Skull Creek Club Ltd. Partnership v. Cook and Book, Inc.

• Decision Date: 08 September 1993
• Docket Number: No. 2077,2077
• Court: South Carolina Court of Appeals
• Parties: SKULL CREEK CLUB LIMITED PARTNERSHIP and White Star Associates, Inc., Appellants, v. COOK AND BOOK, INC.; Rick Stone and Deborah Stone, Respondents. . Heard

Page 163

437 S.E.2d 163

313 S.C. 283

SKULL CREEK CLUB LIMITED PARTNERSHIP and White Star Associates, Inc., Appellants, v. COOK AND BOOK, INC.; Rick Stone and Deborah Stone, Respondents.

No. 2077.

Court of Appeals of South Carolina.

Heard Sept. 8, 1993.

Decided Oct. 4, 1993.

Rehearing Denied Nov. 10, 1993.

Certiorari Granted Aug. 11, 1994.

William R. Phipps, of Bethea, Jordan & Griffin, Hilton Head Island, for appellants.

Curtis L. Coltrane, of Wilson & Coltrane, Hilton Head Island, for respondents.

CURETON, Judge.

Skull Creek Club Limited Partnership and White Star Associates, Inc. (hereinafter "landlords") filed an Application for Eviction alleging that Cook and Book, Inc., Rick Stone and Deborah Stone (hereinafter "tenants") had breached the terms of a written lease. The trial court found in favor of tenants. We affirm.

Landlords are owners of the Skull Creek Marina located on Hilton Head Island. Tenants leased the property pursuant to the terms of a written lease dated July 30, 1990 for the purpose of operating a restaurant and lounge.

Landlords claimed the tenants breached the lease in several ways. Each of the alleged breaches related to defaults in the payment of money under the lease. The tenants argued that all amounts due under the terms and conditions of the lease had been paid.

The landlord claimed that the following amounts were due:

                (1)  Pro Rata Real Property Taxes          $1,103.38
                (2)  Pro Rata Utility and Service Costs    $1,358.62
                (3)  Insurance Costs                       $  666.00
                (4)  Monthly Rental                        $4,127.45
                                                         -----------
                                                  TOTAL  - $7,255.45
                

I.

As relates to the claim for a pro rata share of real property taxes, the lease states that "Tenant shall pay to Landlord, as additional rent, hereunder all real estate taxes, special assessments, personal property taxes, and property owners assessments levied or assessed against the Property during the term of the lease." (emphasis added). The property is described as, "[t]he premises as reflected on the attached Exhibit "A" ("Real Property") ..." ¹

The landlords argue that the lease clearly and unambiguously describes the demised premises and requires tenants to pay a pro rata share of the real property taxes on the entire property shown on both pages of Exhibit "A" to the lease, including the parking lot. Tenants contend that since they only leased a portion of the building depicted on the first page of Exhibit "A", they were not required to pay a pro rata portion of expenses related to the remainder of the property shown on the second page of Exhibit "A".

Exhibit "A" and the description of the leased "Property" arguably indicate that tenants leased the entire property depicted in Exhibit "A", including the parking lot. However, other parts of the lease arguably indicate that tenants only leased approximately two-thirds of the building shown on page one of Exhibit "A". Therefore, to the extent that exhibit "A" purports to show the demised premises, it conflicts with other portions of the lease. As a result, the trial court found that an ambiguity was present. ² We agree.

The construction of a contract which is ambiguous, or capable or more than one construction, is a question of fact. Cafe Associates, Ltd. v. Gerngross, 305 S.C. 6, 406 S.E.2d 162 (1991); Peeples v. South Carolina Power Co., 166 S.C. 150, 164 S.E. 605 (1932); 17A C.J.S. Contracts § 611 (1963). As with any other contract, the duty of the court in construing a lease is to determine the intention of the parties at the time the lease was made. Price v. Derrick, 262 S.C. 341, 204 S.E.2d 389 (1974). In arriving at the intention of the parties, the lease must be construed as a whole and different provisions dealing with the same subject matter are to be read together. Wise v. Picow, 232 S.C. 237, 101 S.E.2d 651 (1958).

