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
Portside Owners
Association, Inc., Appellant,
v.
South Beach
Racquet Club, Inc., Respondent.
Appeal From Beaufort County
Curtis L. Coltrane, Circuit Court Judge
Unpublished Opinion No. 2008-UP-153
Submitted January 1, 2008 Filed March
11, 2008
AFFIRMED
Roberts Vaux, of Bluffton; for Appellant.
Drew A. Laughlin, of Hilton Head Island; for Respondent.
PER CURIAM: Portside
Owners Association, Inc. (Portside) filed this action against South Beach
Racquet Club, Inc. (South Beach), seeking a determination of the parties
rights to a tract of real property. South Beach prevailed at trial, and
Portside appeals. We affirm. [1]
FACTS
In
1985, Charles Fraser created three corporations known as Beachside-Portside,
Inc. (Beachside), Portside, and South Beach. On September 29, 1986, Fraser
conveyed six building lots, a common area, and a 50' access easement (the 50'
Tract) to Beachside.
On
September 30, 1986, Beachside recorded a Declaration of Covenants, Conditions
and Restrictions for the six lots, common area, and 50' Tract comprising
Portside Subdivision. The covenants granted to the Portside homeowners the
right to transfer interests in the common area. In the covenants, Beachside
reserved to itself a right to exercise the powers granted to Portside without
the Portside owners consent. However, this right expired if Beachside no
longer owned at least two of the six lots. By December 30, 1986, Beachside had
conveyed all six of the residential lots to third parties.
In
1987 or 1988, South Beach prepared to build four tennis courts. At the time, Fraser
possessed a controlling interest in South Beach. On May 26, 1987, Fraser, as
president and on behalf of Beachside, wrote a letter to South Beach acknowledging and consenting to encroachment of the tennis courts into the 50' Tract (the
Encroachment Letter). The courts were built by 1988 and encroached into the 50'
Tract.
On
May 14, 1992, Beachside conveyed a perpetual, non-exclusive Easement and
right-of-way for ingress and egress on, over and across the [50' Tract] to South Beach in an Access Easement (the Easement). The Easement was recorded on October
30, 1992. In addition to the rights of ingress and egress, the Easement stated
South Beach shall have the right to maintain such portions thereof as Grantee
is presently maintaining for use as parking and landscaped areas, including the
right, at the sole cost and expense of Grantee, to install such paving,
curbing, drainage and irrigation facilities, and other similar or related improvements
as Grantee shall require.
Beachside
conveyed the 50' Tract to Portside in a quit-claim deed, dated May 1, 1992, and
recorded on November 6, 1992. The deed states on its face that it is subject
to an easement for ingress and egress and parking reserved to South Beach
Racquet Club, Inc. in that certain document entitled Access Easement, dated May
14, 1992, by and between Grantor and South Beach Racquet Club, Inc.
Approximately
twelve years later, Portside filed this action on February 20, 2004, alleging the
Easement and Encroachment Letter are invalid, thus South Beachs use of the
Tract constitutes trespass. Portside also sought declaratory relief. The
trial court found if Portsides action against South Beachs use of the Tract
is based on a breach of covenants, it is barred by the three year statute of
limitations. The trial court further found if the action is characterized as
one for the recovery of real property, it is barred by the ten year statute of
limitations for the recovery of real property. The trial court also found,
with respect to the tennis court encroachments, South Beach proved its claim
for adverse possession. Portside appeals.
STANDARD OF REVIEW
A
suit for declaratory judgment is neither legal nor equitable, but is determined
by the nature of the underlying issue. An issue, essentially one at law, will
not be transformed into one in equity simply because declaratory relief is
sought. Felts v. Richland County, 303 S.C. 354, 356, 400 S.E.2d 781, 782 (1991). The character of an action as
legal or equitable is determined by the main purpose of the complaint, the
nature of the issues as raised by the pleadings or the pleadings and proof, and
the character of the relief sought under them. Ins. Fin. Servs., Inc. v. S.C.
Ins. Co., 271 S.C. 289, 293, 247 S.E.2d 315, 318 (1978).
The
issue of title is legal in nature. Getsinger v. Midlands Orthopaedic Profit
Sharing Plan, 327 S.C. 424, 428, 489 S.E.2d 223, 224 (Ct. App. 1997). An
action brought for the primary purpose of determining title to a disputed land
is in the nature of a trespass action to try title, which is an action at law. Watson v. Suggs, 313 S.C. 291, 293, 437 S.E.2d 172, 173 (Ct.
App. 1993). An adverse possession claim is an action at law. Clark v. Hargrave, 323 S.C. 84, 87, 473 S.E.2d 474, 476 (Ct. App. 1996).
In
an action at law, on appeal of a case tried without a jury, we may not disturb
the circuit courts findings of fact unless they are unsupported by the
evidence or controlled by error of law. Auto Owners Ins. Co. v. Langford, 330 S.C. 578, 581, 500 S.E.2d 496, 498 (Ct. App. 1998).
