Carpenter Braselton, LLC v. Roberts

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

Carpenter Braselton, LLC, Appellant,

v.

Ashley Roberts, Jeremy Cook, and Salaheddine
Ezzaoudi, Respondents.

Appellate Case No. 2017-002546

Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity

Unpublished Opinion No. 2021-UP-280
Submitted June 1, 2020 – Filed July 21, 2021

AFFIRMED

Liam Donovan Duffy, of Yarborough Applegate, LLC,
of Charleston, and John Edward Rosen, of J. Rosen Law,
LLC, of Folly Beach, both for Appellant.

Demetri K. Koutrakos, of Callison Tighe & Robinson,
LLC, of Columbia, for Respondents.

PER CURIAM: Carpenter Braselton, LLC, (Appellant), the owner of a lot in a
subdivision, appeals the trial court's order granting summary judgment to Ashley
Roberts, Jeremy Cook, and Salaheddine Ezzaoudi (collectively, Respondents), who
own other lots in the subdivision. Appellant challenges the trial court's holding
that a notation on the subdivision plat (the Plat) that certain lots were "for
agricultural use only" (Agricultural Use Provision) did not create a valid restriction
on the use of the lots. We affirm.

Appellant argues the trial court erred in allowing and relying upon extrinsic
evidence to conclude that there was no intent to create a restriction on the use of
the parties' lots, despite the plain language on the face of the Plat that the lots were
to be utilized "for agricultural use only." It also asserts the trial court erred as a
matter of law in concluding that the language on the Plat was not a valid restriction
on the use of those properties. We disagree.

"Restrictive covenants are contractual in nature." RV Resort & Yacht Club Owners
Ass'n, Inc. v. BillyBob's Marina, Inc., 386 S.C. 313, 320, 688 S.E.2d 555, 559
(2010) (quoting Hardy v. Aiken, 369 S.C. 160, 166, 631 S.E.2d 539, 542 (2006)).
"A restriction on the use of property must be created in express terms or by plain
and unmistakable implication, and all such restrictions are to be strictly construed,
with all doubts resolved in favor of the free use of property." S.C. Dep't of Nat.
Res. v. Town of McClellanville, 345 S.C. 617, 622, 550 S.E.2d 299, 302 (2001)
(quoting Taylor v. Lindsey, 332 S.C. 1, 5, 498 S.E.2d 862, 864 (1998)). "Words of
a restrictive covenant will be given the common, ordinary meaning attributed to
them at the time of their execution." Taylor, 332 S.C. at 4, 498 S.E.2d at 863.
"[T]he paramount rule of construction is to ascertain and give effect to the intent of
the parties as determined from the whole document." Id. at 4, 498 S.E.2d at 863-
64 (1998) (quoting Palmetto Dunes Resort v. Brown, 287 S.C. 1, 6, 336 S.E.2d 15,
18 (Ct. App. 1985)).

When a deed describes land as shown on a certain plat, the plat becomes a part of
the deed. Murrells Inlet Corp. v. Ward, 378 S.C. 225, 232, 662 S.E.2d 452, 455
(Ct. App. 2008). A plat may also be ambiguous as to the creation of an easement.
Hamilton v. CCM, Inc., 274 S.C. 152, 157, 263 S.E.2d 378, 381 (1980) (reviewing
a plat to determine whether it created an open space easement and finding the plat
was "obviously ambiguous"). The court explained,

[W]here the language of a restrictive covenant is equally
capable of two or more constructions, that construction
will be adopted which least restricts the property. The
same reasoning would apply to a restriction, such as an
alleged easement shown on a plat incorporated by a deed,
since restrictions on the use of real estate are to be strictly
construed, with all doubts resolved in favor of the free
use of the property. This rule of strict construction is
subject to the provision that it is not applicable so as to
defeat the plain and obvious purpose of the instrument.

Id. at 157-58, 263 S.E.2d at 381. "[I]n the interpretation of maps and plats[,]
intention will not be inferred from symbols of uncertain meaning or from fanciful
adornments on the plat . . . ." Id. at 157, 263 S.E.2d at 380. "Circumstances
surrounding the origin of an alleged restriction may also be considered in
construing that restriction." Id. at 158, 263 S.E.2d at 381.

