This case arises from a dispute over hunting rights reserved in a deed
upon the sale of an 875 acre tract of undeveloped land
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
Marion T. Burnside, Jr., Marion T. Burnside, III, and David B. Burnside,
Appellants,
v.
Mary Clare
Matthews, Respondent.
Appeal From Fairfield County
Kenneth G. Goode, Circuit Court Judge
Unpublished Opinion No. 2005-UP-136
Submitted January 1, 2005 Filed February
24, 2005
AFFIRMED
Robert L. Widener and Celeste T. Jones, both of
Columbia, for Appellants.
Donald W. Harper, of Rock Hill, for Respondent.
PER CURIAM: This case arises from a dispute
over hunting rights reserved by Appellants in a deed to a large tract of land
they sold. Appellants brought this action for trespass and conversion, claiming
the present owner of the property infringed upon these hunting rights. The
circuit court dismissed these claims on grant of summary judgment, finding the
Appellants had forfeited their hunting rights. We affirm.
FACTS/PROCEDURAL HISTORY
The property at issue in this case is an 875 acre
tract of undeveloped land in Fairfield County. Appellant Marion Burnside, Jr.,
and the Burnside family had owned the property for many years and enjoyed using
it for hunting recreation. In May 1980, Marion Burnside and two other family
members sold the property to the Catawba Newsprint Company, a timber company
later known as Bowater. [1] The Burnsides, however, wanted to retain the
familys right to continue hunting and fishing on the land. To this end, the
deed to Bowater included terms specifically reserving the hunting rights on
the property to the Burnsides:
Hunting rights on the above described
property are RESERVED by Marion T. Burnside, Jr. and his two sons, David B.
Burnside and Marion T. Burnside, III, and Ken Richmond for a period of 10 years
from the date of this deed; thereafter, Marion T. Burnside, Jr. and his two
sons reserve the right to lease the hunting rights on a year to year basis.
The consideration for the lease shall be equal to the amount of the previous
years property taxes.
As provided in the deed, the Burnsides
held the hunting rights for the first ten years at no cost. After this ten
year period expired in 1990, Bowater began the practice of annually sending
notice of the amount of property tax due to the Burnsides in April or May along
with a year long lease that would generally run from July 1st to June 30th.
Each year the Burnsides would execute the lease and return it with the rent
payment. Often, this task was handled by John Jernigan, who served as
the agent of Marion T. Burnside, Jr., for purposes of managing the hunting rights
and wildlife on the property. Jernigan would execute the yearly leases under
the name Burnsides Hunt Club or John Jernigan Hunt Club.
In December 1997, Respondent Mary Clare
Matthews purchased the property from Bowater. Matthews was aware of the Burnsides
hunting rights, and, without success, sought relinquishment of those rights.
At the time Matthews purchased the property, it remained subject to a hunting
rights lease between Bowater and the Burnsides (via the John Jernigan Hunt
Club), which expired in June 1998.
In May or June of 1998, Jernigan contacted
Bowater to inquire about the property tax due in order that the hunting rights
lease could be executed for the next year. Bowater informed Jernigan of the
sale to Matthews. Appellants claimed Jernigan attempted to contact Matthews
about entering into a new lease for the 1998-1999 hunting season prior to the
expiration of the 1997-1998 lease with Bowater. Matthews denied receiving any
such communication. It is undisputed, however, that in May 1999nearly one
year after the previous lease expiredJernigan mailed Matthews a check for $1,486
to cover the taxes due on the property. Matthews refused to accept the payment.
Matthews eventually changed the locks on the gates that provided access to the
property, and she also allowed others to hunt on the property.
The Burnsides later brought this action
against Matthews alleging trespass and conversion of the Burnsides hunting
rights. Matthews denied these allegations and counterclaimed for trespass and
slander of title. The circuit court subsequently granted Matthews motion for
summary judgment on all claims, finding, inter alia, the Burnsides
had forfeited their hunting rights by failing to give notice of their intent
to exercise the lease option. This appeal followed.
STANDARD OF REVIEW
In reviewing the grant of a summary judgment motion,
this court applies the same standard that governs the trial court under Rule
56(c), SCRCP. Nexsen v. Haddock, 353 S.C. 74, 77, 576 S.E.2d 183, 185
(Ct. App. 2002). Summary judgment is proper when there is no genuine issue
as to any material fact and the moving party is entitled to a judgment as a
matter of law. Kirkman v. Parex, Inc., 356 S.C. 525, 527-28, 590 S.E.2d
36, 37 (Ct. App. 2003) (citing Rule 56, SCRCP, and South Carolina Prop. &
Cas. Guar. Assn. v. Yensen, 345 S.C. 512, 518, 548 S.E.2d 880, 883 (Ct.
App. 2001)). In determining whether summary judgment was proper, the court
views the evidence and the inferences that can be drawn therefrom in a light
most favorable to the non-moving party. George v. Fabri, 345 S.C. 440,
452, 548 S.E.2d 868, 874 (2001).