LAW/ANALYSIS
I.
The Statutes of Limitations
Portside initially argues
its claims are not barred by the applicable statutes of limitations because it
consented to South Beachs use of the 50' Tract until October 24, 2003, so that the applicable limitation periods for the
actions for breach of the covenants and the recovery of real property did not
commence until that date. Thus, Portside argues, the action was initiated
within the applicable statutory period of three years for breach of covenants and
ten years for the action to recover real property. See S.C. Code Ann.
§§ 15-3-340 & 15-3-530 (2005).
A. Recovery of Real Property
We
find Portsides action is essentially an action for the recovery of real
property and is barred by the ten year statute of limitations. In determining
whether a proceeding is an action for the recovery of real property within the
meaning of the statute of limitations, the pleadings as a whole must be
considered. Winn v. Grantham, 263 S.C. 368, 371, 210 S.E.2d 602,
603 (1974). The character of an
action is not to be determined by the terminology which the pleaders may chance
to give to it. Walsh v. Evans, 112 S.C. 131,
136, 99 S.E. 546, 548 (1919). [W]hen
a defendants right to property is attacked and in his answer he raises the
flag of dominion the issue of recovery has been established. Winn,
263 S.C. at 372, 210 S.E.2d at 604.
The gravamen
of Portsides complaint is to remove any cloud on its title in the 50' Tract and affirm its exclusive right to
possession of the property. Portside attacked South Beachs use of the
property as a violation of Portsides exclusive rights. As an action for the
recovery of real property, the action is governed by section 15-3-340, which states
that an action for the recovery of real property may not be maintained unless
it appears that the plaintiff, his ancestor, predecessor, or grantor, was
seized or possessed of the premises in question within ten years before the
commencement of the action. S.C. Code Ann. § 15-3-340 (2005). Portside
commenced this action to recover its exclusive rights in the property by filing
its summons and complaint on February 20, 2004. Therefore, under section
15-3-340, Portsides action may only be maintained if it was possessed of those
exclusive rights to the 50' Tract within ten years
of February 20, 2004, i.e., at any time after February 20, 1994.
South Beach encroached on the property by building tennis courts in 1988 and received the
Easement for ingress and egress in 1992, both more than ten years prior to the
filing of this action. To avoid the application of the statute, Portside
argues it consented to South Beachs encroachment and use until 2003.
B. Consent
Portside argues it
consented to South Beachs use of the property until October 24, 2003, the date
it alleges it revoked its consent and thus, the statute of limitations did not
begin to run until that date. We disagree.
We
find evidence in the record to support the finding that Portside did not
consent to South Beachs use of the 50' Tract. The circuit courts order does not specifically state that Portside did
not consent. However, the court stated that Portside suffered South Beach to use and maintain the encroachments, and to occupy the [50' Tract] in a manner consistent with the written
easement for a period of more than ten years prior to bringing this action. The
South Carolina Rules of Civil Procedure require that [i]n all actions tried
upon the facts without a jury or with an advisory jury, the court shall find
the facts specially and state separately its conclusions of law thereon. Rule
52(a), SCRCP. The rule is directorial in nature so where a trial court
substantially complies with Rule 52(a) and
adequately states the basis for the result it reaches, the
appellate court should not vacate the trial courts judgment for lack of an
explicit or specific factual finding. Noisette v. Ismail, 304
S.C. 56, 57, 403 S.E.2d 122, 123-24 (1991).
We
find substantial compliance by the circuit court in making its findings, and
evidence to support the finding that Portside did not consent to the
encroachments. See Kirkland v. Gross, 286 S.C. 193, 198,
332 S.E.2d 546, 549 (Ct. App. 1985), receded from on other grounds by Boyd
v. Hyatt, 294 S.C. 360, 364 S.E.2d 478 (Ct. App. 1988) (finding the
question of acquiescence in an action for adverse possession is generally a
question of fact). See also Townes Assocs., Ltd. v. City of
Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976) (stating
appellate court will not disturb factual findings in an action at law tried
without a jury unless there is no evidence reasonably supporting the findings).
The
only evidence Portside offers as support for its argument that it consented is
the October 24, 2003 letter purporting to revoke its consent. However, there
is contradictory evidence. The 1992 deed from Beachside to Portside referenced
the Easement granted to South Beach. Furthermore, the minutes of Portsides
annual meetings on November 2, 1991, November 7, 1992, October 16, 1993, and
October 8, 1994, indicate Portside was aware of potential title problems to the 50' Tract. The minutes reflect that Portside
specifically questioned what other rights any other entity had in the 50' Tract, raised questions regarding South Beachs responsibilities concerning the property, and sought legal counsel to address
these issues. Portside abandoned these inquiries in 1994. The minutes of the
October 16, 1999 meeting indicate Portside again questioned its title to the
property. The minutes of the October 19, 2002 meeting reflect a discussion of
the encroachments and Easement. Portsides president admitted the minutes from
Portsides annual meetings reveal no evidence that Portside ever permitted South
Beach to use or encroach on the property. We find evidence to support the
conclusion that Portside did not consent to South Beachs use. Therefore, we affirm
the trial courts finding that the statute of limitations for the recovery of
real property commenced at the time the Easement began to run in 1987 for the
encroachments with the Encroachment Letter and in 1992 with the Easement for South Beachs use of the 50' Tract.
