Bennett v. Investors Title Ins. Co., No. 4152.

• Court: Court of Appeals of South Carolina
• Writing for the Court: Louis H. Lang, of Columbia, for Respondent Investors Title Insurance Company
• Citation: 635 S.E.2d 649,370 S.C. 578
• Parties: Kenneth E. BENNETT, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, Appellants, v. INVESTORS TITLE INSURANCE COMPANY, Respondent, Investors Title Insurance Company, Respondent, v. Crescent Resources, LLC, Bristol, LLC and CBS Surveying & Mapping, Inc., Respondents.
• Decision Date: 25 September 2006
• Docket Number: No. 4152.

370 S.C. 578
635 S.E.2d 649

Kenneth E. BENNETT, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, Appellants,
v.
INVESTORS TITLE INSURANCE COMPANY, Respondent,
Investors Title Insurance Company, Respondent,
v.
Crescent Resources, LLC, Bristol, LLC and CBS Surveying & Mapping, Inc., Respondents.

No. 4152.

Court of Appeals of South Carolina.

Heard September 12, 2006.

Decided September 25, 2006.

370 S.C. 579

COPYRIGHT MATERIAL OMITTED

370 S.C. 580

COPYRIGHT MATERIAL OMITTED

370 S.C. 581

COPYRIGHT MATERIAL OMITTED

370 S.C. 582

COPYRIGHT MATERIAL OMITTED

370 S.C. 583

Randall S. Hiller, of Greenville, for Appellants.

Louis H. Lang, of Columbia, for Respondent Investors Title Insurance Company.

V. Clark Price, of Greenville and Benjamin A. Johnson, both of Rock Hill, for Respondent Crescent Resources, LLC.

Warren C. Powell, Jr., of Columbia, for Respondent CBS Surveying and Mapping, Inc.

370 S.C. 584

ANDERSON, J.:

In this dispute over liability for a surveying error, Kenneth E. Bennett, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, (collectively Appellants), appeal the circuit court's orders granting summary judgment to Crescent Resources, LLC and Investors Title Insurance Company. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On December 28, 2001, Crescent conveyed 47.82 acres of real property in Oconee County (the Property) to Bristol, LLC for $2.5 million. Crescent's deed to Bristol (the Deed), entitled "Special Warranty Deed," contains a granting clause referring to an attached property description, which, in turn, incorporates a plat (the Plat). CBS Surveying and Mapping, Inc. prepared the Plat for Crescent on December 22, 2000. The Plat shows a sixty-six foot right-of-way easement, entitled "SC 188 KEOWEE SCHOOL RD (66' R/W)," on the western boundary of the Property.

The habendum clause of the Deed reads, in pertinent part: TO HAVE AND TO HOLD all and singular the Property, unto the said Grantee and Grantee's heirs, successors and assigns forever, except:

....

(5) matters affecting title to the Property as shown on the Plat or which would be shown on a current and accurate survey of the Property (including any encroachments);

(6) easements, covenants, restrictions and conditions of record, and rights-of-way of public and private streets and roads, including, but not limited to, the road shown on the Plat as "old road bed" and the sixty-six (66) foot wide road right-of-way shown on the Plat as "SC 188 Keowee School Road (66' R/W)"....

The Deed further provides that Crescent "covenants to warrant specially the title to the Property against the lawful claims of any person claiming from, through, or under it."

Later on the same day, Bristol conveyed the Property by general warranty deed to Appellants. Anticipating this conveyance,

370 S.C. 585

Investors issued a title insurance commitment to Executive Properties, LLC. This commitment agreed to provide an owner's title insurance policy to Executive.¹ On January 4, 2002, Appellants procured from Investors an owner's title insurance policy (the Policy) covering the Property. The Policy expressly "does not insure against loss or damage (and Investors will not pay costs, attorneys' fees or expenses) which arise by reason of ... such state of facts as would be disclosed by a current and accurate survey of said premises."

Subsequently, Appellants built two brick walls within fortyone feet of the centerline of South Carolina Highway 188. On April 25, 2002, the South Carolina Department of Transportation (SCDOT) wrote Appellants, informing them SCDOT had a 200 foot right-of-way easement over the Property. This right-of-way easement, dated August 1, 1968, and recorded at SCDOT shows Crescent granted the 200 foot right-of-way to SCDOT.² See S.C.Code Ann. § 57-5-550 (2006) (directing all rights-of-way for state highways be filed at SCDOT).

