South Carolina Supreme Court Releases Opinion on College Football Seat License Fees

As it was then, and so it is now, we here at Abnormal Use care deeply about college football.  Avid readers may recall or our 2011 post discussing a parking fee dispute that arose between the University of South Carolina and a fan that purchased a lifetime membership into the Gamecock Club. While a clever revenue raiser, lifetime memberships are a challenge because they, well, last a lifetime.  So it is no surprise that a dispute over the Gamecock Club’s lifetime membership once again makes its way through the South Carolina judicial system. That case is Lee v. University of South Carolina, et. al., No. 2012-212567 (S.C. April 2, 2014), released yesterday by the South Carolina Supreme Court.

The facts were these: In 1990, George Lee III purchased a $100,000 life insurance policy, naming the University of South Carolina the sole beneficiary, in exchange for an opportunity to purchase basketball and football tickets for the duration of Mr. Lee’s life.  In an effort to generate more revenue, the University instituted the Yearly Equitable Seating (YES) program and began requiring all Gamecock Club members to pay a seat license fee prior to purchasing season tickets. Mr. Lee did not care for the seat licensing fee and filed a declaratory judgment action. The trial court entered judgment for the University of South Carolina and the Gamecock Club, but yesterday, the South Carolina Supreme Court reversed the trial court, finding that the University breached its 1990 Agreement with Lee by requiring Lee to pay the YES fee in order to retain the opportunity to buy tickets.  The Court in reaching its conclusion found that:

 The language of the Agreement is clear.  As long as Lee performs his contractual obligations, the University must provide him with the “opportunity to purchase” season tickets to University athletic events as described in the Agreement. The Agreement contains no limitations or conditions on this contractual right. Thus, by requiring Lee to pay the seat license fee before purchasing season tickets, the University has attempted to impose an additional term that the parties did not agree upon. This unilateral attempt to modify the Agreement is impermissible.

Undoubtedly, as the University of South Carolina’s football program continues to improve, the school will look for ways reap the financial benefit.  While the Gamecocks continue to win on the field, it is may be time to abandon efforts to profit further from their lifetime members’ seats and parking spaces (as that approach appears to lead to litigation).  In order to pay for the ability to play Sandstorm more than the Vols play Rocky Top, South Carolina should increase the price of the official Head Ball Coach Visor.

New South Carolina Court of Appeals Case on Design Defect and Failure To Warn Claims

Not too long ago, on January 2, 2014, the South Carolina Court of Appeals released its opinion in Holland v. Morbark, Inc., et al, No. 2011-199928 (S.C. Ct. App. January 2, 2014).  Centering around design defect and failure to warn claims in the summary judgment context, it is a products case with which any products liability lawyer should be familiar. However, because our firm was involved in the litigation of that matter, we will simply direct your attention to the opinion and leave the commentary to other bloggers.

Carnival Cruise Lines Scores Victory in South Carolina

Carnival Cruise Lines recently scored a big legal victory in the South Carolina Supreme Court against several Charleston preservation and environmental groups.   The Plaintiffs claim that a 2,000 passenger Carnival cruise ship that uses Charleston as its home port is a nuisance.  The Court found that the Plaintiffs lacked standing because they were alleging a general public nuisance.

The Plaintiffs in this case alleged that the mammoth cruise ship  caused traffic congestion while loading and unloading its 2,000 passengers in downtown Charleston.  They also claimed that it created air pollution and blocked views.  Anyone who has been to downtown Charleston on a day when the cruise ship was loading up can certainly confirm its effect on traffic.  The several story high ship also blocks some views of the river.  However, the court never reached the underlying nuisance claim. Instead, the Court disposed of the case by holding that the Plaintiffs lacked standing because they were alleging a general public nuisance.  In South Carolina, as in most states, no civil remedy exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered by others.  Rather, a plaintiff must allege a particularized harm to his or her legally protected interest.

As reported by Reuters, one of the lawyers for the Plaintiffs, Blan Holman, has said that some individual property owners are considering refiling the lawsuit as individuals.  Presumably, those property owners will attempt to allege a private nuisance for show that the cruise ship specifically interferes with the enjoyment and use of their property.

