Averette v. Browning

FACTS

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Danny Averette,       
Respondent,

v.

Elaine Averette Browning,       
Appellant.

Appeal From Beaufort County

Thomas Kemmerlin, Master in Equity

Unpublished Opinion No. 2005-UP-016

Submitted December 1, 2004 – Filed January
13, 2005

AFFIRMED

V. M. Manning Smith, of Beaufort, for Appellant.

J. Thomas Mikell, of Beaufort, for Respondent.

PER CURIAM:  This is an appeal
from an order finding Elaine Averette Browning in contempt for building a fence
on property belonging to her brother, Danny Averette, as determined in an order
from a prior adjudication.  We affirm.

FACTS

M.C. Averette owned lots 9, 10, 11, and
12 of the North View Subdivision located on Port Royal Island in Beaufort County. 
On December 31, 1992, he transferred the property to his son, Danny Averette,
and his daughter, Elaine Averette Browning, by deed. Of the four lots, Elaine
was granted lot 12 and the “[w]esternmost 60 feet” of lot 11.  The deed stated
that the portion of lot 11 deeded to Elaine was bounded on the west by “an unnamed
18 foot road separating it from lot 12,” and on the east by the remaining portion
of lot 11, which was conveyed to Danny.  Danny was simultaneously granted lots
9 and 10, as well as the remaining portion of lot 11, described as “that portion
remaining of said lot after the Westernmost 60 feet of said lot is simultaneously
conveyed to Elaine A. Browning.”  Both deeds reference the subdivision plat,
which illustrates an 18-foot road running between lots 11 and 12.  This dispute
arose because the 18-foot road did not exist and lot 11 was actually bounded
on its west by lot 12.  Danny brought an action to have the master-in-equity
declare the true boundary. 

The master divided the property as follows:

Even though there is no 18 foot road, I find that I can
best effect the grantor’s wishes by following exactly what he says about the
division of Lot eleven:  [Elaine] is entitled to Lot 12 as shown on the plat
of Gasque and Associates 7/20/98 and the [Danny] is entitled to Lot 10 as shown
on that plat and other plats introduced into evidence.  Lot 11 shall be divided
as provided by the deeds quoted above between [Danny] and [Elaine]:  [Elaine]
shall have the Westernmost 60 feet of Lot 11 and [Danny] shall have the Easternmost
139 feet, more or less, making the line of division that [sic] found on Gasque’s
plat referred to above as the line running N33º26’36’’E.

Following the order, Elaine built a wooden fence approximately eighteen
feet east of the dividing line marked N33º26’36’’E on the Gasque plat.  Upon
motion to hold Elaine in contempt, the master determined that the fence was
a violation of its order, Elaine was aware of the order, and her actions constituted
contempt of court. [1]   The court ordered the removal
of the fence within thirty days.  Elaine appeals.

LAW/ANALYSIS

Elaine argues
that the trial court erred in its determination of the boundary line.  However,
she did not appeal the May 10, 2000 order of the trial court, which determined
the boundary lines of the respective properties.  Therefore, the boundary lines
articulated in that order are the law of the case.  See Toler’s Cove
Homeowners Ass’n v. Trident Constr. Co., 355 S.C. 605, 610, 586 S.E.2d 581,
584 (2003) (stating a finding that neither party has appealed is the law of
the case); Priester v. Brabham, 230 S.C. 201, 203, 95 S.E.2d 167, 168
(1956) (stating an unappealed decision, “right or wrong, is now the law of the
case”). 

Alternatively, Elaine’s remaining arguments assert that the May 10,
2003 order is ambiguous and lacks clarity such that it is unenforceable.  We
disagree. [2]

“This court will reverse a trial court’s decision regarding contempt
only if it is without evidentiary support or is an abuse of discretion.   An
abuse of discretion can occur where the trial court’s ruling is based on an
error of law.”  First Union Nat’l Bank v. First Citizens Bank and Trust Co.,
346 S.C. 462, 466, 551 S.E.2d 301, 303 (Ct. App. 2001) (citations omitted).

“It is well settled that contempt results from willful disobedience
of a court order; and before a person may be held in contempt, the record must
be clear and specific as to acts or conduct upon which the contempt is based.” 
Cheap-O’s Truck Stop, Inc. v. Cloyd,  350 S.C. 596, 607, 567 S.E.2d
514, 519 (Ct. App. 2002) (quoting State v. Bevilacqua, 316 S.C.
122, 129, 447 S.E.2d 213, 217 (Ct. App. 1994)).  “A willful act is defined as
one ‘done voluntarily and intentionally with the specific intent to do something
the law forbids, or with the specific intent to fail to do something the law
requires to be done; that is to say, with bad purpose either to disobey or disregard
the law.’”  Spartanburg County Dep’t of Social Services v. Padgett, 296
S.C. 79, 82-83, 370 S.E.2d 872, 874 (1988) (quoting Black’s Law Dictionary
1434 (5th Ed. 1979)).  However, “[o]ne may not be convicted of contempt for
violating a court order which fails to tell him in definite terms what he must
do.”  Welchel v. Boyter, 260 S.C. 418, 421, 196 S.E.2d 496, 498 (1973).

We find the May 10, 2003 order of the master “making the line of division
that [sic] found on Gasque’s plat referred to above as the line running N33º26’36’’E,”
clearly and unambiguously describes the dividing line between Elaine and Danny’s
property.  The fact that the master granted Danny the easternmost 139 feet,
“more or less,” clearly refers to the inches the master excluded in making his
calculation. [3]    Moreover,
we find that Elaine’s erection of the fence approximate eighteen feet east of
that dividing line to be a willful violation of the order.   For these reasons,
the contempt order of the trial court is

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ.,
concur.

[1] Based on the statements in the master’s order, a hearing on the motion
was held on October 22, 2001.  A transcript from that hearing does not appear
in the record on appeal. 

[2] Arguably, this issue is not preserved for appeal.  Without the transcript
of the hearing, we are unable to discern what issues were raised to the master. 
Further, the master’s order does not specifically find the previous order
unambiguous.  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.”). 

[3] Additionally, the deeds granting the property to both Elaine and Danny
excluded the inches and just used feet in measuring the division of the property. 
Only the plats introduced into evidence set forth the distances between the
property lines and the distances between the disputed lines using feet and
inches.