Boies v. Lanier

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

Deborah L. Boies, Respondent,

v.

Jacqueline J. Lanier, Appellant.

Appellate Case No. 2017-002557

Appeal From Greenville County
Charles B. Simmons, Jr., Master-in-Equity

Unpublished Opinion No. 2020-UP-242
Submitted June 1, 2020 – Filed August 12, 2020

AFFIRMED

Matthew Holmes Henrikson, of Henrikson Law Firm,
LLC, of Greenville, for Appellant.

James G. Carpenter, of Carpenter Law Firm, PC, of
Greenville, for Respondent.

PER CURIAM: In this action to enforce real covenants, Jacqueline J. Lanier
challenges the order of the master-in-equity finding in favor of Deborah L. Boies.
Lanier argues the master erred in: 1) finding the language in provision 1.4 of the
covenants was unambiguous as it related to the fencing that could be placed on
Lanier's property; 2) failing to find that provision 2.8 was unenforceable because it
was too broad, did not specify color, and violated public policy; 3) ordering Lanier
to replace the fencing she removed in light of Boies's testimony and email to Lanier
and other equitable considerations; and 4) finding the supplemental covenants and
restrictions filed only in Lanier's title chain and not the chains of other grantees were
binding on the other grantees. We affirm.

FACTS
In 1987, Boies purchased a 122-acre parcel near Landrum in an area
commonly referred to as "horse country." Over the years, Boies and her husband
installed two miles of fencing around the perimeter of the property, which
encompassed several paddocks and pastures. The fences were constructed out of
white vinyl and fashioned in the style of horse fencing, with three cross-boards
between each post.

At some point, Boies decided to subdivide the property and sell individual
parcels. In preparing to sell the property, Boies drafted and recorded a set of
covenants. Thereafter, Boies updated the covenants but did not record the updated
covenants. However, Boies indicated that she provided the updated covenants to
purchasers at their closings.

The first set of covenants included provision 1.4, which provided, in pertinent
part:

Walls, Fences and Hedges. Any fence placed on any tract
or parcel shall be comparable in style and constructed
material to a fence presently located on the boundary of
the Real Property (white vinyl fencing).

The updated covenants included provision 1.4 and provision 2.8.1 Provision 2.8
provided:

Grantor Approval of Plans. No landscaping, building,
fence, wall or other structure shall be commenced, erected,
maintained, and all subsequent reconstruction,
modifications, additions or alterations upon any Lot, nor
shall any exterior addition to or change or alteration
therein be made until the plans and specifications showing
the nature, kind, shape, height, materials, and location of

1
Provision 2.8 was not included in the original set of recorded covenants.
the same shall have been submitted to and approved in
writing as to harmony of external design and location in
relation to surrounding structures and topography by the
Grantor.

The Grantor shall have the right to refuse to approve any
such building plans, specifications, site plans,
landscaping, or grading plans [that] are not suitable or
desirable, in the Grantor's sole opinion, for any reason,
including purely aesthetic reasons.

In 2015 and 2016, Lanier, a real estate attorney, purchased two parcels from
Boies that were located next door to Boies's house and surrounded by white, vinyl
fencing. The updated set of covenants was attached to and recorded with both of
Lanier's deeds. In November or December of 2016, Lanier decided to replace the
white, vinyl fence on her property with a dark, wooden fence. Lanier began
removing the white, vinyl fencing but did not submit a written modification request
to Boies and did not receive written approval to remove the fence.

Boies was out of town when Lanier began removing the fence. After learning
of the removal, Boies telephoned Lanier to discuss the issue. According to Lanier,
Boies told her, "I don't know why you are taking that fence down. I guess you can
since it's your property, but I don't understand why you're doing it." Lanier
proceeded to remove the fence boards but not the fence posts. On November 28,
2016, Boies emailed Lanier the following:

It has been brought to my attention that you are removing
the white vinyl fencing on the property you purchased
from us. According to the covenants you are only
permitted to re-install 'like' fencing[,] which means white
vinyl.

