O'Shea v. Lesser, No. 23622

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtHARWELL
Decision Date19 February 1992
PartiesAudrey 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
Docket NumberNo. 23622

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.

Page 630

[308 S.C. 12] 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.

[308 S.C. 13] 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:

Page 631

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' [308 S.C. 14] 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...

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46 practice notes
  • Regions Bank v. Schmauch, No. 3651.
    • United States
    • Court of Appeals of South Carolina
    • 9 Junio 2003
    ...conscience, is bound to act in good faith and with due regard to the interests of the one reposing confidence." O'Shea v. Lesser, 308 S.C. 10, 15, 416 S.E.2d 629, 631 (1992); Island Car Wash, Inc. v. Norris, 292 S.C. 595, 599, 358 S.E.2d 150, 152 (Ct.App.1987). A relationship must be m......
  • Cedar Cove Homeowners Ass'n v. DiPietro, No. 4092.
    • United States
    • Court of Appeals of South Carolina
    • 13 Marzo 2006
    ...and sought only an injunction. The character of an action as legal or equitable depends on the relief sought. Compare O'Shea v. Lesser, 308 S.C. 10, 14, 416 S.E.2d 629, 631 (1992) (holding an action for breach of restrictive covenants was at law, because relief sought was general damages fo......
  • Lawlor v. N. Am. Corp., No. 112530.
    • United States
    • Supreme Court of Illinois
    • 28 Enero 2013
    ...1336 (Okla.1978); Mauri v. Smith, 324 Or. 476, 929 P.2d 307 (1996); Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959); O'Shea v. Lesser, 308 S.C. 10, 416 S.E.2d 629 (1992); Valenzuela v. Aquino, 853 S.W.2d 512 (Tex.1993); Cox v. Hatch, 761 P.2d 556 (Utah 1988); Denton v. Chittenden Bank, 1......
  • Vanwyk Textile Systems v. Zimmer Mach. Amer., Inc., No. 3:95CV483-MCK.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • 4 Diciembre 1997
    ...be characterized as "fiduciary" based upon the trust and confidence which Vanwyk reposed in Zimmer. In O'Shea v. Lesser, 308 S.C. 10, 416 S.E.2d 629, 631 (1992), the South Carolina Supreme Court stated, "A fiduciary relationship exists when one reposes special confidence in a......
  • Request a trial to view additional results
46 cases
  • Regions Bank v. Schmauch, No. 3651.
    • United States
    • Court of Appeals of South Carolina
    • 9 Junio 2003
    ...conscience, is bound to act in good faith and with due regard to the interests of the one reposing confidence." O'Shea v. Lesser, 308 S.C. 10, 15, 416 S.E.2d 629, 631 (1992); Island Car Wash, Inc. v. Norris, 292 S.C. 595, 599, 358 S.E.2d 150, 152 (Ct.App.1987). A relationship must be m......
  • Cedar Cove Homeowners Ass'n v. DiPietro, No. 4092.
    • United States
    • Court of Appeals of South Carolina
    • 13 Marzo 2006
    ...and sought only an injunction. The character of an action as legal or equitable depends on the relief sought. Compare O'Shea v. Lesser, 308 S.C. 10, 14, 416 S.E.2d 629, 631 (1992) (holding an action for breach of restrictive covenants was at law, because relief sought was general damages fo......
  • Lawlor v. N. Am. Corp., No. 112530.
    • United States
    • Supreme Court of Illinois
    • 28 Enero 2013
    ...1336 (Okla.1978); Mauri v. Smith, 324 Or. 476, 929 P.2d 307 (1996); Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959); O'Shea v. Lesser, 308 S.C. 10, 416 S.E.2d 629 (1992); Valenzuela v. Aquino, 853 S.W.2d 512 (Tex.1993); Cox v. Hatch, 761 P.2d 556 (Utah 1988); Denton v. Chittenden Bank, 1......
  • Vanwyk Textile Systems v. Zimmer Mach. Amer., Inc., No. 3:95CV483-MCK.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • 4 Diciembre 1997
    ...be characterized as "fiduciary" based upon the trust and confidence which Vanwyk reposed in Zimmer. In O'Shea v. Lesser, 308 S.C. 10, 416 S.E.2d 629, 631 (1992), the South Carolina Supreme Court stated, "A fiduciary relationship exists when one reposes special confidence in a......
  • Request a trial to view additional results

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