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2008-UP-140 - Palmetto Bay Club Owners Association v. Brissie

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

Palmetto Bay Club Owners Association, a South Carolina Non-Profit Corporation Administration for the Palmetto Bay Club Horizontal Property Regime, Respondent,

v.

Danna Cooper Brissie, Appellant.


Appeal From Beaufort County
 Curtis L. Coltrane, Master-in-Equity


Unpublished Opinion No. 2008-UP-140
Heard November 6, 2007 – Filed March 4, 2008  


REVERSED and REMANDED


Terry A. Finger, of Hilton Head Island, for Appellant.

Otto W. Ferrene, Jr., of Hilton Head Island, for Respondent.

PER CURIAM:   Danna Cooper Brissie appeals from an order by the Master-in-Equity which, inter alia, granted an injunction to the Palmetto Bay Club Owners Association (Palmetto Bay).  We reverse.

FACTS

This matter arises out of a dispute over a condominium unit (Penthouse) located in the Palmetto Bay Club on Hilton Head Island, South Carolina.  All of the condominium units are subject to the Master Deed (Deed) and Bylaws of Palmetto Bay.  Penthouse was originally designed as two separate condominium units, 504 and 505; however during construction, prospective buyers Jim and Tammy Faye Baker indicated they were interested in a penthouse unit combining the two condominiums.  As a result, Penthouse is unique among Palmetto Bay units, because units 504 and 505 were united when Penthouse was completed without a wall separating the two.  Because it was constructed as separate units, Penthouse has duplicates of certain unit features, including two utility meters, breaker panels, mailboxes, kitchen areas, balconies, washer and dryer connections, water heaters, heating and air conditioning systems, refrigerator connections and parking spaces.  

Brissie originally purchased Penthouse from Helen Valois in 1994.  Brissie sold Penthouse to her sister in 1998 and subsequently re-purchased it in 2001.  During Brissie’s first ownership period, she erected an interior wall between the two units comprising Penthouse.  Brissie was notified by the property management company[1] for Palmetto Bay that under the Deed and Bylaws, her alterations to the building required advance approval from the Association’s Board of Directors (Board).  Additionally, the management company also sent Brissie a copy of Palmetto Bay’s Deed.  Brissie dismantled the wall in June of 1997.  

Upon re-purchasing Penthouse in 2001 from her sister, Brissie sent a letter to Valois, who was then President of the Board, indicating Brissie’s plans to alter the Penthouse.  In her letter, Brissie requested Valois share her plans with the Board and indicated Brissie would assume alterations could be made if the Board did not respond within thirty days.  When the Board did not respond, Brissie erected a portion of a wall and completed a second kitchen in one of the units of the Penthouse.  Furthermore, Brissie replaced an existing set of French doors which had divided the units since the time of Valois’ ownership of the Penthouse, with a smaller lock-out door system, similar to those found between connecting hotel rooms.  Thereafter, Palmetto Bay instructed her to cease alterations to Penthouse and return the Penthouse to its original condition.  When Brissie refused, Palmetto Bay filed this action for an injunction and attorney’s fees.  

The master found an ambiguity existed in the Deed, created by the plans which were attached and incorporated into the Deed.  These plans show a solid wall with no opening or doorway connecting the two units.  The master nevertheless found the alterations Brissie made to Penthouse violated Palmetto Bay’s Deed and Bylaws.  Furthermore, the master found the letter sent to Valois from Brissie failed to provide the Board with adequate notice as required by the Deed and Bylaws.  The issue of attorney’s fees was held in abeyance until a further hearing could be conducted.  Brissie subsequently filed a motion to alter or amend which was denied.  This appeal followed.

STANDARD OF REVIEW

Whether the action is one at law or in equity is determined by the nature of the pleadings and the character of the relief sought.  In re Estate of Holden, 343 S.C. 267, 278, 539 S.E.2d 703, 709 (2000).  The interpretation of a deed and an action to enforce restrictive covenants by injunction are both equitable matters. South Carolina Dept. of Natural Resources v. Town of McClellanville, 345 S.C. 617, 622, 550 S.E.2d 299, 302 (2001); Eldridge v. Greenwood, 331 S.C. 398, 416, 503 S.E.2d 191, 200 (Ct. App. 1998).

