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,
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Unpublished Opinion No. 2005-UP-136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
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.
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.  The Burnsides, however, wanted to retain the family’s 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 year’s 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 1999—nearly one year after the previous lease expired—Jernigan 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. Ass’n. 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).
On appeal, the Burnsides assert several alternative grounds they claim warrant a reversal of the circuit court’s 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 year—in 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’ Ass’n 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. Hoffman’s 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 terms—explicit or implied—suggesting 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. Jernigan’s Deposition
The Burnsides argue Jernigan’s 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 Jernigan’s 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 1999—approximately ten months after the last existing lease had expired. Accordingly, even when viewing Jernigan’s 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. Jernigan’s 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 judge’s 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 appellant’s 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 court’s 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 court’s 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 Dep’t of Health and Envt’l 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.
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 court’s order granting summary judgment is
HUFF, KITTREDGE and BEATTY, JJ., concur.