LAW/ANALYSIS
On appeal, the Burnsides assert several
alternative grounds they claim warrant a reversal of the circuit courts grant
of summary judgment in favor of Matthews. For the reasons detailed below, we
reject all of these arguments.
I. Exercise of Hunting Rights Under
the Terms of the Deed
The Burnsides first argue that, assuming
they failed to give timely notice to Matthews of their intent to lease the hunting
rights on the property at the end of their existing lease with Bowater, such
failure did not forfeit all future hunting rights under the deed. We disagree.
The Burnsides contend the language in
the deed granting them the right to lease the hunting rights on a year to year
basis meant they had the option to lease the hunting rights every year, or
they could not lease one year but then lease the next yearin effect allowing
them to skip any year or years of their choosing, after which they could resume
the lease arrangement upon notice to the property owner. Therefore, failure
to give notice for any one particular year would not operate to forfeit the
right for future years. According to the Burnsides, even if this interpretation
were found to be incorrect by the fact finder at trial, their argument points
to an ambiguity in the terms of the lease that, at a minimum, gives rise to
a question of material fact sufficient to overcome Matthews motion for summary
judgment. Looking, however, to the plain meaning of the hunting rights lease
and applying the well settled rules for construing restrictions in deeds, we
find no such ambiguity and no support for the interpretation of the lease terms
urged by the Burnsides.
The construction of a clear
and unambiguous deed is a question of law for the court. Gardner v. Mozingo,
293 S.C. 23, 25, 358 S.E.2d 390, 392 (1987); see also Shipyard
Prop. Owners Assn v. Mangiaracina, 307 S.C. 299, 308, 414 S.E.2d 795,
801 (Ct. App. 1992). The court will neither limit a restriction in a deed nor
will the court enlarge or extend it by construction or implication beyond the
clear meaning of its terms even to accomplish what it thinks the parties would
have desired if they had foreseen the development of a particular situation.
Taylor v. Lindsey, 332 S.C. 1, 4, 498 S.E.2d 862, 864 (1998).
It is still the settled rule
in this jurisdiction that restrictions as to the use of real estate should be
strictly construed and all doubts resolved in favor of free use of the property,
subject, however, to the provision that this rule of strict construction should
not be applied so as to defeat the plain and obvious purpose of the instrument.
Id. Further, [a]
restriction on the use of property must be created in express terms or by plain
and unmistakable implication, and all such restrictions are to be strictly construed,
with all doubts resolved in favor of the free use of property. Id.
at 5, 498 S.E.2d at 864 (quoting Hamilton v. CCM, Inc., 274 S.C. 152,
157, 263 S.E.2d 378, 380 (1980)). In interpreting options or rights to extend
a lease, our courts have consistently held that such options or rights are to
be strictly construed against the party claiming the option. See 33
Flavors Stores of Virginia, Inc. v. Hoffmans Candies, Inc., 296 S.C. 37,
40, 370 S.E.2d 293, 295 (Ct. App. 1988) (holding that because of its unilateral
nature, an option to renew a lease is strictly construed against the party claiming
the option) (citing Southern Silica Mining & Mfg. Co. v. Hoefer,
215 S.C. 480, 56 S.E.2d 321 (1949)).
We find no provision
in the lease termsexplicit or impliedsuggesting the Burnsides could unilaterally
choose to exercise their option to lease the hunting rights to the property
any year of their choosing for perpetuity. The terms of the deed granting the
Burnsides the right to lease the hunting rights on a year to year basis plainly
mean that the Burnsides could renew or extend their right to hunt on the property
in consecutive years following the expiration of the initial ten year period
reserving the hunting rights. To hold otherwise would place a severe encumbrance
upon the use and alienability of the property for an indefinite period of time.
Absent explicit language in the terms of the deed indicating the parties intended
such an expansive encroachment upon the rights of the immediate grantee and
all future owners of the underlying fee, we decline to adopt such an interpretation.
II. Purported
Questions of Fact Concerning Timely Notice
The Burnsides alternatively
argue that they did in fact provide Matthews with sufficient notice of their
intent to extend or renew their hunting rights lease prior to the expiration
of their existing lease with Bowater for the 1997-1998 hunting season. In support
of this argument, the Burnsides rely upon three pieces of evidence that they
claim establish their attempts to give timely notice to Matthews: the deposition
and affidavit of John Jernigan and the check for the property tax payment Jernigan
mailed to Matthews in May 1999. At a minimum, they claim this evidence created
a question of material fact not ripe for disposition at the summary judgment
stage. We address the sufficiency of each of these items separately.
A. Jernigans Deposition
The Burnsides argue Jernigans deposition, when
viewed in a light most favorable to them, creates an issue of fact as to timely
notice. We disagree. Contrary to the Burnsides characterization of Jernigans
deposition testimony, we find no statement in this testimony indicating Jernigan
contacted Matthews prior to mailing the check for the property tax payment in
May 1999approximately ten months after the last existing lease had expired.
