THIS OPINION HAS NO PRECEDENTIAL
VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT
AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Alan D. Anderson, Robert and Diane
Ressler,
William Todt, Thomas A. Brooks, Juliana S. Calhoun, Robin and Keith Lee,
Donald J. and Michele B. Hatcher, Philip D. and Jean F. Landfried,
Appellants/Respondents,
v.
Hank and Linda Buonforte,
Respondents/Appellants.
Appeal From Sumter County
W. C. Coffey, Jr., Special Referee
Unpublished Opinion No. 2004-UP-270
Heard January 13, 2004 Filed April
19, 2004
AFFIRMED
John S. Keffer, of Sumter, for Appellants-Respondents.
Kristi F. Curtis, of Sumter, for Respondents-Appellants.
PER CURIAM: Alan D. Anderson,
Robert Ressler, Diane Ressler, William Todt, Thomas A. Brooks, Juliana S. Calhoun,
Robin Lee, Keith Lee, Donald J. Hatcher, Michele B. Hatcher, Philip D. Lanfried,
and Jean F. Landfried (collectively the Neighbors), sued Hank and Linda Buonforte
(collectively the Buonfortes), seeking to enforce the restrictive covenants
of the Indian Hills Subdivision in Sumter, South Carolina. The special referee
ordered the Buonfortes to remove a two-car garage from their property and modify
a recently built extension to their home. Both parties appeal. We affirm.
FACTUAL/PROCEDURAL BACKGROUND
The Buonfortes began construction
of a house in the Indian Hills Subdivision in Sumter, South Carolina. Hank
Buonforte convinced his parents to move into his home, promising to build an
extension to the main house (the mother-in-law wing). Thereafter, he approached
the City Planning Directors Office for a variance to his permit and applied
to the Sumter City-County Board of Appeals (the Board) for a variance to the
citys setback requirements to build a garage. However, at the Buonfortes hearing
before the Board, several neighbors appeared in opposition to the request.
The Buonfortes applied
for a variance with the subdivisions designated representative for enforcement
of the restrictive covenants. However, eighteen days later, before the Buonfortes
received a response from the representative, the Neighbors sued the Buonfortes,
alleging the Buonfortes mother-in-law wing and garage violated the communitys
restrictive covenants because: 1) the main structure was no longer a single-family
dwelling; and 2) the house no longer complied with the setback lines. Additionally,
the Neighbors sought a temporary restraining order prohibiting any further construction
on the lot.
After a full hearing on the merits,
the special referee ruled the home was a single-family dwelling within the meaning
of the term in the restrictive covenants. Furthermore, the special referee
determined the house violated the general scheme of development and ordered
the garage removed and the mother-in-law wing altered to better conform to
surrounding houses. The special referee also ordered the Buonfortes to pay
all court costs and special referee fees. Both parties appeal.
STANDARD OF REVIEW
An action to enforce
a restrictive covenant is in equity. South Carolina Dept of Natural Res.
v. Town of McClellanville, 345 S.C. 617, 622, 550 S.E.2d 299, 302 (2001).
As such, this court may view the facts in accordance with our preponderance
of the evidence. However, we should not disregard the findings of the special
referee, who was in a better position to weigh the credibility of witnesses.
Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538,
543 (1990).
LAW / ANALYSIS
I. The Neighbors
Appeal
A. Single-Family Dwelling
Initially, the Neighbors argue
the special referee erred by failing to rule on whether the Buonfortes house
was a single-family dwelling or a duplex. We disagree.
An appellate court must
view the trial courts statements as a whole to determine its reasoning. State
v. Evans, 354 S.C. 579, 584, 582 S.E.2d 407, 410 (2003). Furthermore, [a]n
order should be construed within the context of the proceeding in which it is
rendered. Dibble v. Sumter Ice & Fuel Co., 283 S.C. 278, 282, 322
S.E.2d 674, 677 (Ct. App. 1984); see also Eddins v. Eddins, 304
S.C. 133, 135, 403 S.E.2d 164, 166 (Ct. App. 1991) (holding judgments are to
be construed as other instruments, and the determinative factor is the intention
of the court, considering the judgment in its entirety).
The special referees
order specifically found the Buonfortes house, constitutes a single family
unit as defined by the restrictive covenants. Thus, the Neighbors claim is
without merit.
Next, the Neighbors assert the
contrary argument that the special referee erred by ruling on whether the Buonfortes
structure constituted a single-family dwelling or a duplex. They contend this
issue was neither raised by the pleadings nor argued at trial. We disagree.
A judgment must conform to the pleadings and be
in accordance with the theory of action upon which the case was tried. Chandler
v. Merrel, 291 S.C. 227, 228, 353 S.E.2d 135, 136 (1987). However, [w]hen
issues not raised by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they had been raised
in the pleadings. Rule 15(b), SCRCP.
