J. Andrew Yoho
Associate / Charleston
J. Andrew Yoho is an associate in our Charleston office. Andy practices general civil litigation with a focus on construction litigation, which includes the representation of contractors, subcontractors, design professionals and suppliers. Prior to joining the firm, Andy practiced law at a well-respected civil litigation firm in Beaufort, SC. While in Beaufort, Andy gained valuable experience representing contractors and suppliers. Andy also represented governmental entities and a private club in both State and Federal Court. Andy is a former Staff Attorney for the Supreme Court of South Carolina and has successfully represented clients in both the Court of Appeals and Supreme Court of South Carolina.
Andy earned his Bachelor of Science degree from Charleston Southern University and his Juris Doctor from the University of South Carolina School of Law. During law school, Andy worked for the South Carolina Senate Judiciary Committee and served as President of the Student Bar Association. Andy graduated from law school with honors as a member of the Order of the Wig and Robe and was presented with the Compleat Lawyer Bronze Medallion upon graduation. In 2014, Andy was named Young Alumnus of the Year by Charleston Southern University.
Several Carlock Copeland Attorneys Attend The CLM’s 2018 Claims College in Baltimore, MD – September 5-8
September 5, 2018
Melissa Bailey, Will Farley and Andy Yoho attended the CLM Claims College held from September 5-8 at the Marriott Baltimore Waterfront (Conference Hotel), 700 Aliceanna Street, Baltimore, Maryland 21202. Angela Kopet was asked to return as a faculty member for the Claims College's School of Casualty Claims, Angela taught Level 2: Case Resolution: Development of a Negotiation Strategy. In addition, Angela was named to the CLM's Executive Council for the School of Leadership for 2018, one of four positions supervising courses within the the Claims College School of Leadership. The CLM Claims College features more than 80 collaborative educational sessions and keynote presentations designed by industry professionals to help attendees gain the knowledge they need to be on the forefront of the industry. For more information on CLM or Claims College, click here.
Several Carlock Copeland Attorneys in Attendance at Claims and Litigation Management Alliance’s (CLM) 2017 Claims College
September 6, 2017
Angela Kopet was named to the CLM 2017 Claims College faculty, which Carlock Copeland sponsored. Claims and Litigation Management Alliance's (CLM) 2017 Claims College was in Baltimore, MD, September 6-9, 2017. Angela taught in the School of Leadership - Leading Through Change & Adversity, on Friday September 8, 2017 and the School of Casualty Claims - Level 2: Case Resolution: Development of Negotiation Strategy, also on Friday September 8, 2017. Patrick Norris attended as our sponsor representative and Lee Weatherly was in attendance, as a member of CLM Claims College's Medical Malpractice and Health Care Sub-Committee. Melissa Bailey, Will Farley and Andy Yoho all attended as students. The CLM Claims College features more than 80 collaborative educational sessions and keynote presentations designed by industry professionals to help attendees gain the knowledge they need to be on the forefront of the industry. Pictured are Patrick Norris and Andy Yoho, both attorneys in our Charleston office, at the Carlock Copeland sponsor table.
Publications and Presentations
It’s Not Always Just a Matter of Time, Plaintiff’s Attorneys are Finding Ways Around the Statute of Repose, but There is Hope for the Defense – Article in The CLM’s Claims College Magazine, Fall 2018
October 1, 2018
It's Not Always Just a Matter of Time, Plaintiff's Attorneys are Finding Ways Around the Statute of Repose, but There is Hope for the Defense - Recent Article in The CLM's Construction Claims Magazine, Fall 2018 edition. - Co-Authored by Laura Paton, Ed Anglin and Andy Yoho. Within nearly every answer filed in a South Carolina construction defect claim, the defense of “Statute of Repose” will inevitably be found. South Carolina’s Statute of Repose, codified as S.C. Code Ann. Section 15-3-640, acts as a bar to claims brought a designated amount of time after substantial completion of an improvement of real property. This bars claims even if they are discovered after the given time period expires. Essentially, as noted in Holly Woods Ass’n of Residence Owners v. Hiller, the statute provides a substantive right to those involved in the improvement of real property to be free from liability after a certain time period. However, plaintiffs throughout the state are, more often than not, successful in prosecuting construction defect claims involving structures that fall outside the statute-of-repose period. This reality presents unique challenges for those defending contractors, subcontractors, and design professionals as the age of a project not only may manifest in a greater degree of damage, but also often results in the unavailability of records and witnesses necessary to defend the claim. Moreover, the current construct presents the risk of unending potential exposure for construction professionals and their insurers. South Carolina statute states, “No actions to recover damages based upon or arising out of the defective or unsafe condition of an improvement to real property may be brought more than eight years after substantial completion of the improvement.” But, under the statute, defendants who are “guilty” of fraud, gross negligence, or recklessness in the provision of materials, development of property, or in performing or furnishing designs, plans, specifications, or supervision of construction are barred from pleading the Statute of Repose as a defense. In practical terms, this provision has handcuffed