Gina M. Derry v. Ray A. Zuber

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
Gina M. Derry and Catherine M. Stone, Appellants,
v.
Ray A. Zuber and Ellen R. Zuber, Respondents.
Appellate Case No. 2025-000064
Appeal From Clarendon County
G. Wells Dickson, Jr., Special Referee
Unpublished Opinion No. 2026-UP-450
Submitted September 1, 2026 – Filed October 14, 2026
AFFIRMED
Mary-Patricia Crawford, of Walterboro, for Appellants
William H. Johnson, of Johnson, DuRant & Nester, LLC,
of Manning, for Respondents.
PER CURIAM: This appeal arises out of a quiet title action in which the special
referee set the boundary line between the property of Gina M. Derry and Catherine
M. Stone (collectively, Appellants) and the property of Ellen R. Zuber and Ray A.
Zuber (collectively, the Zubers) and denied a Rule 59(e), SCRCP, motion to alter
or amend the final order based on alleged acquiescence by the Zubers. Appellants
assert the special referee erred by (1) stating acquiescence must occur for "a long

period of time"; (2) holding the Zubers did not acquiesce in the disputed boundary
line; (3) determining that Appellants' constructive knowledge of the true property
lines defeated any claim of acquiescence; (4) deciding Appellants were barred
from using estoppel as an offensive action; (5) holding that even if Respondents
did acquiesce, that acquiescence did not justify awarding title to Appellants; (6)
considering the neighborhood as a whole when balancing the equities of the
parties; (7) finding the most recent survey of Appellants' property controlled the
proper boundary lines; and (8) denying Appellants' request to amend or alter the
final order. We affirm pursuant to Rule 220(b), SCACR, and the following
authorities:
1. As to whether the special referee erred in stating acquiescence must occur for a
long period of time: Smith v. Phillips, 318 S.C. 453, 455, 458 S.E.2d 427, 429
(1995) (per curiam) ("[A]n appellate court cannot address an issue unless it was
raised to, and ruled upon by, the trial court.").
2. As to whether the special referee erred in concluding the Zubers did not intend
to acquiesce to the disputed boundary line: Kirkland v. Gross, 286 S.C. 193, 197,
332 S.E.2d 546, 548-49 (Ct. App. 1985) ("A disputed boundary line can be
established by acquiescence of the parties."), receded from on other grounds by
Boyd v. Hyatt, 294 S.C. 360, 364 S.E.2d 478 (Ct. App. 1988); id. at 198, 332
S.E.2d at 549 ("[A]cquiescence is a question of fact determined by the intent of the
parties."); McClintic v. Davis, 228 S.C. 378, 383, 90 S.E.2d 364, 366 (1955) ("[I]f
a party stands by, and sees another dealing with property in a manner inconsistent
with his rights, and makes no objection, he cannot afterwards have relief. His
silence permits or encourages others to part with their money or property, and he
cannot complain that his interest[s] are affected. His silence is acquiescence and it
estops him." (quoting S. Ry. Co. v. Day, 140 S.C. 388, 138 S.E. 870 (1926)));
Klapman v. Hook, 206 S.C. 51, 57, 32 S.E.2d 882, 884 (1945) ("[R]ecognition of,
and acquiescence in, a line as the true boundary line, if continued for a sufficient
length of time, will afford a conclusive presumption that the line thus acquiesced in
is the true boundary line."); Croft v. Sanders, 283 S.C. 507, 510, 323 S.E.2d 791,
793 (Ct. App. 1984) (holding the existence of a fence was not sufficient evidence
of acquiescence unless the parties specifically intended that fence to represent the
boundary line).
3. As to whether the special referee erred in determining Appellants' constructive
knowledge of the true boundary lines defeated any acquiescence claim: S.C.
Coastal Conservation League v. S.C. Dep't of Health & Envtl. Control, 363 S.C.
67, 76, 610 S.E.2d 482, 487 (2005) ("A ruling not challenged on appeal is the law

