/opinions/HTMLFiles/COA/3672.htm

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

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Patsy Ann Gilbert, Appellant,

v.

Marvin Miller and Toya Abbatiello, Defendants,

Of whom Toya Abbatiello is Respondent.

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Appeal From Greenville County
Charles B. Simmons, Jr., Special Circuit Court Judge

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Opinion No. 3672
Submitted April 7, 2003 Filed August 18, 2004

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AFFIRMED

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James H. Price, III, and H.W. Pat Paschal, Jr., both of Greenville, for Appellant.

Matthew K. Johnson, of Greenville, for Respondent.

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CONNOR, J.:  Patsy Ann Gilbert filed suit against Marvin Miller and Millers landlord, Toya Abbatiello, to recover for personal injuries sustained by Gilbert after being bitten by Millers dog. Abbatiello filed a motion to dismiss pursuant to Rule 12(b)(6), SCRCP. The trial court granted Abbatiellos motion. We affirm.

FACTS

Miller resides with his dog at an apartment complex owned by Abbatiello. Millers dog attacked Gilbert while she was visiting at another tenants apartment. [1]

Gilbert filed suit against Miller and Abbatiello. Gilbert alleged in her complaint that Abbatiello was negligent in allowing Miller to keep a vicious dog on her premises despite . . . a policy of no dogs kept by tenants except for small dogs. The complaint did not refer to any lease agreement and did not allege any duty on the part of Abbatiello.

Abbatiello moved to dismiss the complaint against her based on Gilberts failure to state facts sufficient to constitute a cause of action upon which relief can be granted. Rule 12(b)(6), SCRCP. The trial court granted Abbatiellos motion. This appeal follows.

STANDARD OF REVIEW

Gilbert correctly asserts the trial court converted Abbatiellos Rule 12(b)(6) motion into a motion for summary judgment by reviewing matters outside of the pleadings. The trial courts order referred to Abbatiellos motion as a motion to dismiss pursuant Rule 12(b)(6), SCRCP. A Rule 12(b)(6) motion is converted to a Rule 56, SCRCP, motion for summary judgment if matters outside the pleading are presented to and not excluded by the Court . . . . Rule 12(b), SCRCP.

Gilbert submitted affidavits, photographs, and a copy of the lease agreement in her response to Abbatiellos motion. Abbatiello did not object to their inclusion and the trial court specifically mentioned the lease agreement and Patsy Chambers affidavit in its order. Therefore, Abbatiellos Rule 12(b)(6) motion was converted to a motion for summary judgment. See Benson v. United Guar. Residential Ins. of Iowa, 315 S.C. 504, 445 S.E.2d 647 (Ct. App. 1994) (finding where the trial court considers matters outside the pleadings the motion to dismiss is converted to one for summary judgment).

When reviewing a dismissal of an action under Rule 56, SCRCP, an appellate court applies the same standard of review implemented by the trial court. Fleming v. Rose, 350 S.C. 488, 567 S.E.2d 857 (2002). A trial courts decision to grant a motion for summary judgment is appropriate only when there is no genuine issue of material fact so that the moving party is entitled to judgment as a matter of law. Id. All ambiguities, conclusions, and inferences arising from the evidence must be construed against the movant. Id.

LAW/ANALYSIS

A.

Gilbert argues the trial court erred by dismissing her complaint on the basis that a landlord is not liable for injuries caused by a tenants dog kept on leased premises.

In Mitchell v. Bazzle, 304 S.C. 402, 404 S.E.2d 910 (Ct. App. 1991), we first addressed a landlords liability for injuries inflicted by a tenants dog. The clear question presented in Mitchell was whether South Carolina law imposed a duty on [landlord] to [plaintiff] to terminate [tenant]s month-to-month lease in order to remove [tenant]s dog from the land. Id. at 404, 404 S.E.2d at 911. We held a landlord could not be vicariously liable under the common law for the actions of a tenants dog even where the landlord knew of the animals vicious propensities and could have foreseen the injury, had adequate time to terminate a month-to-month tenancy, and failed to terminate the lease. Id. at 404-05, 404 S.E.2d at 911-12. [2]

In Fair v. United States, 334 S.C. 321, 513 S.E.2d 616 (1999), our Supreme Court analyzed the question of whether the South Carolina Residential Landlord and Tenant Act (RLTA) [3] altered the common law rule espoused in Mitchell. The Court held that under the RLTA a landlord is liable only for defects relating to the inherent physical state of the leased premises. Fair, 334 S.C. at 323-24, 513 S.E.2d at 617. Therefore, the RTLA does not alter the common law rule that a landlord is not liable to a tenants invitee for injury caused by a tenants dog. Id.; see Bruce v. Durney, 341 S.C. 563, 534 S.E.2d 720 (Ct. App. 2000) (recognizing and reaffirming the principle of law stated in Fair and Mitchell).

Since there is no dispute over any material facts, the trial court did not err in granting summary judgment. Abbatiello was entitled to judgment as a matter of law because South Carolina law does not recognize holding a landlord vicariously liable for the actions of a tenants dog.

B.

However, this does not end the inquiry. Gilbert also contends the trial court erred in granting summary judgment for Abbatiello because the lease agreement between Abbatiello and Miller created a duty of care for the landlord to prevent harm by a tenants dog. See Miller v. City of Camden, 317 S.C. 28, 451 S.E.2d 401 (Ct. App. 1994), affd as modified, 329 S.C. 310, 494 S.E.2d 813 (1997) (stating an affirmative legal duty to act can exist if created by contract). The lease provided:

Pets must meet the approval of the landlord and appropriate additional deposits may be required. Dogs will not be allowed in multifamily units. Continuous disturbances or complaints, such as odors, fleas or messes caused by the pet, will result in the deposit being forfeited along with additional monies to correct the problems and the animal must leave the premises. If it is necessary to hire a pest eradicator because of a flea problem the tenant will pay the cost. The tenant will also be responsible for any damage caused by the pet and must be in full control of the pet at all times.

