O'Shea v. Lesser, 23622

• Citation: 416 S.E.2d 629,308 S.C. 10
• Decision Date: 19 February 1992
• Docket Number: No. 23622,23622
• Court: United States State Supreme Court of South Carolina
• Parties: Audrey O'SHEA, Appellant, v. Richard C. LESSER, Katherine C. Lesser, Bernard Drowne, Alva Walker, Jr., Joseph Oppenheimer, David Christmas, Philip Gore, and Broadus L. Thomasson, General Partner of Thomasson Properties, A S.C. Limited Partnership, Respondents. . Heard

Page 629

416 S.E.2d 629

308 S.C. 10

Audrey O'SHEA, Appellant, v. Richard C. LESSER, Katherine C. Lesser, Bernard Drowne, Alva Walker, Jr., Joseph Oppenheimer, David Christmas, Philip Gore, and Broadus L. Thomasson, General Partner of Thomasson Properties, A S.C. Limited Partnership, Respondents.

No. 23622.

Supreme Court of South Carolina.

Heard Feb. 19, 1992.

Decided April 6, 1992.

Rehearing Denied May 6, 1992.

J. Thomas Mikell, Beaufort, for appellant.

George E. Mullen, Hilton Head Island, for respondents Richard C. Lesser and Katherine C. Lesser.

W. Brantley Harvey, Jr., Beaufort, for respondents Bernard Drowne, Alva Walker, Jr., Joseph Oppenheimer, David Christmas, Philip Gore, and Broadus L. Thomasson.

HARWELL, Chief Justice:

This is an action for breach of a restrictive covenant. Appellant Audrey O'Shea alleges that the master-in-equity committed various errors. We affirm.

I. FACTS

Appellant and respondents Richard C. Lesser and Katherine C. Lesser (the Lessers) are neighbors in Fairway Club Subdivision on Fripp Island. Fairway Club is a planned residential development consisting of thirty long, narrow lots fronting a golf course. The developer of Fairway Club, respondent Broadus Thomasson (the developer), offers three basic house designs, each of which features a patio wall that comprises one side of the house. The patio wall contains no windows, and extends about twelve feet beyond the house toward the golf course, creating a sort of privacy wall. The wall on the opposite side of the house contains windows that face the patio wall side of the home on the adjacent lot. Patio walls are intended to protect the privacy of each owner while allowing the developer to construct the houses more closely together.

The remaining respondents are all members of an architectural review board (the Board) appointed by the developer in accordance with a covenant providing that No building, wall, fence, swimming pool, or other structure shall be commenced, erected, or maintained upon the common properties, nor shall any landscaping be done, nor shall any exterior addition to any such existing structure or change or alteration therein, be made until the plans and specification therefor showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to the harmony and compatibility of its external design and location, with the surrounding structures and topography, by Fripp Island Development Corporation and its duly appointed agents.

In 1989, the Board granted the Lessers permission to enclose an open deck that adjoins their home, and to construct a new open deck next to the newly-enclosed deck. Prior to construction, appellant could see past the end of her patio wall into a section of the Lessers' yard. Appellant's view of the Lessers' yard is now partially obstructed by the new structure. In addition, the Lessers can see around appellant's patio wall into a portion of appellant's home from the end of their addition. Appellant asserts that as a result of the Lessers' ability to see into her house, she has been forced to change her lifestyle to avoid being watched by the Lessers.

Appellant brought this action, alleging breach of contract, fraud, breach of contract accompanied by a fraudulent act, and negligence, and seeking a permanent injunction requiring the Lessers to remove the extension, actual damages, punitive damages, and attorney's fees. The master-in-equity, after dismissing all causes of action except breach of contract, found for respondents.

II. DISCUSSION

To determine our scope of review, we must address appellant's contention that the master-in-equity erred in concluding that appellant sought legal rather than equitable relief. We disagree.

At the conclusion of appellant's case-in-chief, the master-in-equity requested appellant to elect between an equitable remedy for injunction, or a legal remedy for damages. Appellant elected to pursue monetary damages. Appellant now contends that seeking monetary damages did not transform the case from an equity case to a case at law, because an equity court can order both specific performance and damages.

This Court has ordered specific performance and, at the same time, ordered a defendant to pay special damages resulting from breach of contract. See, e.g., Butler v. Schilletter, 230 S.C. 552, 96 S.E.2d 661 (1957). We have emphasized, however, that special damages are ancillary to the equitable remedy of specific performance, and are distinct from general damages recoverable at law for breach of a contract. Id. Here, the record is clear that appellant chose to seek general damages for loss of view and invasion of privacy resulting from respondents' alleged breach of covenant. We hold that the master-in-equity did not err in concluding that appellant sought legal rather than equitable relief.

Because this is an action at law, tried without a jury, our scope of review on appeal mandates that we will not disturb findings of fact of the judge unless there is no evidence reasonably supporting the judge's findings. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976).

Appellant next asserts that the Board owed a fiduciary duty to appellant, and that the Board breached that duty. We disagree.

A fiduciary relationship exists when one reposes special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing confidence. Island Car Wash, Inc. v. Norris, 292 S.C. 595, 358 S.E.2d 150 (Ct.App.1987). The appellant claims that the Board should have notified her that the Lessers had submitted plans for a modification, and allowed her to comment on the proposed plans prior to the Board's deciding whether to grant the Lessers permission to build. Appellant also asserts that the Board had a duty to retain an architect to render an opinion as to whether the Lessers' proposed renovations were "in harmony and compatibility ... with the surrounding structures and topography" of Fairway Club.

We have never imposed the high standard of fiduciary duty on planned community organizations, such as the Board, which are vested with the discretion to ensure that proposed modifications to residential property enhance the entire community. ¹ Instead, under the correct standard, the Board has a duty to exercise judgment reasonably and in good faith. See Palmetto Dunes Resort v. Brown, 287 S.C. 1, 336 S.E.2d 15 (Ct.App.1985). We hold that the master-in-equity did not err in finding that the Board did not owe appellant a fiduciary duty.

Appellant next asserts that the Board acted unreasonably, in bad faith, and arbitrarily or capriciously. We disagree.

Appellant complains that the master-in-equity made a conclusory statement that the Board did not act arbitrarily, and that had the master-in-equity made specific findings, he would have been compelled to find that the Board did in fact act arbitrarily and capriciously. Appellant contends that the Board should have considered the impact of the Lessers' proposed extension on appellant's privacy and on her view across the Lessers' property. Appellant urges that the Board should have requested input from other residents of Fairway Club regarding the Lessers' proposed modification. Appellant also contends that the Board should have notified appellant as to the date the...