Walbeck v. I'On Co., Appellate Case No. 2015-001590

CourtCourt of Appeals of South Carolina
Writing for the CourtGEATHERS, J.
Citation426 S.C. 494,827 S.E.2d 348
Parties Brad J. WALBECK and Lea Ann Adkins, individually and derivatively on behalf of The I'On Assembly, Inc., and I'On Assembly, Inc., Respondents, v. The I'ON COMPANY, LLC, The I'On Club, LLC, The I'On Group, LLC f/k/a Civitas, LLC; and I'On Realty, LLC, Appellants.
Docket NumberOpinion No. 5588,Appellate Case No. 2015-001590
Decision Date08 August 2018

426 S.C. 494
827 S.E.2d 348

Brad J. WALBECK and Lea Ann Adkins, individually and derivatively on behalf of The I'On Assembly, Inc., and I'On Assembly, Inc., Respondents,
v.
The I'ON COMPANY, LLC, The I'On Club, LLC, The I'On Group, LLC f/k/a Civitas, LLC; and I'On Realty, LLC, Appellants.

Appellate Case No. 2015-001590
Opinion No. 5588

Court of Appeals of South Carolina.

Heard April 12, 2018
Filed August 8, 2018
Withdrawn, Substituted and Refiled February 27, 2019
Rehearing Denied May 22, 2019


Brian C. Duffy, Seth W. Whitaker, and Julie L. Moore, all of Duffy & Young, LLC, of Charleston, for Appellants.

Justin O'Toole Lucey and Joshua F. Evans, both of Justin O'Toole Lucey, P.A., of Mount Pleasant, for Respondents.

GEATHERS, J.:

827 S.E.2d 352
426 S.C. 502

In this action alleging violation of the Interstate Land Sales Full Disclosure Act (ILSA), 42 U.S.C. §§ 1701 to -1720 (1994), Appellants, The I'On Company, LLC, The I'On Club, LLC, The I'On Group, LLC f/k/a Civitas, LLC, and I'On Realty, LLC, seek review of the circuit court's orders (1) denying their motion for a judgment notwithstanding the verdict (JNOV) or new trial absolute and new trial nisi remittitur, (2) declaring a recreational easement invalid, (3) denying their motion for attorney's fees against Respondent Lea Ann Adkins, and (4) granting attorney's fees to Respondent Brad J. Walbeck.

Appellants argue (1) Walbeck and Adkins could not pursue this action as a derivative action; (2) Respondents' claims are barred by the statute of limitations; (3) the disputed recreational easement was valid and perpetual; (4) there was no fiduciary duty to convey certain amenities to the homeowners association, Respondent I'On Assembly, Inc.; (5) the directed verdict on Appellants' abuse of process counterclaim was improper; (6) Appellants were entitled to attorney's fees as the prevailing party on Adkins' breach of contract claim; (7) the attorney's fees award to Walbeck was unreasonable because he was awarded merely nominal damages on his ILSA claim; (8) the circuit court's ruling that Appellants were amalgamated was improper; and (9) Walbeck failed to show he relied on any representation made by Appellants and, therefore, he failed to establish a claim under ILSA.

We affirm in part, reverse in part, and remand for a new trial on Walbeck's breach of contract claim and the dismissal of all other claims.

FACTS/PROCEDURAL HISTORY

At the heart of this convoluted case is a developer's promise to convey certain amenities in a residential community to a homeowner's association. Specifically, Respondents allege that Appellants promised they would convey to Respondent I'On Assembly, Inc. (the HOA) the Community Dock and Creekside

426 S.C. 503

Park located on the civic lot on which the boat ramp was located (lot CV-6) in I'On Village but instead sold these amenities to a third party. Appellants, however, allege they promised to convey a "generic" community dock and creekside park to the HOA but not the specific ones located on lot CV-6. Appellants also allege they conveyed the amenities as promised.

I'On Village is located in Mount Pleasant. It was conceived by Thomas Graham and his son, Vince Graham. Thomas Graham's company, Graham Development, was the original majority owner of the I'On Company, LLC (the I'On Company), and Vince Graham was the company's manager. The I'On Company's subsidiary, I'On Realty, LLC (I'On Realty), employed real estate agents to market the lots in I'On Village.

On November 27, 1999, Walbeck entered into a contract to purchase a lot in I'On Village. Walbeck's purchase contract incorporated a property report (the 1998 Property Report) that the I'On Company had filed with the United States Department of Housing and Urban Development (HUD) on November 3, 1998, pursuant to ILSA.1 The report set forth information deemed necessary to protect prospective purchasers, including the amenities that would be provided to lot owners.

