Santoro v. Schulthess, 4575.

• Decision Date: 01 July 2009
• Docket Number: No. 4575.,4575.
• Parties: Peter S. SANTORO and Mary Santoro, Respondents, v. Warren H. SCHULTHESS, Appellant.
• Court: South Carolina Court of Appeals

681 S.E.2d 897

384 S.C. 250

Peter S. SANTORO and Mary Santoro, Respondents, v. Warren H. SCHULTHESS, Appellant.

No. 4575.

Court of Appeals of South Carolina.

Heard March 18, 2009.

Decided July 1, 2009.

Rehearing Denied August 25, 2009.

Appeal from Orangeburg County; Olin D. Burgdorf, Master-in-Equity.

Glenn Walters and R. Bentz Kirby, of Orangeburg, for Appellant.

William T. Toal, of Columbia, for Respondents.

GEATHERS, J.:

Appellant Warren Schulthess seeks review of an order requiring him to pay damages to Respondents Peter Santoro and Mary Santoro for trespass and for intentional interference with prospective contractual relations. Schulthess also appeals the requirements that he lower the level of his pond and remove a motor home from his property. We reverse.

FACTS/PROCEDURAL HISTORY

In March 2002, Schulthess, a Columbia resident, purchased a pond (North Lake) and an adjoining triangular, unimproved parcel in Orangeburg County. At that time, the level of the pond was very low because its spillway had been leaking. Whenever he visited the pond to perform maintenance or make repairs to the spillway, Schulthess took his motor home and parked it on his adjoining triangular lot.

North Lake is surrounded by several residential lots in the Country Oaks subdivision, including three lots owned by the Santoros since 1993 (lots 1 through 3 in block "K" of the subdivision).¹ The Santoros' home is located on the middle lot (lot 2). The deed to Schulthess's pond describes the pond as being bound on the south by lots 1 through 4 in block "K" of the subdivision, which includes the Santoros' three lots. The deed to lots 1 and 3 describes them as being bound on the north and northeast, respectively, by a ten-foot strip reserved by the developer to separate the lots from North Lake. In contrast, the deed for lot 2 describes its northeast boundary as simply North Lake.

In June 2002, the Santoros placed their home and the three lots on the market so they could move to Arizona. The Santoros' realtor, Century 21/The Moore Group (Century 21), listed their house and three lots for $319,000. When Schulthess discovered the realtor's sign on the Santoros' property, he visited a former colleague who worked for Century 21 to inquire about the Santoros' asking price. When he saw a copy of the real estate listing, he noticed that it represented the Santoros' property as extending ten feet into North Lake. In late June 2002, Schulthess wrote a letter to the Santoros' agent at Century 21 and copied the Santoros with the letter.

Schulthess's letter expressed disagreement with the representation that the Santoros' property extended ten feet into his pond and stated that the property line between the pond and many of the abutting properties was determined by the pond's high water level. The letter also stated that Schulthess had given permission to abutting owners to use the pond, but expressed concern about any prospective purchasers of the Santoros' property being given the wrong impression that the Santoros could convey any formal littoral rights to them.² Schulthess requested the agent to revise the listing so that the Santoros' property was not being advertised as "waterfront." Schulthess also stated that there was a structure on one of the Santoros' lots that encroached upon the pond.

As a result of Schulthess's letter, the Santoros' realtor revised the advertisement to delete the reference to the property extending ten feet into the water and suggested to the Santoros that they have their property resurveyed. According to the realtor's broker-in-charge, the claims made in Schulthess's letter had to be revealed to any prospective buyers of the Santoros' property. According to Schulthess, the Santoros never complained to him about the letter he wrote to Century 21.

The Santoros later engaged the Tatum Company to list their property for $298,500. On July 15, 2003, Schulthess wrote a letter to the Santoros' agent at the Tatum Company advising her that he owned the pond, that the Santoros' property only extended to the pond's edge, and that he had a five-foot easement around the pond's edge. Schulthess further stated that he understood that littoral rights applied only to natural waterways and not to private impoundments such as his pond. He suggested that the agent "legally qualify this matter" before offering fishing rights or access to the pond. He stated that he believed that those rights could only be conveyed by him. According to Mary Santoro, when the real estate agent showed the property to prospective buyers, "[W]e had to tell them that we could not pass the water rights on, [and] that they would have to get permission from [Schulthess]."

