Vill. W. Horizontal Prop. Regime v. Arata

• Decision Date: 11 January 2007
• Docket Number: 2007-UP-015
• Parties: Village West Horizontal Property Regime, Respondent, v. Kenneth C. Arata and Madeleine R. Aratan, Appellants.
• Court: South Carolina Court of Appeals

Village West Horizontal Property Regime, Respondent, v. Kenneth C. Arata and Madeleine R. Aratan, Appellants.

No. 2007-UP-015

Court of Appeals of South Carolina

January 11, 2007

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted January 1, 2007

Appeal From Beaufort County Jackson V. Gregory, Circuit Court Judge

Jack D. Simrill, of Hilton Head Island, for Appellants.

Edward E. Bullard and Sonja N. Friedman, of Hilton Head Island, for Respondent.

PER CURIAM

In this lien foreclosure action, Kenneth C. and Madeleine R. Arata (the Aratas) appeal the circuit court's order granting Village West Horizontal Property Regime (Regime) summary judgment. We affirm. ^[1]

FACTS

The Aratas own Unit 6 in Phase 3 of the Village West Horizontal Property Regime. Unit 6 is located in the Spinnaker building one of five buildings within the Regime. In March 2005, the Regime filed a complaint against the Aratas for failure to pay an assessment. In addition, the Regime filed a lis pendens against Unit 6.

On March 21, 2005, the Regime filed an amended complaint asserting a lien against Unit 6 and asking the circuit court to foreclose on the lien. The Aratas answered, admitting they did not pay the assessment. However, they averred the Regime's By-Laws prevented the Regime from collecting the assessment. Furthermore, the Aratas counterclaimed for slander of title. Subsequently, the Aratas moved to amend their answer to assert a counterclaim for an accounting of settlement proceeds from a lawsuit involving construction defects in the Spinnaker building. ^[2]

The Regime moved for summary judgment, attaching a memorandum and several exhibits. The Regime explained it initiated two lawsuits from 1994 to 1997. The first suit involved construction-related defects in the Spinnaker building. This lawsuit settled for $300, 000. The second lawsuit involved construction-related defects in the other four buildings within the Regime. The second lawsuit settled for $7 million. ^[3]

According to the Regime, the total recovery from these suits did not cover the entire expense of repairing the buildings. As a result, the Regime's board assessed all of the unit owners according to their percentage of ownership in the Regime. The Aratas refused to pay this assessment. After the Regime filed the present foreclosure action, the Aratas sought a temporary injunction to stop the Regime's repair of the buildings. This request was denied.

The Aratas filed a motion in opposition to summary judgment. They argued the second lawsuit, relating to defects in all of the Regime's buildings except the Spinnaker building resulted in a deficiency. Consequently, the Aratas contended the Regime improperly levied the assessment to cover the deficiency as to those buildings only. Furthermore, they reiterated their position that the Regime's By-Laws prohibited such an assessment.

After a hearing, the circuit court granted summary judgment to the Regime and ordered foreclosure of the lien. The Aratas moved for reconsideration, which the circuit court denied. This appeal followed.

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the circuit court under Rule 56(c), SCRCP: summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 247, 626 S.E.2d 1, 3 (2006); Bennett v. Investors Title Ins. Co., 370 S.C. 578, ___, 635 S.E.2d 649, 654-55 (Ct. App. 2006). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Law v. S.C. Dep't of Corrs., 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006); Wells v. City of Lynchburg, 331 S.C. 296, 302, 501 S.E.2d 746, 749 (Ct. App. 1998). If triable issues exist, those issues must go the jury. Mulherin-Howell v. Cobb, 362 S.C. 588, 595, 608 S.E.2d 587, 591 (Ct. App. 2005).

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Law, 368 S.C. at 434, 629 S.E.2d at 648; BPS, Inc. v. Worthy, 362 S.C. 319, 325, 608 S.E.2d 155, 159 (Ct. App. 2005). On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below. Sloan v. Friends of Hunley, Inc., 369 S.C. 20, 25, 630 S.E.2d 474, 477 (2006); see also Schmidt v. Courtney, 357 S.C. 310, 317, 592 S.E.2d 326, 330 (Ct. App. 2003) (stating that all ambiguities, conclusions, and inferences arising from the evidence must be construed strongly against the moving party).