At this point I have no idea why you are removing it but
felt it important to let you know that any replacement must
be the same.

On November 30, 2016, Boies filed a summons and complaint seeking to
enforce provisions 1.4 and 2.8 against Lanier. Additionally, Boies filed a motion for
a temporary restraining order and preliminary injunction, seeking to prevent Lanier
from removing the fence posts. However, while Boies was attempting to obtain a
hearing on the motion, Lanier removed the fence posts. Thereafter, the parties
entered into a consent order on December 20, 2016, in which Boies agreed to
withdraw her motion and Lanier agreed not to erect a new fence until final
disposition of the action. Lanier then filed her answer on January 13, 2017. On May
1, 2017, the action was referred by consent to the master-in-equity.

The master heard the action on October 4, 2017, and entered an order in favor
of Boies on October 19, 2017. In his order, the master found: 1) the covenants
attached to Lanier's deed were a part of the deed and constituted the covenants and
restrictions applicable to the real estate; 2) dark, wooden fencing would violate
provision 1.4 because it was not "comparable in style and constructed material to a
fence presently located at the boundary of the Real Property (white[,] vinyl
fencing)."; 3) "[w]hile there was an issue as to whether the [updated covenants were]
in the deeds of the other six[] purchasers of the other tracts or was given to them at
closing, it is clear that the identical covenants apply to all landowners."; 4) the
removal of the fence was a modification under provision 2.8, and Lanier failed to
make a written modification request or obtain Boies's written consent; 5) the
language of provision 2.8 was valid and enforceable pursuant to Palmetto Dunes
Resort v. Brown2; and 6) under provision 2.8, Boies was entitled to exercise her
aesthetic judgment and enforce the requirement of white vinyl fencing.
Accordingly, the master ordered Lanier to "replace, within 90 days of this [o]rder
being filed, the fencing that she removed with fencing that is 'comparable in style
and constructed material to a fence presently located on the boundary of the Real
Property (white vinyl fencing).'"

Lanier filed a motion for reconsideration on October 30, 2017, and the motion
was denied on November 27, 2017. This appeal followed.

ISSUES ON APPEAL
1. Did the master err in finding that the language in provision 1.4 was
unambiguous as it related to fencing that could be placed on the property?

2. Did the master err in failing to find that provision 2.8 is unenforceable because
it is too broad, fails to specify color of structures, and violates public policy
by reserving in a single grantor the ability to approve or disapprove of any
proposed changes for "any reason"?

2
287 S.C. 1, 336 S.E.2d 15 (Ct. App. 1985).
3. Did the master err in ordering Lanier to replace the fencing she removed in
light of Boies's testimony and email to Lanier and the equitable
considerations?

4. Did the master err in finding that the updated covenants were binding on
Lanier's other grantees?

STANDARD OF REVIEW
"An action seeking an injunction to enforce restrictive covenants sounds in
equity." Kinard v. Richardson, 407 S.C. 247, 256, 754 S.E.2d 888, 893 (Ct. App.
2014). "On appeal of an equitable action tried by a [m]aster, [an appellate c]ourt can
find facts in accordance with its own view of the evidence." S.C. Dep't of Nat. Res.
v. Town of McClellanville, 345 S.C. 617, 622, 550 S.E.2d 299, 302 (2001).
"However, this court is not required to disregard the master's factual findings or
ignore the fact that the master was in the better position to assess the credibility of
the witnesses." Kinard, 407 S.C. at 256, 754 S.E.2d at 893.

The issuance of a mandatory injunction is reviewed under an abuse of
discretion standard. See Hunnicutt v. Rickenbacker, 268 S.C. 511, 515–16, 234
S.E.2d 887, 889 (1977) (holding that the issuance of a mandatory injunction "rests
in the sound judicial discretion of the court"); see also Sea Pines Plantation Co. v.
Wells, 294 S.C. 266, 275, 363 S.E.2d 891, 896 (1987) (holding "the trial judge did
not abuse his discretion in issuing the mandatory injunction").

