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2012-UP-219 - Hill v. Deertrack Golf

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

Dale Hill, Betty Hill, Carl Clemmons, Geraldine Clemmons, Individually, and on behalf of a Class of all others similarly situated, Appellants,

v.

Deertrack Golf and Country Club, Inc., Deertrack Golf, Inc., Deerfield Plantation, Inc., the Estate of John Schaad, by and through Ann Schaad as Executrix, and Deertrack Investors, LLC, Respondents,

Deertrack Investors, LLC, Third-Party Plaintiff,

v.

Plantation Resort of Myrtle Beach, Inc., and Plantation Resort Properties, Inc., Third-Party Defendants.


Appeal From Horry County
 Thomas W. Cooper, Jr., Circuit Court Judge


Unpublished Opinion No. 2012-UP-219
Heard January 4, 2012 – Filed April 4, 2012


AFFIRMED


David B. Miller and Robert S. Shelton, both of Myrtle Beach, for Appellants.

Amanda A. Bailey and Henrietta U. Golding, both of Myrtle Beach; Jerry Petus of Lake Wylie; and Richard Michael Smith of Georgetown, for Respondents.

PER CURIAM: Dale Hill[1] and other homeowners of lots 1 through 458 in Deerfield Plantation (Homeowners) filed this declaratory judgment action against Respondents[2] seeking an injunction[3] to prohibit Respondents from converting certain portions of a golf course and clubhouse, which are adjacent to Homeowners' lots, into residential homes.  By order filed November 5, 2008, the trial court granted Respondents' motion for summary judgment, finding Homeowners had no rights to the property.  The court also cancelled the lis pendens on the property.  On reconsideration, the court set aside the November 5, 2008 order as to the issue of Homeowners' rights to the property, denied Respondents' motion for summary judgment, and dismissed by consent the claims for negligent misrepresentation, fraud, and violations of the UTPA.  The declaratory judgment cause of action was severed from the remaining claims, and the matter was referred to the special referee.  The referee found no restrictions on the property and cancelled the lis pendens.  The referee also denied Homeowners' motion to reconsider.  Homeowners appealed.  We affirm pursuant to Rule 220(b), SCACR, and the following authorities:

1. As to Homeowners' argument the order cancelling the lis pendens was rescinded: Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (requiring an issue to be both raised to and explicitly ruled on to preserve it for appellate review); Rhoad v. State, 372 S.C. 100, 108 n.3, 641 S.E.2d 35, 39 n.3 (Ct. App. 2007) (finding an order is not final until it is written and entered). 

2. As to Homeowners' arguments regarding the existence of an easement and no effective disclaimer, we adopt the special referee's well-reasoned order:  Grosshuesch v. Cramer, 367 S.C. 1, 6, 623 S.E.2d 833, 835 (2005) (adopting the reasoning set forth in the trial court's order as to some of the issues on appeal).

AFFIRMED.

SHORT, WILLIAMS, and GEATHERS, JJ. concur.


[1] Dale Hill, Betty Hill, Carl Clemmons, and Geraldine Clemmons are class representatives, and the class was certified by order filed November 9, 2009.

[2] Deertrack Golf and Country Club, Inc., Deertrack Golf, Inc., Deerfield Plantation, Inc., the Estate of John Schaad, by and through Ann Schaad as Executrix, and Deertrack Investors, LLC.

[3] Homeowners also alleged negligent misrepresentation, fraud, violation of the South Carolina Unfair Trade Practices Act (UTPA), and civil conspiracy.