Kinard v. Richardson

Decision Date21 March 2014
Docket NumberNo. 5192.,5192.
Citation407 S.C. 247,754 S.E.2d 888
CourtSouth Carolina Court of Appeals
PartiesLarry E. KINARD, Appellant, v. Douglas S. RICHARDSON and Julie D. Richardson, Respondents. Appellate Case No. 2013–000162.

OPINION TEXT STARTS HERE

John R. Polito, of Goose Creek, for Appellant.

P. Brandt Shelbourne, Shelbourne Law Firm, of Summerville, for Respondents.

GEATHERS, J.

Appellant Larry E. Kinard (Owner) challenges an order of the Master–in–Equity declining to enjoin Respondents Douglas S. Richardson and Julie D. Richardson (Neighbors) from leasing their property to a third party for the purpose of horse grazing. We reverse and remand.

BACKGROUND

This case revolves around the intent of developers James and Delene Barnes (Developers) to restrict the use of property within Senrab Farms subdivision as well as certain property adjacent to Senrab Farms. Developers originally owned a 49.7 acre parcel near Summerville from which they created Senrab Farms. After carving out and conveying approximately 5.5 acres of the 49.7 acre parcel to James and Helen Madison, Developers subdivided most of the remainder into lots “A” through “I” of Senrab Farms, together with “14.19 acres Residual,” as shown on a plat dated July 5, 1997. All lots in Senrab Farms were restricted to residential use, but lot owners were permitted to keep one horse on their respective lots subject to certain conditions.

In January 1998, Developers sold lot “F” at 217 Saddle Trail to Owner. Developers subsequently sold to Neighbors' building contractor 7 acres from the “Residual,” located at 124 Saddle Trail and across the street from Owner's lot. This property was designated as “Tract L” on a plat dated December 29, 1997. Tract L was immediately east of and adjacent to the Madisons' 5.5 acre parcel. After Neighbors acquired Tract L in December 1998, they subdivided it and leased part of it to other individuals for horse grazing.

Specifically, on April 1, 2003, Neighbors filed a plat showing the subdivision of Tract L into two smaller tracts, Tract A and Tract B, so that they could use part of their property, i.e., Tract B, for horse grazing. By this time, Helen Madison had sold the 5.5 acre parcel adjacent to Tract L to Hoa Van Nguyen and Xuan Thi Nguyen, two of the original defendants to this action. While this parcel was not part of Senrab Farms, its use had been restricted to residential or agricultural, and it had an existing barn on it when the Nguyens purchased it.

Neighbors also incorporated a leasing business by the name of “Greener Pastures,” which generated gross income of $6,825.00 from 2003 through early 2008. On their 2009 tax return, Neighbors reported “Gross farm rental income” of $3,050. Neighbors leased Tract B to certain individuals, and the Nguyens allowed these individuals to operate the business “Senrab Equestrian Center” out of the barn on the Nguyens' property.1

During the years that Greener Pastures leased Tract B, Owner noticed an increase in (1) the number of horses grazing on Tract B; (2) horse manure buildup on Tract B; (3) vehicle and horse traffic in the subdivision streets; and (4) litter, dust clouds, noise, odors, and insects in the area. In 2007, Owner reported to Dorchester County officials his suspicion that a business was being operated on the Nguyens' property. However, the county zoning administrator determined that the operation was not a business because there was “no evidence of money changing hands.” In 2009, Owner discovered that Senrab Equestrian Center was selling horses on the Internet at “senrabfarm.com.” The center's website stated that it was “located on 15 acres in the middle of the Senrab Farm[s] subdivision in Summerville, SC and noted We have two large grass pastures....” One of these pastures was Neighbors' Tract B.

After Owner reported this discovery to the County, the zoning administrator sent a “cease and desist” letter to the Nguyens. After a hearing before the Board of Zoning Appeals, the Board found that Senrab Equestrian Center advertised horse sales, horse jumping, dressage, and horse care services. The Board ordered the Nguyens to immediately cease and desist operating the business. According to Owner's original Complaint in this action, the Nguyens did not appeal the Board's order. However, the Nguyens filed a petition for annexation into the Town of Summerville and for agricultural conservation zoning, which allowed certain commercial operations. Summerville Town Council granted the petition.