Moreover, a lease is to be construed more strongly against the lessor, and in favor of the lessee, particularly where the lease was prepared by the lessor. Thus, where the lease admits of two constructions, either of which is reasonable, the one more favorable to the lessee must be adopted. 49 Am.Jur.2d Landlord and Tenant § 143 (1970).

Since an action for ejectment is one at law Rogers v. Nation, 284 S.C. 330, 326 S.E.2d 182 (Ct.App.1985), as is an action for breach of contract Airfare, Inc. v. Greenville Airport Comm., 249 S.C. 265, 153 S.E.2d 846 (1967), the findings of fact of the judge will not be disturbed unless found to be without evidentiary support. Townes Associates, Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976); American Federal Bank, F.S.B. v. White, 296 S.C. 165, 370 S.E.2d 923 (Ct.App.1988). The rule is the same whether the judge's findings are made with or without a reference. Id.

We hold there is some evidentiary support in the record for the trial court's conclusion that only those portions of the building used by the tenants were to be considered the demised premises, and, the terms of the lease did not require tenants to pay taxes on the entire property depicted in Exhibit "A". ³

II.

Landlords argue the court erred in excluding the testimony of their former attorney Mr. Smoot, who negotiated and partially drafted the lease agreement. They claim they have been prejudiced by the exclusion of this testimony which would have detailed the negotiations leading up to execution of the lease and the intent of all ambiguous portions of the lease. They also maintain the court abused its discretion in refusing to allow a proffer regarding Smoots' purported testimony. We discern no prejudice from the refusal to admit the proffer.

Admittedly, the proposed testimony related to the attorney's understanding of the terms of the lease and the negotiations involved. However, it was the parties' understanding, not their attorney's, at issue in this case. At any rate, Mr. Smoot was allowed to testify to some extent concerning the terms of the lease. He testified the Lease Agreement was to include a portion of the building, the underlying land, and the parking area. He stated "I remember highlighted in yellow, descriptions of the property which were included in the lease." ⁴ Furthermore, the landlords' witness had already offered testimony concerning the negotiations of the parties and his understanding of the disputed terms of the lease.

It is well settled that any error in the exclusion of evidence which is already in the record from another source is harmless error. Smith v. Winningham, 252 S.C. 462, 166 S.E.2d 825 (1969); State Auto Insurance Co. v. Stuart, 287 S.C. 235, 337 S.E.2d 698 (Ct.App.1985). Since the same evidence concerning the prior negotiations and the intent of the parties had already been admitted through another witness, no prejudice, and therefore, no reversible error can be shown from the refusal to admit the same evidence from the landlords' attorney. Id.

III.

Landlords also argue the court erred by not ordering tenants to pay a pro rata share of expenses related to the fire alarm monitoring and freeze protection systems. We disagree.

The court concluded that "By the plain and express language of Schedule 'C' to the lease, the only 'utilities' which are to be pro-rated are irrigation water, electrical utilities and water and sewer."

Landlords claim the court erred in relying solely on Schedule "C" and failing to consider the first part of Article 3 which requires the tenant to pay "other such services including installation or like charges ... which may be furnished to or used by Tenant in or about the Property." Landlords argue that the freeze protection system and fire alarm monitoring system are "other services" used by tenants in or about the property.

Landlords' argument, however, contradicts the allegations in their complaint and their application for eviction. Paragraph 10 of the Complaint, and paragraph 6 of the application for eviction state the following:

That in accordance with the terms and conditions of the Lease Agreement, Defendants also agreed to pay a pro rata portion of the cost of utilities and other services furnished or used by the Defendants in or about the leased property. Exhibit "C" to said Lease sets forth the agreed-upon pro rata share of these utility and service costs."

(emphasis added).

In Postal v. Mann, --- S.C. ----, 418 S.E.2d 322 (Ct.App.1992), this court stated the general rule regarding arguments which contradict a party's pleadings:

It is well settled that parties are judicially bound by their pleadings unless withdrawn, altered or stricken by amendment or otherwise. The allegations, statements, or admissions contained in a pleading are conclusive as against the pleader and a party cannot subsequently take a position contradictory of, or inconsistent with, his pleadings and the...