of the case, regardless of the correctness of the ruling."); Phinney v. Johnson, 13
S.C. 25, 29 (1880) ("The foundation of equitable estoppel is the ignorance of the
party seeking its benefit."); Binkley v. Rabon Creek Watershed Conservation Dist.
Of Fountain Inn, 348 S.C. 58, 70, 558 S.E.2d 902, 908 (Ct. App. 2001) ("The first
element that a party seeking to assert equitable estoppel must prove is a lack of
knowledge and of the means of knowledge of the truth regarding the facts in
question."); id. at 71, 558 S.E.2d at 909 ("Property owners are charged with
constructive notice of instruments recorded in their chain of title.").
4. As to whether the special referee erred in holding Appellants were barred from
bringing estoppel claims as an offensive action: Town of Kingstree v. Chapman,
405 S.C. 282, 313, 747 S.E.2d 494, 510 (Ct. App. 2013) ("[E]stoppel must be
affirmatively pled as a defense and cannot be bootstrapped onto another claim."
(quoting Collins Entm't, Inc. v. White, 363 S.C. 546, 562, 611 S.E.2d 262, 270 (Ct.
App. 2005))); id. ("The failure to plead an affirmative defense is deemed a waiver
of the right to assert it." (quoting Wright v. Craft, 372 S.C. 1, 21, 640 S.E.2d 486,
497 (Ct. App. 2006))); Janasik v. Fairway Oaks Villas Horizontal Prop. Regime,
307 S.C. 339, 345, 415 S.E.2d 384, 388 (1992) ("Estoppel and waiver are
protective only, and are to be invoked as shields, and not as offensive weapons.");
Ott v. Ott, 182 S.C. 135, 141, 188 S.E. 789, 792 (1936) ("[Estoppel] was never
intended to work a positive gain to a party."); Janasik, 307 S.C. at 345, 415 S.E.2d
at 388 ("While . . . equitable estoppel may be invoked as [an] affirmative defense[]
to counterclaims, [it] may not be asserted in a complaint as [an] offensive
weapon[].").
5. As to whether the special referee erred in finding that any acquiescence on the
part of the Zubers did not justify moving the boundary line: Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(providing an appellate court need not address the remaining issues when its
determination of a prior issue is dispositive).
6. As to whether the special referee erred in considering the neighborhood effects,
determining the most recent survey controlled, and denying Appellants' motion to
alter or amend the final order: R & G Constr., Inc. v. Lowcountry Reg'l Transp.
Auth., 343 S.C. 424, 437, 540 S.E.2d 113, 120 (Ct. App. 2000) ("An issue is
deemed abandoned if the argument in the brief is only conclusory."); Rule 210(h),
SCACR ("[T]he appellate court will not consider any fact which does not appear in
the record on appeal."); Germain v. Nichol, 278 S.C. 508, 509, 299 S.E.2d 335,
335 (1983) (per curiam) ("[An a]ppellant has the burden of providing [an appellate
court] with a sufficient record upon which [the appellate court] can make its

decision."); Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 327
n.1, 730 S.E.2d 282, 284 n.1 (2012) (providing that when an appellant's "argument
in [his or] her brief is purely a recitation of facts, devoid of any citation to legal
authority, with [only a] summary conclusion," the argument has been abandoned);
Palmer v. State, 427 S.C. 36, 47, 829 S.E.2d 255, 261 (Ct. App. 2019) ("When a
party provides no legal authority regarding a particular argument, the argument is
abandoned and the court will not address the merits of the issue."); State v. Colf,
332 S.C. 313, 322, 504 S.E.2d 360, 364 (Ct. App. 1998) (noting a conclusory, two-
paragraph argument that cited no authority other than an evidentiary rule was
abandoned), aff'd as modified on other grounds, 337 S.C. 622, 525 S.E.2d 246
(2000).
AFFIRMED.1
THOMAS, KONDUROS, and TURNER, JJ., concur.
1 We decide this case without oral argument pursuant to Rule 215, SCACR.