THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
John Musick, Respondent,
v.
Thomas L. Dicks
and Robert E. Dicks, Jr., Appellants.
Appeal From Horry County
J. Stanton Cross, Jr., Master-In-Equity
Unpublished Opinion No. 2010-UP-351
Heard June 8, 2010 Filed July 7, 2010
REVERSED AND REMANDED
Demetri K. Koutrakos, of Columbia, for
Appellants.
George M. Hearn, Jr., and Thomas C.
Brittain, of Conway, for Respondent.
PER CURIAM:
This appeal arises out of cross motions for summary judgment before the
Master-In-Equity. The court granted summary judgment in favor of Respondent
John Musick (Musick) and dismissed the action. Appellants Thomas L. Dicks and
Robert E. Dicks, Jr. (Appellants) argue that the court erred in granting
Musick's motion, in denying their motion, and in finding that Appellants
violated the restrictive covenants of the subdivision by further subdividing a
2.67 acre parcel. We reverse the grant of summary judgment and remand for a
trial on the merits.
FACTS
Appellants purchased a piece of property, known as Blocks 28 and
29, situated in Long Bay Estates off of Highway 17 in Horry County. The 1955 Plat of Long Bay Estates contains the
following restriction:
(a) No lot shall be subdivided and no building, including
porches or projections of any kind, shall be erected at a distance less than 40 feet from the front line of Blocks One (1) through Five (5) and not less than 20 feet from the front line on Blocks Six (6) through Twenty-Seven (27), ten feet
from any side line and 20 feet from the rear.
As to all unsold lots, the Grantors reserve the right
to change the boundary lines and the building lines thereof.
1955 Plat (emphasis
in original). This restriction is also contained in a document recorded at the
Register of Mesne Conveyances for Horry County in 1958 (the 1958 Restrictions).
Both documents provided: "These Protective Covenants are recorded as
Blanket Covenants covering all lots in Blocks 1-27, as shown on the Plat of
Long Bay Estates dated May, 1955, compiled by Robt. L. Bellamy, Engineer."
In
1972, the Master-In-Equity issued a report, adopted as an order of the circuit
court (the 1972 Order), regarding the rights of property owners in Long Bay
Estates and the effect of the 1958 Restrictions on the property. The order
provided Blocks 30, 32, and 34 were "subject to the restrictions of the
same type and character as those . . . applicable to Blocks 1-27, inclusive."
The order further stated:
In like
manner the remaining portions of "old" Blocks 28 and 29, that is to
say the area lying between the rear of Blocks 24 and 25 and the
southeasternmost "paved street" are subject to such residential
restrictions, but with right of revision of the lot arrangement or for
combination with abutting portions of lots in Blocks 24 and 25. The
restrictions uniformly used in this area and the declaration . . . reserved to
grantor the right to change boundary lines and building lines as to any unsold
lots in any event.
In
2000, some property owners in Long Bay Estates were involved in litigation
again regarding the restrictive covenants, resulting in another order
interpreting the 1958 Restrictions (the DeCiero Order).
Carmen Ward conveyed the property as one lot to David W. Meese,
Jr. and Leigh Ammons Meese in 1997. The Meeses conveyed Blocks 28 and 29 to
Appellants in 2003.
Musick,
as the owner of Lot 4 of Block 24, alleged in his complaint that he is entitled
to a declaration that Appellants' attempts to subdivide Blocks 28 and 29 into
seven individual lots violates the restrictive covenants applicable to all lots
in Long Bay Estates. Appellants denied the allegations and counterclaimed,
seeking a declaratory judgment finding that the alleged restrictions do not
encumber Blocks 28 and 29.
Appellants
and Musick each filed motions for summary judgment after this matter had been
referred to the Master-In-Equity. Following a hearing, the court issued a
"Final Order Ending Action" granting Musick's motion for summary
judgment. Appellants filed a motion to reconsider. The court heard the
parties' arguments on Appellants' motion to reconsider before issuing an order
denying the motion. This appeal followed.
STANDARD OF REVIEW
Appellants
argue the trial court failed to apply the correct standard in granting the
motion for summary judgment. Musick contends that as the parties filed
cross-motions for summary judgment, the hearing before the trial court was
essentially converted into a bench trial. We disagree with this contention.
When
each party files a motion for summary judgment and the trial court grants one
motion while denying the other, this court only reviews the grant of the motion
for summary judgment, not the denial. Fuller v. Blanchard, 358 S.C.
536, 546 n.21, 595 S.E.2d 831, 836 n.21 (Ct. App. 2004). In Fuller, the
case concerned cross-motions for summary judgment regarding two of Dr.
