Wedgefield Plantation Accociation v. Chavis

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Wedgefield Plantation Association,       
Appellant,

v.

Cindy M. Chavis and Charles J. Chavis,       
Respondents.

Appeal From Georgetown County

David J. Mills, Special Referee, Circuit
Court Judge

Unpublished Opinion No. 2004- UP-033

Submitted November 19, 2003 – Filed
January 20, 2004

AFFIRMED

Robert J. Moran, of Murrells Inlet, for Appellant.

Jack M. Scoville, Jr., of Georgetown, for Respondents.

PER CURIAM:  Wedgefield Plantation Association sued
homeowners Cindy M. and Charles J. Chavis to enforce a provision of a restrictive
covenant requiring pre-approval by the Association’s Architectural Review Committee
of various structures on their property.  The referee ruled the Chavises were
in violation of the covenant and ordered the barriers removed, but denied the
Association’s request for costs and attorney’s fees.  The Association appeals
this one issue.  We affirm. [1]

FACTS

Equity Development Corporation ("EDC”), the original
developer, established Wedgefield Plantation as a gated community in the early
1970s.  Title to each of the single family lots was conveyed by indenture deed
which containing twenty-five specific restrictions and covenants.  Covenant
1 requires approval from EDC prior to the erection of any structure on a lot. 
EDC also organized the Association at the beginning of the project, and all
property owners were required to join pursuant to covenant 10.  The indenture
deed also contained a number of provisions granting authority to EDC to enforce
the restrictions.  The indenture deed contained no provision for recovery of
costs and attorney’s fees.

The Chavises purchased their home in 1999 by deed
that explicitly referenced the indenture deed.  At some point they installed
barriers at either end of their drive without seeking approval from the Association’s
Architectural Review Committee.  Because EDC went bankrupt and has been defunct
for many years, this action to enforce the covenants and restrictions was brought
by the Association to enforce covenant 1 of the indenture deed.  The referee
found the Chavises were in violation of the restrictions, but denied the Association’s
request for attorney’s fees and costs.  In denying the request, the referee
noted the indenture deed and not the by-laws constituted the contract between
the parties.  The referee also held that the right to recover attorney’s fees
was controlled by the indenture deed, it contained no such provision, and there
had been no amendment consented to by the parties to include such a provision. 
The Association appeals the referee’s denial of costs and attorney’s fees. 

LAW/ANALYSIS

As a threshold issue, a question was raised at
the hearing as to the authority of the Association to enforce the restrictions
because the recorded covenants and restrictions only specifically refer to EDC
as having that authority.  However, there has been no appeal from the referee’s
ruling that the Association has standing and the authority to enforce the provisions
of the restrictions in the same fashion that EDC could have had EDC still been
in existence.  ML-Lee Acquisition Fund, LP v. Deloitte & Touche,
327 S.C. 238, 241, 489 S.E.2d 470, 472 (1997) (holding an unappealed ruling
is the law of the case and cannot be later challenged).   

The Association further argues that its by-laws
are enforceable as a contract between the Association and its members and among
its members and, therefore, provisions within the by-laws authorizing costs
and attorney’s fees should be given effect.  We disagree.

It is well established that "[a]ttorney’s fees
are not recoverable unless authorized by contract or statute.”  Dowaliby
v. Chambless, 344 S.C. 558, 544 S.E.2d 646, 647-648 (Ct. App. 2001) (quoting
Jackson v. Speed, 326 S.C. 289, 307, 486 S.E.2d 750, 759 (1997)); see
also Blumberg v. Nealco, Inc., 310 S.C. 492, 493, 427 S.E.2d 659,
660 (1993) ("The general rule is that attorney’s fees are not recoverable unless
authorized by contract or statute.”).

The referee held that the Association succeeded
to the rights of EDC and had standing to enforce the covenants as its assign. 
McLeod v. Baptiste, 315 S.C. 246, 433 S.E.2d 834, 835 (1993) ("[A] person
seeking to enforce a covenant must be benefited by that act”).  However, that
enforcement authority was limited to the powers reserved to EDC as outlined
in the indenture deed.  At common law, an assignee’s rights and powers can be
no greater than those of his assignor.  Rosemond v. Campbell, 288 S.C.
516, 523, 343 S.E.2d 641, 645 (Ct. App. 1986) (citing Dixie Wood Preserving
Co. v. Albert Gersten & Associates, 244 S.C. 57, 135 S.E.2d 368 (1964)). 
Here, the original grantor’s authority was derived from the indenture deed referenced
in each property owner’s deed.  The indenture deed was the contract between
the homeowners and EDC, and makes no mention of any right to an award of attorney’s
fees and costs.  Accordingly, the original grantor could not have collected
fees and costs and therefore neither may the Association. 

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.

[1]        We decide this case without oral argument pursuant to Rule
215, SCACR.