In pertinent part, the
Neighbors complaint alleges, the . . . [Buonfortes] construction . . . violate[s]
the restrictive covenants in the following particulars: . . . The . . . [Buonfortes]
are developing and/ or constructing a residence and attached apartment/duplex
which is in clear violation of the limit to a single family residence . . .
. Furthermore, during the trial, both the Neighbors and the Buonfortes presented
extensive testimony about whether the structure was a single-family dwelling
or a duplex. Neither party objected to the admission of the testimony. Thus,
this issue was both raised in the pleadings and tried by consent during the
trial. Consequently, this issue is without merit.
Next, the Neighbors argue the
special referee erred by considering the testimony of two of the Buonfortes
witnesses. Specifically, the Neighbors claim the testimony was irrelevant.
We disagree.
Any evidence that assists in
getting at the truth of the issue is relevant and admissible, unless because
of some legal rule it is incompetent. Toole v. Salter, 249 S.C. 354,
361, 154 S.E.2d 434, 437 (1967). Furthermore,
[i]n determining a dispute concerning
the relevancy of . . . evidence, the question to be resolved is as to whether
there is a logical or rational connection between the fact which is sought to
be presented and a matter of fact which has been made an issue in the case.
Relevancy is that quality of evidence which renders it properly applicable in
determining the truth and falsity of matters in issue between the parties to
a suit. All that is required to render evidence admissible is that the fact
shown thereby legally tends to prove, or make more or less probable, some matter
in issue, and bear directly or indirectly thereon.
Id. (internal citations
omitted).
When a term is not defined within
a contract, evidence of its usual and customary meaning is competent to aid
in determining its meaning. S.C. Farm Bureau Mut. Ins. Co. v. Oates,
356 S.C. 378, 382-83, 588 S.E.2d 643, 645 (Ct. App. 2003).
The restrictive covenant states
only single-family dwellings are permitted on the Buonfortes property. Furthermore,
the covenant expressly prohibits the construction of duplexes. However, neither
single-family dwelling nor duplex is defined within the restrictive covenants.
Thus, attempting to demonstrate
the house was a single-family dwelling, the Buonfortes presented the testimony
of William Henry Hoge, the Planning Director for the Sumter Planning Commission,
and John Humphries, the Building Official for the City of Sumter, who testified
that pursuant to the applicable Sumter zoning ordinances, the Buonfortes house
was a single-family dwelling. The Neighbors objected, arguing only the testimony
of Robert Ross Dinkins, the person responsible for enforcing the restrictive
covenants, was relevant on the issue.
We conclude the admitted testimony
was relevant to determine the meaning of the term single-family dwelling within
the restrictive covenants, as the zoning ordinances were evidence of its usual
and customary meaning. Thus, the special referee did not err by admitting the
testimony.
Lastly, the Neighbors
argue the special referee abused his discretion by ruling the Buonfortes structure
was a single-family dwelling. We disagree.
Dinkins testified he
was responsible for enforcing the restrictive covenants, and, in his opinion,
the structure was a duplex. The Neighbors also admitted the testimony of Charles
R. McCreight, an architect, who opined the structure was a duplex.
In response, the Buonfortes
presented the testimony of Hoge and Humphries. Hoge testified it is his duty
to enforce the zoning ordinances of the City of Sumter. Additionally, he testified
the Indians Hills Subdivision is within the City of Sumter, zoned in an area
where duplexes were prohibited. In his opinion, the structure constituted a
single-family residence under the applicable Sumter zoning ordinances. Humphries,
who is responsible for enforcing the City of Sumter building regulations, testified
the structure was a single-family dwelling and did not meet the definition of
a duplex within the building code definition.
Viewing the entirety of the record,
we agree with the special referee that the weight of the evidence indicates
the Buonfortes structure was a single-family dwelling for purposes of the restrictive
covenants.
B. Notice of Restrictive Covenants
The Neighbors
argue the special referee erred by finding the Buonfortes were not on notice
of the restrictive covenants. The Neighbors misunderstand the special referees
ruling.
An appellate court must
view the trial courts statements as a whole to determine its reasoning. Evans,
354 S.C. at 584, 582 S.E.2d at 410. Furthermore, [a]n order should be construed
within the context of the proceeding in which it is rendered. Dibble,
283 S.C. at 282, 322 S.E.2d at 677; see also Eddins, 304 S.C.
at 135, 403 S.E.2d at 166 (holding judgments are to be construed as other instruments,
and the determinative factor is the intention of the court, considering the
judgment in its entirety).