The case is Carnival Corp., et. al. v. Historic Ansborough Neighborhood Ass’n, No. 2011-197486 (S.C. Nov. 19, 2013).

 

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.

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.

Titles of Nobility Act: A New Challenge To The Legal Profession?

It is not uncommon for inmates, particularly those facing lengthy sentences, to file lawsuits and other grievances challenging their convictions. Even though many of these prisoners proceed pro se, they are often surprisingly creative in articulating their theories for relief. Some of the causes of action are very well-crafted. Others are quite humorous. And, then, there is the new complaint filed by South Carolina’s very own, Shaheen Cabbagestalk (yes, it really is his name), challenging the authority of lawyers and judges to perform their jobs, which takes the cake. The suit, filed in the United States District Court for the District of South Carolina, is captioned Cabbagestalk v. S.C. BAR Head Person of Establishment, No. 5:13-cv-03037 (D.S.C. 2013). Before delving into the allegations of the complaint, we note that this is not Cabbagestalk’s first rodeo. Cabbagestalk is in the midst of an 18-year prison sentence after being convicted of armed robbery in 2009. Since his conviction, he has filed no less than 16 suits against various persons and entities. In our book, 16 complaints in four years elevates him to the rank of professional – and likely vexatious – litigant.

Cabbagestalk’s newest creation arises out of the Titles of Nobility Act of 1810 (“TONA”). The Act reads as follows:

If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States and shall be incapable of holding any office of trust or profit under them, or either of them.

So what does TONA have to do with lawyers and judges? Well, according to Cabbagestalk:

Most judges, senators, Congressmen, even all federal judges and most presidents are attorneys whom carry these titles. B.A.R. = (British Accreditation Registry) headquartered in London recognized everywhere as the BAR. These dealings are of British nobility. Esquire was the principal title of nobility which the 13th Amendment sought to prohibit from exercising any office within United States. . . . (All Acts) of their government (since 1819) are technically (Null and VOID) under T.O.N.A. Both “Esquire” are targets of the 13th Amendment so the entire Bar of South Carolina is prohibited and all its dealings are (Null and VOID).

In other words, lawyers, judges, and most of the government itself lacks any authority pursuant to TONA and, thus, Cabbagestalk should be set free. Interesting theory, that is. We imagine most were not even aware of TONA prior to Cabbagestalk’s proposal. And for good reason. TONA is not exactly the law of the land.

TONA was proposed as the 13th Amendment to the Constitution and approved by by both the Senate and the House in 1810. However, the amendment was never ratified by three-fourths of the states and, thus, never became a part of the Constitution. Some have argued that the amendment became law upon the discovery of Virginia’s apparent ratification in 1819 (hence Cabbagestalk’s 1819 reference). However, even with Virginia’s ratification, the amendment did not reach the necessary magical number for passage. (For a detailed explanation, read here).

In other words, Cabbagestalk’s claims fail on their face.

Even if TONA was, or is, the law, lawyers should still rest easily. As much as many of us wish we did, lawyers do not hold titles of nobility. Lawyers are licensed, and thereby receive their titles, by state bar associations – not the British aristocracy. Article I, Sections 9 and 10 of the Constitution actually prohibit state and federal governments from granting any titles of nobility. Until the Queen starts anointing us all with special titles by the sword upon swearing in, we should refrain from staking our claim to the prevailing social class.

Cabbagestalk deserves some credit for his effort. Discovering the “lost amendment” and deriving a roadmap to relief is not easily done from a prison cell. If nothing else, it led us here at Abnormal Use to do some research on TONA. Otherwise, we may have been concerned about our ability to continue on in our profession.

South Carolina Supreme Court Orders Bar Members To Update AIS Information By December 15

If you’re a South Carolina lawyer, you definitely need to know about an order that the South Carolina Supreme Court issued yesterday.  In said order, the Court ordered all South Carolina lawyers to login to the Attorney Information System and change passwords, update security questions, and update and verify biographical and contact information.  Failure to to so could result in a suspension.