"It is a question of law for the court whether the language of a contract is
ambiguous. 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." Harbin v. Williams, 429 S.C. 1, 8, 837 S.E.2d 491, 495
(Ct. App. 2019) (quoting Town of McClellanville, 345 S.C. at 623, 550 S.E.2d at
302-03). "On the other hand, the construction of a clear and unambiguous deed is
a question of law for the court." Id. (quoting Town of McClellanville, 345 S.C. at
623, 550 S.E.2d at 303).

Here, while the language used in the Agricultural Use Provision is not ambiguous,
the origin of this language on the Plat may create an ambiguity. To indicate the
dedication of a road on the Plat, the surveyor who prepared the Plat, F. Elliotte
Quinn, III, placed the provision about the road in a box and the owners of the
property at that time, the heirs of James Roper (Heirs), signed under this provision.
In contrast, the Agricultural Use Provision is not in a box; it is in the area of the
Plat with the notations placed by the Charleston County Planning Commission.
The typeface of the Agricultural Use Provision does not match that used by Quinn
in the Plat. Instead, as the trial court noted, it is in the same or similar typeface as
the notations that the Charleston County Planning Commission definitely added to
the Plat.

Even if we cannot say the Plat unambiguously shows that the Charleston County
Planning Commission placed the Agricultural Use Provision on the plat, we find
the Plat is ambiguous as to the origin of the provision. Furthermore, an easement
created by a plat is an implied easement. See Gooldy v. Storage Ctr.-Platt Springs,
LLC, 422 S.C. 332, 338, 811 S.E.2d 779, 782 (2018) ("Generally, when a deed
references a plat that contains an easement, an implied easement arises even
though the deed itself is silent."). The presumption of an implied easement may be
"rebutted by a specific, contrary intention by the grantor." Id. Therefore, we find
the trial court did not err in considering extrinsic evidence to determine the Heirs'
intent.

In his affidavit, Quinn stated the Charleston County Planning Commission placed
the Agricultural Use Provision on the Plat "for the purpose of indicating that
Charleston County would not, at that time, approve building permits for Lots C-2,
C-3, C-4, and C-5 because those lots did not meet current minimum standards for a
modified conventional sub-service disposal system." He explained Lot C-1 did
meet that standard and "that is why Charleston County did not say Lot C-1 was not
to be used for building purposes."

Quinn asserted,

These notations on the Plat were not requested to be
placed on the Plat, and were not placed on the Plat, by or
at the request of the heirs of James Roper. These
notations on the Plat were not, and are not, restrictions
from use placed on Lots C-2, C-3, C-4 and C-5 by the
heirs of James Roper. The heirs of James Roper
indicated to me they wanted the ability to build
residential homes on all five lots.

Quinn explained, "These notations were simply placed on the Plat by Charleston
County to warn buyers of issues related to sewer disposal services."

In submitting the Plat for approval, the Heirs included a letter explaining they were
"aware that this land possesses very poor soil conditions for septic systems and
would like to request that the subdivision be approved with the stipulation that any
lot which will not support a septic system be restricted from becoming a building
lot until such time that public sewer service can be provided to that lot." They felt
an urgency to have the land divided as they were getting older and they did not
want their own descendants to have to deal with the problems of heirs' property.

Appellant argues it was entitled to rely on the Agricultural Use Provision when it
purchased its lot. See Ward, 378 S.C. at 236, 662 S.E.2d at 457 ("Subsequent
purchasers are entitled to rely on recorded deeds and plats to determine their rights
in respect to property."). Appellant's representative, Edward Lee Terry, claimed he
relied on the notation on the plat and his title insurance company, which told him
the lots were restricted.
We find Ward, upon which Appellant relies, distinguishable. In Ward, the
subdivision plat included a fifty-foot right-of-way to the lots from the highway. Id.
at 229, 662 S.E.2d at 453. Although the grantor, Ward, admitted in her pleadings
she provided the right-of-way pursuant to county regulations, on appeal she
claimed the surveyor included the road on the plat under the erroneous belief that
the regulations required the easement for the creation of a subdivision. Id. at 229,
662 S.E.2d at 453-54. She also asserted she was unaware the plat included a fifty-
foot roadway and only intended for the existing driveway to remain as a shared
private drive. Id. at 229, 662 S.E.2d at 454.

