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2004-UP-033 - Wedgefield Plantation Accociation v. Chavis

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Wedgefield Plantation Association,        Appellant,

v.

Cindy M. Chavis and Charles J. Chavis,        Respondents.


Appeal From Georgetown County
David J. Mills, Special Referee, Circuit Court Judge


Unpublished Opinion No. 2004- UP-033
Submitted November 19, 2003 – Filed January 20, 2004


AFFIRMED


Robert J. Moran, of Murrells Inlet, for Appellant.

Jack M. Scoville, Jr., of Georgetown, for Respondents.

PER CURIAM:  Wedgefield Plantation Association sued homeowners Cindy M. and Charles J. Chavis to enforce a provision of a restrictive covenant requiring pre-approval by the Association’s Architectural Review Committee of various structures on their property.  The referee ruled the Chavises were in violation of the covenant and ordered the barriers removed, but denied the Association’s request for costs and attorney’s fees.  The Association appeals this one issue.  We affirm. [1]

FACTS

Equity Development Corporation ("EDC”), the original developer, established Wedgefield Plantation as a gated community in the early 1970s.  Title to each of the single family lots was conveyed by indenture deed which containing twenty-five specific restrictions and covenants.  Covenant 1 requires approval from EDC prior to the erection of any structure on a lot.  EDC also organized the Association at the beginning of the project, and all property owners were required to join pursuant to covenant 10.  The indenture deed also contained a number of provisions granting authority to EDC to enforce the restrictions.  The indenture deed contained no provision for recovery of costs and attorney’s fees.

The Chavises purchased their home in 1999 by deed that explicitly referenced the indenture deed.  At some point they installed barriers at either end of their drive without seeking approval from the Association’s Architectural Review Committee.  Because EDC went bankrupt and has been defunct for many years, this action to enforce the covenants and restrictions was brought by the Association to enforce covenant 1 of the indenture deed.  The referee found the Chavises were in violation of the restrictions, but denied the Association’s request for attorney’s fees and costs.  In denying the request, the referee noted the indenture deed and not the by-laws constituted the contract between the parties.  The referee also held that the right to recover attorney’s fees was controlled by the indenture deed, it contained no such provision, and there had been no amendment consented to by the parties to include such a provision.  The Association appeals the referee’s denial of costs and attorney’s fees. 

LAW/ANALYSIS

As a threshold issue, a question was raised at the hearing as to the authority of the Association to enforce the restrictions because the recorded covenants and restrictions only specifically refer to EDC as having that authority.  However, there has been no appeal from the referee’s ruling that the Association has standing and the authority to enforce the provisions of the restrictions in the same fashion that EDC could have had EDC still been in existence.  ML-Lee Acquisition Fund, LP v. Deloitte & Touche, 327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997) (holding an unappealed ruling is the law of the case and cannot be later challenged).   

The Association further argues that its by-laws are enforceable as a contract between the Association and its members and among its members and, therefore, provisions within the by-laws authorizing costs and attorney’s fees should be given effect.  We disagree.

It is well established that "[a]ttorney’s fees are not recoverable unless authorized by contract or statute.”  Dowaliby v. Chambless, 344 S.C. 558, 544 S.E.2d 646, 647-648 (Ct. App. 2001) (quoting Jackson v. Speed, 326 S.C. 289, 307, 486 S.E.2d 750, 759 (1997)); see also Blumberg v. Nealco, Inc., 310 S.C. 492, 493, 427 S.E.2d 659, 660 (1993) ("The general rule is that attorney’s fees are not recoverable unless authorized by contract or statute.”).

The referee held that the Association succeeded to the rights of EDC and had standing to enforce the covenants as its assign.  McLeod v. Baptiste, 315 S.C. 246, 433 S.E.2d 834, 835 (1993) ("[A] person seeking to enforce a covenant must be benefited by that act”).  However, that enforcement authority was limited to the powers reserved to EDC as outlined in the indenture deed.  At common law, an assignee’s rights and powers can be no greater than those of his assignor.  Rosemond v. Campbell, 288 S.C. 516, 523, 343 S.E.2d 641, 645 (Ct. App. 1986) (citing Dixie Wood Preserving Co. v. Albert Gersten & Associates, 244 S.C. 57, 135 S.E.2d 368 (1964)).  Here, the original grantor’s authority was derived from the indenture deed referenced in each property owner’s deed.  The indenture deed was the contract between the homeowners and EDC, and makes no mention of any right to an award of attorney’s fees and costs.  Accordingly, the original grantor could not have collected fees and costs and therefore neither may the Association. 

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.


[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.