Blanchard's defenses. Id. The trial court simultaneously granted Mrs.
Fuller's motion for summary judgment and denied Dr. Blanchard's motion. Id.
This court noted the parties had blurred the distinction between the two
motions. Id. We stated:
Because
the granting of a motion for summary judgment is appealable while the denial of
a motion for summary judgment is not, we are addressing Dr. Blanchard's
arguments to the extent he appears to challenge the circuit court's grant of
summary judgment to Mrs. Fuller as an error of law based on the facts of the
case, although, as stated, there has been an overlapping of these issues due to
the procedural posture of the case. To the extent Dr. Blanchard appears to
argue the court should have granted his motion for summary judgment, the denial
of summary judgment is not properly before us and we do not address it.
Id.
Thus,
we will review the grant of the motion for summary judgment applying the same
standard that governs the trial court. Wogan v. Kunze, 379 S.C. 581,
585, 666 S.E.2d 901, 903 (2008). Summary judgment is proper where no genuine
issue exists as to any material fact and the moving party is entitled to
judgment as a matter of law. Rule 56(c), SCRCP. In determining whether any
triable issues of fact exist, the evidence and all reasonable inferences that
can be drawn from the evidence must be viewed in the light most favorable to
the non-moving party. Law v. S.C. Dep't of Corr., 368 S.C. 424, 434,
629 S.E.2d 642, 648 (2006). Even when there is no dispute as to the
evidentiary facts, summary judgment should be denied when there is a dispute as
to the conclusions or inferences that can be drawn therefrom. Wilson v.
Style Crest Prods., Inc., 367 S.C. 653, 656, 627 S.E.2d 733, 735 (2006). "[I]n
cases applying the preponderance of the evidence burden of proof, the
non-moving party is only required to submit a mere scintilla of evidence in
order to withstand a motion for summary judgment." Hancock v.
Mid-South Mgmt. Co., 381 S.C. 326, 330, 673 S.E.2d 801, 803 (2009).
LAW/ANALYSIS
1. Appellants
argue the court erred in granting summary judgment by holding the 1958
Restrictions encumber Blocks 28 and 29. We agree.
The trial
court found that the 1972 Order acknowledged that the prohibition against
subdivision only applied to Blocks 1-27, but the parties to the 1972 litigation
"specifically agreed that the restrictions would be extended" to
cover other blocks in the subdivision, including Blocks 28 and 29. In his
final brief to this court, Musick agrees that "it is undisputed that the
original language of the covenants stated they applied only to Blocks 1 through
27."
Restrictive
covenants are contractual in nature. RV Resort & Yacht Club Owners
Ass'n, Inc. v. BillyBob's Marina, Inc., 386 S.C. 313, 320, 688S.E.2d 555,
559 (2010). The words of restrictive covenants will be given their common,
ordinary meaning attributed to them at the time of their execution. Taylor
v. Lindsey, 332 S.C. 1, 4, 498 S.E.2d 862, 863 (1998). "A restriction
on the use of property must be created in express terms or by plain and
unmistakable implication . . . ." Buffington v. T.O.E. Enters.,
383 S.C. 388, 392, 680 S.E.2d 289, 291 (2009) (quoting Hardy v. Aiken,
369 S.C. 160, 166, 631 S.E.2d 539, 542 (2006)). "[A]ll such restrictions
are to be strictly construed, with all doubts resolved in favor of the free use
of property." Id. In determining whether to enforce a restrictive
covenant and enjoin a landowner from using their land in a manner that violates
the covenant, courts should consider equitable doctrines. Id. at 393,
680 S.E.2d at 291. "The paramount rule of construction is to ascertain
and give effect to the intent of the parties as determined from the whole
document." RV Resort, 386 S.C. at 321, 688 S.E.2d at 559 (quoting Taylor,
332 S.C. at 4, 498 S.E.2d at 863-64).
We find
the 1958 Restrictions, by their express terms, do not apply to Blocks 28 and
29. Musick argues, and the trial court agreed, that the 1972 Order enlarged
the 1958 Restrictions such that the restrictions are applicable to all lots in
Long Bay Estates. Appellants argue the court should have construed the
language in the 1972 Order in their favor when deciding this matter on Musick's
motion for summary judgment. We hereby reverse the grant of summary judgment
as to this issue and remand for a trial on the merits because there is a
dispute as to the conclusions or inferences that may be drawn from the
application of the 1972 Order to clarify the 1958 Restrictions. See USAA
Prop. & Cas. Ins. Co. v. Clegg, 377 S.C. 643, 653, 661 S.E.2d 791, 796 (2008); Wilson, 367 S.C. at 656, 627 S.E.2d at 735.