Constructive notice and actual notice
are not one in the same. Strother v. Lexington County Recreation Commn,
332 S.C. 54, 64, 504 S.E.2d 117, 122 (1998). Rather, a person has actual notice
where the person . . . either knows of the existence of the particular facts
in question or is conscious of having the means of knowing it, even though such
means may not be employed by him. Id. at 64 n. 6, 504 S.E.2d at 122
n. 6. In contrast, constructive notice is a legal inference which substitutes
for actual notice. It is notice imputed to a person whose knowledge of facts
is sufficient to put him on inquiry; if these facts were pursued with due diligence,
they would lead to other undisclosed facts. Id. A homeowner is charged
with constructive notice of any restriction properly recorded within the chain
of title. Harbison Comm. Assn, Inc., v. Mueller, 319 S.C. 99, 103,
459 S.E.2d 860, 863 (Ct. App. 1995).
The Buonfortes bought
a piece of property in the Indian Hills Subdivision with restrictive covenants
in the chain of title. The Buonfortes denied actual notice of the restrictive
covenants. The Neighbors did not present any evidence within the record indicating
the Buonfortes were on actual notice of the restrictive covenants.
In the findings of fact, the
special referees final order states that the Buonfortes deed did not put the
Buonfortes on adequate notice of the restrictive covenants. Subsequently,
as a conclusion of law, the special referee held the Buonfortes were unaware
of the restrictive covenants when they began building the garage and mother-in-law
wing.
We conclude a reasonable
reading of the special referees order, in light of the proceedings in which
it was rendered, indicates the special referee found the Buonfortes were not
on actual notice, as opposed to constructive notice, of the restrictive covenants.
Furthermore, this finding is supported by the weight of the evidence within
the record. Thus, we hold the special referee did not err.
C. Balancing of the Equities
The Neighbors argue
the special referee erred by balancing the equities in an arbitrary and unfair
manner. Specifically, the Neighbors contend the Buonfortes came to the hearing
with unclean hands, and thus, both the mother-in-law wing and the garage should
be removed. We disagree.
When this court is sitting
in equity, and thus viewing evidence for our own preponderance, we are to consider
the equities of both sides, balancing the two to determine what, if any, relief
to give. See Foreman v. Foreman, 280 S.C. 461, 464-65, 313 S.E.2d
312, 314 (Ct. App. 1984). However, if a party has unclean hands, the party
is precluded from recovering in equity. A party will have unclean hands, where
the party behaves unfairly in a matter that is the subject of the litigation
to the prejudice of the defendant. Ingram v. Kaseys Assocs., 340
S.C. 98, 107, 531 S.E.2d 287, 292 (2000).
The Neighbors sued the Buonfortes,
seeking to enforce the restrictive covenants of the Indian Hills Subdivision.
Specifically, the Neighbors argued the additions to the Buonfortes house created
a duplex, the mother-in-wing and garage violated the setback lines, and the
mother-in-law wing and garage did not conform with the aesthetics of the neighborhood.
While the litigation was pending,
the parties signed a consent order providing the following:
ORDERED, that the . . . [Buonfortes]
immediately cease any further construction regarding the mother-in-law wing
on the property . . . . The . . . [Buonfortes] will be permitted to install
the front window units of said wing along with the door, and can also complete
the sides and rear of said wing, however, the . . . [Buonfortes] may not continue
to build or improve the front of the structure. Further, the . . . [Buonfortes]
may not destruct or improve the wall separating the mother-in-law wing from
the main structure . . . . ORDERED, that the . . . [Buonfortes] be allowed to
complete the main structure of said building . . . Further, the . . . [Buonfortes]
will be allowed to complete the interior of the balance of the structure . .
. and the exterior of the entire structure . . . ORDERED, that if the . .
. [Buonfortes] do continue to build or improve said property beyond the parameters
of this Order, that the . . . [Buonfortes] do so at their own risk[.]
(emphasis added).
Subsequently, the Buonfortes
completed construction of the garage and interior of the mother-in-law wing.
Following a final hearing, the special referee ruled the Buonfortes must remove
the garage. Furthermore, the special referee ruled the Buonfortes must remove
the front door entrance of the mother-in-law wing, such that the house now only
has one front entrance. Moreover, the special referee ordered the Buonfortes
to remove the gabled entrance roof.
The Neighbors now contend
the special referee erred by balancing the equities to allow the mother-in-law
wing to remain because the Buonfortes are seeking equity with unclean hands.
Specifically, the Neighbors allege the following particulars weigh against the
Buonfortes: 1) the Buonfortes misrepresented information on their original
building permit because they did not request a permit for the additions to the
house, although they knew they planned to construct additions; 2) the Buonfortes
had constructive knowledge of the restrictive covenants before they began to
build the additions to their house; and 3) the Buonfortes continued to build
after they had actual knowledge of the restrictive covenants.
We do not view the evidence
in the same light as the Neighbors. Rather, our view of the evidence indicates
the Buonfortes applied for a building permit to construct their original residence.
