Cedar Cove Homeowners Ass'n v. DiPietro

Decision Date13 March 2006
Docket NumberNo. 4092.,4092.
Citation628 S.E.2d 284
CourtSouth Carolina Court of Appeals
PartiesCEDAR COVE HOMEOWNERS ASSOCIATION, INC., Respondent, v. Rudy DiPIETRO and Margaret L. DiPietro, Appellants.

Rolf Mouin Baghdady, of Chapin, for Appellants.

Spencer Andrew Syrett, of Columbia, for Respondent.


This appeal concerns the construction of restrictive covenants. Rudy and Margaret DiPietro are residents of the Cedar Cove subdivision in Richland County, South Carolina. The Cedar Cove Homeowners' Association (the Association) sought and obtained an injunction requiring the DiPietros to remove a brick patio that encroached approximately three feet onto the common area of the subdivision. The DiPietros appeal, and we reverse. We find the Declaration of Covenants governing the Cedar Cove Subdivision and a balancing of the equities preclude the issuance of the injunction.


Margaret and Rudy DiPietro have been residents in Cedar Cove since 1998. The subdivision is managed by the Association, which operates pursuant to by-laws. The property of Cedar Cove is subject to restrictive covenants, known as the "Declaration of Covenants, Conditions, and Restrictions for Cedar Cove Subdivision."

A previous owner of the DiPietro lot built a wooden deck behind the house, part of which encroached onto the common area. The Association has never challenged the wooden deck and its encroachment onto the common area. In 2001, the DiPietros desired to construct a patio underneath the deck, primarily because the area under the deck was "unsightly, and there was some soil erosion ...." Like the wooden deck, the patio would slightly encroach onto the common area. Rudy DiPietro pursued the desired patio by following the then longstanding informal approach to such matters in Cedar Cove, for strict compliance with the procedural requirements in the restrictive covenants was largely ignored.1 Rudy prepared a sketch of the proposed patio and presented it to Clark Cowsert, a member of the Architectural Review Committee at the time.

Cowsert met with Rudy, reviewed the sketch, and even assisted with "pull[ing] a string across" the ground to determine the precise location and parameters of the patio. Cowsert recommended approval of the patio request to Mike Reed, then president of the Association's Board of Directors. According to Cowsert, "I gave it to Mr. Reed who was president of the Board[] and everything went according to what my recommendation was." Reed also inspected the site, and the record establishes that Reed approved of the patio. Even the Association concedes that "there was some level of approval by Mike Reed." Rudy then proceeded with construction of the patio.

In 2002, new officers were elected, and the days of lax governance were over. As the Association's new president, Doug Harder, said, "We try to run the Association like a business." The DiPietros were perhaps the first to experience the "business" approach. On April 8, 2002, Harder and Charles Zinco, chairman of the Architectural Review Committee, delivered a letter to Rudy, directing Rudy to "stop construction." As of April 8, 2002, the patio was substantially completed.2 Rudy was angered by the Association's tactics and so informed Harder and Zinco with a "few choice words." When Zinco was asked whether it was his "impression that [Rudy] intended to complete the project without further consultation with you all," he responded, "Oh, yes. Yes, sir." Harder expressed similar sentiments, stating that Rudy "did make it known to us" that he was not going to stop construction. As expected, Rudy proceeded to complete the patio.

The Association delayed in taking action, perhaps because the new officers knew Reed, the former board president, gave "some level of approval" to the DiPietros' patio project. According to Harder, there were a number of reasons for the board's prolonged inaction:

First of all, we are a volunteer board, and we have lives to live and families to raise, and all three of us, as I recall were traveling a great deal during that spring and summertime. I suppose in trying to — we were trying to come up with some way that maybe we could convince Rudy to voluntarily stop, but I guess the summer got away from us enjoying our time on the lake. So it was no conscious decisioin [sic] about, you know, delaying for any reason. We had no attorney for the association at the time. We had to begin, you know, a search for one. That took some time.

