Bennett v. Investors Title Ins. Co., 4153.

• Decision Date: 25 September 2006
• Docket Number: No. 4153.,4153.
• Citation: 370 S.C. 561,635 S.E.2d 660
• Court: South Carolina Court of Appeals
• Parties: Kenneth E. BENNETT, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, Plaintiffs, v. INVESTORS TITLE INSURANCE COMPANY, Defendant. Investors Title Insurance Company, Appellant, v. Crescent Resources, LLC; Bristol, LLC and CBS Surveying & Mapping, Inc., Defendants, Of Whom Crescent Resources, LLC is the Respondent.

370 S.C. 561

635 S.E.2d 660

Kenneth E. BENNETT, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, Plaintiffs, v. INVESTORS TITLE INSURANCE COMPANY, Defendant.

Investors Title Insurance Company, Appellant, v. Crescent Resources, LLC; Bristol, LLC and CBS Surveying & Mapping, Inc., Defendants, Of Whom Crescent Resources, LLC is the Respondent.

No. 4153.

Court of Appeals of South Carolina.

Heard September 9, 2006.

Decided September 25, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Louis H. Lang, of Columbia, for Appellant.

Benjamin A. Johnson and Stephen A. Cox, both of Rock Hill, and V. Clark Price, of Greenville, for Respondent.

ANDERSON, J.:

In this indemnification action, Investors Title Insurance Company appeals the circuit court's grant of summary judgment to Crescent Resources, LLC. On appeal, Investors argues the circuit court erred in failing to hold Crescent liable for an alleged breach of a deed covenant. 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. The deed from Crescent 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. The Plat shows a sixty-six foot right-of-way, entitled "SC 188 KEOEE 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 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 Kenneth E. Bennett, Richard K. Bennett, James M. Hendershot, and Robert N. Parker, III, (collectively Plaintiffs), for $2.85 million. On January 4, 2002, Plaintiffs procured from Investors an owner's title insurance policy (the Policy) covering the Property.

Plaintiffs developed the Property and built two brick walls at the entrance near Highway 188. The South Carolina Department of Transportation (SCDOT) notified Plaintiffs the walls had been built within SCDOT's right-of-way. The rightof-way easement, dated August 1, 1968, and recorded at SCDOT, shows Crescent granted a 200 foot right-of-way for Highway 188 to SCDOT.¹ See S.C.Code Ann. § 57-5-550 (2006) (directing all rights-of-way for state highways be filed at SCDOT).

After Plaintiffs notified Investors of a possible title insurance claim, Investors offered Plaintiffs $64,000 to settle the claim. Plaintiffs accepted the $64,000 in settlement of its claim for actual damages, leaving a claim for consequential damages outstanding. Having failed to fully settle the claim, Plaintiffs filed a complaint against Investors on June 26, 2003, alleging breach of the title insurance contract and bad faith. Investors answered the complaint and later filed an amended answer, adding a third-party complaint against Crescent, Bristol, and CBS.

In its third-party complaint, Investors sought indemnity from Crescent, alleging it breached the special warranty clause in the Deed. Moreover, Plaintiffs later amended their complaint to allege a breach of the Deed's warranty clause by Crescent and Bristol and negligence by CBS. Crescent filed separate answers to Investors' third-party complaint and Plaintiffs' amended complaint.

Investors moved for summary judgment against Plaintiffs. Subsequently, Crescent moved for summary judgment against Investors and Plaintiffs.² The circuit court granted Crescent's motion for summary judgment against both Plaintiffs and Investors, holding exceptions (5) and (6) in the habendum clause of the Deed limited Crescent's special warranty. Furthermore, the circuit court applied its ruling to Investors, finding Investors could not recover more than Plaintiffs.

Investors moved to alter or amend this order. The circuit court denied this motion but made minor factual corrections and entered an amended order. The circuit court also granted summary judgment to Investors against Plaintiffs. This appeal followed.

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 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 (Ct.App.2004). However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Rife v. Hitachi Const. Mach. Co., Ltd., 363 S.C. 209, 214, 609 S.E.2d 565, 568 (Ct.App.2005); Ellis v. Davidson, 358 S.C. 509, 518, 595 S.E.2d 817, 822 (Ct.App. 2004).

The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact. Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 228, 612 S.E.2d 719, 722 (Ct.App.2005). The moving party may discharge the burden of demonstrating the absence of a genuine issue of material fact by pointing out the absence of evidence to support the nonmoving party's case. Lanham v. Blue Cross and Blue Shield of South Carolina, Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Wogan v. Kunze, 366 S.C. 583, 591, 623 S.E.2d 107, 112 (Ct.App.2005). The nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Rife, 363 S.C. at 214, 609 S.E.2d at 568.

The purpose of summary judgment is to expedite the disposition of cases which do not require the services of a fact finder. Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003); Eagle Container, 366 S.C. at 621, 622 S.E.2d at 738; Rumpf v. Massachusetts Mut. Life Ins. Co., 357 S.C. 386, 393, 593 S.E.2d 183, 186 (Ct.App.2004). Because it is a drastic remedy, summary judgment should be cautiously invoked to ensure that a litigant is not improperly deprived of a trial on disputed factual issues. Helena Chem. Co. v. Allianz Underwriters Ins. Co., 357 S.C. 631, 644, 594 S.E.2d 455, 462 (2004); Wogan, 366 S.C. at 592, 623 S.E.2d at 112; B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 270, 603 S.E.2d 629, 631 (Ct.App. 2004).

LAW/ANALYSIS

Investors contends the circuit court erred in holding exceptions (5) and (6) in the habendum clause of the Deed limited Crescent's special warranty. Investors argues: (1) the granting clause and its incorporation of the Plat created a representation or covenant of the width of SCDOT's right-of-way; (2) exceptions (5) and (6) in the Deed's habendum "cuts down" the fee simple estate conveyed in the granting clause, rendering the habendum repugnant to the granting clause; (3) the habendum and granting clause are inconsistent, making the Deed ambiguous; and (4) the...