II. Adverse Possession
Portside
next argues South Beach did not establish the elements of its affirmative
defense of adverse possession regarding the tennis court encroachments because South Beach never had exclusive possession of Portsides property. Additionally, Portside
argues South Beach did not establish that its adverse possession was for the
required number of years. We disagree.
In South Carolina, a party may establish adverse possession after possessing adversely to the
owner for ten years. S.C. Code Ann. § 15-67-210 (2005). To constitute adverse
possession, the possession must be actual, open, notorious, hostile,
continuous, and exclusive for the entire statutory period. Mullis v. Winchester, 237 S.C.
487, 491, 118 S.E.2d 61, 63 (1961). The question of
adverse possession is one of fact and only becomes one of law when the evidence
is undisputed and susceptible of but one inference. Lynch
v. Lynch, 236 S.C. 612, 622, 115 S.E.2d 301, 306 (1960). Therefore,
our review is limited to determining whether the circuit courts findings are
without evidentiary support or controlled by an error of law. Auto
Owners Ins. Co. v. Langford, 330 S.C. 578, 581, 500 S.E.2d 496, 498 (Ct. App. 1998).
A. Exclusive Possession
Portside
argues South Beach did not establish exclusive possession of Portsides
property because Portside, as the owner of the entire [50' Tract], and South Beach, as an occupier of the [50' Tract], are both in possession of and share the
[50' Tract] in its entirety. Additionally, Portside
argues the physical encroachments on the [50' Tract] by South Beach do not prevent the Portside homeowners from their use of
the [50' Tract] as a whole.
The
general rule is that where an owner of property and an occupier are both in
possession, the possession of the legal owner prevails to the exclusion of the
other. Butler v. Lindsey, 293 S.C. 466, 472, 361 S.E.2d 621,
624 (Ct. App. 1987). The element of
exclusivity required to acquire title by adverse possession is not met if
occupancy is shared with the owner. Id.
However,
the trial court did not find South Beach established adverse possession with
respect to the entire 50' Tract but merely as to the encroachments. In
support of this finding, the circuit court noted [s]ince the encroachments
actually occupy a portion of the [50' Tract], South Beachs possession has been actual and exclusive. As to the
tennis court encroachments, we agree South Beachs use was not shared with
Portside and therefore, met the element of exclusivity. The encroachments
occupy the portions of Portsides property on which they are built, so that the
property may not be used for any other purpose. In addition, there is
testimony in the record stating the tennis courts were fenced in, there was no
way to access the tennis courts from the 50' Tract, and they have been in the exclusive possession of South Beach since 1988. Accordingly, we find no error in the trial courts finding of exclusivity.
B. The Statutory Period for
Adverse Possession
Portside
also argues South Beach did not prove it adversely possessed the property for
the required number of years. Portside argues that because South Beach maintains the Encroachment Letter gave it the right to encroach, the encroachment
was not hostile until after Portside revoked consent in 2003. However, the
Encroachment Letter was signed by Fraser on behalf of Beachside, not Portside,
and any consent to encroach granted by Beachside is not attributable to
Portside as Beachside and Portside are separate corporate entities. Thus, even
if the encroachment is hostile to Beachside, it could be hostile to Portside. See Hunting v. Elders, 359 S.C. 217, 223, 597 S.E.2d 803, 806 (Ct. App. 2004) (finding corporations are separate entities). We find evidence in the
record to support a finding of hostility as to Portside.
The
only evidence in the record is that South Beachs possession began in 1988 with
the construction of the tennis courts. The statutory period for adverse
possession is ten years. S.C. Code Ann. § 15-67-210 (2005). Portside attempt
to revoke its consent in 2003 and filed this action in 2004. We agree with the
trial court that South Beach established its adverse possession for the
statutory period.
III. Trespass
Portside
finally contends the trial court erred in failing to find South Beachs use of the easement constitutes a continuing trespass because South Beach did not receive a valid grant of an easement. We disagree.
Trespass
is an intentional invasion of the plaintiffs interest in the exclusive use of
his property. Hedgepath v. Amer. Tel. & Tel. Co., 348 S.C. 340,
357, 559 S.E.2d 327, 337 (Ct. App. 2001). Based on our finding that Portside
is barred by the statute of limitations for the recovery of real property as to
South Beachs use of the Easement, we find no trespass.
CONCLUSION
For the foregoing
reasons, the order of the circuit court is
AFFIRMED.
ANDERSON, SHORT, and WILLIAMS, JJ., concur.