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.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Alan D. Anderson, Robert and Diane Ressler, William Todt, Thomas A. Brooks, Juliana S. Calhoun, Robin and Keith Lee, Donald J. and Michele B. Hatcher, Philip D. and Jean F. Landfried, Appellants/Respondents,
v.
Hank and Linda Buonforte, Respondents/Appellants.
Appeal From Sumter County
W. C. Coffey, Jr., Special Referee
Unpublished Opinion No. 2004-UP-270
Heard January 13, 2004 � Filed April
19, 2004
AFFIRMED
John S. Keffer, of Sumter, for Appellants-Respondents.
Kristi F. Curtis, of Sumter, for Respondents-Appellants.
PER CURIAM: Alan D. Anderson, Robert Ressler, Diane Ressler, William Todt, Thomas A. Brooks, Juliana S. Calhoun, Robin Lee, Keith Lee, Donald J. Hatcher, Michele B. Hatcher, Philip D. Lanfried, and Jean F. Landfried (collectively �the Neighbors�), sued Hank and Linda Buonforte (collectively �the Buonfortes�), seeking to enforce the restrictive covenants of the Indian Hills Subdivision in Sumter, South Carolina.� The special referee ordered the Buonfortes to remove a two-car garage from their property and modify a recently built extension to their home.�� Both parties appeal.� We affirm.
FACTUAL/PROCEDURAL BACKGROUND
The Buonfortes began construction of a house in the Indian Hills Subdivision in Sumter, South Carolina.�� Hank Buonforte convinced his parents to move into his home, promising to build an extension to the main house (�the mother-in-law wing�). Thereafter, he approached the City Planning Director�s Office for a variance to his permit and applied to the Sumter City-County Board of Appeals (�the Board�) for a variance to the city�s setback requirements to build a garage. However, at the Buonfortes� hearing before the Board, several neighbors appeared in opposition to the request.
The Buonfortes applied for a variance with the subdivision�s designated representative for enforcement of the restrictive covenants.� However, eighteen days later, before the Buonfortes received a response from the representative, the Neighbors sued the Buonfortes, alleging the Buonfortes� mother-in-law wing and garage violated the community�s restrictive covenants because:� 1) the main structure was no longer a single-family dwelling; and 2) the house no longer complied with the setback lines.� Additionally, the Neighbors sought a temporary restraining order prohibiting any further construction on the lot.
After a full hearing on the merits, the special referee ruled the home was a single-family dwelling within the meaning of the term in the restrictive covenants.� Furthermore, the special referee determined the house violated �the general scheme of development� and ordered the garage removed and the �mother-in-law wing� altered to better conform to surrounding houses.� The special referee also ordered the Buonfortes to pay all court costs and special referee fees.� Both parties appeal.
STANDARD OF REVIEW
��������� An action to enforce a restrictive covenant is in equity.� South Carolina Dep�t of Natural Res. v. Town of McClellanville, 345 S.C. 617, 622, 550 S.E.2d 299, 302 (2001).� As such, this court may view the facts in accordance with our preponderance of the evidence.� However, we should not disregard the findings of the special referee, who was in a better position to weigh the credibility of witnesses.� Tiger, Inc. v. Fisher Agro, Inc., 301 S.C. 229, 237, 391 S.E.2d 538, 543 (1990).
LAW / ANALYSIS
I.������ The Neighbors� Appeal
A.����� �Single-Family Dwelling�
Initially, the Neighbors argue the special referee erred by failing to rule on whether the Buonfortes� house was a single-family dwelling or a duplex.� We disagree.
An appellate court must view the trial court�s statements as a whole to determine its reasoning.� State v. Evans, 354 S.C. 579, 584, 582 S.E.2d 407, 410 (2003).� Furthermore, �[a]n order should be construed within the context of the proceeding in which it is rendered.�� Dibble v. Sumter Ice & Fuel Co., 283 S.C. 278, 282, 322 S.E.2d 674, 677 (Ct. App. 1984); see also Eddins v. Eddins, 304 S.C. 133, 135, 403 S.E.2d 164, 166 (Ct. App. 1991) (holding judgments are to be construed as other instruments, and the determinative factor is the intention of the court, considering the judgment in its entirety).�
The special referee�s order specifically found the Buonfortes� house, �constitutes a single family unit as defined by the restrictive covenants.� Thus, the Neighbors� claim is without merit.
Next, the Neighbors assert the contrary argument that the special referee erred by ruling on whether the Buonfortes� structure constituted a single-family dwelling or a duplex. They contend this issue was neither raised by the pleadings nor argued at trial.� We disagree.
�A judgment must conform to the pleadings and be in accordance with the theory of action upon which the case was tried.�� Chandler v. Merrel, 291 S.C. 227, 228, 353 S.E.2d 135, 136 (1987).�� However, �[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.�� Rule 15(b), SCRCP.
