Pond Place Partners, Inc. v. Poole

• Citation: 567 S.E.2d 881,351 S.C. 1
• Decision Date: 17 June 2002
• Docket Number: No. 3521.,3521.
• Parties: POND PLACE PARTNERS, INC., American Federal Bank, FSB, as trustee for Mary M. Pearce, and Edwin P. Collins, Respondents, v. David C. POOLE, Mary T. Cruikshank, Estate of Robert J. Maxwell, Jr., Faust Nicholson, through his Guardian ad Litem, Laurens C. Nicholson, II, Defendants, Of Whom David C. Poole is, Appellant.
• Court: South Carolina Court of Appeals

351 S.C. 1

567 S.E.2d 881

POND PLACE PARTNERS, INC., American Federal Bank, FSB, as trustee for Mary M. Pearce, and Edwin P. Collins, Respondents, v. David C. POOLE, Mary T. Cruikshank, Estate of Robert J. Maxwell, Jr., Faust Nicholson, through his Guardian ad Litem, Laurens C. Nicholson, II, Defendants, Of Whom David C. Poole is, Appellant.

No. 3521.

Court of Appeals of South Carolina.

Heard May 8, 2002.

Decided June 17, 2002.

Rehearing Denied August 23, 2002.

Charles E. Carpenter, Jr. and S. Elizabeth Brosnan, of Richardson, Plowden, Carpenter & Robinson, of Columbia; and James R. Gilreath, of Greenville, for appellant.

W. Francis Marion, Jr. and J. Ben Alexander, both of Haynsworth, Sinkler, Boyd, of Greenville, for respondents.

Amicus Curiae: Spencer Andrew Syrett, of Columbia.

ANDERSON, J.:

This is an action for slander of title. Initially, David C. Poole ("Poole"), along with the other named Defendants, filed a declaratory judgment action against a plethora of individuals and entities, including the named Respondents. The Poole group challenged an amendment to the restrictive covenants on the subject property, which reduced the minimum lot size restriction from 5 acres to 1 acre lots. The Poole group concurrently filed a lis pendens covering the property. The Respondents, et. al, answered and counterclaimed, alleging causes of action for slander of title and violation of the South Carolina Frivolous Civil Proceedings Sanctions Act. The trial court granted Pond Place's motion for summary judgment on Poole's declaratory judgment action. The court found the modification to the restrictive covenants was valid. We subsequently affirmed the trial court in our unpublished opinion Poole, et. al v. Pond Place Partners, Inc., et. al, Op. No. 1997-UP-129 (S.C. Sup.Ct.App. filed Feb. 12, 1997), cert. denied (Jan. 12, 1998). Thereafter, the Pond Place group prosecuted their actions for slander of title and violation of the South Carolina Frivolous Civil Proceedings Sanctions Act. After a multi-day trial, the jury found only Poole liable for slander of title and awarded actual and punitive damages to Pond Place Partners and Edwin P. Collins. Poole appeals. We reverse.

FACTS/PROCEDURAL BACKGROUND

I. Underlying Grant of Summary Judgment

In his order filed January 16, 1995, the circuit judge explains:

The controlling facts in this case are not in dispute. In January 1954, a subdivision known as "Parkins Lake Development" was created. Originally, this development consisted of 15 lots in differing amounts of acreage. On March 30, 1954, the owners of the property in the Development agreed to restrict the property such that no tract would be divided in lots of less that five acres. By agreement these Restrictive Covenants continued unabated until April 1, 1974. Thereafter, the Covenants would automatically be extended for successive ten (10) year periods unless the property owners agreed to change the Covenants by a "vote of a majority of the then owners of the tracts." The property owners abided by these restrictions until March 31, 1994. At that time, a majority of the then property owners entered into the "Amendment to Subdivision Restrictions." Effective April 1, 1994, the Restrictive Covenants were amended permitting lots to be subdivided into tracts of not less than one acre. The signatures on the Amendment to the Subdivision Restrictions were witnessed and properly probated. The Amendment was duly filed with the Greenville County RMC Office.

(emphasis in original, internal footnotes omitted).

On July 19, 1994, Poole¹ brought an action pursuant to the Uniform Declaratory Judgment Act² to have the court determine if the "Amendment to the Subdivision Restrictions" was valid and enforceable. On the same day, Poole filed a lis pendens "pursuant to the Declaratory Judgment Act to affirm and validate restrictive covenants and enforcement thereof." The then defendants answered and counterclaimed, alleging violation of the South Carolina Frivolous Civil Proceedings Sanctions Act³ and an action for slander of title.

