Kelly v. McCombs
Decision Date | 28 August 2019 |
Docket Number | 2019-UP-308 |
Parties | Edward R. Kelly and Deirdre O. Kelly, Appellants, v. Allen S. McCombs and Benjamin James Russell, Respondents. Appellate Case No. 2016-002176 |
Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Heard March 14, 2019
Appeal From York County S. Jackson Kimball, III, Special Circuit Court Judge
Brian Scott McCoy and Danielle Rose Scimeca, both of McCoy Law Firm, LLC, of Rock Hill, for Appellants.
N Beth Ramsey Faulkner, of Faulkner Law Firm, LLC, of York, and James W. Boyd, of James W. Boyd Law Firm LLC, of Rock Hill both for Respondents.
Edward R. Kelly and Deirdre O. Kelly (collectively, the Kellys) appeal the trial court's order refusing to enforce a right of first refusal. We affirm. We disagree with the Kellys' argument the trial court erred in holding the right of first refusal was enforceable only against Henry McCombs (Henry).[1] The deed from the Kellys to Henry did not extend the right of first refusal to Henry's successors heirs, or assigns. See Bennett v. Inv'rs Title Ins Co., 370 S.C. 561, 570, 635 S.E.2d 660, 665 (Ct. App. 2006) ; id. at 571, 635 S.E.2d at 665 ; Webb v. Reames, 326 S.C. 444, 446, 485 S.E.2d 384, 385 (Ct. App. 1997) ( ); 61 Am. Jur. 2d Perpetuities, Etc. § 92 (2012) ().
As the trial court noted, the right of first refusal provision lacked the language found in a restriction on the property pertaining to mobile homes that made the restriction binding on Henry and "his successors or assigns or heirs." See Evins v. Richland Cty. Historic Pres. Comm'n, 341 S.C. 15, 19, 532 S.E.2d 876, 878 (2000) ; Atlanta Skin & Cancer Clinic, P.C. v. Hallmark Gen. Partners, Inc., 320 S.C. 113, 119, 463 S.E.2d 600, 604 (1995) ( ). Thus, while the parties knew how to make a restriction binding on Henry and his successors, assigns, and heirs, they chose not to employ this language in the right of first refusal provision.
Furthermore, "absent evidence of intent, preemptions are generally construed to be nontransferable." Ryan v. Lawyers Title Ins. Corp., 959 N.E.2d 870, 876 (Ind.Ct.App. 2011) (footnote omitted) (citing Shower v. Fischer, 737 P.2d 291, 295 (Wash.Ct.App. 1987)); see Park Station Ltd. P'ship, LLLP v. Bosse, 835 A.2d 646, 655 (Md. 2003) ("[R]ights of first refusal are presumed to be personal and are not ordinarily construed as transferable or assignable unless the particular clause granting the right refers to successors or assigns or the instrument otherwise clearly shows that the right was intended to be transferable or assignable."); Waterstradt v. Snyder, 194 N.W.2d 389, 390 (Mich. Ct. App. 1971) ( ); Kershner v. Hurlburt, 277 S.W.2d 619, 623 (Mo. 1955) ( ); Old Nat'l Bank of Wash. v. Arneson, 776 P.2d 145, 148 (Wash.Ct.App. 1989) ("Absent evidence of intent, preemptive rights are generally construed to be nontransferable.").
We find the Kellys' assertion the deed contained the requisite language in the granting clause to make the right of first refusal run with the land is not preserved for our review. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (); Noisette v Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (the trial court does not explicitly rule on a question and the appellant an issue is not preserved when ...
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