In pertinent part, the Neighbors� complaint alleges, �the . . . [Buonfortes�] construction . . . violate[s] the restrictive covenants in the following particulars:� . . . The . . . [Buonfortes] are developing and/ or constructing a residence and attached apartment/duplex which is in clear violation of the limit to a single family residence . . . .�� Furthermore, during the trial, both the Neighbors and the Buonfortes presented extensive testimony about whether the structure was a single-family dwelling or a duplex.� Neither party objected to the admission of the testimony.� Thus, this issue was both raised in the pleadings and tried by consent during the trial.� Consequently, this issue is without merit.
Next, the Neighbors argue the special referee erred by considering the testimony of two of the Buonfortes� witnesses.� Specifically, the Neighbors claim the testimony was irrelevant.� We disagree.
�Any evidence that assists in getting at the truth of the issue is relevant and admissible, unless because of some legal rule it is incompetent.�� Toole v. Salter, 249 S.C. 354, 361, 154 S.E.2d 434, 437 (1967).� Furthermore,
[i]n determining a dispute concerning the relevancy of . . . evidence, the question to be resolved is as to whether there is a logical or rational connection between the fact which is sought to be presented and a matter of fact which has been made an issue in the case. Relevancy is that quality of evidence which renders it properly applicable in determining the truth and falsity of matters in issue between the parties to a suit. All that is required to render evidence admissible is that the fact shown thereby legally tends to prove, or make more or less probable, some matter in issue, and bear directly or indirectly thereon.
Id.� (internal citations omitted).� �����
When a term is not defined within a contract, evidence of its usual and customary meaning is competent to aid in determining its meaning.� S.C. Farm Bureau Mut. Ins. Co. v. Oates, 356 S.C. 378, 382-83, 588 S.E.2d 643, 645 (Ct. App. 2003).
The restrictive covenant states only single-family dwellings are permitted on the Buonfortes� property.� Furthermore, the covenant expressly prohibits the construction of duplexes.� However, neither �single-family dwelling� nor �duplex� is defined within the restrictive covenants.�
Thus, attempting to demonstrate the house was a single-family dwelling, the Buonfortes� presented the testimony of William Henry Hoge, the Planning Director for the Sumter Planning Commission, and John Humphries, the Building Official for the City of Sumter, who testified that pursuant to the applicable Sumter zoning ordinances, the Buonfortes� house was a single-family dwelling.�� The Neighbors objected, arguing only the testimony of Robert Ross Dinkins, the person responsible for enforcing the restrictive covenants, was relevant on the issue.�
We conclude the admitted testimony was relevant to determine the meaning of the term �single-family dwelling� within the restrictive covenants, as the zoning ordinances were evidence of its usual and customary meaning.� Thus, the special referee did not err by admitting the testimony.
Lastly, the Neighbors argue the special referee abused his discretion by ruling the Buonfortes� structure was a single-family dwelling.� We disagree.
Dinkins testified he was responsible for enforcing the restrictive covenants, and, in his opinion, the structure was a duplex.� The Neighbors also admitted the testimony of Charles R. McCreight, an architect, who opined the structure was a duplex.�
In response, the Buonfortes presented the testimony of Hoge and Humphries.� Hoge testified it is his duty to enforce the zoning ordinances of the City of Sumter.� Additionally, he testified the Indians Hills Subdivision is within the City of Sumter, zoned in an area where duplexes were prohibited.� In his opinion, the structure constituted a single-family residence under the applicable Sumter zoning ordinances.� Humphries, who is responsible for enforcing the City of Sumter building regulations, testified the structure was a single-family dwelling and did not meet the definition of a duplex within the building code definition.�
Viewing the entirety of the record, we agree with the special referee that the weight of the evidence indicates the Buonfortes� structure was a single-family dwelling for purposes of the restrictive covenants.�
B.����� Notice of Restrictive Covenants
The Neighbors argue the special referee erred by finding the Buonfortes were not on notice of the restrictive covenants. The Neighbors misunderstand the special referee�s ruling.
