Cliffs at Keowee v. O'Donald

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

The Cliffs at Keowee Community Association, Inc.,
Respondent,

v.

Roger L. O’Donald, Lynne O’Donald, and Cornerstone National Bank,
Defendants,

of whom Roger L. O’Donald and Lynne O’Donald are
Appellants.

Appeal From Pickens County

 Charles B. Simmons, Jr., Circuit Court
Judge

Unpublished Opinion No.  2004-UP-616

Heard November 17, 2004 – Filed December
7, 2004

AFFIRMED

James C. Alexander, of Pickens, for Appellants.

R. Murray Hughes, of Pickens, for Respondent.

PER CURIAM:  Roger and Lynne O’Donald appeal the trial court’s order
granting a permanent injunction to The Cliffs at Keowee Community Association,
Inc.  The injunction prohibited the O’Donalds from constructing a home that
did not include a two-car garage as required by the subdivision’s restrictive
covenants.  We affirm.

FACTS

In 1995, the O’Donalds purchased lot 27 at The Cliffs at Keowee,
a new residential subdivision located on Lake Keowee in Pickens County.  The
conveyance was subject to any and all restrictions attached to the property,
including the “Declaration of Covenants, Conditions and Restrictions” established
by the Association.  The Association is the homeowners group for The Cliffs
at Keowee, and every lot owner is a member. 

The Covenants required the approval of all proposed structures by
the appropriate committee before beginning construction.  Further, the Covenants
expressly provided that the approval of any proposed plan would not constitute
a waiver of the right to withhold approval of any similar proposals or plans
subsequently or additionally submitted for review. 

Article XI of the Covenants, entitled “Architectural Standards,” provides in
paragraph 11.8(c) that all homes are required to have two-car garages:  “An
attached, semi-detached, free-standing or basement level two-car garage[] shall
be required for each dwelling or residence.” 

Although the developer originally retained responsibility for enforcement
of the Covenants, it transferred this duty to the Association’s Architectural
Review Board (ARB) in May of 2000.  The Covenants required that the ARB consist
of three members to be duly constituted.   

In 2001, the O’Donalds sought approval from the ARB for plans to
build a home on their lot, but the request was rejected because the plans did
not include a two-car garage.  The O’Donalds subsequently proceeded with construction
without the ARB’s approval.   

The Association filed suit against the O’Donalds requesting temporary and permanent
injunctions to stop construction of the home.  The O’Donalds answered and filed
counterclaims seeking, among other things, a declaration that the Covenants
were not enforceable.  They also filed a third-party complaint against individual
ARB members. 

In December of 2001, Judge Henry Floyd granted a temporary injunction prohibiting
further construction pending a hearing on the merits.  By consent of the parties,
the matter was referred to a special referee, who, after the final hearing,
granted a permanent injunction to the Association in May of 2003 and denied
the relief requested by the O’Donalds.  The O’Donalds filed a motion to alter
or amend the judgment, which was denied.  The O’Donalds appeal.

STANDARD OF REVIEW

An action to enforce restrictive covenants by means of an injunction
is in equity.  Taylor v. Lindsey, 332 S.C. 1, 498 S.E.2d 862 (1998). 
On appeal of an equitable action tried by a judge alone, this Court may find
facts in accordance with its own view of the preponderance of the evidence. 
Townes Assocs. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). 
This broad scope of review does not, however, require an appellate court to
disregard the findings of the trial judge, who saw and heard the witnesses and
was in a better position to evaluate the credibility of the witnesses.  Widman
v. Widman, 348 S.C. 97, 557 S.E.2d 693 (Ct. App. 2001).

LAW/ANALYSIS

I.  Changed Conditions

The O’Donalds first contend the trial court erred in finding the
subdivision had not been radically and substantially changed so as to make the
Covenants unenforceable.  We disagree.

Under South Carolina law, restrictive covenants can be deemed unenforceable
where there has been a change of conditions.  Inabinet v. Booe, 262 S.C.
81, 202 S.E.2d 643 (1974).  Although there is no hard and fast rule as to what
constitutes a change of conditions, generally the character of a neighborhood
must have been radically and substantially altered so as to practically destroy
the essential objects and purposes of the restrictive covenants.  Id.
at 84, 202 S.E.2d at 645 (citing Pitts v. Brown, 215 S.C. 122, 54 S.E.2d
538 (1949)).  The party seeking to avoid enforcement of the restrictions has
the burden of proving a change of conditions.  Id. 

To support their argument, the O’Donalds point to several violations
of the Covenants, such as the fact that three homes were built without two-car
garages.  As noted by the trial court, two of the homes were built without garages
when the developer retained enforcement power and there are no records as to
whether or not these homeowners received approval before building their homes. 
Once the ARB was aware of violations following its takeover of enforcement,
it wrote letters to the homeowners requesting compliance with the Covenants
or proof that the developer had approved the plans.  The Association is currently
working with these homeowners to resolve the violations.   

