George v. Wendell

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

Dorothy W. George, Irene
Christensen, Julia B. Cain, Brian S. Dantzler, Charles Dolan, Pamela Dolan,
Virginia W. Floyd, Marvin S. Murdaugh, Jr., Cathie M. Murdaugh, Margaret P.
Hay Living Trust, Trust NES, Mary W. Geils, and George F. Geils, Respondents,

v.

Charles H. Wendell and Kathryn
J. Wendell, Appellants.

Appeal From Charleston County

R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No.   2011-UP-005

Submitted November 1, 2010 – Filed January 20, 2011

AFFIRMED

H.C. Howell,
III, and Andrew K. Epting, Jr., both of Charleston, for Appellants.

E. Paul
Gibson, of Charleston, for Respondents.

PER CURIAM:  Charles
and Kathryn Wendell appeal from the trial court's order that required them to
remove their garage and permanently enjoined them from constructing any
structure within a 75-foot setback along the front of their property.  The
Wendells argue the trial court erred in finding their lot is subject to a
75-foot setback because the restrictive covenants failed to create such a
requirement in clear and unambiguous terms and the plain language of the
covenants is capable of two differing interpretations.[1]

1. We find no error in the trial court’s ruling
that the restrictive covenants are clear and unambiguous, and the 75-foot
setback requirement applies to the Wendells' property.  Restrictive covenants
are contractual in nature, thus the paramount rule of construction is to
ascertain and give effect to the intent of the parties as determined from the
whole document.  Palmetto Dunes Resort, Div. of Greenwood Dev. Corp. v.
Brown, 287 S.C. 1, 6, 336 S.E.2d 15, 18 (Ct. App. 1985).  "A
restrictive covenant will be enforced if the covenant expresses the party's
intent or purpose, and this rule will not be used to defeat the clear express
language of the covenant."  Sea Pines Plantation Co. v. Wells, 294
S.C. 266, 270, 363 S.E.2d 891, 894 (1987).  Ambiguities in a restrictive
covenant are to be strictly construed against the party seeking to enforce it;
however, the rule of strict construction should not be applied so as to defeat
the plain and obvious purpose of the instrument.  Palmetto Dunes Resort,
287 S.C. at 6, 336 S.E.2d at 18-19.  A contract is ambiguous when the terms of
the contract are reasonably susceptible of more than one interpretation, and it
is a question of law for the court whether the language of a contract is
ambiguous.  S.C. Dep't of Natural Res. v. Town of McClellanville, 345
S.C. 617, 623, 550 S.E.2d 299, 302-03 (2001).  The original restrictive covenants do not indicate the developers
intended the 75-foot setback requirement that applied to Lot 4 to be modified
if the lot was subdivided.  Instead, the restrictive
covenants specifically provided if the lot was subdivided, the
newly-created lots would be subject to the original restrictive
covenants.  Also, the amendments to the restrictive
covenants, which acknowledged the subdivision of Lot 4, did not modify
the specific setback requirements for Lot 4.  Further, Robert George, a
thirty-three year resident of the neighborhood and a licensed surveyor and
engineer, testified the garage was a substantial violation of the restrictive covenants and changed the character of
the neighborhood because it extended beyond the front of all the other homes.  George
also stated there were no substantial violations or disregard of the restrictive covenants, and no changes in the
character of the subdivision since the establishment of the restrictive covenants.  Therefore,
the evidence supports the trial court's ruling.

2.  We need not address the issue of
whether the equities in this case were sufficient to overcome the trial
court's finding that the 75-foot setback applied to the Wendell's property.  Although
the Wendells raised the argument to the trial court, the trial judge did not
rule on it, and the Wendells did not file a Rule 59(e), SCRCP motion.  Therefore,
the issue is not preserved for our review.  See Chastain v.
Hiltabidle, 381 S.C. 508, 515, 673 S.E.2d 826, 829 (Ct. App. 2009) (holding
when an issue is raised to but not ruled upon by the trial court, the issue is
preserved for appeal only if the party raises the same issue in a Rule 59(e)
motion).  Additionally, the Wendells did not raise this issue in their issues
on appeal.  See Rule 208(b)(1)(B), SCACR (noting ordinarily an appellate
court will not review any issue not set forth in the statement of issues on
appeal).

AFFIRMED.

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

[1]  We decide this case without oral argument pursuant
to Rule 215, SCACR.  We affirm pursuant to Rule 220(b)(1), SCACR.