The Association filed its Complaint on January 15, 2003. By then, the patio was completed. The Complaint alleges a trespass on the basis that the patio encroaches on the common areas, in violation of Articles V and VI of the restrictive covenants. The claim for damages was withdrawn at trial, and the Association sought a mandatory injunction "directing [the DiPietros] to remove that portion of the brick patio that encroaches and trespasses onto the common areas owned by [the Association]." The master granted the injunction on the basis that the DiPietros failed to "secure the approval" of the Association in accordance with the restrictive covenants. The DiPietros appealed following an unsuccessful motion to reconsider.


While a trespass action is one at law, the Association withdrew its claim for damages and sought only an injunction. The character of an action as legal or equitable depends on the relief sought. Compare O'Shea v. Lesser, 308 S.C. 10, 14, 416 S.E.2d 629, 631 (1992) (holding an action for breach of restrictive covenants was at law, because relief sought was general damages for loss of view and invasion of privacy) and Kneale v. Bonds, 317 S.C. 262, 265, 452 S.E.2d 840, 841 (Ct.App.1994) ("An action to enforce restrictive covenants by injunction is in equity."); see also S.C. Dep't of Natural Res. v. Town of McClellanville, 345 S.C. 617, 622, 550 S.E.2d 299, 302 (2001) (holding an action to enforce restrictive covenants by injunction is an equitable action). Because the Association's action is one to enforce restrictive covenants by injunction, it is in equity, and we may find facts in accordance with our own view of the evidence. Brenco v. S.C. Dep't of Transp., 363 S.C. 136, 142, 609 S.E.2d 531, 534 (Ct.App.2005). We acknowledge the superior position of the trial judge to assess witness credibility. We would not, even under de novo review, lightly disregard a trial judge's credibility determinations. The resolution of this appeal, however, turns not on a credibility assessment, but on the application of largely undisputed facts to unambiguous restrictive covenants. Moser v. Gosnell, 334 S.C. 425, 430, 513 S.E.2d 123, 125 (Ct.App.1999) (holding that when a covenant or contract is clear and unambiguous, matters of construction are questions of law for the court).


The DiPietros contend the master erred in granting the injunction. We agree.

We first dispense with the suggestion that because the common area of the Cedar Cove subdivision is involved, the law of trespass governs and trumps the clear language of the restrictive covenants. Where, as here, issues involving the common area of a subdivision—as raised by the pleadings—are resolved by reference to the applicable restrictive covenants, those covenants control. The Association's charge of trespass against the DiPietros emanates solely from the restrictive covenants. Indeed, the Association's Complaint cites no source to support its claim for relief other than the restrictive covenants. This case was pled and tried on the theory that the DiPietros violated the restrictive covenants—specifically Articles V and VI—by failing to properly secure approval for the patio.

Article V of the restrictive covenants controls the resolution of this appeal:



No building, fence, wall or other structure shall be commenced, erected or maintained upon the Properties, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, color, height, materials and location of 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 Declarant, or by a designated representative. Such approval shall be determined by consideration of the workmanship, materials, harmony or exterior design with existing structures, and location with respect to topography and grade. PROVIDED HOWEVER, that if approval or disapproval is not submitted, or no suit to enjoin construction is commenced prior to substantial completion thereof, it shall be presumed that the party has fully complied with this restriction.

(Emphasis added).

We find that Mike Reed gave "approval" to the patio project, according to the longstanding informal approach to restrictive covenant compliance that existed at the time. In any event, we believe the DiPietros must prevail irrespective of formal approval of the project. It is undisputed that there has never been a formal "disapproval" as contemplated by the restrictive covenants. Harder was asked whether his "letter of April 8th [was] intended to be a disapproval of [the] project?" Harder answered, "No." The goal sought by the Association in the April 8 letter was "to stop, talk, and try to come to a resolution." Association representatives, however, understood well that Rudy intended to finish the project, and yet the Association took no action until months later after the patio was completed. The Association, which claims a desire for strict compliance with the covenants, may not escape from its own lack of compliance with the restrictive covenants.

We are then left with the provision that compliance with the restrictive covenants "shall be presumed ... [if] no suit to enjoin construction is commenced prior to substantial...

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