Hoyler v. State ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
H. Marshall Hoyler, Appellant,
v.
The State of South Carolina, Merry Land Properties,
LLC, Sherbert Living Trust, Supan Living Trust,
Elizabeth R. Levin, Edward McCray Wise Revoc. Living
Trust, Carol Ann DeVries Wise Revoc. Living Trust,
Amelie Cromer, Philip Cromer, Robert Chiavello,
Tocharoen Living Trust, Helen M. Olesak, Lesley Anne
Glick a/k/a Lesley Ann Glick, Shirley G. Lackey, Patricia
Banfield, Bertrand Cooper, Jr., NHP SH South Carolina
I, LLC n/k/a CCP Bayview 7176 LLC, Oyster Cove
Homeowners Ass., Shirley Anne Moyer, Barry D.
Malphrus, Garry D. Malphrus, Donnie Malphrus, Rita
Brown, Houston Family Partnership, Joan Taylor
Trustee, Michael Bull, Nancy Bull, Marny H.
VonHarten, Dianne M. Donaldson, Brian R. Evans,
Stephen Durbin, Valerie Durbin, Phillip Marti, Jane
Marti, Michael Woodworth, Georgiana M. Cooke, Daniel
B. Walsh Janet E. Walsh, Defendants,
Of which The State of South Carolina and Merry Land
Properties, LLC are the Respondents.
Appellate Case No. 2016-001277
Appeal From Beaufort County
Marvin H. Dukes, III, Master-in-Equity
Opinion No. 5676
Heard March 4, 2019 – Filed August 7, 2019
AFFIRMED
Jefferson D. Griffith, III, and Richard Lee Whitt, both of
Austin & Rogers, P.A., of Columbia, for Appellant.
Mary Duncan Shahid and Angelica M. Colwell, both of
Nexsen Pruet, LLC, and Stephen Peterson Groves, Sr., of
Butler Snow, LLP, all of Charleston, for Respondent
Merry Land Properties, LLC.
Attorney General Alan McCrory Wilson, Solicitor
General Robert D. Cook, and Deputy Solicitor General J.
Emory Smith, Jr., all of Columbia, for Respondent The
State of South Carolina.
GEATHERS, J.: Appellant H. Marshall Hoyler challenges an order of the
Master-in-Equity denying his request pursuant to S.C. Code Ann. § 48-39-220
(2008) to declare that Hoyler holds title to 95.27 acres of tidelands along the Beaufort
River and abutting the Town of Port Royal.1 Hoyler argues that this property is
readily identifiable from the plat incorporated into the deed to his predecessor in title
and, therefore, the master improperly considered extrinsic evidence. Hoyler also
argues the master erred by (1) allowing adjacent property owners to intervene in the
action; (2) concluding the adjacent property owners had standing; (3) keeping the
1
Section 48-39-220(A) provides,
Any person claiming an interest in tidelands[,] which, for
the purpose of this section, means all lands except beaches
in the Coastal zone between the mean high-water mark and
the mean low-water mark of navigable waters without
regard to the degree of salinity of such waters, may
institute an action against the State of South Carolina for
the purpose of determining the existence of any right, title
or interest of such person in and to such tidelands as
against the State.
(emphases added). The statute was amended in 2014, after Hoyler filed this action
in November 2007, to reflect a change in the entity to receive service of process.
record open to allow Respondent Merry Land Properties, LLC (Merry Land) to
submit additional testimony; and (4) declining to hear post-trial motions in a timely
manner. We affirm.2
FACTS/PROCEDURAL HISTORY
In 2006, Merry Land purchased two tracts of land in the Town of Port Royal
for the purpose of constructing a mixed-use development, including condominiums,
with deep water access to the Beaufort River. One of the tracts consists of eight
acres with access to the Beaufort River via tidelands within which Hoyler claims
ownership of 95.27 acres (the disputed marsh).3 Merry Land paid $4.5 million for
2
We decline to address Merry Land's additional sustaining ground. See I'On, L.L.C.
v. Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000) ("It is within
the appellate court's discretion whether to address any additional sustaining
grounds.").
3
The statute authorizing this action, section 48-39-220, is a part of the Coastal Zone
Management Act, Title 48, Chapter 39 of the South Carolina Code (2008 & Supp.