Specifically, the report included a chart listing amenities to be built during the first two phases of the development. Among the amenities to be built in Phase II was a "Creekside Park" and a "Community Dock." Under this listing was the following language:

The recreational facilities listed in the chart above shall, upon completion of construction, be conveyed to the [HOA] by quitclaim deed free and clear of all monetary liens and encumbrances at no cost to the [HOA] or its members. Upon conveyance of these facilities to the [HOA], it shall assume full responsibility for the costs of ownership, operation, and maintenance of the facilities conveyed to it.
827 S.E.2d 353

The report also included the following notification:

426 S.C. 504
VARIOUS RECREATIONAL FACILITIES IN THE SUBDIVISION MAY BE OWNED AND OPERATED BY PERSONS OTHER THAN THE [HOA]. THERE IS NO GUARANTEE THAT ANY SUCH FACILITIES WILL BE AVAILABLE FOR USE BY LOT OWNERS. ANY, OR ALL OF SUCH FACILITIES MAY BE OPERATED AS A PRIVATE CLUB FOR MEMBERS AND THEIR GUESTS. THERE IS NO ASSURANCE THAT YOU WILL BE ACCEPTED FOR MEMBERSHIP IN ANY SUCH PRIVATE CLUB IF YOU APPLY. IF ACCEPTED, THE COSTS OF SUCH A MEMBERSHIP MAY BE SUBSTANTIAL AND ARE IN ADDITION TO THE PURCHASE PRICE OF YOUR LOT. NO REFUND OF THE PURCHASE PRICE OF YOUR LOT WILL BE MADE IF YOU CANNOT OBTAIN A MEMBERSHIP. SINCE THE VALUE OF YOUR LOT MAY BE ADVERSELY AFFECTED BY YOUR INABILITY OR FAILURE TO OBTAIN A MEMBERSHIP, YOU SHOULD CAREFULLY CONSIDER YOUR PURCHASE OF A LOT IF IT IS BASED UPON YOUR PRESUMED ABILITY TO OBTAIN A MEMBERSHIP IN ANY PRIVATE CLUB AND TO USE ITS RECREATIONAL FACILITIES.

Throughout the years after Walbeck received the 1998 Property Report, Appellants built multiple community docks and parks in I'On Village. Nonetheless, Respondents considered and expected the Community Dock and Creekside Park listed in the 1998 Property Report to be located on lot CV-6—this lot had at least 300 feet of deep water access to Hobcaw Creek. The I'On Company also completed construction of a building on lot CV-6 that became known as the "Creek Club." The Creek Club was intended as a venue for wedding receptions and other events. It operated as a private club and hosted its first event circa 2003.

Appellants vacillated throughout the years concerning what they designated as the Community Dock and Creekside Park. At trial, Thomas Graham admitted that the Creek Club overlooked a park. He also admitted that when the I'On Company was planning its parks in 1999, the plans included "the Creek Club Park." In his deposition, Thomas Graham testified that the "Community Dock" listed in the 1998 Property Report

426 S.C. 505

referred to the main dock at the Creek Club that was adjacent to the boat ramp on lot CV-6; the boat ramp was built in 1999 or 2000, and the Creek Club dock was completed in 2000 or 2001.2 However, at trial, Thomas Graham disputed that the "Community Dock" listed in the 1998 Property Report referred to the Creek Club dock. He explained the reference to a community dock in the 1998 Property Report "was to a generic community dock" and not to a specific property as Respondents contended. He stated, "[T]his was before we had designed anything -- got anything permitted or approved, even bought the land .... We didn't know whether -- at that time, ... we thought sure we'd get one -- at least one community dock, but we didn't know how many, so that was a reference to that community dock."

On February 9, 2000, the I'On Club, LLC (the I'On Club) executed a "Recreational Easement and Agreement to Share Costs" (Recreational Easement) purporting to "provide access to the [HOA] members for them to use the docks and the boating ramp" off lot CV-6.3 The Recreational Easement also included language purporting to grant an easement to the I'On Club for use and access to certain common areas within I'On Village. On page three of the document, the easement is described as perpetual. However, section 4.2 of the Recreational Easement states that either party can terminate the easement after thirty years upon six months' notice. Thomas Graham described this language as a mistake because the I'On Club intended for the Recreational Easement to be permanent.

