Associate / Charleston
Alex is an associate in the Charleston office where she practices general civil litigation, including construction litigation and the representation of design professionals, contractors and subcontractors. Prior to law school, Alex attended the University of North Carolina at Chapel Hill, majoring in Political Science. Alex graduated cum laude from the University of South Carolina School of Law in 2014. During law school, Alex earned a Cali Award in Advanced Legal Writing and served as the Associate Editor in Chief of the South Carolina Law Review.
Carlock, Copeland & Stair Welcomes Two New Attorneys to their Charleston Office
December 9, 2014
Carlock, Copeland & Stair, LLP welcomes William J. Farley III and Alexandra Saber to their Charleston Office. William J. Farley III’s practice is focused primarily in the areas of medical malpractice, automobile and motor carrier accidents, and commercial litigation. Prior to joining Carlock Copeland, Will practiced in North Carolina and focused on the areas of workers’ compensation defense, general civil litigation, and business transactional law. Will graduated from the University of North Carolina at Chapel Hill and attended law school at the University of South Carolina School of Law. In law school, Will was a Research Assistant for Professor Robert L. Felix and was responsible for numerous projects including an update to the South Carolina Law of Torts treatise. Alexandra Saber practices general civil litigation, including construction litigation and the representation of design professionals, contractors and subcontractors. Prior to law school, Alex attended the University of North Carolina at Chapel Hill, majoring in Political Science. Alex graduated cum laude from the University of South Carolina School of Law in 2014. During law school, Alex earned a Cali Award in Advanced Legal Writing and served as the Associate Editor in Chief of the South Carolina Law Review.
Publications and Presentations
Defeating Class Certification in South Carolina Multi-Family Construction Defects Litigation by Alexandra Lemons & Andrew Yoho
March 7, 2017
Recent article by Alexandra Lemons and Andrew Yoho. It’s no secret that construction defect litigation is booming in coastal South Carolina and throughout the Southeast, particularly in the context of multi-family developments. With dozens, sometimes hundreds of unit owners in these developments, Plaintiffs’ lawyers will often seek to file construction defect lawsuits as class-actions. The class action approach allows plaintiffs’ attorneys, inter alia, to group owners within a condominium or townhome development into a single lawsuit and recover percentage-based attorneys’ fees calculated from the entire class actions’ settlement or verdict. While seemingly more streamlined, a class action presents the danger of extrapolating damages that may be found in one unit to all, and can result in bloated repair costs that far exceed the funds needed to remediate the construction issues that may (or may not) exist. The perceived efficiency in having one class action lawsuit, as opposed to voluminous individual lawsuits, coupled with the broad discretion given to judges in certifying class actions has led to a larger number of construction defect cases being granted class action status. This apparent preference for the class action approach in multi-family construction defect litigation by plaintiffs’ attorneys and judges alike has, in recent years, bled over into litigation concerning detached, single-family residences. In fact, one of the largest lawsuits in the history of South Carolina, Grazia v. South Carolina State Plastering, is a class action involving over 4,000 single-family homes within the Sun City neighborhood near Hilton Head Island. While some feared that Grazia would become the new norm in South Carolina for single-family construction defect litigation, it is clear that not all courts are willing to go that far. By way of example, Carlock, Copeland & Stair, LLP recently defeated class action certification in single-family construction defect lawsuit on behalf of a general contractor. In that case, the plaintiffs sought certification of a class of single-family homeowners who owned slab on grade structures in two neighborhoods constructed by the general contractor, alleging defects with the design and construction of the foundation and soil preparation. Under South Carolina law, in order to receive class action status, plaintiffs must prove and the court must find during a hearing that: 1. The proposed class is so numerous that joinder of all members is impracticable; 2. There are questions of law or fact common to the class; 3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; 4. The representative parties will fairly and adequately protect the interests of the class; and, 5. The amount in controversy exceeds one hundred dollars for each member of the class. In this case, the plaintiffs claimed the purported class members met all of the class action requirements, arguing that (1) “numerosity” existed because there were as many as 90 homeowners