The O’Donalds also suggest that a two-car, in-line garage in the neighborhood
was a radical and substantial change from the Covenants that altered the character
of the subdivision.  The homeowners with that garage, however, followed the
Association’s process for seeking approval and worked closely with the ARB. 
The ARB eventually approved the two-car, in-line garage because the unique nature
of the homeowners’ property justified a variance.                                               

Other violations alleged by the O’Donalds, such as the lack of requisite
square footage, the lack of paved walkways, the docking of a houseboat on one
of the lots, and the use of plywood siding, also first occurred when the developer
had the responsibility of enforcing the Covenants.  As William Mahoney, chairman
of the ARB, testified, “all of the plans that [the ARB has] approved since .
. . July 15, 2000 meet the requirements.”  In addition, the ARB sent compliance
request letters to the homeowners, and timetables have been set to bring violators
into compliance.  Although some violations do exist in the subdivision, we agree
with the trial court’s ruling that they have not fundamentally changed the residential
character of the neighborhood so as to make the Covenants unenforceable.   

II.  Waiver and Estoppel

The O’Donalds assert the trial court erred in holding the Association
neither waived nor is estopped from asserting its right to enforce the Covenants
because it failed to object to past violations.

“A waiver is a voluntary and intentional abandonment or relinquishment
of a known right.”  Janasik v. Fairway Oaks Villas Horizontal Prop. Regime,
307 S.C. 339, 344, 415 S.E.2d 384, 387 (1992).  “Generally, the party claiming
waiver must show that the party against whom waiver is asserted possessed, at
the time, actual or constructive knowledge of his rights or of all the material
facts upon which they depended.”  Id. at 344, 415 S.E.2d at 387-88. 
Further, a party’s waiver of the right to object to a minor violation of a restrictive
covenant does not result in waiver of his right to object to a subsequent and
more substantial violation.  Gibbs v. Kimbrell, 311 S.C. 261, 268, 428
S.E.2d 725, 729 (Ct. App. 1993).

As noted above, when the ARB took over enforcement of the Covenants,
the violations complained of by the O’Donalds were already in existence.  Once
the ARB learned of the violations, it began the process of bringing those homeowners
into compliance.  The only variance granted by the ARB was for the two-car,
in-line garage, which was properly approved as required by the Covenants.  Moreover,
the Covenants themselves provide that the granting of a variance does not prevent
the future enforcement of those restrictions on a homeowner.  Thus, we agree
with the trial court that the Association did not make a voluntary and intentional
waiver of its right to enforce the Covenants.

The O’Donalds also argue that the Association is estopped from enforcing
the Covenants because it has permitted multiple violations by other homeowners
without protest. 

“Estoppel arises when a party, relying upon what another has said
or done, changes his position to his detriment.”  Gibbs, 311 S.C. at
268, 428 S.E.2d at 729.  “Additionally, estoppel arises when a party observes
another dealing with his property in a manner inconsistent with his rights and
makes no objection while the other changes his position in reliance on the party’s
silence; the party’s silence is acquiescence that estops him from later seeking
relief.”  Id.

Our review of the record reveals no evidence to suggest that the
O’Donalds changed their position in reliance upon the words, actions, or acquiescence
of the Association.  Despite the ARB’s insistence that it intended to enforce
the Covenants, the O’Donalds began construction of their home and continued
until the circuit court issued a temporary injunction against them.  The O’Donalds
knew they did not have ARB approval, but violated the Covenants and began construction
anyway.  Accordingly, we hold the Association is not estopped from enforcing
the Covenants. 

III.  Composition of the ARB

The O’Donalds claim the trial court erred in finding the ARB had
sufficient authority to enforce the Covenants.  We disagree.

The O’Donalds assert the Covenants require the ARB to consist of at least three
members.  Although their meeting minutes refer only to two members, we conclude
there is evidence to support the trial court’s finding that the ARB as then
constituted had sufficient authority to enforce the restrictions when the O’Donalds
sought approval of their construction plans. 

William Mahoney, Richard Kraince, and William Carruthers, Jr. all testified
that they were members of the ARB, with Mr. Mahoney being the chairman.  The
minutes expressly reflect that at least two of the above, Mr. Mahoney and Mr.
Carruthers, served on the ARB.  The minutes also show that any member wishing
to serve on the ARB could simply contact Mr. Mahoney.  Mr. Kraince testified
he was also on the committee as a volunteer member.  Mr. Mahoney confirmed that
Mr. Kraince was a member of the committee, although his name was not specifically
listed in the minutes in that capacity.  Mr. Mahoney stated that the same minutes,
which failed to list Mr. Kraince, also failed to reflect that the O’Donalds
had attended the board meeting, so the minutes were incomplete. 

In any case, we note the O’Donalds could have immediately challenged the composition
of the ARB and thus its power to enforce the Covenants.  Instead, they elected
to build without first obtaining approval from the ARB; consequently, we find
no error in this regard. 

IV.  Damages

The O’Donalds lastly claim the trial court erred in failing to award
actual and punitive damages. 

An argument is deemed abandoned on appeal if it is argued in a short,
conclusory statement without supporting authority.  Fields v. Melrose Ltd.
Partnership, 312 S.C. 102, 439 S.E.2d 283 (Ct. App. 1993).  We decline to
address this issue because the O’Donalds failed to analyze the facts or state
appropriate authority to support their argument on appeal.

AFFIRMED.

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