On November 15, 1994, the original defendants filed their notice and motion for summary judgment "on the basis that there is no genuine dispute as to any material fact, in that it is undisputed that a majority of the property owners voted to amend the Deed Restrictions to allow development of the property on one (1) acre tracts." The Circuit Court granted the motion for summary judgment. Concurrently, the court ordered the lis pendens filed by Poole dissolved.⁴

The circuit judge granted summary judgment primarily upon a finding that the signed and probated document purporting to amend the covenants constituted a proper "vote" to change the covenants. He noted that Poole failed to cite any authority to support his contention that a secret ballot "vote" was required and that, even if the restrictive covenants could be so read, they must be construed in favor of the construction that will least restrict the property:

The facts to which the parties agree are controlling in this instance. The Restrictive Covenants at issue dated March 30, 1954 were effective until April 1, 1974. Thereafter, the Covenants were extended for successive ten year periods "unless by vote of a majority of the then owners of the tracts agreed to change the Covenants either in whole or in part." The current owners of the tracts of land are a matter of public record. The document known as "Amendment to Subdivision Restrictions" dated March 31, 1994, is equally clear and unambiguous in its terms. The Amendment modifies Paragraph 3 of the original restrictive covenants dated March 30, 1954, such that the land within the Subdivision can be subdivided into lots of no less than one acre. The signatures appearing on the Amendment represents a majority of the present owners of the tracts within the subdivision. Despite these undisputed facts, Plaintiffs urge this Court to find the word "vote" ambiguous because the methodology of how the vote is to be taken is not defined in the document. The Court declines to accept this offer.

Poole petitioned the court to vacate, reconsider, alter and/or amend his order. The judge declined, finding in an order filed April 5, 1995, that it was clear the majority of property owners had voted to amend the covenants. The circuit judge explained:

Despite tallying the votes by four alternative methods (by assigning votes to each of the twenty-two lots, by assigning votes only to owners with five acres or more, by assigning votes to the original remaining fourteen lots, and by assigning votes to each individual owner), the Court arrived at the same result: the majority of land owners voted to change the property restrictions from a five acre minimum to a one acre minimum.

Poole appealed. While this appeal was still pending, Pond Place applied to the Circuit Court to have the automatic stay lifted, which would "allow[] them to freely alienate their property during the pendency of the appeal, subject to the restrictions found in the AMENDMENT TO SUBDIVISION RESTRICTIONS, filed with the Greenville County RMC, and dated March 31, 1995," or, alternatively, "require the appellants to post sufficient bond to compensate defendants for any economic damages which they might suffer if they cannot sell the property during the automatic stay, yet ultimately prevail on the appeal."

The circuit judge declined to grant this relief because neither of the counterclaims had yet been addressed by the court and, in his discretion, the judge did not "find bond appropriate in this case." Pond Place moved for reconsideration of this order because the "[s]tay imposed by the Appeal [of Poole to the Court of Appeals] effectively enjoins these Defendants from freely selling their land." The court disagreed and denied Pond Place's motion for reconsideration; however, it granted leave to petition the appellate court for supersedeas. On October 13, 1995, the South Carolina Supreme Court filed its order refusing to lift the automatic stay or require a bond. The Court stated:

Because there appears to be a legitimate dispute as to whether appellants were misled by respondents into believing that they would be able to vote on any changes in the subdivision restrictions at a subsequent meeting, we deny respondents' request to lift the automatic stay and their request to require the posting of a bond.

Thereafter, in our unpublished opinion of Poole, et. al v. Pond Place Partners, Inc., et. al, Op. No. 1997-UP-129 (S.C. Ct.App. filed Feb. 12, 1997), cert. denied (Jan. 12, 1998), we affirmed the grant of summary judgment in favor of Pond Place. We concluded our opinion, stating: "We find no evidence to refute the methods used by the trial judge. Clearly, the trial judge thoroughly reviewed the evidence. We note that none of the property owners wish to remove their signatures from the Amendment. Therefore, the order of the trial judge is affirmed."

By order dated January 12, 1998, the Supreme Court denied Poole's petition for writ of certiorari. In the appeal now before this Court, Poole acknowledges the covenant amendments were deemed properly adopted. In fact, Poole writes at length in his brief that he is not attempting to relitigate the resolution of the vote amending the covenants.

II. Present Litigation

After Poole's declaratory judgment action was dismissed by summary judgment, Pond Place Partners, et. al, prosecuted their actions for slander of title and violation of the South Carolina Frivolous Civil Proceedings Sanctions Act. On April 9, 1999, the circuit judge merely denied both Pond Place's motions for summary judgment on its two causes of action, as well as Poole's motion to dismiss the counterclaims. However, in a subsequent order filed on October 4, 1999, denying Pond Place's motion for reconsideration, the circuit judge wrote:

After carefully reviewing the Motion and the case file including appellate briefs to the South

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