Three Runs Plantation v. Jacobs

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

Three Runs Plantation Homeowners Association, Inc.,
Respondent,

v.

Jay J. Jacobs and Judith B. Jacobs, Defendants and
Third-Party Plaintiffs, Appellants,

v.

T. R. Sales Plantation, LLC and J. Wayne Raiford, Third-
Party Defendants, Respondents.

Appellate Case No. 2013-002305

Appeal From Aiken County
M. Anderson Griffith, Master-in-Equity

Unpublished Opinion No. 2015-UP-348
Heard April 21, 2015 – Filed July 15, 2015

AFFIRMED

Clarke W. McCants, III, of Nance, McCants & Massey,
of Aiken, for Appellants.
James Samuel Murray, of Warlick Stebbins Murray &
Chew, LLP, and Wm. Byrd Warlick, both of Augusta,
GA, for Respondents.

PER CURIAM: Jay and Judith Jacobs appeal the master-in-equity's order finding
they violated the restrictive covenants of Three Runs Plantation Homeowners
Association. The Jacobs argue the master erred in (1) finding they violated the
restrictive covenants because the provision they were found to have violated was
ambiguous and therefore unenforceable. The Jacobs also argue the master erred in
(2) not entering judgment against the Homeowners Association because it failed to
evenly enforce the restrictive covenants. The Homeowners Association argues the
master erred in deleting language from its initial order. We affirm.

1. As to whether the restrictive covenants were ambiguous and therefore
unenforceable, we affirm pursuant to Rule 220(b), SCACR, and the following
authorities: Kinard v. Richardson, 407 S.C. 247, 256, 754 S.E.2d 888, 893 (Ct.
App. 2014) ("An action seeking an injunction to enforce restrictive covenants
sounds in equity."); id. ("In an equitable action, this court may make findings
according to its own view of the preponderance of the evidence."); id. ("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."); Palmetto Dunes Resort, Div. of Greenwood Dev. Corp. v. Brown, 287
S.C. 1, 6-7, 336 S.E.2d 15, 18-19 (Ct. App. 1985) (holding a restrictive covenant
that gave a developer the discretion to disapprove construction plans in a
subdivision for "purely aesthetic considerations" was not ambiguous when,
viewing the document as a whole, the "plain and obvious purpose of the covenant"
was to vest such discretion with the developer).

2. As to whether the master erred in not entering judgment against the
Homeowners Association because it failed to enforce the restrictive covenants, we
affirm. Based on our review of the record, the master "could not determine the
extent of th[e] violations" the Jacobs alleged against the Homeowners Association.
Thus, the master did not enter judgment against the Homeowners because it
concluded the Jacobs failed to prove the extent of any violations alleged against the
Homeowners Association. This was an issue of credibility for the master, and the
Jacobs have failed to show the master's ruling was in error. See Kinard, 407 S.C.
at 256, 754 S.E.2d at 893 (recognizing that in an equitable action, "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").

3. As to whether the master erred in deleting language from its initial order, we
decline to address this issue because the Homeowners Association did not cross-
appeal the master's final order. See Nw. Airlines, Inc. v. Cnty. of Kent, Mich., 510
U.S. 355, 364 (1994) ("A cross-petition is required . . . when the respondent seeks
to alter the judgment below." (citations omitted)); Commercial Credit Loans, Inc.
v. Riddle, 334 S.C. 176, 187, 512 S.E.2d 123, 129 (Ct. App. 1999) (not addressing
an issue raised in the respondent's brief when the respondent failed to appeal the
trial court's order); Rule 203(c), SCACR (explaining the proper procedure for
filing a cross-appeal).

AFFIRMED.

SHORT, LOCKEMY, and McDONALD, JJ., concur.