In an action in equity, tried by a master without a jury, this court may view the evidence to determine facts in accordance with its own view of the preponderance of the evidence.  McClellanville 345 S.C. at 622, 550 S.E.2d at 302.  On appeal, we are to consider the equities of both sides, balancing the two to determine what, if any, relief to give.  Anderson v. Buonforte, 365 S.C. 482, 493, 617 S.E.2d 750, 755 (Ct. App. 2005).  When reviewing the findings of fact in an equitable action, this court will not disturb findings of fact which are sufficiently supported by the evidence.  Parrot v. Dickson Hall v. Walker, 151 S.C. 114, 120, 148 S.E. 704, 706 (1929).

LAW/ANALYSIS

Brissie contends the master erred in finding the plain and obvious purpose of the Deed was defeated by installing a lock-out door system in the Penthouse.  We agree.

In the present case, a document incorporated into the Deed as Exhibit B, describes the Penthouse as a “B/C” unit.  The Deed also offers a narrative description of each unit in Exhibit C; however, although “Unit Type B”, and “Unit Type C” are each described separately, no explanation or description exists for a B/C unit.  Moreover, the Deed provides in Article II, Section 2, that “[t]he Units are of the general design as graphically depicted in the certified architect’s plans which are compiled and annexed to this Master Deed at Exhibit F.” 

The master found that “the Master Deed has an ambiguity.”  He based this finding on the fact that, although Article II, Section 2 of the Deed states that Palmetto Bay is limited to a total of fifty-nine condominium units, the plans for Palmetto Bay attached to the Deed show Unit 504/505 being divided by a one-hour firewall.  Accordingly, the master found that “the ambiguity is created by the fact that the drawing shows the unit as being divided by a wall.”   No appeal was taken from this finding of an ambiguity; as such, it is the law of the case.  Resolution Trust Corp. v. Eagle Lake & Golf Condominiums, 310 S.C. 473, 476, 427 S.E.2d 646, 648 (1993) (the trial judge’s procedural ruling is the law of the case since it has not been appealed); See also Toal, Vafai, and Muckenfuss, Appellate Practice in South Carolina 80 (2d ed. 2002) (“It is a fundamental rule of law that an appellate court will affirm a ruling by a lower court if the offended party does not challenge that ruling”).

Restrictive covenants, like the ones at issue in the Palmetto Bay Deed and Bylaws, are subject to the rules of contract construction. Houck v. Rivers, 316 S.C. 414, 416, 450 S.E.2d 106, 108 (Ct. App. 1994).  Historically, restrictions on the use of property are disfavored in the law.  Sea Pines Plantation Co. v. Wells, 294 S.C. 266, 270, 363 S.E.2d 891, 893 (1987).  Accordingly, courts interpret restrictive covenants strictly and resolve any doubt or ambiguity in the covenants in favor of the free and unrestricted use of land.  Hyer v. McRee, 306 S.C. 210, 212, 410 S.E.2d 604, 605 (Ct. App. 1991).  We agree with the master that the Deed is ambiguous because of the drawings attached to it which depicted a solid wall separating unit 504 and 505.  However, once the master found an ambiguity existed, he should have construed that ambiguity in favor of Brissie’s right to use her property without restriction.[2]

Although an ambiguity is found, a court should not use the rule of strict construction to defeat the plain and obvious purpose of the restrictive covenants.  Hardy v. Aiken, 369 S.C. 160, 166, 631 S.E.2d 539, 542 (2006).  Here however, both the Deed and the Bylaws provide procedures for the modification or alteration of individual units.  These include notice to the Board through an agent or the President of the Board, and provide a time period in which the Board has to reply.  Therefore, construing the ambiguity before us to allow Brissie to replace a large set of French doors with a lock-out door system and partial wall to fill in the remaining space, does not defeat the plain and obvious purpose of the restrictive covenants.    

Brissie puts forth several additional issues in her appeal from the master’s order, including the argument that she provided adequate notice to the Board of her intention to install the lock-out door in her letter to the Board’s president.  Brissie contends that when the Board did not respond to her letter within the applicable period, permission was granted under the Bylaws.  Because we find the determination of the issue above to be dispositive in the appeal before us, we need not review Brissie’s remaining contentions.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

CONCLUSION


Based on the foregoing, we hold the master erred in granting Palmetto Bay’s request for an injunction.  The issue of attorney’s fees is remanded to the master for disposition in light of our opinion.  The decision of the master is accordingly

REVERSED and REMANDED.

HEARN, C.J., and KITTREDGE and THOMAS, JJ., concur.

[1] Two companies, New Leaf Management Inc. and Allied Management Group, have served as the property manager for Palmetto Bay during the periods in which Brissie owned Penthouse.  

[2] It is undisputed that Brissie’s installation of the interior lock-out door had no effect on the common areas of Palmetto Bay.