Brown Co., Inc. v. State Employees’ Credit Union, No. 11-CVS-16809 (N.C. Ct. App. Dec. 3, 2013).but of course, the proponents of laches did not prevail.  The court did not mince words:

On appeal, [Plaintiff] contends the trial court erred in granting [Defendant’s] motion to approve and enforce the Agreement because the doctrines of laches and equitable estoppel bar the enforcement of the Agreement over its objection. We disagree.

Oh, well. Here’s a very, very distilled version of the facts: Plaintiff , a general contractor, appealed the trial court’s order granting the defendant credit union’s motion to enforce a settlement agreement. As per custom and case law, the reviewing court analyzed the motion as if it were a motion for summary judgment. In invoking laches to oppose enforcement of the agreement, the plaintiff argued that an insurance company handling the bonds, with the credit union’s knowledge, “sat on its right of assignment under the Agreement of Indemnity for over a year while litigation commenced” and claimed “it was prejudiced as a result of [the insurance company’s delay because it spent substantial amounts of time and money pursuing the litigation.” After describing the doctrine of laches in some level of detail, the court concluded as follows:

We have been unable to find any case where the doctrine of laches has been applied in a scenario similar to the one now before this Court. Given the unique posture in which the doctrine of laches arises and the fact that [Defendant] was not the cause of the delay, we hold the doctrine of laches has no applicability in the present case and does not bar enforcement of the Agreement by [Defendant]. Nevertheless, assuming arguendo the doctrine of laches may be applied to preclude the exercise of a right of assignment by a third party in order to bar the enforcement of a settlement, the result in the present case would not be different. The language in the Agreement of Indemnity is clear, “[n]o failure or delay by [the insurance company] to exercise any right, power or remedy provided pursuant to this Agreement shall impair or be construed to be a waiver of [the insurance company’s] ability or entitlement to exercise any other right, power, or remedy.”

There you have it. Another defeat for laches. Alas.