Punitive Damages Award Against Wal-Mart Affirmed in South Carolina Weird Transaction Case

The South Carolina Court of Appeals recently upheld a Spartanburg county jury’s award of actual and punitive damages against Wal-Mart in an interesting case involving negligence at the checkout counter.  Solanki v. Wal-Mart Store #2806, No. 2012-213247 (S.C. Ct. App. Aug. 20, 2014).  In his dissent, Justice H. Bruce Williams references the trial court judge’s remark as to the “weirdness of the transaction” underlying the claim, and the transaction was weird, indeed.

weird science

The Plaintiff, Mr. Solanki, trekked to the Wal-Mart in Boiling Springs for a shopping trip.  When he attempted to checkout, the clerk tried three times unsuccessfully to charge the amount owed to Mr. Solanki’s credit card.  The clerk then manually stenciled the credit card and entered the credit card number into the computer.  Unfortunately, the number was entered into the computer incorrectly, and the number actually entered belonged to Ms. Martin. She noticed the apparently fraudulent transaction and reported it to the police department.  Wal-Mart provided the police department with the manually sketched credit card bearing Mr. Solanki’s signature, the surveillance tape, and various other information pertaining to the transaction.  Mr. Solanki was subsequently arrested in Georgia and spent almost a week in jail in Georgia before being extradited to South Carolina.  Everything was eventually sorted out, and the indictment was dropped. However, Mr. Solanki filed suit against Wal-Mart as well as the police department shortly thereafter.  Following a jury trial, the Spartanburg jury awarded $50,000 in actual damages and $225,000 in punitive damages.

Judgment was entered on the verdict, and post-trial motions were denied.

On appeal, Wal-mart argued that the evidence presented did not support an award of punitive damages, which in South Carolina requires the plaintiff to prove “by clear and convincing evidence the defendant’s misconduct was willful, wanton, or in reckless disregard of the plaintiff’s rights.”  The Court of Appeals held that Mr. Solanki “presented sufficient evidence of Wal-Mart’s willful, wanton, or reckless misconduct to send punitive damages to the jury in two factual circumstances— the taking of the credit card information for the sale and the turning over of the credit card information to law enforcement.”  Regarding the taking of the credit card information for the sale, the Court took into consideration that “[a]t the end of the transaction, the receipt presented had Mr. Solanki’s signature but showed Martin’s credit card information.”  Regarding the credit card fraud investigation, the Court noted the trial court’s conclusion that “Wal-Mart was responsible for the creation and production of the evidence used to arrest Mr. Solanki and it was in the best possible position to point out the discrepancies to the police officers.”

This opinion is based on a unique set of facts, so its application to other contexts may be limited. However, it would appear at first glance that this holding imposes a heightened duty on retailers in the context of a criminal investigation, and eases the burden of proof for plaintiffs in punitive damages cases, either of which could create problems for defendants in the future.

South Carolina Court Of Appeals Explores Opinion Testimony In New Fire Damage Case

Whether in the form of anonymous comments to an article written by someone else, reviews of businesses, or drafting blog posts, tweets, musing on Tumblr, Facebook posts,  it often only requires a few keystrokes and hitting “enter.”  With all of this, we have become so desensitized to opinion in our daily lives that we do not ask the proper questions to learn if someone is reporting facts or opinion.  However, the South Carolina Court of Appeals recently reminded us that, during trial, we must be discriminating in an evaluating what constitutes fact and what constitutes an opinion. Fowler v. Nationwide Mut. Fire Ins. Co., No. 2012-213250 (S.C. Ct. App. Aug. 6, 2014) is a breach of contract and bad faith case arising from the denial of insurance coverage on a policy held with Nationwide for a house fire that occurred in 2009 in Oconee County, South Carolina.  The Friendship Fire Department, a volunteer fire department, led by its Chief David Wright, responded first to the fire at the Fowler home and found itself ultimately responsible for putting out the fire.  Following the fire, as required by state regulations, Chief Wright filled out a report about the fire, called a “Truck Report,” listing and explaining certain information about the fire. On the Truck Report, Chief Wright noted as follows: (1) for “Area of Origin,” Wright wrote “Living Room”; (2) for “Cause of Ignition,” Wright wrote “Unintentional”; and (3) for “Equipment involved in Ignition,” Wright wrote “Heater.”  Prior to trial, Nationwide moved to exclude the testimony of Wright regarding the cause and origin of the fire as well as the relevant portions of the Truck Report regarding same.

While Chief Wright was never admitted as an expert at trial—an issue which is the subject of a different appeal—he was permitted to testify about the Truck Report and his conclusions therein.  He testified that he wrote “Living Room” because it was the room that was the most heavily damaged and that he wrote “Unintentional” because he did not see or smell anything that caused him to suspect the use of accelerants or arson.  As to the “Unintentional” answer, Chief Wright testified that it was “just his opinion.” Finally, he testified that he believed the heater was involved because a kerosene heater was located at the base of a V-shaped burn pattern on the wall of the living room.  When asked to explain the V-pattern, Chief Wright testified that when he has been around investigators or inspectors, they call it a “V-pattern” when the fire starts at a point and moves up the wall and spreads out like a “V.”  Thus, Chief Wright testified that he believed the heater had instigated the fire because it was at the base of the V-shape.