LAW/ANALYSIS
Lanier argues the master erred in finding that provisions 1.4 and 2.8 were valid
and enforceable and requiring her to replace the fencing she removed. Boies argues
the master's rulings are proper. We agree with Boies.

"Restrictive covenants, sometimes referred to as 'real covenants,' are
agreements 'to do, or refrain from doing, certain things with respect to real
property.'" Kinard, 407 S.C. at 257, 754 S.E.2d at 893 (quoting Queen's Grant II
Horizontal Prop. Regime v. Greenwood Dev. Corp., 368 S.C. 342, 361, 628 S.E.2d
902, 913 (Ct. App. 2006)). "Restrictive covenants are contractual in nature, and
thus, the language used in the restrictive covenant is to be construed according to its
plain and ordinary meaning." Penny Creek Assocs., LLC v. Fenwick Tarragon
Apartments, LLC, 375 S.C. 267, 271, 651 S.E.2d 617, 620 (Ct. App. 2007).
However, because restrictions on the use of property are historically disfavored in
South Carolina, courts tend to strictly interpret restrictive covenants and resolve any
ambiguities in favor of the free use of the property. See Sea Pines, 294 S.C. at 270,
363 S.E.2d at 893 ("The historical disfavor of restrictive covenants by the law
emanates from the widely held view that society's best interests are advanced by
encouraging the free and unrestricted use of land."); see also Penny Creek, 375 S.C.
at 272, 651 S.E.2d at 620 ("Restrictions on the use of property will be strictly
construed with all doubts resolved in favor of free use of the property . . . ." (quoting
Hardy v. Aiken, 369 S.C. 160, 166, 631 S.E.2d 539, 542 (2006))). Crucially, "[t]he
rule of strict construction governing restrictive covenants does not preclude their
enforcement." Sea Pines, 294 S.C. at 270, 363 S.E.2d at 894. Rather, "[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." Id.

Provision 1.4

Lanier argues the circuit court erred in finding provision 1.4 was unambiguous
regarding the type of fencing that could be placed on her property because it requires
new fencing to be merely similar to white, vinyl fencing. Boies argues provision 1.4
unambiguously provides that only white, vinyl fencing may be erected on the
property. We agree with Boies.

"Words of a restrictive covenant will be given the common, ordinary meaning
attributed to them at the time of their execution." Kinard, 407 S.C. at 257, 754
S.E.2d at 893 (quoting Taylor v. Lindsey, 332 S.C. 1, 4, 498 S.E.2d 862, 863 (1998)).
"[T]he paramount rule of construction is to ascertain and give effect to the intent of
the parties as determined from the whole document." Id. (quoting Taylor, 332 S.C.
at 4, 498 S.E.2d at 863–64 (alteration in original)). "When 'the language imposing
restrictions upon the use of property is unambiguous, the restrictions will be
enforced according to their obvious meaning.'" Id. at 257, 754 S.E.2d at 894
(quoting Shipyard Prop. Owners' Ass'n v. Mangiaracina, 307 S.C. 299, 308, 414
S.E.2d 795, 801 (Ct. App. 1992)).

However, when the language is ambiguous, "[c]ourts tend to strictly interpret
restrictive covenants and resolve any doubt or ambiguities in a covenant on the
presumption of free and unrestricted land use." Rhodes v. Palmetto Pathway Homes,
Inc., 303 S.C. 308, 310, 400 S.E.2d 484, 485 (1991). A covenant "is ambiguous
when the terms . . . are reasonably susceptible of more than one interpretation."
Town of McClellanville, 345 S.C. at 623, 550 S.E.2d at 302.

We find the master properly determined that provision 1.4 was unambiguous.
Provision 1.4 provides, in pertinent part:
Walls, Fences and Hedges. Any fence placed on any tract
or parcel shall be comparable in style and constructed
material to a fence presently located on the boundary of
the Real Property (white vinyl fencing).