Although the Buonfortes may have intended to construct additions to their residence
when they applied for the original building permit, they did not intend to do
so without acquiring an additional permit. In fact, prior to construction of
the additional structures, the Buonfortes applied for permits to build the additional
structures, leading to this lawsuit.
The evidence also indicates
the Buonfortes were not on actual notice of the restrictive covenants, as no
evidence exists within the record indicating they actually knew the restrictive
covenants existed. Rather, the evidence indicates that prior to buying the
piece of property, the Buonfortes hired an attorney to conduct a title search.
The attorneys report does not indicate the existence of restrictive covenants.
Thus, although the Buonfortes were on constructive notice of the restrictive
covenants, they were not on actual notice, mitigating any allegation of unclean
hands.
Pursuant to the above
quoted agreement, the Buonfortes continued to build the additions to their home
after commencement of this lawsuit. With the exception of the garage, which
the special referee ordered the Buonfortes to remove, the continued building
was permitted under the agreement.
We conclude the Buonfortes
did not have unclean hands such that they are precluded from the aide of equity,
as they have not acted unfairly to the prejudice of the Neighbors. Moreover,
we conclude the special referee appropriately weighed the equities of the situation.
Thus, we hold the special referee did not err.
II. The Buonfortes
Appeal
A. General Scheme of Development
The Buonfortes
argue the special referee erred by ordering them to remove the garage and alter
the mother-in-law wing. They contend Dinkins implicitly approved their construction
plans pursuant to an automatic approval provision in the restrictive covenants.
We disagree.
The cardinal rule of contract interpretation
is to ascertain and give legal effect to the parties intentions as determined
by the contract language. Schulmeyer v. State Farm Fire & Cas. Co.,
353 S.C. 491, 495, 579 S.E.2d 132, 134 (2003). Thus, [i]f the contracts language
is clear and unambiguous, the language alone determines the contracts force
and effect. Id.
The restrictive covenants provide:
In the event Robert Ross Dinkins, or his designated representative,
fails to approve or disapprove within thirty days after plans and specifications
have been submitted to him, or in the event no suits to enjoin the construction
have been commenced prior to the completion thereof, approval will not be required
and the related covenants shall be deemed to have been fully complied with.
The Buonfortes submitted a copy
of their plans to Dinkins. Subsequently, approximately eighteen days after
the Buonfortes submitted their plans to Dinkins and before Dinkins responded,
the Neighbors sued the Buonfortes. Because the Neighbors filed suit against
the Buonfortes before the expiration of Dinkins thirty days response period,
we hold this provision of the restrictive covenants is inapplicable.
B. Fees and Costs
The Buonfortes argue
the special referee erred by ordering them to pay all of the fees and costs
of the litigation. We disagree.
In every civil action commenced
or prosecuted in the courts of record in this State . . . the attorneys for
the plaintiff or defendant shall be entitled to recover costs and disbursements
of the adverse party. S.C. Code Ann. § 15-37-10 (1977); see Rule 54(d),
SCRCP ([C]osts shall be allowed as of course to the prevailing party unless
the court otherwise directs.). However, [n]o costs will be allowed to any
party unless he succeed, in whole or in part, in his claim or defense, unless
otherwise directed by the judge hearing the cause. S.C. Code Ann. § 15-37-20
(1977).
Initially, we note, the Buonfortes
do not argue the special referee lacked authority to award fees and costs.
Furthermore, the Buonfortes do not argue the special referee awarded fees and
costs for expenses not provided for by statute. Rather, the Buonfortes only
argue the special referee abused his discretion by ordering the Buonfortes to
pay all of the fees and costs of the litigation.
In an action in equity, the decision
to grant or deny costs is largely a matter within the sound discretion of the
trial court. See Cauthen v. Cauthen, 81 S.C. 313, 315, 62 S.E.2d
319, 320 (1908). Thus, this court will not disturb the decision of the trial
court absent a clear abuse of discretion. Id.
The Neighbors sued the Buonfortes,
seeking to enforce restrictive covenants. Specifically, they sought to have
the Buonfortes remove both the mother-in-law wing and the garage. The Buonfortes
answered, seeking to maintain both additions to their house. The special referee
ordered the Buonfortes to remove the garage. Furthermore, the special referee
ordered the Buonfortes to remove the front entrance to the mother-in-law wing
and the gabled front entrance, thus bringing the mother-in-law wing in aesthetic
alignment with the rest of the neighborhood.
From the record before us, we
conclude the special referee did not commit a clear abuse of discretion by ordering
the Buonfortes to pay all of the fees and costs of the litigation. Thus, we
hold the special referee did not err.
CONCLUSION
For the foregoing reasons, the
order of the special referee is
AFFIRMED.
HEARN, C.J., HOWARD,
and KITTREDGE, JJ., concurring.