Musick v. Dicks

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

John Musick, Respondent,

v.

Thomas L. Dicks and Robert E. Dicks, Jr., Appellants.

Appellate Case No. 2012-212773

Appeal From Horry County
Cynthia Graham Howe, Master-in-Equity

Unpublished Opinion No. 2014-UP-284
Heard December 11, 2013 – Filed July 9, 2014

AFFIRMED

Demetri K. Koutrakos and Mary Dameron Milliken, of
Callison Tighe & Robinson, LLC, of Columbia, for
Appellants.

Thomas C. Brittain and Mary Madison B. Langway, of
The Brittain Law Firm, P.A., of Myrtle Beach, for
Respondent.
PER CURIAM: Thomas and Robert Dicks appeal the order of the master-in-
equity holding they cannot subdivide their property in Long Bay Estates
(Property). We affirm.

(1) We find the master did not err in construing the 1972 Order to find only the
"Grantors" had a right to revise lot lines and Carmen F. Ward and Gene F. Lewis
were the "Grantors" contemplated in the 1972 Order. See City of N. Myrtle Beach
v. E. Cherry Grove Realty Co., 397 S.C. 497, 503, 725 S.E.2d 676, 679 (2012)
("As a general rule, judgments are to be construed like other written instruments.
The determinative factor is the intent of the court, as gathered, not from an isolated
part thereof, but from all the parts of the judgment itself. Hence, in construing a
judgment, it should be examined and considered in its entirety."); RV Resort &
Yacht Club Owners Ass'n, v. BillyBob's Marina, Inc., 386 S.C. 313, 321, 688
S.E.2d 555, 559 (2010) (stating the paramount rule of construction of a restrictive
covenant is to ascertain and give effect to the intent of the parties as determined
from the whole document); Buffington v. T.O.E. Enters., 383 S.C. 388, 392, 680
S.E.2d 289, 291 (2009) ("A restriction on the use of the 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."). We believe the 1972 Order was ambiguous as to who would be
considered the Grantor and therefore the master did not err in considering extrinsic
evidence. The 1958 Restrictions for Long Bay Estates did not define the term
"Grantor." Nursery Realty Corporation owned the Long Bay Estates property at
that time of the creation of the 1958 Restrictions and thus was the "Grantor." In
1968, Nursery Realty Corporation transferred ownership of the remaining property
in Long Bay Estates to Ward and Lewis along with "assets, powers, or reservations
of any kind and nature" reserved to Nursery Realty Corporation. Accordingly,
Ward and Lewis took on the role of Grantor under the 1958 Restrictions and were
the "Grantor[s]" referred to in the 1972 Order. The 1972 Order was the result of a
settlement agreement in an action brought by Ward and Lewis to clarify their rights
in Long Bay Estates. Considering the complaint in the action and the entire 1972
Order, we find the circuit court in that action intended to expand the 1958
Restrictions to the Property, including the Grantor's right to revise lot arrangement
prior to the sale of the Property.

(2) We find no merit to the Dicks' argument that if the 1972 Order is ambiguous, it
should be construed in favor of the free use of property. See Hardy v. Aiken, 369
S.C. 160, 166, 631 S.E.2d 539, 542 (2006) ("[T]he rule of strict construction
should not be used to defeat the plain and obvious purpose of the restrictive
covenants.").
(3) We find no merit to the Dicks' argument that the master erred in holding the
Property had always been sold as one lot. Even if a prior plat showed the Property
divided into seven lots, Ward had the right to revise the lot arrangement of the
Property, which she did by selling the property to David and Leigh Meese as one
lot. The Meeses sold the Property to Thomas Dicks as one lot. The lot had a
single tax number. The Property was never sold as more than one lot until Thomas
Dicks conveyed to his brother Robert Dicks three lots as shown on a survey he had
prepared for the "Resubdivision" of the Property.

(4) We find no merit to the Dicks' assertion this court's statement in the prior
opinion, Musick v. Dicks, Op. No. 2010-UP-351 (S.C. Ct. App. filed July 7, 2010),
concerning the 1955 Plat and a map attached to the 1972 Order showing Blocks 28
and 29 divided into seven different lots was a finding of fact and now is the law of
the case. This statement was merely a description of the plat and map and not a
legal conclusion.

(5) We find no merit to the Dicks' argument the master erred in finding that Ward
had a right to subdivide the Property. They assert: "No one had the right to
subdivide any lot." The master actually held: "It is further found Carmen F. Ward,
grantor, did not subdivide Blocks 28 and 29, which was her right as set out in [the
1972 Order]." (Emphasis added). Subdivide means "To divide a part into smaller
parts; to separate into smaller divisions." Black's Law Dictionary 1424 (6th ed.
1990). Ward did not divide any lot. Instead, she changed boundary lines to
combine the lots of Blocks 28 and 29 into one lot, which she had the right to do
pursuant to the 1972 Order.

(6) We find no reversible error in the master's statement that "[t]he majority of
Blocks 28 and 29 is wetlands, . . . which makes [the Dicks' proposed division]
somewhat impractical." This statement had no bearing on the master's ruling that
only Ward and Lewis could revise the lot lines. See McCall v. Finley, 294 S.C. 1,
4, 362 S.E.2d 26, 28 (Ct. App. 1987) ("[W]hatever doesn't make any difference,
doesn't matter.").

(7) We find the master did not err in finding the Dicks were not protected by the
Shelter Rule because the Meeses had constructive notice of the restrictions. See
Spence v. Spence, 368 S.C. 106, 120, 628 S.E.2d 869, 876 (2006) ("Constructive or
inquiry notice in the context of a real estate transaction also may arise when a party
becomes aware or should have become aware of certain facts which, if
investigated, would reveal the claim of another. 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."); Stephens v. Hendricks, 226 S.C. 79,
91, 83 S.E.2d 634, 640 (1954) ("A plea of bona fide purchaser for value, without
notice, is an affirmative defense and must be [pleaded] and proved by the party
thereon relying."). The Meeses' closing attorney testified that the Meeses had
knowledge at some point that there was a strong possibility that the restrictive
covenants applied to the Property. On re-cross examination, he admitted this
would have been something he discussed with them contemporaneously with the
closing rather than after they bought the Property. David Meese acknowledged
that at the time he purchased the property, he was aware there were restrictive
covenants, but he did not remember the details. Although Leigh Meese initially
testified that at the time of their closing, she did not have notice of any restrictions
that would have encumbered the Property, she subsequently testified "I remember
there were issues with the property. I can't place my awareness of those issues
with respect to our acquisition and sale of the property." The Meeses had notice of
the existence of restrictive covenants that encumbered Long Bay Estates and there
was a "strong possibility" that the restrictions might apply to the Property. This
awareness of the existence of restrictive covenants provided them with notice of all
of the restrictions, including the restriction against subdivision.

AFFIRMED.

HUFF, GEATHERS, and LOCKEMY, JJ., concur.