We find the parenthetical at the end of this clause identifies a white, vinyl
fence as a fence "comparable in style and constructed material" to the existing fence.3
Therefore, the use of the word "comparable" cannot be interpreted to allow for
variations in the color and building materials of a new fence. Rather, we find the
use of the word comparable allows for variations in the type of white, vinyl fencing
so that a property owner is not required to obtain the exact white, vinyl fencing used
by Boies.4 Such variations may include the choice of manufacturer, vinyl boards
with rounded or squared edges, hollow or solid vinyl boards, smooth or faux wood
texture, and white, vinyl differing in quality from that installed by Boies. Thus, the
plain intent of the covenant is to require white, vinyl fencing without requiring a
property owner to go to extreme lengths to obtain the exact material used by Boies
in the original fence. See Kinard, 407 S.C. at 257, 754 S.E.2d at 893 ("[T]he
paramount rule of construction is to ascertain and give effect to the intent of the
parties as determined from the whole document." (alteration in original) (quoting
Taylor, 332 S.C. at 4, 498 S.E.2d at 863–64)). Accordingly, we do not agree with
Lanier's contention that provision 1.4 is ambiguous, nor do we agree that provision
1.4 would allow a property owner to erect a fence of different color and material so
long as the new fence is somewhat similar to the existing white, vinyl fencing. See
Town of McClellanville, 345 S.C. at 623, 550 S.E.2d at 302 (finding a covenant "is
ambiguous when the terms . . . are reasonably susceptible of more than one
interpretation").

We conclude that provision 1.4 unambiguously required that any new fence
be constructed with white, vinyl material.

Provision 2.8

Lanier argues the master erred in finding that provision 2.8 is enforceable
because it is too broad, fails to specify color of structures, and violates public policy
by reserving in a single grantor the ability to approve or disapprove of any proposed
changes for "any reason." Boies argues the master properly determined provision

3
Boies similarly testified that she included the parenthetical as a definition.
4
Consistent with this conclusion, Boies testified that provision 1.4 did not require a
new fence to be exactly the same as the existing fence, but required that any new
fence be constructed with white, vinyl material.
2.8 was unambiguous and created an enforceable standard based on judgment and
taste. We agree with Boies.

"A covenant must express the purpose of the parties thereto to be valid and
enforceable[,] and it must not be too indefinite or against public policy." Vickery v.
Powell, 267 S.C. 23, 28, 225 S.E.2d 856, 858 (1976).

In Palmetto Dunes, this court found a covenant allowing a resort to disapprove
of construction plans for purely aesthetic considerations was not ambiguous despite
failing to establish absolute standards. 287 S.C. at 4–7, 336 S.E.2d at 17–19. On
appeal, the appellant challenged the covenant as being vague and ambiguous because
it allowed the resort to disapprove of construction plans for "purely aesthetic
considerations." Id. at 4–5, 336 S.E.2d at 17–18. This court noted that in "[r]ejecting
similar arguments, courts have upheld covenants that provide no criteria to guide the
approving authority in deciding upon the suitability of proposed construction." Id.
at 5, 336 S.E.2d at 18. The court went on to find that the aesthetic considerations
clause was not indefinite because "[i]ts settled intent, viewed in relation to the entire
document, is to vest in Palmetto Dunes the authority to disapprove plans based upon
its judgment of their aesthetic suitability . . . ." Id. at 6, 336 S.E.2d at 18.5
Furthermore, the court noted, "[t]he covenant, by making no attempt to set forth
objective 'aesthetic considerations,' implicitly recognizes, as do we, that it is
impossible to establish absolute standards to guide a judgment of taste." Id. at 6–7,
336 S.E.2d at 19. The court found the lack of an objective standard "does not compel
the conclusion that the covenant is ambiguous[,]" and despite the fact that "people
may reasonably differ as to whether a house is aesthetically appropriate, the
covenant is unambiguous in leaving this solitary judgment to Palmetto Dunes." Id.
at 7, 336 S.E.2d at 19.