Sometime during the latter half of 2003, Schulthess placed a temporary stopper in the pond's leaking spillway. On November 24, 2003, South Carolina Department of Health and Environmental Control (DHEC) sent a letter to Schulthess after receiving complaints from the Santoros about the pond flooding their land. DHEC instructed Schulthess to return the spillway to normal operation within thirty days. DHEC also indicated that it was unsafe to rely on the emergency spillway to be the only spillway on the North Lake dam. The letter also stated that replacing the flashboards on the spillway would not require a permit from DHEC. Schulthess noted that in a telephone call about the letter, a DHEC representative instructed him to remove the temporary stopper in its entirety, which Schulthess removed three days after receiving DHEC's letter.

By January 2004, the Santoros still had not sold their property. They then filed a complaint against Schulthess, asserting a claim for trespass due to the flooding of their property and a claim for interference with prospective contractual relations based on Schulthess's letters to their realtors. The complaint also asserted that Schulthess violated the restrictive covenants for the Country Oaks subdivision by parking his motor home on his triangular lot.

In Spring 2004, Schulthess repaired the spillway. According to Mary Santoro, she saw Schulthess adding concrete to the spillway and she believed that the concrete addition raised the spillway's height. However, according to another abutting owner and Schulthess, the spillway was never raised and the concrete addition merely closed up a hole in the spillway.

Mary Santoro telephoned some contractors to obtain verbal estimates on the cost of supplies for filling in eroded land, building a retaining wall to prevent further erosion, and adding new topsoil and sod. Based on those phone calls, she understood the cost to be approximately $25,000.

After a trial on the Santoros' claims, the master issued an order concluding that a deed in Schulthess's chain of title made his triangular lot subject to a provision of the subdivision's restrictive covenants prohibiting house trailers and other temporary structures.³ The master also concluded that Schulthess was liable to the Santoros on all of their claims. The master ordered Schulthess to pay damages to the Santoros in the amount of $108,000,⁴ to lower the level of the pond, and to remove his motor home from his triangular lot. This appeal followed.

ISSUES ON APPEAL

1. Did the evidence support the Santoros' cause of action for intentional interference with prospective contractual relations?

2. Did the evidence support the Santoros' cause of action for trespass?

3. Did the master err in concluding that Schulthess's triangular lot was subject to the restrictive covenants of the Country Oaks subdivision?

STANDARD OF REVIEW

On direct appeal from a final judgment of a master-in-equity, the scope of review is the same as that for review of a case heard by a circuit court without a jury. Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1989).

When legal and equitable causes of action are maintained in one suit, the court is presented with a divided scope of review. On appeal from an action at law that was tried without a jury, the appellate court can correct errors of law, but the findings of fact will not be disturbed unless found to be without evidence which reasonably supports the judge's findings. In an equitable action tried without a jury, the appellate court can correct errors of law and may find facts in accordance with its own view of the preponderance of the evidence.

Blackmon v. Weaver, 366 S.C. 245, 248-49, 621 S.E.2d 42, 43-44 (Ct.App.2005) (internal citations omitted); see also Fields v. J. Haynes Waters Builders, Inc., 376 S.C. 545, 564, 658 S.E.2d 80, 90 (2008) (holding that the appellate court reviews questions of law de novo).

A tort action for damages is an action at law. Longshore v. Saber Sec. Servs., Inc., 365 S.C. 554, 560, 619 S.E.2d 5, 9 (Ct.App. 2005). Therefore, the Santoros' tort cause of action seeking damages for interference with prospective contractual relations is a legal cause of action, and this Court may not disturb the master's factual findings relating to this claim unless they lack evidentiary support. Blackmon, 366 S.C. at 248-49, 621 S.E.2d at 43-44.

As to the Santoros' trespass claim, they seek both damages and injunctive relief. Therefore, we must look to the action's main purpose as reflected by the nature of the pleadings, evidence, and character of relief sought to determine whether the claim is legal or equitable. See Gordon v. Drews, 358 S.C. 598, 604, 595 S.E.2d 864, 867 (Ct.App. 2004) (holding that to determine whether an action is legal or equitable, this Court must look to the action's main purpose as reflected by the nature of the pleadings, evidence, and character of relief sought); cf. Cedar Cove Homeowners Ass'n, Inc. v. DiPietro, 368 S.C. 254, 258, 628 S.E.2d 284, 286 (Ct.App. 2006) (holding that while a trespass action is generally an action at law, the trespass action at hand was equitable because the plaintiff withdrew its claim for damages and sought only an injunction).

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