who would form the class; (2) there was “commonality” in the questions of whether there were latent defects at their homes caused by the defendants which proximately resulted in damages; (3) “typicality” was satisfied as all purported class members had homes which were constructed by and allegedly damaged by the defendants; (4) the “adequacy” requirement was met because the representative class member possessed the same interest and suffered the same damages as the other class members and her counsel would vigorously prosecute the case on behalf of the class; and (5) the plaintiffs’ damages each exceeded $100. The plaintiffs also emphasized the judge’s discretion in certifying class actions and noted that South Carolina favors class action treatment because it requires a lower threshold than the more stringent Federal standard. Despite the plaintiffs’ arguments, a South Carolina Circuit Court judge denied the Motion for Class Certification, finding that the plaintiffs met only one of the five requirements of a class action—that the named class representative and her attorneys would fairly and adequately represent the class. In analyzing the plaintiffs’ request for class action certification, the judge focused on several key factual issues, including the quantity of parties, the differing facts and issues, the lack of typical claims and defenses, and the absence of damages evidence. Despite the prevalence of class actions in South Carolina, there is no bright-line test for how many parties it takes to justify a class action. There is simply no magic number. Without any threshold requirement, the judge was forced to determine, through evidence, whether the class was so numerous as to make adding each party to a single lawsuit impractical. The judge held that the plaintiffs did not meet their burden of demonstrating the numerosity requirement as they were only able to identify two class members by name and address, and merely speculated that the other members of the class would consist of the owners of forty-four homes within the two neighborhoods. Under South Carolina law, the failure to meet just one element of a class action is fatal; however, the judge continued his analysis and found the plaintiffs did not meet the “commonality” element. Rather, the judge found that the two neighborhoods within the proposed class were comprised of different home designs, framing configurations, foundations, square footages, and other variations. Furthermore, the judge found no evidence that a common defective condition existed within each home and even in instances where defective conditions were found, there was no evidence that the conditions were the cause of resulting damages. In all, the judge stated that the case failed to present any “predominating dispositive issue.” In addition to a lack of “commonality,” the judge concluded the proposed class members’ claims were not typical of one another. According to the judge, the evidence revealed that among the known plaintiffs, the evidence showed that the damages were dissimilar to one another. Furthermore, there was no evidence presented on the other potential class members’ damages, but that testimony of the known class members revealed that those damages may also be dissimilar to their own. Finally, the judge held that the plaintiffs had not presented enough evidence on the costs to repair each of the homes to fully satisfy the “amount in controversy” requirement. The judge explained that several homeowners within the neighborhoods had not reported any issues with their homes, and plaintiffs did not present any evidence of the costs to repair the homes where damages was reported. Accordingly, the judge denied the plaintiffs’ motion to certify the class action. Without a doubt, there are cases where the class action approach is justified and needed; however, as illustrated above, class actions are all too often being used as an effort to create large cases out of small ones. When confronted with defending such a suit, the best strategy is to stop class certification and limit the scope of the suit to only those plaintiffs with legitimate issues. The construction of a neighborhood of single-family homes, even if done under the same general contractor, often involves different subcontractors, different designs, and differing levels of damage. By meticulously highlighting these differences, a defendant may stand a better chance at escaping class action certification, particularly in the single-family home context. It is important to note that the results of this case are inherently fact specific, and under South Carolina law the case above may be revisited by a judge on a renewed motion for class certification. However, the judge’s order illustrates the defenses that can be employed in defeating class certification, and hopefully signifies the outer limit to the application of class action principles to single-family construction litigation.
Indemnity Provisions in South Carolina
May 12, 2015
Alexandra Saber authored "Indemnity Provisions in South Carolina" for Carlock, Copeland & Stair's The Critical Path Volume 1.2