defendants seeking dismissal under the Statute of Repose—just as the statute forms a part of every defendant’s answer, it is rare to find a construction defect complaint that does not allege some form of fraud, gross negligence, or recklessness. While a bald assertion of gross negligence should not survive summary judgment, under South Carolina’s statute, the violation of a building code may be admissible as evidence of fraud, gross negligence, or recklessness. Accordingly, when faced with a dispositive motion, plaintiffs more often than not survive a challenge under the Statute of Repose. Pursuant to Rule 56 of the South Carolina Rules of Civil Procedure, summary judgment is inappropriate where a question of fact is present. Therefore, under South Carolina law, a plaintiff may file suit on a project more than eight years after substantial completion if gross negligence is alleged and a question of fact can be generated through the presentation of at least a scintilla of evidence of a code violation. To put it plainly, obtaining dismissal in South Carolina under the Statute of Repose can be a high hurdle to clear. As if it was not difficult enough to obtain dismissal of a stale claim under the statute, plaintiffs have yet another arrow in their quiver to defeat this defense. Under South Carolina’s version of the statute, a defendant is barred from pleading the Statute of Repose if a claim of property damage is not discovered in the exercise of reasonable diligence at the time of its occurrence, and is the result of exposure to some toxic or harmful or injury producing substance, element, or particle—including radiation—over a period of time as opposed to resulting from a sudden and fortuitous trauma. Many South Carolina plaintiff’s lawyers (and their experts) have fashioned a clever argument that, when dealing with improvements to real property, water is a hazardous substance, latent in nature, and not discoverable at the time of the occurrence. Accordingly, in cases where exposure to water intrusion over time has led to water damage, rot, and microbial growth, plaintiff’s lawyers have successfully argued the Statute of Limitations is inapplicable, thus paving the way for bringing and recovering damages on what should be a time-barred claim. Of course, there are exceptions. In a recent ruling by United States District Court Judge Richard Gergel, the court granted summary judgment as to all claims filed by the plaintiff against the defendant general contractor except for the claim of gross negligence. The court, in Hampton Hall LLC v. Chapman Coyle Chapman & Assoc. Architects, AIA, Inc. and Choate Construction Co, determined that the Statute of Repose defeated all claims excluding gross negligence because the property was substantially completed in 2007 and the claim was not filed until May 12, 2017, well after the eight-year Statute of Repose had expired. The plaintiff moved for the court to reconsider its decision, arguing that the properties at issue were never “substantially completed” because the defendants violated the building code. The court dismissed that argument, noting that the South Carolina code specifically provides that violations of the building code do not constitute “gross negligence” for the purpose of the exception to the Statute of Repose. Likewise, the court quickly disposed of the plaintiff’s argument that the contract language should trump the certificate of occupancy as the deciding factor for determining the date of substantial completion. Most importantly, the court addressed the plaintiff’s argument that potential intentional concealment of causes of action or fraud should trump the Statute of Repose as to claims other than gross negligence. First, the court determined that if the plaintiff could prove the existence of gross negligence, the plaintiff would still be able to fully recover on that claim. Further, the court agreed with the plaintiff that if the defense had intentionally concealed simple negligence (not gross negligence), then the defense would not be able to assert the Statute of Repose. However, the court ruled that such an argument is factual; not legal. Moreover, the court ruled that an argument of concealment was absolutely incompatible with the established facts and the plaintiff never argued that such concealment occurred in opposition to the defendants’ motion for partial summary judgment. Judge Gergel’s orders in Hampton Hall provide a roadmap for savvy defense attorneys seeking to minimize their clients’ exposures. While some might question the utility of partial summary judgment, a brief review of the elements and allowable damages of the claims is instructive. Attorneys left defending only a gross negligence claim—rather than breach of contract, breach of warranties, or violation of the South Carolina Unfair Trade Practices Act (which carries the potential for treble damages and attorney’s fees)—are much better positioned to mediate or try a case. Claims professionals and their clients should take a pragmatic approach to litigation in South Carolina. Despite the best efforts of the construction defects defense bar, plaintiff’s attorneys are forever inventing new arguments to circumvent valid Statute-of-Repose arguments. Further, years of litigation regarding the exceptions to the Statute of Repose have left the courts with confusing case law to muddle through. However, with careful planning, a smart defense attorney may utilize the statute to substantially limit a client’s exposure and, ultimately, extricate her client from South Carolina’s perpetual liability trap For more information on The CLM or their Construction Claims Magazine, please click here.
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.
Carlock, Copeland and Stair, LLP Welcomes Attorneys To Atlanta and Charleston Offices
August 24, 2016