Donald A. Brown, Jr. v. Johnnie L. Dickert

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

Donald A. Brown, Jr., Appellant,

v.

Johnnie L. Dickert, Rachel B. Dickert, and Johnnie Kyle
Dickert, Respondents.

Appellate Case No. 2025-000737

Appeal From Newberry County
Milton G. Kimpson, Circuit Court Judge

Unpublished Opinion No. 2026-UP-192
Submitted March 2, 2026 – Filed April 29, 2026

AFFIRMED

Carmen Vaughn Ganjehsani, of Richardson Plowden &
Robinson, PA, of Columbia; and Charles Vermeule
Verner, of Newberry, both for Appellant.

Karl Stephen Brehmer, of Brehmer Law Firm, LLC, of
Columbia, for Respondents.

PER CURIAM: Donald A. Brown, Jr., appeals the circuit court's order denying
him a prescriptive easement and declining to enforce a settlement agreement that
he entered into with Johnnie L. Dickert, Rachel B. Dickert, and Johnnie Kyle
Dickert (collectively, Respondents). On appeal, Brown argues the circuit court
erred because it failed to apply the presumption of adverse use and enforce a
settlement agreement under which Brown partially performed. We affirm pursuant
to Rule 220(b), SCACR.

1. We hold the circuit court did not err in denying Brown a prescriptive easement
because the Respondents gave Brown's predecessor—Murray Gray—and Gray's
predecessors permission to use the property. See Braswell v. Amick, 442 S.C. 618,
625, 900 S.E.2d 475, 479 (Ct. App. 2024) ("[T]he determination of the existence of
an easement is a question of fact in a law action." (alteration in original) (quoting
Simmons v. Berkeley Elec. Coop., 419 S.C. 223, 236, 797 S.E.2d 387, 394
(2016))); Temple v. Tec-Fab, Inc., 381 S.C. 597, 599-600, 675 S.E.2d 414, 415
(2009) ("In an action at law tried without a jury, an appellate court's scope of
review extends merely to the correction of errors of law."); id. ("The [c]ourt will
not disturb the trial court's findings unless they are found to be without
evidence that reasonably supports those findings."); Simmons, 419 S.C. at 233,
797 S.E.2d at 392 ("In order to establish a prescriptive easement, the claimant must
identify the thing enjoyed, and show his use has been open, notorious, continuous,
uninterrupted, and contrary to the true property owner's rights for a period of
twenty years."); id. at 229, 797 S.E.2d at 390 ("[W]hen it appears that claimant has
enjoyed an easement openly, notoriously, continuously, and uninterruptedly, in
derogation of another's rights, for the full period of 20 years, the use will be
presumed to have been adverse." (alteration in original) (quoting Williamson v.
Abbot, 107 S.C. 397, 400, 93 S.E. 15, 16 (1917))); Carolina Ctr. Bldg. Corp. v.
Enmark Stations, Inc., 433 S.C 144, 154, 857 S.E.2d 16, 22 (Ct. App. 2021)
("Once the presumption applies, the servient owner bears the burden of rebutting
the presumption, which can be done by showing permissive use."); Bundy v.
Shirley, 412 S.C. 292, 310, 772 S.E. 163, 173 (2015) ("The asking and obtaining of
permission, whether from the tenant or owner of the servient estate, stamps the
character of the use as not having been adverse, or under claim of right . . . ."
(quoting Williamson, 107 S.C. at 401, 93 S.E.2d at 16)).

2. We hold the circuit court did not err in declining to enforce the parties'
settlement agreement because Brown failed to satisfy the requirements of Rule
43(k) of the South Carolina Rules of Civil Procedure and substantial performance
under the agreement did not preclude the rule's requirements. See S.C. Hum. Affs.
Comm'n v. Chen, 430 S.C. 509, 519-20, 846 S.E.2d 861, 866 (2020) ("[I]n
interpreting the meaning of the South Carolina Rules of Civil Procedure, [an
appellate court] applies the same rules of construction used to interpret statutes."
(quoting Farnsworth v. Davis Heating & Air Conditioning, Inc., 367 S.C. 634,
638, 627 S.E.2d 724, 726 (2006))); Town of Summerville v. City of North
Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008) ("Determining the proper
interpretation of a statute is a question of law, and [an appellate court] reviews
questions of law de novo."); Garrison v. Target Corp., 435 S.C. 566, 576, 869
S.E.2d 797, 803 (2022) ("Thus, [an appellate court] may interpret statutes 'without
any deference to the court below.'" (quoting Brock v. Town of Mount Pleasant, 415
S.C. 625, 628, 785 S.E.2d 198, 200 (2016))); Rule 43(k), SCRCP ("No agreement
between counsel affecting the proceedings in an action shall be binding unless
reduced to the form of a consent order or written stipulation signed by counsel and
entered in the record, or unless made in open court and noted upon the record, or
reduced to writing and signed by the parties and their counsel."); Chen, 430 S.C. at
519, 846 S.E.2d at 866 ("Rule 43(k) is applicable to settlement agreements."); id. at
521, 846 S.E.2d at 867 ("Where Rule 43(k) applies, [our supreme c]ourt has held
its terms are mandatory, which precludes a party from turning a contract or
equitable principles (or counter public policy arguments) to vitiate those terms.
Substantial compliance is not sufficient." (emphasis added)).

AFFIRMED.1

WILLIAMS, C.J., and KONDUROS and VINSON, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.