Initially, Gilbert did not allege, and there is no evidence in the record, she entered into a lease agreement like the one between Abbatiello and Miller. Thus, in the absence of any allegation that Gilbert entered into an identical lease, it is impossible to say, as Gilbert claims in her brief, the lease could be relied upon by other tenants in entering their lease as assurance that their premises (and guests) would be free of the presence of a vicious dog. See Bob Hammond Const. Co. v. Banks Const. Co., 312 S.C. 422, 440 S.E.2d 890 (Ct. App. 1994) (stating a third person not in privity of contract with the contracting parties generally may not enforce the provisions of a contract unless it is entered into for the benefit of the third person).

This Court dealt with the creation of a duty by a lease in Goode v. St. Stephens United Methodist Church, 329 S.C. 433, 494 S.E.2d 827 (Ct. App. 1997). Goode was attacked while visiting a friend at an apartment complex. One of his attackers resided at the apartment complex.

Goode sued the landlord (St. Stephens) asserting St. Stephens was negligent in failing to provide security. Goode alleged he was a third party beneficiary under the lease agreement in which tenants agreed not to engage in unlawful conduct on the grounds of the apartment complex. Thus, Goode argued the lease created a duty for St. Stephens to protect him from attack by third parties. Id. at 445, 494 S.E.2d at 833.

Upon examination of the lease provision, we concluded St. Stephens did not owe a duty of care to Goode because he was not a third party beneficiary under the contract. We concluded that if St. Stephens did not covenant to prevent or to protect tenants from the violent acts of other tenants or third parties it surely could not have intended to create such a benefit directly in favor of Goode. Id. at 446, 494 S.E.2d at 833.

The main guide in contract interpretation is to ascertain and give legal effect to the intentions of the parties as expressed in the language of the lease. United Dominion Realty Trust, Inc. v. Wal-Mart Stores, Inc., 307 S.C. 102, 413 S.E.2d 866 (Ct. App. 1992). If a contracts language is clear and capable of legal construction, this Courts function is to interpret its lawful meaning and the intent of the parties as found in the agreement. Smith-Cooper v. Cooper, 344 S.C. 289, 543 S.E.2d 271 (Ct. App. 2001). A clear and explicit contract must be construed according to the terms the parties have used, with the terms to be taken and understood in their plain, ordinary, and popular sense. Sphere Drake Ins. Co. v. Litchfield, 313 S.C. 471, 438 S.E.2d 275 (Ct. App. 1993).

It is clear the language of the lease did not intend to make Gilbert, as either a tenant or a guest, a third party beneficiary by imposing a duty in tort on the landlord to prevent a tenants dog from injuring another. The lease provision cannot be construed as being for the protection of other tenants or guests. A review of the lease provision shows its primary purpose was to prevent damage to the property or disruption of the physical habitability of the apartment complex by a tenants pet. This is evident from the provisions use of the general term pets rather than dogs. [4] This provision could refer to any pet, not only dogs, and demonstrates Abbatiello did not contract to protect others from dogs on the premises.

The lease provisions concern rested in ensuring any tenant who kept a pet would be responsible for any mess or sanitary problems caused by the animal. Importantly, the lease explicitly made the control of the pet the sole responsibility of the tenant, not the landlord. See Braun v. York Props., Inc., 583 N.W.2d 503 (Mich. Ct. App. 1998) (finding landlord had no duty to protect others from attack by a tenants dog even where landlord had promulgated rules and regulations governing tenants possession of dogs; the primary purpose of the rules was to protect against harm to the premises); cf. Alaskan Village, Inc. v. Smalley, 720 P.2d 945 (Alaska 1986) (finding landlord had undertaken a specific duty to protect others from tenants vicious dog and could be found liable where lease specifically prohibited tenants from keeping vicious dogs).

The landlord here has not contracted to remove pets unless there have been continuous disturbances or complaints. Abbatiello had not received any complaints about Millers dog other than her own observation a couple of days before the attack of the dog raging and rearing up. The lease provision prohibiting pets in multifamily units was not equivalent to a promise creating a duty on the part of Abbatiello to keep the premises free from pets or vicious dogs. Moreover, there is no evidence Abbatiello permitted Miller to keep the dog in the multifamily unit, or knew of any intention by Miller to keep a pet at his unit, at the time the lease was entered into. [5]

Our opinion in Mitchell is also instructive in determining whether the lease created a duty of care for Abbatiello to prevent harm by a tenants dog. Mitchell, 304 S.C. at 404-05, 404 S.E.2d at 911-12. In holding that the law did not impose a duty on the landlord based on the circumstances present in Mitchell, we clearly implied that a landlord is not liable even where a landlord has some form of control, i.e., termination of the lease, over a tenants dog. But see FOC Lawshe Ltd. Pship v. Intl Paper Co., 352 S.C. 408, 414, 574 S.E.2d 228, 231 (Ct. App. 2002) (In Mitchell, this court found that even though the landlord knew of the dogs viciousness, had adequate time to terminate the tenants lease, and failed to terminate the tenants lease, the landlord was not liable for the acts of the tenants dog over which the landlord had no control.) (emphasis added).

The trial court did not err in finding the lease did not alter the common law rule that a landlord is not liable to a third party for injuries caused by a tenants dog.

CONCLUSION

Based on the foregoing analysis, the order of the trial court granting summary judgment is

AFFIRMED.

ANDERSON and HUFF, JJ., concur.

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