The jury returned a Plaintiff’s verdict for over $500,000 on the breach of contract and bad faith claims.   On Nationwide’s motion for new trial, the circuit court found that the statements made by Chief Wright were admissible perceptions under Rule 701 of the South Carolina Rules of Evidence. Rule 701, SCRE, states that “[i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience or training.”

Despite arguments by the respondents that Chief Wright was merely explaining what he observed, the Court of Appeals held that some of Chief Wright’s testimony was improper opinion testimony because that testimony required “special knowledge, skill, experience or training.” Additionally, the Court of Appeals held that the Truck Report should not have been admitted as a public records hearsay exception under Rule 803(8), SCRE, which includes “reports, . . . of public offices or agencies, setting forth . . . matters observed pursuant to duty imposed by law as to which matters there was a duty to report, . . . ; provided, however, that investigative notes involving opinions, judgments, or conclusions are not admissible.” The Court of Appeals also found that the improper admission of Chief Wright’s testimony and the Truck Report was prejudicial to Nationwide at trial such that a new trial was warranted.

Unlike the unregulated land of Internet reviews, tweets, blog posts, and other social media statements, Fowler makes clearer the delineation of opinion testimony for those who are not admitted as experts.  Going forward, an opinion is something that goes to causation or the underlying issues because it requires “special knowledge, skill, and experience.”

Wedding Disasters: Funny Stories Or Lawsuit Worthy?

Weddings are a big deal. Couples  spend thousands of dollars to make sure every tiny detail is perfect. Unfortunately, however, there is no guarantee the ceremony will go off without a hitch. Even when spending a small fortune, a wedding can be ruined by a rain shower or an intoxicated participant. Sometimes, the “disaster” transitions into a humorous story after time removes the scarring. Other times, the disaster is so egregious that it might just lead to a lawsuit. It is a fine line, to be sure. Recently, a South Carolina couple has alleged that they found themselves on the wrong side of that line. But let’s allow you to judge.

According to a report out of the Daily Mail, a Charleston couple claims that their 2013 wedding was ruined after a man exposed his genitalia during their ceremony in the courtyard of the Doubletree Inn. Apparently, a naked hotel guest decided that he wanted to take part in the ceremony by standing in front of an open window overlooking the courtyard in all his glory. This curious event transpired after the couple was allegedly assured by hotel management that the ceremony would not be disrupted by hotel guests not in attendance. As a result, the couple and the bride’s parents have filed suit against City Market Hotels seeking actual and punitive damages for negligence and emotional distress. The streaker is not named as a defendant.

We understand the couple’s frustration. You only get one wedding day with your partner. Now, this couple’s special day will always be marred by the actions of a creeper. The question is, however, what, if anything, is this suit worth? Certainly, like any business transaction, if you don’t get what you pay for, you should be able to ask for a refund. Our guess is that if that was all the couple wanted, then there would have been no reason to file suit.

For some, an event such as this is so unconscionable that it will forever cause anguish. For others, it leads to a heck of a funny story from an otherwise bland wedding. We imagine the jury pool will be made up of those on both side of the divide. Whether or not the couple recovers, this event will make for a story they will one day tell their grandchildren. Of course, a good laugh will ensue.

Bad Cinnamon Rolls Bring Out The Worst In Us – A South Carolina Tale

Recently, we here at Abnormal Use lamented the tales of those who elect to air their defective food product grievances over 911 calls rather than more traditional methods. As much as we may detest the use of 911 in non-emergency, defective food situations, such things are  preferable to a recent incident at a South Carolina Burger King. According to a report from the Post and Courier, a Burger King customer threatened to shoot employees over a stale cinnamon roll. Guns and breakfast food. You can only imagine our disbelief upon hearing that this incident occurred in our home state. If your were thinking that there must be more to this story, you would be mistaken. Apparently, the woman complained that her BK-made cinnamon roll was served at less than its optimal freshness, only to be told that the roll was the only one left. She then left the store, only to return later with her hand stuffed in her purse, threatening to “shoot everyone.” Employees called 911 (appropriately), and she fled the scene.

Like this woman, we, too, are fans of cinnamon rolls. There is no better way to start your day than with cinnamon and cream cheese frosting. We understand the woman’s frustration upon discovering stale dough has ruined her breakfast. Violence, however, is not the answer. Apparently, this woman has never seen Falling Down, as this approach didn’t work out so well for Michael Douglas.

If you receive food that is not served to your exact specifications, complain if you must. Just leave guns – and 911 – out of it.

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.