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.

(Emphasis in original).

The process only takes a few moments to complete.  To access the Attorney Information System in order to comply with the order, you can click here.

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

New South Carolina Court of Appeals Opinion on Sophisticated User Doctrine

Not too long ago, on August 21, 2013, the South Carolina Court of Appeals released its opinion in Lawing v. Trinity Manufacturing, Inc., No. 5166 (S.C. Ct. App. Aug. 21, 2013).  Implicating the “sophisticated user” doctrine, it is a products case with which any products liability lawyer should be familiar. However, because our firm was involved in the litigation of that matter, we will simply direct your attention to the opinion and leave the commentary to other bloggers.

Facebook At Issue in South Carolina Family Law Case

Here we go again with the social media discovery, in our own territory no less. In McKinney v. Pedery, — S.E.2d —-, No. 5165   (S.C. Ct. App. Aug. 14 2013), a family law matter, a husband appealed the trial court’s ruling which had terminated his former wife’s requirement to pay permanent periodic alimony “when the court found that Husband continuously cohabitated with his paramour in contravention of section 20–3–130(B)(1) of the South Carolina Code.” Apparently, that statute requires the termination of alimony “on the remarriage or continued cohabitation of the supported spouse.” Of course, Facebook is at issue in this opinion. Our favorite paragraph of the opinion:

Wife submitted evidence [Husband's Purported Cohabitant] kept all of her personal belongings at Husband’s residence, including her clothing, undergarments, shoes, and toiletries. Husband’s testimony that [Husband's Purported Cohabitant] only packed an “overnight” bag when she traveled to Duncan to care for her grandchildren lends support for the conclusion that [Husband's Purported Cohabitant] “lived under the same roof” as Husband. Further, Husband admitted that he gave [Husband's Purported Cohabitant] an engagement ring and that [Husband's Purported Cohabitant's] relationship status was listed as “engaged” on Facebook prior to Wife filing for termination of alimony. We are not persuaded by Husband subsequently referring to [her] engagement ring as a “friendship ring” or by [Husband's Purported Cohabitant] changing her relationship status from “engaged” to “in a relationship” immediately following Wife’s initiation of this action. Rather, this is evidence of Husband’s attempt to downplay their relationship and living arrangements, which we find unconvincing.

(Emphasis added).

So, there’s that.

South Carolina’s New Fast Track Jury Trial

Last week, we here at Abnormal Use attended a CLE course offered by the South Carolina Bar on the state’s new Fast Track jury trial system. The system, authorized by an Order of South Carolina Supreme Court Chief Justice Jean Toal back in March, is a voluntary, binding jury trial before a smaller jury panel and a Special Hearing Officer selected by the parties. The Fast Track trial usually takes place within 180 days of commencement of the action.

The following points are highlights from the Chief Justice’s Order and the subsequent CLE:

First, for the Fast Track jury trial, there must be some cooperation between the parties. In fact, parties must consent to initiate the process in the first place. Once the parties consent to the Fast Track jury trial, they can stipulate to almost anything, including the admissibility of evidence, how testimony is presented, and what pre/post-trial motions are necessary. Without all these agreements, we seem to think parties would be best to keep the case on the circuit court docket.

Second, the results are binding and not appealable, so prepping the client beforehand is imperative. We imagine the smaller, Fast Track juries are just as unpredictable as their larger counterparts. Couple that with a non-judge presiding over the proceedings, and you have a potential for unexpected results – with no opportunity for appeal. As a result, Fast Track jury trials are great candidates for high-low agreements to help manage some of that risk.

Finally, Special Hearing Officers still get to wear judges’ robes. While not technically “judges,” Special Hearing Officers are at least granted the appearance in the eyes of the jury. The Fast Track system is set up to mimic the circuit court system as much as possible without expending as many of the court’s resources.

If you are practicing in the state, we encourage you to explore the Fast Track jury trial. However, we recommend leaving it to the minor car accidents and slip and falls. We doubt product manufacturers or seriously injured plaintiffs are going to want their fates tied to a system of relaxed evidence and unappealable results.