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2012-UP-095 - Crites v. Horlbeck

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

Jerome B. Crites, Jr., Christopher E. Coley, Michael L. Prescott, Louis A. Feher, and Patrick T. Autore, Appellants,

v.

Frederick Henry Horlbeck, Eleanor Greene Horlbeck, Robert Bradley Company, Inc., and Polly Point Plantation Property Owners Association, Inc., Respondents.


Appeal from Charleston County
Roger M. Young, Circuit Court Judge


Unpublished Opinion No. 2012-UP-095
Heard January 26, 2012 – Filed February 22, 2012  


REVERSED AND REMANDED


Keating L. Simons, III, of Charleston, for Appellants.

Henrietta U. Golding and Alicia E. Smith, of Myrtle Beach, for Respondents Frederick Henry Horlbeck and Eleanor Greene Horlbeck.

Wallace K. Lightsey, Rita Bolt Barker, and Sarah Sloan Batson, of Greenville, for Respondent Robert Bradley Company, Inc.

PER CURIAM: In this action to dissolve a property owners' association, Appellants, Jerome Crites, Jr., Christopher Coley, Michael Prescott, Louis Feher, and Patrick Autore (Owners), challenge the circuit court's order granting partial summary judgment to Respondent Robert Bradley Company, Inc. (RBC) and denying Owners' two motions for partial summary judgment.  We reverse the order granting partial summary judgment to RBC and remand for further proceedings. 

1.  As to the propriety of granting partial summary judgment to RBC regarding voting rights under the original Declaration, we conclude the circuit court erred.  The terms of the original Declaration are subject to more than one reasonable interpretation.  Therefore, the intent underlying the original Declaration must be determined by the finder of fact.  See S.C. Dep't of Natural Res. v. Town of McClellanville, 345 S.C. 617, 623, 550 S.E.2d 299, 302 (2001) ("A contract is ambiguous when the terms of the contract are reasonably susceptible of more than one interpretation."); id. at 623, 550 S.E.2d at 303 (citation omitted) ("Once the court decides the language is ambiguous, evidence may be admitted to show the intent of the parties.  The determination of the parties' intent is then a question of fact.").

2.  We decline to reach Appellants' arguments regarding the South Carolina Nonprofit Corporation Act and the rules applicable to covenant amendments imposed unilaterally by developers.  These questions arose solely from Owners' first motion for summary judgment, which the circuit court denied.  RBC's summary judgment motion addressed only the issue concerning interpretation of the original Declaration.

While the circuit court determined the amendments to the Declaration were valid, rather than concluding there were genuine issues of material fact on this question, the denial of a motion for summary judgment is not appealable regardless of the language used in the order denying summary judgment.  See Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 167, 580 S.E.2d 440, 443 (2003) (quoting Ballenger v. Bowen, 313 S.C. 476, 477, 443 S.E.2d 379, 380 (1994)) (holding that the denial of summary judgment does not finally determine anything about the merits of the case).  Further, the denial of summary judgment may not be reviewed even if another appealable issue is before the court.  See id. (holding that the denial of summary judgment is not reviewable even in an appeal from final judgment).

A denial of a motion for summary judgment decides nothing about the merits of the case, but simply decides the case should proceed to trial.  The denial of summary judgment does not establish the law of the case, and the issues raised in the motion may be raised again later in the proceedings by a motion to reconsider the summary judgment motion or by a motion for a directed verdict.

In short, the denial of summary judgment does not finally determine anything about the merits of the case and does not have the effect of striking any defense since that defense may be raised again later in the proceedings.  Therefore, an order denying a motion for summary judgment is not appealable.

Ballenger, 313 S.C. at 477-78, 443 S.E.2d at 380 (citations omitted) (emphasis added).

REVERSED AND REMANDED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.