The court held,

[W]hen Ward subdivided the property and recorded a
plat referencing a fifty foot right-of-way, it may be
inferred that she intended the right-of-way to be a private
easement dedicated to the use of the lot owners, their
successors in title, and the public. The deed and the
recorded plat in this case are controlling notwithstanding
an "intent" analysis. By recording the easement on the
plat, Ward evidenced an intention to grant that easement
to any future lot owners in the subdivision. When Ward
originally conveyed Lot 4 with reference to the recorded
plat, her grantees and any subsequent purchasers
acquired the right to use this easement to the full extent
that it is indicated in the plat. [The respondent] relied
upon the recorded plat when it purchased Lot 4. The
dedication of the private easement was complete when
Ward originally conveyed the lot. It would now be unfair
to deny [the respondent] the right to the full use and
enjoyment of the easement as indicated in the plat,
regardless of what Ward now argues were her intentions
at the time the plat was recorded.

Id. at 236, 662 S.E.2d at 457.

Here, the alleged restriction differs from the easement in Ward. First, Ward
admitted in her pleadings that she provided the fifty-foot right-of-way pursuant to
county regulations. The Respondents did not make such an admission here. In
fact, the record undisputedly shows the Heirs wanted the lots to become building
lots once public sewer service could be provided to those lots. Second, Ward's
surveyor placed the easement on the plat. Here, according to the Quinn, he did not
place the Agricultural Use Provision on the Plat. Rather, Charleston County
placed it there. Finally, in Gooldy, the supreme court clearly stated that while a
plat may create an implied easement, the presumption of an implied easement may
be rebutted by a specific, contrary intention of the grantor. See 422 S.C. at 338,
811 S.E.2d at 782 (stating when a deed references a plat containing an easement, "a
presumption of an implied easement arises unless rebutted by a specific, contrary
intention by the grantor" (emphasis added)). Here, Respondents' evidence of the
Heirs' contrary intent is undisputed.

Although Appellant is correct that the deeds for all of the lots specifically state
they are subject to all restrictions, reservations, easements and other limitations
that appear of record, including on the Plat, this language does not create a
restriction the Heirs did not intend to create.

The fact that a conveyance is made "subject to"
restrictions set forth in some other deed or instrument
referred to will not, without more, make the restrictions
applicable to the property conveyed, if in fact the
restrictions do not otherwise apply thereto. If the
"subject to" language of the instrument in question refers
to restrictions which in fact do not exist at all at the time
of the conveyance, it does not operate to impose the
supposed restrictions on the granted land; nor does a
conveyance made expressly subject to restrictions
existing on the conveyed land "if any such there be"
thereby impose restrictions where none existed
theretofore. A conveyance of land with warranties which
are expressly made "subject to" the restrictions set forth
in a certain instrument referred to does not subject the
conveyed lands to the restrictions so designated when by
their terms the restrictions do not apply to such land.
While conveyances "subject to" restrictions give notice
that such restrictions are of record, they are not an
acknowledgment of the validity of such restrictions.

20 Am. Jur. 2d Covenants, Conditions, and Restrictions. § 151 (2015) (footnotes
omitted).
Similarly, Appellant's own title insurance document did not create a guarantee that
the Agricultural Use Provision was a restriction that ran with the land. The title
insurance company was noting the provision was on the Plat and was taking an
exception that it would not be liable under the policy if Appellant could not build
on its lot.

Furthermore, Respondents Roberts and Cook constructed a house on Lot C-3,
which was completed on February 5, 2009. Terry acknowledged he was familiar
with the lots and the house was present before Appellant purchased Lot C-5. See
Spence v. Spence, 368 S.C. 106, 120, 628 S.E.2d 869, 876 (2006) ("The party will
be charged by operation of law with all knowledge that an investigation by a
reasonably cautious and prudent purchaser would have revealed."). Therefore, we
find Appellant's claimed reliance on the Plat could not defeat the Heirs' true
intentions when evidence that the lots could be used for residential purposes was
right before Terry's eyes.