Accordingly, even when viewing Jernigans deposition in a light most favorable
to the Burnsides as we must, we cannot discern from this testimony any genuine
issue of material fact regarding timely notice.
B. Jernigans Affidavit
The Burnsides submitted an affidavit of John Jernigan
to the circuit court in which Jernigan states that he attempted to call Ms.
Matthews over a three-to-four month time span, without success. The circuit
court found the submission of the affidavit to be untimely and refused to consider
it. The Burnsides contend this refusal was an abuse of discretion.
We find no error in the
circuit judges rejection of this affidavit. Rule 56(c), SCRCP specifies that
when filing papers in response to motions for summary judgment, [t]he adverse
party may serve opposing affidavits not later than two days before the hearing.
Our supreme court has ruled that the trial court may, in its discretion, refuse
to consider materials that were not timely served such that the opposing party
had no time to prepare a response. Black v. Lexington Sch. Dist. No. 2,
327 S.C. 55, 60, 488 S.E.2d 327, 329 (1997) (holding that the trial court did
not abuse its discretion in refusing to consider an affidavit filed on the date
of the hearing when the appellants lawyer admitted he failed to serve the affidavit
within the time required by Rule 56 and failed to assert any good excuse for
that failure).
In the present case, the
affidavit was submitted two weeks after the summary judgment hearing.
Indeed, the affidavit was submitted after the circuit court had notified
the parties by letter that it intended to grant Matthews summary judgment motion.
As the circuit court explained in denying the Burnsides motion to alter or
amend judgment, the Burnsides attorney neither offered to submit nor requested
leave to submit the affidavit. Moreover, we concur in the circuit courts assessment
that the Burnsides were clearly aware that the matter involved in the affidavit
was a basis for Matthews summary judgment motion, rendering the delay in producing
the affidavit without any legitimate explanation or excuse. Accordingly, we
find no abuse of discretion in the circuit courts refusal to consider the affidavit.
C. May 1999 Check to Matthews
The Burnsides next argue that the check Jernigan
sent to Matthews in May 1999 was sufficient to create a genuine issue of material
fact as to timely notice. This argument, however, rests upon the premise that
the terms of the deed entitle the Burnsides to exercise their right to lease
the hunting rights in any year of their choosing, even after the expiration
of the existing lease. As discussed in Section I, supra, we reject this
interpretation of the deed language. Accordingly, the claim that a check mailed
over ten months after the expiration of the existing lease could serve as effective
notice of the exercise of the hunting rights lease is without merit. Thus,
the circuit court properly determined the check raised no genuine issue of material
fact as to whether notice was timely provided.
III. Course of Dealing
The Burnsides also argue
the circuit court erred in granting summary judgment because Matthews owed a
duty to the Burnsides to notify them of the lease amount based on a course of
dealing between Bowater and the Burnsides under the deed.
This argument was not raised to the circuit court.
No mention is made of it in the complaint, in the Burnsides memorandum in opposition
to summary judgment, or in their motion to amend or alter the judgment. To
be preserved for appellate review, an issue must have been raised to and ruled
upon by the trial court. United Student Aid Funds, Inc. v. South Carolina
Dept of Health and Envtl Control, 356 S.C. 266, 273, 588 S.E.2d 599, 602
(2003). Because the Burnsides failed to raise this argument prior to appeal,
this issue is not properly before us.
IV. Additional Issue Raised on Appeal
In its order granting Matthews motion
for summary judgment, the circuit court held:
Even if the Court construes the
deed to create a year to year lease rather than a right or option to lease,
the failure of the Plaintiffs to pay or tender rent for a period of ten months
constitutes a material breach of the lease resulting in a forfeiture even under
the stringent requirements of Kiriakides v. United Artists Communications,
312 S.C. 271, 440 S.E.2d 364 (1994).
On appeal, the Burnsides
assert this finding of the circuit court was error. However, we find summary
judgment was properly granted on the grounds that notice was insufficient and
no lease relationship was created between the Burnsides and Matthews. Accordingly,
we need not reach this alternative ground regarding whether the Burnsides actions
constituted a material breach in the event such a lease was found to exist.
CONCLUSION
We find the circuit court properly determined
that the Burnsides failed to notify Matthews of their intent to extend, renew,
or otherwise exercise their option to lease the hunting rights to the property
and therefore forfeited their right to do so in the future. Concomitantly,
we find that no genuine issue of material fact precluded this determination
at the summary judgment stage. Appellants other arguments concerning the legal
effects of a purported course of dealing between the parties and material breach
of the lease are either unpreserved or unnecessary to our decision today. Accordingly,
the circuit courts order granting summary judgment is
AFFIRMED.
HUFF, KITTREDGE and BEATTY, JJ., concur.
[1] For clarity and ease of reference we will refer to the company as Bowater
throughout this opinion.