Here, we find the master properly determined that provision 2.8 was valid and
enforceable pursuant to the rationales set forth in Palmetto Dunes. Provision 2.8
states, in pertinent part:

No [modifications] shall be commenced . . . upon any
Lot . . . until the plans . . . have been submitted to and
approved in writing as to harmony of external design and

5
The court noted that a grantor vested with such aesthetic discretion by way of a
covenant "is constrained only to exercise its judgment reasonably and in good faith."
Id. at 7, 336 S.E.2d at 19.
location in relation to surrounding structures and
topography by the Grantor.

The Grantor shall have the right to refuse to approve any
such building plans . . . [that] are not suitable or desirable,
in the Grantor's sole opinion, for any reason, including
purely aesthetic reasons.

(emphases added). We find provision 2.8 was unambiguous because its settled
intent, viewed in relation to the entire document, was to vest in Boies the authority
to disapprove plans based upon her judgment of their aesthetic suitability.
Furthermore, the lack of objective standards in the covenant does not render the
covenant too broad or indefinite, as this court has recognized "that it is impossible
to establish absolute standards to guide a judgment of taste." Id. at 6–7, 336 S.E.2d
at 19.

Lanier contends that the following clause of provision 2.8 is violative of
public policy: "The Grantor shall have the right to refuse to approve any such
building plans . . . [that] are not suitable or desirable, in the Grantor's sole opinion,
for any reason, including purely aesthetic reasons." (emphasis added). This
argument is without merit. In Sea Pines, our supreme court found that a virtually
identical covenant6 was enforceable. 294 S.C. at 272, 363 S.E.2d at 894–95. The

6
The covenant stated, in pertinent part:

No building, fence or other structure shall be erected,
placed or altered on any lot in such residential area until
the proposed building plans, specifications, exterior color
or finish, plot plan (showing the proposed location of such
building or structure, drives and parking areas) . . . shall
have been approved in writing by Sea Pines Plantation
Company, . . . Refusal of approval of plans, location or
specifications may be based by the company upon any
ground, including purely aesthetic conditions, [that] in
the sole and uncontrolled discretion of the Company
shall seem sufficient. No alterations in the exterior
appearance of any building or structure shall be made
without like approval by the company.

Sea Pines, 294 S.C. at 272 n.1, 363 S.E.2d at 895 n.1 (emphasis added).
court noted that the circuit court correctly determined the covenant provided "broad
powers" to disapprove of structural alterations. Id.

Accordingly, the master correctly determined that provision 2.8 was valid and
enforceable.

Remaining issues

Lanier argues Boies should be estopped from enforcing provision 2.8.
However, Lanier has abandoned this issue on appeal by raising only conclusory
arguments with no relevant supporting authority. See Mulherin-Howell v. Cobb, 362
S.C. 588, 600, 608 S.E.2d 587, 593–94 (Ct. App. 2005) (finding an issue is
abandoned when an appellant raises only conclusory arguments citing no supporting
authority). Lanier cites only the following authority: "[T]he court must consider
equitable doctrines asserted by a party when deciding whether to enforce the
covenant." Buffington v. T.O.E. Enters., 383 S.C. 388, 394, 680 S.E.2d 289, 292
(2009). However, Lanier does not cite any authority providing the elements of
estoppel or supporting its application.

Lanier also argues the master erred in finding that other parcels sold by Boies
were subject to the updated covenants. Similarly, this issue has been abandoned on
appeal because Lanier offers only conclusory arguments and cites no supporting
authority. See Mulherin-Howell, 362 S.C. at 600, 608 S.E.2d at 593–94 (finding an
issue is abandoned when an appellant raises only conclusory arguments citing no
supporting authority).

CONCLUSION
Based on the foregoing, we affirm the master's order in its entirety.

AFFIRMED.7

LOCKEMY, C.J., and GEATHERS and HEWITT, JJ., concur.

7
We decide this case without oral argument pursuant to Rule 215, SCACR.