Presumably, Appellants notified Investors of this problem and demanded payment for their loss. Investors alleged Appellants offered to settle the claim for $85,225. Investors explained Appellants arrived at this number by appraising the Property, dividing that number by the total number of acres included in the Property, and applying that per acre value to the acreage mistakenly assumed to be unencumbered. Investors further claimed it rejected this demand because the eastern portion of the Property bordered a lake, and this acreage would be valued higher than the portion bordering Highway 188. Investors additionally asserted it hired the

370 S.C. 586

same appraiser Appellants used to value the specific acreage lost. This appraiser valued the lost acreage at $64,000

As a result, Investors sent Appellants a settlement check in the amount of $64,000 and a settlement agreement, which Appellants never executed. Investors explained Appellants hired a different attorney, who rejected the settlement offer and demanded $196,800 to settle the claim, including the "value of the improvements that were required to be relocated and/or destroyed due to the title defect...." Investors refused to pay this amount, claiming the title policy excluded consequential damages. Appellants eventually agreed to settle the claim for the lost value of the Property for $64,000 but retained its consequential damages claim.

On June 26, 2003, Appellants filed a complaint against Investors, alleging breach of the title insurance contract and bad faith. Investors answered and eventually filed an amended answer, including a third-party complaint against Crescent, Bristol, and CBS. Appellants then filed an amended complaint, alleging a breach of deed warranty by Crescent and Bristol and negligence by CBS. Crescent filed separate answers to Appellants' amended complaint and Investors' third-party complaint.³

In June 2004, Investors moved for summary judgment against Appellants, explaining it attempted to settle the claim and Appellants had not answered its settlement offer. According to Investors, the circuit court held a hearing on this motion, at which the parties discovered they possessed two different title insurance policy jackets with identical policy inserts. The jacket relied upon by Investors excepted claims for consequential damages. The circuit court allowed the parties time to supplement their arguments and Investors time to amend its motion.

In August, Investors filed an amended motion for summary judgment against Appellants. On January 11, 2005, Crescent

370 S.C. 587

moved for summary judgment against both Appellants and Investors. In February 2005, Investors again amended its motion for summary judgment

The circuit court granted Crescent's motion for summary judgment against both Appellants and Investors, holding exceptions (5) and (6) in the Deed's habendum clause limited Crescent's special warranty. Furthermore, the circuit court applied this ruling to Investors, finding Investors could not recover more than Appellants could recover. Although not included in the record, Appellants and Investors filed motions to reconsider this order, which the circuit court denied. However, the court entered an amended order, correcting minor factual errors.

Summary judgment was granted to Investors with respect to Appellants' breach of contract and bad faith claims. The circuit court held the Policy specifically excluded all matters a current and accurate survey would disclose, including the claim asserted here. Appellants appealed both summary judgment orders.⁴

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006); Miller v. Blumenthal Mills, Inc., 365 S.C. 204, 219, 616 S.E.2d 722, 729 (Ct.App.2005). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Law v. S.C. Dep't of Corrections, 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006); Eagle Container Co., LLC v. County of Newberry, 366 S.C. 611, 620, 622 S.E.2d 733, 737 (Ct.App.2005). If triable issues exist, those issues must go the jury. Mulherin-Howell

370 S.C. 588

v. Cobb, 362 S.C. 588, 595, 608 S.E.2d 587, 591 (Ct.App.2005). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Law, 368 S.C. at 434, 629 S.E.2d at 648; BPS, Inc. v. Worthy, 362 S.C. 319, 325, 608 S.E.2d 155, 159 (Ct.App.2005). On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below. Sloan v. Friends of Hunley, Inc., 369 S.C. 20, 25, 630 S.E.2d 474, 477 (2006); see also Schmidt v. Courtney, 357 S.C. 310, 317, 592 S.E.2d 326, 330 (Ct.App.2003) (stating that all ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party)

Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Gadson v. Hembree, 364 S.C. 316, 320, 613 S.E.2d 533, 535 (2005); Miller, 365 S.C. at 220, 616 S.E.2d at 729; Montgomery v. CSX Transp., Inc., 362 S.C. 529, 608 S.E.2d 440 (Ct.App.2004). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Nelson v. Charleston County Parks & Recreation Comm'n, 362 S.C. 1, 5, 605 S.E.2d 744, 746...