When further inquiry into the facts of the case is desirable to clarify application of the law, summary judgment is not appropriate. Gadson v. Hembree, 364 S.C. 316, 320, 613 S.E.2d 533, 535 (2005); Miller v. Blumenthal Mills, Inc., 365 S.C. 204, 220, 616 S.E.2d 722, 729 (Ct. App. 2005). Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Nelson v. Charleston County Parks & Recreation Comm'n, 362 S.C. 1, 5, 605 S.E.2d 744, 746 (Ct. App. 2004). However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Rife v. Hitachi Constr. Mach. Co., Ltd., 363 S.C. 209, 214, 609 S.E.2d 565, 568 (Ct. App. 2005); Ellis v. Davidson, 358 S.C. 509, 518, 595 S.E.2d 817, 822 (Ct. App. 2004).

The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact. Jones v. State Farm Mut. Auto. Ins. Co., 364 S.C. 222, 228, 612 S.E.2d 719, 722 (Ct. App. 2005). The moving party may discharge the burden of demonstrating the absence of a genuine issue of material fact by pointing out the absence of evidence to support the nonmoving party's case. Lanham v. Blue Cross & Blue Shield of S.C., Inc., 349 S.C. 356, 361, 563 S.E.2d 331, 333 (2002). Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings. Bennett v. Investors Title Ins. Co., 370 S.C. 561, ___, 635 S.E.2d 660, 665 (Ct. App. 2006). Rather, the nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Rife, 363 S.C. at 214, 609 S.E.2d at 568.

The purpose of summary judgment is to expedite the disposition of cases which do not require the services of a fact finder. Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003); Rumpf v. Massachusetts Mut. Life Ins. Co., 357 S.C. 386, 393, 593 S.E.2d 183, 186 (Ct. App. 2004). Because it is a drastic remedy, summary judgment should be cautiously invoked to ensure that a litigant is not improperly deprived of a trial on disputed factual issues. Helena Chem. Co. v. Allianz Underwriters Ins. Co., 357 S.C. 631, 644, 594 S.E.2d 455, 462 (2004); B & B Liquors, Inc. v. O'Neil, 361 S.C. 267, 270, 603 S.E.2d 629, 631 (Ct. App. 2004).

DISCUSSION

I. The By-Laws

The Aratas contend the circuit court erred in holding that the Regime's By-Laws did not prohibit the assessment. Alternatively, they maintain the By-Laws are ambiguous. In response, the Regime argues both the By-Laws and statutory authority compel the construction defects be repaired through a pro rata assessment. We agree with the Regime.

The operative documents that govern a horizontal property regime constitute a contract between the association and its individual members. Swanson v. Parkway Estates Townhouse Ass'n, 567 N.W.2d 767, 768 (Minn.App. 1997); see also Reyhani v. Stone Creek Cove Condo. II Horiz'l Prop. Regime, 329 S.C. 206, 211-13, 494 S.E.2d 465, 468-69 (Ct. App. 1997) (applying principles of contract law to interpret the operative documents of a horizontal property regime); Houck v. Rivers, 316 S.C. 414, 416, 450 S.E.2d 106, 108 (Ct. App. 1994) (interpreting provisions of a master deed using contract law). The interpretation of a clear and unambiguous agreement is a question of law for the court. Pearson v. Church of God, 325 S.C. 45, 54, 478 S.E.2d 849, 853 (1996); Stribling v. Stribling, 369 S.C. 400, ___, 632 S.E.2d 291, 293 (Ct. App. 2006).

In construing a contract, the primary objective is to ascertain and give effect to the intention of the parties. D.A Davis Constr. Co., Inc. v. Palmetto Props., Inc., 281 S.C. 415, 418, 315 S.E.2d 370, 372 (1984); Ellie, Inc. v. Miccichi, 358 S.C. 78, 93, 594 S.E.2d 485, 493 (Ct. App. 2004); see also Brady v. Brady, 222 S.C. 242, 246, 72 S.E.2d 193, 195 (1952) (Agreements should be liberally construed so as to give them effect and carry out the intention of the parties.”). The parties' intention should first be determined from the language of the contract. Schulmeyer v. State Farm Fire & Cas. Co., 353 S.C. 491, 495, 579 S.E.2d 132, 134 (2003); Gilbert v. Miller, 356 S.C. 25, 30, 586 S.E.2d 861, 864 (Ct. App. 2003); Goode v. St. Stephens United Methodist Church, 329 S.C. 433, 445, 494 S.E.2d 827, 833 (Ct. App. 1997); see also Bruce v. Blalock, 241 S.C. 155, 161, 127 S.E.2d 439, 442 (1962) (It is axiomatic that the intent and purport of a written contract or agreement has to be gathered from the contents of the entire...