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2012-UP-221 - Rossi v. Intercoastal Village Resort Homeowners Association

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

Dino Rossi, Theresa King, and Ira Gross, Appellants,

v.

Intercoastal Village Resort Homeowners Association, Inc., Craig LaForte, President, Craig LaForte, Individually, Joanne Sacca, Secretary, Joanne Sacca, Individually, Christopher Mezzanotte, Treasurer, Christopher Mezannotte, Individually, Terry Walser, Director, and Terry Walser, Individually, Defendants,

Of whom, Intercoastal Village Resort Homeowners Association, Inc., Craig LaForte, President, Joanne Sacca, Secretary, Christopher Mezzanotte, Treasurer, and Terry Walser, Director are, Respondents.

And Intercoastal Village Resort Homeowners Association, Inc., Plaintiff,

v.

AGB090903, LLC, Defendant,

And Intercoastal Village Resort Homeowners, Inc., Plaintiff,

v.

Harvey D. Hugunin, Georgianna P. Lash, Dino Rossi, Lonnie Van Dyke, Thomas D. Barr, Ira M. Gross, Theresa A. King, Donald J. Hanafin, IJB081901, LLC, Donald H. Adam, Christopher Valpone, Daisy M. Ward, Paul F. Bergstrom and Kristopher Paul Allen are, Defendants,

Of whom, Lonnie Van Dyke, Thomas D. Barr, Donald J. Hanafin, Donald H. Adam, Paul F. Bergstrom and Kristopher Paul Allen are, Appellants.


Appeal From Horry County
Charles O. Nation, II, Special Referee


Unpublished Opinion No. 2012-UP-221
Heard March 12, 2012 – Filed April 4, 2012   


AFFIRMED


Patrick J. Reilly, of North Myrtle Beach, for Appellants.

Amanda A. Bailey, of Myrtle Beach, for Respondents.

PER CURIAM: Dino Rossi, Theresa King, and Ira Gross (Homeowners) filed this declaratory judgment action against Intercoastal Village Resort Homeowners Association, Inc. (the Association) and the members of the Board of the Association, individually and as officers and/or directors.  Homeowners alleged causes of action relating to a construction contract entered into by the Association and a special assessment approved by the Board of Directors of the Association (the Board).  After unsuccessful mediation, the Association initiated foreclosure actions against Homeowners and other Association members.  The cases were consolidated, the foreclosures were stayed, and the matter was referred to the special referee.  The parties consented to framing the three issues to be determined by the referee as: (1) interpretation of a Master Deed regarding whether work to be performed under a construction contract constituted maintenance and repair, or an alteration, modification, or improvement; (2) the validity of the Board's action in entering into the construction contract; and (3) the propriety of a special assessment passed by the Board.  The special referee: (1) interpreted the construction contract work as maintenance and repair under the Master Deed; (2) found the Board was authorized to enter into the construction contract; and (3) found the Board was authorized to impose the special assessment.  We affirm pursuant to Rule 220(b), SCACR, and the following authorities:   

1. We affirm the referee's finding that the work to be performed under the construction contract constituted maintenance and repair.  See  Taylor v. Lindsey, 332 S.C. 1, 4, 498 S.E.2d 862, 863 (1998) ("Words of a restrictive covenant will be given the common, ordinary meaning attributed to them at the time of their execution."); Cullen v. McNeal, 390 S.C. 470, 481-82, 702 S.E.2d 378, 384 (Ct. App. 2010) (stating the declarations of a homeowner's association are construed according to the terms the parties used, with the terms understood in their plain, ordinary, and popular sense).

2. We need not address the referee's finding that the special assessment was authorized by owners owning sixty percent of the value of the property.  See Hagood v. Sommerville, 362 S.C. 191, 199, 607 S.E.2d 707, 711 (2005) (declining to address an issue when the resolution of a prior issue is dispositive).

3. We affirm the referee's refusal to find the recall vote valid.  See Slear v. Hanna, 329 S.C. 407, 410-11, 496 S.E.2d 633, 635 (1998) ("If [an] action is viewed as interpreting a deed, it is an equitable matter[,] and the appellate court may review the evidence to determine the facts in accordance with the court's view of the preponderance of the evidence."); Godfrey v. Heller, 311 S.C. 516, 518, 429 S.E.2d 859, 860 (Ct. App. 1993) (stating even when reviewing a special referee's order under its own view of the preponderance of the evidence, an appellate court is not required to disregard the factual findings of the referee, who saw and heard the witnesses and was in a better position to judge their credibility).

4. We affirm the referee's finding that the Board validly passed the corporate resolution approving the special assessment.  First, we find Homeowners failed to preserve the issue regarding a Board member who was not qualified to vote.  See Herron v. Century BMW, 395 S.C. 461, ___, 719 S.E.2d 640, 642 (2011) ("At a minimum, issue preservation requires that an issue be raised to and ruled upon by the trial judge.").  Second, we disagree that the resolution required the approval of at least sixty percent of the Association.  See Hagood, 362 S.C. at 199, 607 S.E.2d at 711 (declining to address an issue when the resolution of a prior issue is dispositive).  Third, we find no merit to the argument regarding the Board's own recognition of its duty to submit the assessment to the Association members.  See Hunt v. S.C. Forestry Comm'n, 358 S.C. 564, 569, 595 S.E.2d 846, 848 (Ct. App. 2004) ("To construe a deed, a court looks first at the language of the instrument because the court presumes it declares the intent of the parties." (quoting 23 Am. Jur. 2d Deeds § 192 (2002))).

5. We affirm the referee's refusal to admit expert testimony of a witness designated as a fact witness.  See Rule 33(b), SCRCP ("[I]nterrogatories shall be deemed to continue from the time of service, until the time of trial of the action . . . ."); Bensch v. Davidson, 354 S.C. 173, 182, 580 S.E.2d 128, 132 (2003) (stating there is a continuing duty to answer a standard interrogatory, such as one requesting the party list any expert witnesses); Dunn v. Charleston Coca-Cola Bottling Co., 307 S.C. 426, 432, 415 S.E.2d 590, 593 (Ct. App. 1992) (finding the decision whether to allow testimony of a witness not listed on answers to interrogatories is within the sound discretion of the trial court), rev’d on other grounds, 311 S.C. 43, 426 S.E.2d 756 (1993).

AFFIRMED.

FEW, C.J., and HUFF and SHORT, JJ., concur.