827 S.E.2d 354

Section 3.1 of the Recreational Easement required the HOA to pay assessments "to cover a share of the costs incurred by [the I'On Club] in maintaining, repairing, replacing, operating[,] and insuring the Boating Facilities." The Boating Facilities were identified as "certain recreational facilities, including a boat ramp and dock and a driveway and parking area to serve them."

426 S.C. 506

On April 10, 2000, the I'On Company completed an amended property report for filing with HUD (first amended Property Report). Whereas the 1998 Property Report listed a "Creekside Park" and a "Community Dock" among the amenities to be built in Phase II, the first amended Property Report's list substituted "Marshwalk (park)" for "Creekside...

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  • Anderson v. Cordell (In re Infinity Bus. Grp., Inc.), Civil Action No. 3:19-cv-03096-JMC
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 31, 2021
    ...Trustee asserts that this issue is a mixed question of law and fact, it is in actuality a question of law. See Walbeck v. I'On Co., LLC , 426 S.C. 494, 827 S.E.2d 348, 358 (S.C. Ct. App. 2019) (citing Hendricks v. Clemson Univ. , 353 S.C. 449, 578 S.E.2d 711, 714 (2003) ("Whether the law re......
  • RG4 Holding Co. v. Dennis Eng'g Grp., LLC, Civil Action No. 4:16-cv-03796-TER
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 1, 2020
    ...(Ct. App. 2004).62. A fiduciary duty can be created and accepted in several ways, including by contract. See Walbeck v. I'On Co., LLC, 827 S.E.2d 348, 358 (Ct. App. 2019) ("An affirmative legal duty exists only if created by statute, contract, relationship, status, property interest, or som......
  • Blanding v. Lott, Appellate Case No. 2017-001124
    • United States
    • Court of Appeals of South Carolina
    • July 31, 2019
    ...ground will become law of the case." (quoting Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010))); Walbeck v. I'On Co., 426 S.C. 494, 526, 827 S.E.2d 348, 364 (Ct. App. 2019) (recognizing the two issue rule can be applied in situations not involving a jury).Second, we find no sup......
  • Wilson v. Jayma, 2021-UP-343
    • United States
    • Court of Appeals of South Carolina
    • September 29, 2021
    ...277 (Ct. App. 2010) (holding an action for fraud was governed by the three-year statute of limitations period); Walbeck v. I'On Co., LLC, 426 S.C. 494, 519, 827 S.E.2d 348, 361 (Ct. App. 2019), petition for cert. filed (S.C. June 21, 2019) (noting the three-year statute of limitations appli......
  • Request a trial to view additional results
10 cases
  • Anderson v. Cordell (In re Infinity Bus. Grp., Inc.), Civil Action No. 3:19-cv-03096-JMC
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • March 31, 2021
    ...Trustee asserts that this issue is a mixed question of law and fact, it is in actuality a question of law. See Walbeck v. I'On Co., LLC , 426 S.C. 494, 827 S.E.2d 348, 358 (S.C. Ct. App. 2019) (citing Hendricks v. Clemson Univ. , 353 S.C. 449, 578 S.E.2d 711, 714 (2003) ("Whether the law re......
  • RG4 Holding Co. v. Dennis Eng'g Grp., LLC, Civil Action No. 4:16-cv-03796-TER
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • June 1, 2020
    ...(Ct. App. 2004).62. A fiduciary duty can be created and accepted in several ways, including by contract. See Walbeck v. I'On Co., LLC, 827 S.E.2d 348, 358 (Ct. App. 2019) ("An affirmative legal duty exists only if created by statute, contract, relationship, status, property interest, or som......
  • Blanding v. Lott, Appellate Case No. 2017-001124
    • United States
    • Court of Appeals of South Carolina
    • July 31, 2019
    ...ground will become law of the case." (quoting Jones v. Lott, 387 S.C. 339, 346, 692 S.E.2d 900, 903 (2010))); Walbeck v. I'On Co., 426 S.C. 494, 526, 827 S.E.2d 348, 364 (Ct. App. 2019) (recognizing the two issue rule can be applied in situations not involving a jury).Second, we find no sup......
  • Wilson v. Jayma, 2021-UP-343
    • United States
    • Court of Appeals of South Carolina
    • September 29, 2021
    ...277 (Ct. App. 2010) (holding an action for fraud was governed by the three-year statute of limitations period); Walbeck v. I'On Co., LLC, 426 S.C. 494, 519, 827 S.E.2d 348, 361 (Ct. App. 2019), petition for cert. filed (S.C. June 21, 2019) (noting the three-year statute of limitations appli......
  • Request a trial to view additional results

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