2. Appellants
argue the court erred in granting summary judgment by finding the DeCiero Order
operates to extend the prohibition against subdividing to include Blocks 28 and
29. We agree.
The trial court misquoted the DeCiero Order in its
order denying the motion to reconsider as follows: "[o]n their face, it
is clear the 1958 Restrictive Covenants apply to the entire Long Bay Estates
subdivision." Rather, the DeCiero order states: "Thus it is clear
the Restrictive Covenants apply to all of Blocks 1-27 of Long Bay Estates
subdivision, including Block 11, Lots 1 and 2." Therefore, we find it was
error for the trial court to rely upon the DeCiero Order in its grant of
summary judgment to find that the 1958 Restrictions apply to Blocks 28 and 29.
We reverse the grant of summary judgment on this issue.
3. Appellants argue the
court erred in granting summary judgment by finding that the division of Blocks
28 and 29 into seven different lots, as shown on the 1955 Plat, constituted a
mere "proposed plan" to subdivide. We agree.
The 1955 Plat and a
map attached to the 1972 Order show Blocks 28 and 29 divided into seven
different lots. The trial court concluded that the maps indicated only a
proposed plan to subdivide Blocks 28 and 29 because "[t]raditionally,
dotted lines on maps indicate proposed boundary lines or subdivision proposals
and are not symbolic of the final decree of the Grantor." Viewed in the
light most favorable to Appellants, there is more than one reasonable inference
that may be drawn from the evidence regarding whether or not the grantor
intended for Blocks 28 and 29 to be subdivided into seven individual lots. Law,
368 S.C. at 434, 629 S.E.2d at 648. Therefore, we reverse the grant of summary
judgment on this issue and remand for trial.
4. Appellants argue the
court erred in granting summary judgment by finding that because they had
actual notice of the 1972 Order and its restrictive effect on Appellants' use
of the property, they could not avail themselves of the protection of the
Shelter Rule. We agree.
Appellants
presented evidence that the Horry County Clerk of Court indexed the 1972 Order
only against the named defendants to that action. Carmen Ward, Appellants'
predecessor in title, was a plaintiff and not a named defendant in the 1972
litigation. Therefore, when Appellants performed a title search for Blocks 28
and 29, the 1972 Order did not appear in their chain of title. Pursuant to
Section 30-9-40 of the South Carolina Code (2007), proper indexing supplies
inquiry notice of an instrument, while recordation without proper indexing
supplies no notice at all. Thomas v. Thomas, 286 S.C. 294, 298, 333
S.E.2d 76, 78 (Ct. App. 1985). The failure to index a judgment as required by
statute deprives it of its effectiveness as notice to subsequent purchasers. Id.
Appellants admit
they had actual notice of the 1972 Order but seek the protection of their
predecessors in title by arguing that the Meeses were bona fide purchasers for
value without notice.
The
"Shelter Rule" provides that one who is not a bona fide purchaser,
but who takes an interest in property from a bona fide purchaser, may be
sheltered in the latter's protective status. The purpose of this rule is to
prevent a stagnation of property and to protect the first purchaser, who, being
entitled to hold and enjoy, must be equally entitled to sell. Otherwise, a
bona fide purchaser might be prevented from selling the property for full
value. . . . It is wholly immaterial of what nature the outstanding interest
is, whether it is a lien or encumbrance, or a trust, or any other claim.
77 Am. Jur. 2d Vendor and
Purchaser § 419 (2006). This court has recognized the Shelter Rule,
holding the successor in interest of a bona fide purchaser for value stood in
the same position as the bona fide purchaser even when the successor had notice
of a lien. Liberty Loan Corp. of Darlington v. Mumford, 283 S.C. 134,
140, 322 S.E.2d 17, 21 (Ct. App. 1984). It explained: "[W]henever in a
succession of purchasers you reach one who is innocent and purchases in
ignorance, the title is thenceforth sanctified." Id.
The
trial court found the Meeses' attorney testified in his deposition that he had
advised the Meeses there was a strong possibility the restrictions applied to
Blocks 28 and 29. However, Dusenbury testified that his recollection was that
the restrictions were mis-indexed and that he did not pick them up in the chain
of title. We find there is a question of fact as to whether the Meeses were
bona fide purchasers for value without notice and hereby reverse the grant of
summary judgment on this issue and remand for trial.
CONCLUSION
Accordingly,
the decision of the trial court granting summary judgment is hereby
REVERSED
and REMANDED.
FEW,
C.J., and HUFF and GEATHERS, JJ. concur.