Cullen v. McNeal
| Citation | 702 S.E.2d 378,390 S.C. 470 |
| Decision Date | 06 December 2010 |
| Docket Number | No. 4750.,4750. |
| Court | Court of Appeals of South Carolina |
| Parties | Robert L. CULLEN, Andrew A. Corriveau, John Caldwell, Andrea Hucks, Jamie Bellamy, Michael Pearson, and David Mandrell, Plaintiffs, v. J. Bennett McNEAL, B. McNeal Partnership, L.P., Anthony R. Porter, and Wright's Point Home Owners Association, Inc., Respondents-Appellants, of whom Robert L. Cullen, Andrew A. Corriveau and Andrea Hucks are Appellants-Respondents. |
John E. North and Pamela K. Black, both of Beaufort, for Appellants-Respondents.
Joel D. Bailey, of Beaufort, for Respondents-Appellants.
In this cross-appeal, the Appellants-Respondents (the Homeowners) argue the circuit court erred in (1) considering extrinsic evidence in interpreting the Declarations for Wright's Point; (2) construing the term " Developer"; (3) finding undeveloped land was a part of Wright's Point; (4) finding B. McNeal Partnership, L.P. was a "successor developer"; (5) finding the Developers were entitled to continue to control the Association; (6) finding the Developers were entitled to continue to control the Committee; and (7) failing to find the Homeowners were entitled to pursue the claims of the Association derivatively and seek attorney's fees. The Respondents-Appellants (the Developers) argue the circuit court erred in finding they were not entitled to attorney's fees. We affirm.
Robert L. Cullen, Andrew A. Corriveau, and Andrea Hucks (the Homeowners) are property owners in Phase I of Wright's Point Plantation, a planned waterfront community in Beaufort County.1 J. Bennett McNeal, B. McNeal Partnership, L.P., and Anthony R. Porter (the Developers) are real estate developers involved with the development of Wright's Point.
In 1997, Anthony Porter acquired a 1.7 acre tract, a 19.74 acre tract (Parcel B), and a 10.45 acre tract (Parcel C) of land in Beaufort County from Mary P. Logan, Lewis H. Wright, and John D. Wright. Anthony Porter's father, Jimmy Porter, acquired an 8.41 acre tract (Parcel D) from Lewis Wright and John Wright. Pursuant to a recorded plat entitled "Wright's Point Phase I," portions of the 1.7 acre tract and Parcels B, C, and D were subdivided into 44 lots, roads, and community spaces. A majority of the land within Parcels B and D was labeled "Future Development" and not subdivided into lots.
In June 1998, the Declarations of Covenants, Conditions, Restrictions, and Easements (the Declarations) for Wright's Point, which subjected all four parcels owned by Anthony Porter and Jimmy Porter to theDeclarations, were recorded. Pursuant to the Declarations, the Wright's Point Homeowner's Association (the Association) was incorporated to administer Wright's Point and enforce the Declarations. Porter and his father conveyed the open spaces, ponds, streets, and certain other areas in Wright's Point to the Association. Also, pursuant to the Declarations, all construction and improvements made within Wright's Point were subject to review and approval by the Wright's Point Architectural Committee (the Committee), which consisted of Anthony Porter, Jimmy Porter, and subsequently included their appointees, including McNeal. In April 1999, Anthony Porter conveyed undeveloped Parcel B and four lots in Phase I of Wright's Point to McNeal, d/b/a McNeal Land Company. In July 2002, Jimmy Porter conveyed undeveloped Parcel D to B. McNeal Partnership, L.P.
In May 2003, Homeowner Cullen convened a meeting of a group of property owners in Phase I and formed a separate entity called the Wright's Point Property Owners Association. According to the minutes of the meeting, those present wanted "a total revamping of the [Committee]" so as to permit the use of hardi-plank siding. They also expressed their concern over the use of amenities in Phase I by new property owners in subsequent phases. The newly-formed association elected Cullen as president and McNeal was elected as a board member, although he was not present at the meeting. In an October 2003 letter to property owners in Wright's Point, Cullen explained that McNeal informed him Phase I was onlypart of the total Wright's Point development, and plans to develop the remaining properties were moving forward. Cullen also explained that McNeal informed him Wright's Point was a "walking community" and owners in new phases should have access to the Wright's Point common areas and docks. In November 2003, Cullen presented McNeal with a document which purported to "represent a consensus of the existing homeowners and residents." The document asserted that Phase I should be a "separate and independent area" from the remaining phases of Wright's Point, and residents in any additional phases should not have access to the common areas and docks.
