Janasik v. Fairway Oaks Villas Horizontal Property Regime, 23586

CourtUnited States State Supreme Court of South Carolina
Citation307 S.C. 339,415 S.E.2d 384
Decision Date20 February 1991
Docket NumberNo. 23586,23586
PartiesDavid JANASIK and Karen Janasik, Respondents-Appellants, v. FAIRWAY OAKS VILLAS HORIZONTAL PROPERTY REGIME and Island Regime Management, Inc., Appellants-Respondents. . Heard

Edward E. Bullard and Michael G. Wayman, Hilton Head Island, for appellants-respondents.

Barry L. Johnson, of Biel, Clark & Johnson, Hilton Head Island, for respondents-appellants.

FINNEY, Justice.

Appellants-Respondents Fairway Oaks Villas Horizontal Property Regime (Fairway) and Island Regime Management, Inc., (Island Management) appeal from an order of the master-in-equity holding that appellants-respondents are barred by waiver and equitable estoppel from insisting that Respondents-Appellants David Janasik and Karen Janasik (the Janasiks) adhere fully to certain restrictive covenants governing landscaping of Fairway's condominium complex. The Janasiks appeal from the same order which required removal of certain structures, fixtures and plants installed by the respondents-appellants on the outside of their condominium and enjoining further changes within the common elements. We affirm as modified.

In 1980 the Janasiks purchased Condominium Unit 2494 in Fairway Oaks Villas on Hilton Head Island and became permanent residents in 1985. David Janasik served as a member of Fairway's Board of Administrators from August 1986 to August 1988.

Beginning in 1985, the Janasiks began making gradual changes to the landscape of the general and limited common areas consisting of gardens in the front and rear of their condominium. The gardens contained grass, sprinklers, a bird bath, flowering and climbing plants and other shrubbery, statuary, stepping stones, electric lights and deer fences, some of which were built up and held in place by railroad ties. A substantial portion of these changes were made between August 1987 and April 1989.

By written notice on June 14, 1989, Fairway requested the Janasiks to remove their improvements. On September 15, 1989, the Janasiks instituted this suit against Fairway and Island Management, which contracted with Fairway to maintain the condominium common areas. The Janasiks sought a temporary injunction, monetary damages and to have Fairway permanently enjoined from requiring removal of the landscape improvements, asserting equitable estoppel, the doctrine of waiver, and immunity from selective enforcement of the covenants and restrictions of Fairway's master deed and by-laws. Fairway and Island Management answered by qualified general denial and counterclaimed for injunctive relief with regard to violation of Fairway's covenants and restrictions. The case was referred to the master-in-equity.

On October 12, 1989, the master held a hearing on the Janasiks' request for a temporary injunction. No record was made of the hearing, and the master has no recollection of what transpired. Counsel for the Janasiks recall that the master, by oral order, enjoined the removal of their modifications. Counsel for Fairway and Island Management recollected that the master did not rule on the motion for a temporary injunction and set the matter for trial on November 10, 1989.

On November 10, 1989, the case was tried and in his order dated November 13, 1989, the master found that the improvements installed by the Janasiks were in violation of the master deed and by-laws. However, he concluded that Fairway and Island Management had waived their rights and were equitably estopped from insisting upon restoration of the landscape except as provided by his order. The master declined to award damages or attorneys fees to any of the parties.

The Janasiks were ordered to remove, within one week, 1) the deer fence from the front and back, 2) the outside lights in the garden, 3) all unauthorized electrical wires from the common elements, and 4) all plants which are or may become affixed to any outside wall. The Janasiks were enjoined from further changing the existing landscape; except if they wished to comply with reasonable modifications requested by Fairway and Island Management or their successors, and claim maintenance by Fairway and Island Management or their successors. The order relieved Fairway and Island Management of any duty to maintain the area in controversy and provided that upon the Janasiks' failure to maintain the subject area, after thirty days from written warning of their intention to so do, Fairway and Island Management were authorized to enter, reduce the common elements to readily maintainable condition and resume maintenance, all at the expense of the Janasiks.

On November 27, 1989, the Janasiks filed a notice and motion to alter or amend judgment and to temporarily stay execution or enforcement of judgment. First, they moved to strike the portion of the master's order which required removal of "all plants which are or which may become affixed to any outside wall," asserting unequal and unfair application of the law. The Janasiks alleged that climbing plants were in place when their condominium was acquired at which time, and on the date of the motion, such climbing plants were affixed to the outside walls of approximately ten other condominiums adjacent to the Janasiks' unit.

Second, the motion sought clarification of the phrase "lights in the garden" as used by the master in his findings of fact and the phrase "outside lights in the garden" as used in the conclusions of law. The Janasiks claimed the master intended removal of the lights from trees in the garden located between the golf course property and the back of the Janasiks' unit, and not three small "mushroom type" security lamps leading from their front door to the parking lot and located on the opposite side from the garden.

Without a hearing, the master issued an order dated December 4, 1989, in which he denied the motion to alter or amend judgment and ordered the Janasiks to remove all mushroom lights along with all plants growing on outside walls. All parties appealed.

Fairway and Island Management assert that the master erred in the following particulars:

1. In applying an incorrect standard for the measure of relief which could result from this controversy by ordering an equitable remedy to a legal issue. Fairway argues that contract law should apply.

2. In applying an insufficient standard in ruling that Fairway was barred by estoppel, waiver or laches from enforcing the restrictions contained in the master deed and by-laws.

3. In denying its motion for a non-suit based on David Janasik's alleged breach of fiduciary duty by failing to disclose his actions involving Fairway's property and acting in contravention of its master deed and by-laws, in violation of the 1981 South Carolina Business Corporation Act, § 33-13-150.

4. In...

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