An appellate court must view the trial court�s statements as a whole to determine its reasoning.� Evans, 354 S.C. at 584, 582 S.E.2d at 410.� Furthermore, �[a]n order should be construed within the context of the proceeding in which it is rendered.�� Dibble, 283 S.C. at 282, 322 S.E.2d at 677; see also Eddins, 304 S.C. at 135, 403 S.E.2d at 166 (holding judgments are to be construed as other instruments, and the determinative factor is the intention of the court, considering the judgment in its entirety).�
Constructive notice and actual notice are not one in the same.� Strother v. Lexington County Recreation Comm�n, 332 S.C. 54, 64, 504 S.E.2d 117, 122 (1998).� Rather, a person has actual notice �where the person . . . either knows of the existence of the particular facts in question or is conscious of having the means of knowing it, even though such means may not be employed by him.��� Id. at 64 n. 6, 504 S.E.2d at 122 n. 6.� In contrast, �constructive notice is a legal inference which substitutes for actual notice. It is notice imputed to a person whose knowledge of facts is sufficient to put him on inquiry; if these facts were pursued with due diligence, they would lead to other undisclosed facts.�� Id.� �A homeowner is charged with constructive notice of any restriction properly recorded within the chain of title.�� Harbison Comm. Ass�n, Inc., v. Mueller, 319 S.C. 99, 103, 459 S.E.2d 860, 863 (Ct. App. 1995).
The Buonfortes bought a piece of property in the Indian Hills Subdivision with restrictive covenants in the chain of title.� The Buonfortes denied actual notice of the restrictive covenants.� The Neighbors did not present any evidence within the record indicating the Buonfortes were on actual notice of the restrictive covenants.
In the findings of fact, the special referee�s final order states that the Buonfortes� deed did not put the Buonfortes on �adequate� notice of the restrictive covenants.� Subsequently, as a conclusion of law, the special referee held the Buonfortes were unaware of the restrictive covenants when they began building the garage and mother-in-law wing.�
We conclude a reasonable reading of the special referee�s order, in light of the proceedings in which it was rendered, indicates the special referee found the Buonfortes were not on actual notice, as opposed to constructive notice, of the restrictive covenants.� Furthermore, this finding is supported by the weight of the evidence within the record.� Thus, we hold the special referee did not err.
C.����� Balancing of the Equities
The Neighbors argue the special referee erred by balancing the equities in an arbitrary and unfair manner.� Specifically, the Neighbors contend the Buonfortes came to the hearing with �unclean hands,� and thus, both the mother-in-law wing and the garage should be removed.� We disagree.
When this court is sitting in equity, and thus viewing evidence for our own preponderance, we are to consider the equities of both sides, balancing the two to determine what, if any, relief to give.� See Foreman v. Foreman, 280 S.C. 461, 464-65, 313 S.E.2d 312, 314 (Ct. App. 1984).� However, if a party has unclean hands, the party is precluded from recovering in equity.� A party will have unclean hands, where the party behaves �unfairly in a matter that is the subject of the litigation to the prejudice of the defendant.��� Ingram v. Kasey�s Assocs., 340 S.C. 98, 107, 531 S.E.2d 287, 292 (2000).
The Neighbors sued the Buonfortes, seeking to enforce the restrictive covenants of the Indian Hills Subdivision.� Specifically, the Neighbors argued the additions to the Buonfortes� house created a duplex, the mother-in-wing and garage violated the setback lines, and the mother-in-law wing and garage did not conform with the aesthetics of the neighborhood.�
While the litigation was pending, the parties signed a consent order providing the following:
ORDERED, that the . . . [Buonfortes] immediately cease any further construction regarding the �mother-in-law wing� on the property . . . . The . . . [Buonfortes] will be permitted to install the front window units of said wing along with the door, and can also complete the sides and rear of said wing, however, the . . . [Buonfortes] may not continue to build or improve the front of the structure.� Further, the . . . [Buonfortes] may not destruct or improve the wall separating the �mother-in-law� wing from the main structure . . . . ORDERED, that the . . . [Buonfortes] be allowed to complete the main structure of said building . . . Further, the . . . [Buonfortes] will be allowed to complete the interior of the balance of the structure . . . and the exterior of the entire structure . . . ORDERED, that if the . . . [Buonfortes] do continue to build or improve said property beyond the parameters of this Order, that the . . . [Buonfortes] do so at their own risk[.]
(emphasis added).�
Subsequently, the Buonfortes completed construction of the garage and interior of the mother-in-law wing.� Following a final hearing, the special referee ruled the Buonfortes must remove the garage.� Furthermore, the special referee ruled the Buonfortes must remove the front door entrance of the mother-in-law wing, such that the house now only has one front entrance.� Moreover, the special referee ordered the Buonfortes to remove the gabled entrance roof.�
The Neighbors now contend the special referee erred by balancing the equities to allow the mother-in-law wing to remain because the Buonfortes are seeking equity with unclean hands.� Specifically, the Neighbors allege the following particulars weigh against the Buonfortes:� 1) the Buonfortes misrepresented information on their original building permit because they did not request a permit for the additions to the house, although they knew they planned to construct additions; 2) the Buonfortes had constructive knowledge of the restrictive covenants before they began to build the additions to their house; and 3) the Buonfortes continued to build after they had actual knowledge of the restrictive covenants.