We hold the record does not contain a scintilla of evidence to support the
imposition of a building restriction on the Respondents' lots. See Turner v.
Milliman, 392 S.C. 116, 121-22, 708 S.E.2d 766, 769 (2011) ("When reviewing a
grant of summary judgment, appellate courts apply the same standard applied by
the trial court pursuant to Rule 56(c), [of the South Carolina Rules of Civil
Procedure (SCRCP)]."); Rule 56(c), SCRCP (providing that summary judgment
shall be granted when "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law"); Hancock v. Mid-South Mgmt. Co., Inc., 381 S.C.
326, 330, 673 S.E.2d 801, 803 (2009) ("[I]n cases applying the preponderance of
the evidence burden of proof, the non-moving party is only required to submit a
mere scintilla of evidence in order to withstand a motion for summary judgment.");
Peterson v. W. Am. Ins. Co., 336 S.C. 89, 94, 518 S.E.2d 608, 610 (Ct. App. 1999)
("Under Rule 56(c), SCRCP, the party seeking summary judgment has the initial
burden of demonstrating the absence of a genuine issue of material fact."); Id.
("Once the party moving for summary judgment meets the initial burden of
showing an absence of evidentiary support for the opponent's case, the opponent
cannot simply rest on mere allegations or denials contained in the pleadings.
Rather, the non-moving party must come forward with specific facts showing there
is a genuine issue for trial."). Appellant presented no evidence supporting the
existence of a genuine issue of material fact as to whether the Charleston County
Planning Commission placed the Agricultural Use Provision on the Plat to denote
its inability to grant a building permit at that time. However, Respondents
presented undisputed evidence that the Heirs, who were the grantors in this case,
never intended to create a restrictive covenant requiring the lots to be used for
agricultural use only. As the grantors, their intent is paramount as only the
grantors can create a restriction that runs with the land. Accordingly, we hold the
trial court did not err in granting summary judgment to Respondents.1

AFFIRMED.2

1
In a footnote in the Statement of the Case section of its brief, Appellant asserts
the trial court should not have granted summary judgment because there were
material questions that must be tried before a factfinder. It asserts it had not taken
the depositions of Quinn, the Respondents, and the Heirs "to understand more fully
their intent." We find this argument is not properly before this court for several
reasons. First, this argument is not listed in the statement of the issues on appeal.
See Rule 208(b)(1)(B), SCACR ("Ordinarily, no point will be considered which is
not set forth in the statement of the issues on appeal."). Second, the trial court did
not address this argument and Appellant did not file a motion to alter or amend
requesting a ruling. See Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124
(1991) (finding where a trial court does not explicitly rule on an argument raised
and appellant does not make a Rule 59, SCRCP, motion to obtain a ruling, the
appellate court may not address the issue). Third, Appellant offers no authority to
support this argument; therefore, the argument is conclusory and abandoned. See
Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691 (Ct.
App. 2001) ("South Carolina law clearly states that short, conclusory statements
made without supporting authority are deemed abandoned on appeal and therefore
not presented for review."). Fourth, in its memorandum opposing summary
judgment and at the hearing, Appellant only asserted that it had not deposed
Respondents. It did not argue it needed the opportunity to depose Quinn or the
Heirs. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It
is axiomatic that an issue cannot be raised for the first time on appeal, but must
have been raised to and ruled upon by the trial judge to be preserved for appellate
review."). Finally, Appellant does not assert what information it believes
Respondents' depositions would reveal that would defeat Respondents' motion for
summary judgment. See Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 439
(2003) (stating "the nonmoving party must demonstrate the likelihood that further
discovery will uncover additional relevant evidence and that the party is 'not
merely engaged in a fishing expedition'" (quoting Baughman v. Am. Tel. and Tel.
Co., 306 S.C. 101, 112, 410 S.E.2d 537, 544 (1991))).
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
HUFF, THOMAS, and MCDONALD, JJ., concur.