In December 2003, Anthony Porter sent a letter to Cullen objecting to the existence of the Wright's Point Property Owner's Association and asserting that he was the Developer of Wright's Point, and thus, he was entitled to appoint and remove the Association's board members and officers. In January 2004, the Homeowners, together with other property owners, held an annual meeting of the Wright's Point Property Owners Association. Anthony Porter attended the meeting with his attorney and presented the Homeowners with a memorandum which stated: (1) he was the Developer of Wright's Point and still owned lots there, so he retained "the sole authority under the [Declarations] to appoint and remove the directors of the [Association]"; (2) the meeting being held was "not an official meeting" and several property owners, including himself, had not been given notice of the meeting; and (3) any meetings convened by the Homeowners had been done without his knowledge and were "not legal." In March 2004, at a supplemental annual meeting of the Wright's Point Property Owner's Association, the property owners in attendance ratified the filing of this declaratory judgment action.
The Homeowners filed suit against the Developers in March 2004. In their first cause of action for a declaratory judgment, the Homeowners asked the circuit court to find: (1) Anthony Porter's right to control the appointment of directors and officers of the Association had terminated, and this right belonged to the owners of the lots within Wright's Point; (2) the Homeowners were validly-elected directors of the Association; (3) McNeal did not have the right to act as the Developer or the Developer's representative in connection with thebusiness and affairs of the Association; (4) McNeal and B. McNeal Partnership, L.P. did not have the right to annex real estate owned by either of them to Wright's Point, or to permit owners of any part of that real estate access to or use of the common areas and amenities owned by the Association and located within Wright's Point; (5) only those owners of lots depicted on the plat of the development andrecorded in Plat Book 64 at page 150 (Phase I) had the right to access or use the common areas of Wright's Point owned by the Association; and (6) Anthony Porter and McNeal did not have the right to include additional real estate within the scope of the Declarations.
In their third cause of action, the Homeowners sought both a temporary and permanent injunction "restraining and enjoining [the Developers] from asserting or attempting to assert control over the business or affairs of the Association," and "restraining and enjoining [the Developers] ... from granting to any owner of real estate outside of Wright's Point Subdivision any purported right to access or use of the common areas of the Association." 2
In their Answer and Counterclaim, the Developers asserted counterclaims for damages under multiple causes of action, including: civil conspiracy, breach of contract, breach of implied covenant of good faith and fair dealing, conversion, tortious interference with contractual relationships, and defamation. The Developers also sought declaratory and injunctive relief prohibiting the Homeowners from: (1) taking any action reserved to the Developer under the Declarations; (2) taking any action in the name of the Wright's Point Architectural Committee; and (3) taking any action in the name of the Association, or any other entity purporting to be legally entitled to act on behalf of the members of such association. The Developers also asked the circuit court to require the Homeowners to "account for and return all monies collected from Wright's Point property owners."
On February 27, 2007, McNeal, the owner of all the land other than the 44 lots depicted on the official plat, conveyed a portion of the property he acquired from Anthony Porter anda portion of the land he acquired from Jimmy Porter to Richard Ratcliff Homes, Inc. On February 28, 2007, Anthony Porter executed a document entitled "Supplemental Declaration to Declaration of Covenants, Conditions, and Restrictions for Wright's Point Covenants" (Supplemental Declaration), wherein he acknowledged that Jimmy Porter was a Developer although his name was not set forth in § 1.12 of the Declarations. In June 2007, Anthony Porter and Jimmy Porter assigned their rights as Developer of Wright's Point to B. McNeal Partnership, L.P.
After a March 2007 non-jury trial, the circuit court issued an order in October 2007 denying all of the declaratory and injunctive relief sought by the Homeowners. The circuit court found Anthony Porter had not relinquished his right as Developer to appoint and remove officers and directors of the Association or members of the Committee. The circuit court also determined Wright's Point was not confined to the properties in Phase I, and the remaining land within the development could be developed as part of subsequent phases. Furthermore, the circuit court determined the amenities and common areas within Phase I were not restricted for use solely by owners in Phase I, but were for the use and enjoyment of...
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