A Conversation with Jennifer McLeod of Ellis Lawhorne On Estate Planning

Article from MidlandsBiz

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What Authority the Principal Chose: Arredondo, POAs, and Arbitrability

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It was only a matter of time before arbitrability (the enforceability of an agreement to arbitrate) put a South Carolina courts in the position to construe the language in a power of attorney ("POA"). And this opinion did.  I try to view these decisions through the lens of how an attorney practicing in South Carolina might learn from them. And this decision, like some others involving the FAA and arbitrability, (for example, Grant v. Kuhn Chevrolet  or Herron v. Century BMW  , had the litigator and the drafter in me scratching my head.  Or at least I was confused until I learned about what had happened legislatively in the time since the POAs at issue in Arredondo were scrutinized by three (3) South Carolina courts. This decision, involving a POA executed before January 1, 2017, is likely an anomaly or a one-off, as going forward the S.C. Uniform Power of Attorney Act (SCUPOA) provides a guide for the creation of POAs that may avoid the necessity for so much judicial scruti
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The Sound of Silence: SCOTUS FAA Arbitration Rulings Upend the Way SC Courts Construe Contracts

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Hello FAA, My Old Friend South Carolina courts have frequently been called upon to consider the ways in which the Federal Arbitration Act (FAA) applies to those contracts containing clauses purporting to require arbitration. The recent S.C Court of Appeals decision Grant v. Kuhn Chevrolet is the latest example. The opinion and its result rests not on the application of South Carolina statutory or case law, but instead a line of United States Supreme Court (SCOTUS) cases applying the FAA to disputes over agreements to arbitrate. For some background and discussion on some of these cases, click  here , here , or here . While it may not be entirely remarkable to apply SCOTUS opinions in state court cases, the manner of contract interpretation mandated by SCOTUS for arbitration agreements is completely different than the way South Carolina courts interpret “everyday” contracts. More specifically, these SCOTUS opinions explicitly prohibit the use of several contract interpretation t
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Missed Deadlines and "Technology" Errors

You may recall this post in April of last year about Robinson v. Wix Filtration Corp. , in which the 4th Circuit Court of Appeals determined computer problems in the Appellant's office resulting in the failure to receive notice of a motion for summary judgment did not warrant relief under either Rule 59 or Rule 60. Recently the 4th Circuit again had the opportunity to address a missed filing deadline where computer technology played a role. Symbionics v. Ortlieb  reversed a District Court determination that "a quirk in the functionality of counsel's computer calendar caused counsel to miscalculate the deadline to appeal" a judgment constituted "excusable neglect" under Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure . Symbionics filed a notice of appeal one day after the expiration of the 30-day time limit, and then filed a motion for extension of time to extend that deadline by one day. According to the opinion, counsel calendared the inco
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