We do not view the evidence in the same light as the Neighbors.� Rather, our view of the evidence indicates the Buonfortes applied for a building permit to construct their original residence.� Although the Buonfortes may have intended to construct additions to their residence when they applied for the original building permit, they did not intend to do so without acquiring an additional permit.� In fact, prior to construction of the additional structures, the Buonfortes applied for permits to build the additional structures, leading to this lawsuit.
The evidence also indicates the Buonfortes were not on actual notice of the restrictive covenants, as no evidence exists within the record indicating they actually knew the restrictive covenants existed.� Rather, the evidence indicates that prior to buying the piece of property, the Buonfortes hired an attorney to conduct a title search.� The attorney�s report does not indicate the existence of restrictive covenants.� Thus, although the Buonfortes were on constructive notice of the restrictive covenants, they were not on actual notice, mitigating any allegation of unclean hands.
Pursuant to the above quoted agreement, the Buonfortes continued to build the additions to their home after commencement of this lawsuit.� With the exception of the garage, which the special referee ordered the Buonfortes to remove, the continued building was permitted under the agreement.�
We conclude the Buonfortes did not have unclean hands such that they are precluded from the aide of equity, as they have not acted unfairly to the prejudice of the Neighbors.� Moreover, we conclude the special referee appropriately weighed the equities of the situation.� Thus, we hold the special referee did not err.
II.����� The Buonfortes� Appeal
A.����� General Scheme of Development
The Buonfortes argue the special referee erred by ordering them to remove the garage and alter the mother-in-law wing.� They contend Dinkins implicitly approved their construction plans pursuant to an automatic approval provision in the restrictive covenants.� We disagree.
�The cardinal rule of contract interpretation is to ascertain and give legal effect to the parties� intentions as determined by the contract language.�� Schulmeyer v. State Farm Fire & Cas. Co., 353 S.C. 491, 495, 579 S.E.2d 132, 134 (2003).� Thus, �[i]f the contract�s language is clear and unambiguous, the language alone determines the contract�s force and effect.�� Id.
The restrictive covenants provide:
In the event Robert Ross Dinkins, or his designated representative, fails to approve or disapprove within thirty days after plans and specifications have been submitted to him, or in the event no suits to enjoin the construction have been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.
(emphasis added).�
The Buonfortes submitted a copy of their plans to Dinkins.� Subsequently, approximately eighteen days after the Buonfortes submitted their plans to Dinkins and before Dinkins responded, the Neighbors sued the Buonfortes.� Because the Neighbors filed suit against the Buonfortes before the expiration of Dinkins� thirty days response period, we hold this provision of the restrictive covenants is inapplicable.
B.����� Fees and Costs
The Buonfortes argue the special referee erred by ordering them to pay all of the fees and costs of the litigation.� We disagree.�
�In every civil action commenced or prosecuted in the courts of record in this State . . . the attorneys for the plaintiff or defendant shall be entitled to recover costs and disbursements of the adverse party.�� S.C. Code Ann. � 15-37-10 (1977); see Rule 54(d), SCRCP (�[C]osts shall be allowed as of course to the prevailing party unless the court otherwise directs.�).� However, �[n]o costs will be allowed to any party unless he succeed, in whole or in part, in his claim or defense, unless otherwise directed by the judge hearing the cause.�� S.C. Code Ann. � 15-37-20 (1977).�
Initially, we note, the Buonfortes do not argue the special referee lacked authority to award fees and costs.� Furthermore, the Buonfortes do not argue the special referee awarded fees and costs for expenses not provided for by statute.� Rather, the Buonfortes only argue the special referee abused his discretion by ordering the Buonfortes to pay all of the fees and costs of the litigation.
In an action in equity, the decision to grant or deny costs is largely a matter within the sound discretion of the trial court.� See Cauthen v. Cauthen, 81 S.C. 313, 315, 62 S.E.2d 319, 320 (1908).� Thus, this court will not disturb the decision of the trial court absent a clear abuse of discretion.� Id.
The Neighbors sued the Buonfortes, seeking to enforce restrictive covenants.� Specifically, they sought to have the Buonfortes remove both the mother-in-law wing and the garage.� The Buonfortes answered, seeking to maintain both additions to their house.� The special referee ordered the Buonfortes to remove the garage.� Furthermore, the special referee ordered the Buonfortes to remove the front entrance to the mother-in-law wing and the gabled front entrance, thus bringing the mother-in-law wing in aesthetic alignment with the rest of the neighborhood.�
From the record before us, we conclude the special referee did not commit a clear abuse of discretion by ordering the Buonfortes to pay all of the fees and costs of the litigation.� Thus, we hold the special referee did not err.
CONCLUSION
For the foregoing reasons, the order of the special referee is
AFFIRMED.
HEARN, C.J., HOWARD, and KITTREDGE, JJ., concurring.