On December 8, 2009, Owner filed a Complaint against the Town of Summerville, the Nguyens and Senrab Farms Homeowners Association, asserting the following causes of action: (1) “Declaratory Judgment—Unlawful Annexation;” (2) “Declaratory Judgment—Unlawful Zoning;” (3) 42 United States Code Section 1983; and (4) “Breach of Covenants Against Hoa Van and Xuan Thi Nguyen.” Owner based the Breach of Covenants cause of action on a document entitled “Reciprocal Covenants,” which restricted the use of the Nguyens' property to residential or agricultural use. Owner sought damages and an injunction against the Nguyens' use of their property for business purposes.

On January 10, 2010, Greener Pastures executed a written lease, entitled “Commercial Lease,” for Tract B to Madeline Ingalls, who was operating Senrab Equestrian Center at that time. The lease agreement provided for the use of Tract B as a horse pasture. Subsequently, Owner filed his Amended Complaint, adding Madeline Ingalls and Neighbors as defendants. The Amended Complaint sought declaratory and injunctive relief, asserting the following causes of action: (1) “Declaratory Judgment—Unlawful Annexation;” (2) “Declaratory Judgment—Unlawful Zoning;” (3) “Breach of Covenants and Easement Rights Against the Nguyens;” and (4) “Breach of Covenants by [Neighbors].” Owner based the Breach of Covenant cause of action against Neighbors on the Restrictive Covenants governing the permitted use of the lots in Senrab Farms.

On November 17, 2010, Owner and the Nguyens entered into a settlement agreement amending the original Reciprocal Covenants concerning the 5.5 acre parcel. This amendment restricted the leasing of the barn, stable and pasture on the property to boarding purposes only, with a boarding limit of ten horses. 2 On April 19, 2010, Neighbors filed their Answer, asserting the affirmative defenses of “Unclean Hands” and Statute of Limitations.” On April 29, 2010, Neighbors filed their Amended Answer, admitting that at that time they were leasing Tract B to Madeline Ingalls in support of equestrian business operations. On May 11, 2010, Ownerand Neighbors filed cross-motions for summary judgment.

Owner's memorandum of law in support of his summary judgment motion asserted the following grounds: (1) Neighbors were not using Tract B as a single-family residential building lot, as required by the subdivision's Restrictive Covenants; (2) a purported amendment to the Restrictive Covenants that allowed up to six horses on Neighbors' property (Amendment to Restrictions”) was invalid; and (3) even if the amendment was valid, Neighbors' subdivision of their property from Tract L into Tracts A and B destroyed their right to have six horses on their property pursuant to the amendment. The record does not indicate the grounds for Neighbors' summary judgment motion.

The presiding circuit judge, the Honorable Edgar Warren Dickson, issued an order concluding that Tracts A and B were “subject to any covenants and restrictions that applied to the original Tract L....” However, Judge Dickson also ruled that whether the original Restrictive Covenants or the Amendment to Restrictions applied to Neighbors' property was an issue to be determined at trial, and, thus, he denied the “remaining portions” of the cross-motions for summary judgment. Judge Dickson later denied Owner's motion for reconsideration.

Subsequently, the case was referred to the Master–in–Equity for a merits hearing. On September 28, 2012, the master signed an order denying Owner's request for declaratory and injunctive relief. In this order, the master acknowledged Judge Dickson's order on the cross-motions for summary judgment and stated [t]he questions of fact that remained ... were whether [Neighbors] are or were in compliance with the terms of the applicable covenants and restrictions and which of the restrictions apply.” The master concluded that the original Restrictive Covenants did not apply to Neighbors' property. She reasoned that an amendment was required to make any additional property subject to the Restrictive Covenants and after Developers sold the last of the six lots that were originally subject to the Restrictive Covenants, they no longer held a sufficient property interest to effect an amendment to the Restrictive Covenants.

Based on this reasoning, the master concluded that the restrictions set forth in the Amendment to Restrictions,” dated February 25, 1998, were actually original restrictions on the property.3 The master also concluded that Owner was not in privity with Neighbors and had no authority to enforce the restrictions applicable to Neighbors' property. The master found that Neighbors' leasing of their property to third parties for horse grazing was not a commercial use and, thus, Neighbors had complied with the restriction requiring single-family residential use.

Owner filed a motion for reconsideration of the master's order, or, in the alternative, a motion for a new trial. On December 6, 2012, the master signed an order denying the new trial motion and upholding the September 28, 2012 order. However, the master set forth additional findings of fact and conclusions of law in the December 6, 2012 order.

The master found that Tract B was “akin to [Neighbors'] yard of their residence.” The master further stated “The fact that the actual residence does not occupy both lots does not mean that [Neighbors] are not using...

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