2018). We interpret the provisions of the Act to mean that "marshes" are a subset of
"tidelands," which are generally defined in the Act at S.C. Code Ann. § 48-39-10(G)
(Supp. 2018) but are also given a distinct definition for purposes of section
48-39-220. The general definition of tidelands in § 48-39-10(G) is, in pertinent part:
all areas which are at or below mean high tide and coastal
wetlands, mudflats, and similar areas that are contiguous
or adjacent to coastal waters and are an integral part of the
estuarine systems involved. Coastal wetlands include
marshes, mudflats, and shallows and means those areas
periodically inundated by saline waters whether or not the
saline waters reach the area naturally or through artificial
water courses and those areas that are normally
characterized by the prevalence of saline water vegetation
capable of growth and reproduction. Provided, however,
nothing in this definition shall apply to wetland areas that
are not an integral part of an estuarine system.
(emphases added). The distinct definition of tidelands for purposes of section
48-39-220 is: "all lands except beaches in the Coastal zone between the mean
high-water mark and the mean low-water mark of navigable waters without regard
to the degree of salinity of such waters." (emphasis added).
this tract. The other tract, for which Merry Land paid $1.5 million, consists of 10
acres and borders Johnny Morrall Circle and Ribaut Road. Prior to closing on the
purchase of these tracts, Merry Land obtained state and federal permits authorizing
construction of a community marina.
After Merry Land closed on the purchase of these tracts, it refinanced the loan
secured by the property. During the refinancing process, the appraiser employed by
Merry Land's lender discovered a notation in the Beaufort County GIS System
indicating a tax parcel in the marsh where Merry Land planned to launch the marina.4
As a result, Merry Land sent a letter to Hoyler, a Rhode Island resident, offering to
purchase this property. Rather than accepting the offer, Hoyler filed this action on
November 8, 2007, against Respondent State of South Carolina to obtain a
declaration that he owned the disputed marsh.
In his complaint, Hoyler asserted the existence of an 1891 deed to his
predecessor in title, J.M. Crofut, from former Governor Benjamin R. Tillman for
95.27 acres of marshland located on the Beaufort River. The complaint also asserted
that the deed was accompanied by a plat depicting a tract "bounded on the South by
lands of Moss, on the West by miscellaneous individuals, on the North by Seal Island
Chemical Works[,] and on the East by the Beaufort River." An heir of Crofut,
Elizabeth Waterhouse, devised a share of her putative interest in the property to
Hoyler in 1968, and in 1979, the remaining heirs conveyed their respective putative
interests to Hoyler for $10.
In its answer to the complaint, the State asserted that it held prima facie title
to the disputed marsh in trust for the public and Hoyler lacked the power to exclude
the public from the marsh. Merry Land filed a motion to intervene in this action as
well as an "Answer and Counterclaim" asserting that Hoyler was barred from
preventing construction of the planned marina by the doctrines of estoppel and
laches. On February 22, 2008, the master, with the consent of counsel for all parties,
executed an order granting Merry Land's motion to intervene.5
The master conducted a hearing on January 31, 2011, in which he denied
Hoyler's subsequent and contrarian motion to dismiss Merry Land from this action
and ruled, sua sponte, that several additional owners of property adjacent to the
4
Beaufort County assigned a market value of $1,000 to this parcel.
5
Curiously, the order referring this action to the master was not executed until
September 13, 2010.
disputed marsh would be joined as defendants.6 In his written order, the master
concluded the adjacent property owners were being joined pursuant to Rule 20(a),
SCRCP,7 because they could lose their right of access to the Beaufort River upon a
declaration that Hoyler held title to the disputed marsh. Hoyler filed a motion for
reconsideration and a Notice of Appeal. The motion for reconsideration remained
unresolved until after this court dismissed the appeal as interlocutory and our
supreme court denied certiorari. On remand, the master denied Hoyler's motion for
reconsideration and granted a motion to intervene filed by Nancy Deering Carey.
Hoyler appealed these rulings, and this court also dismissed the appeal as
interlocutory.
Subsequently, Hoyler served all of the adjoining property owners with notice
of this action, and the master conducted a hearing on November 19, 2015. The
master allowed the record to stay open for 45 days after the hearing to allow Merry
Land to obtain the deposition testimony of a surveyor who had worked with Merry
Land's civil engineering expert. After the master reviewed this deposition testimony,
he sent an e-mail to counsel for the parties requesting a proposed order from counsel
for Respondents. In response, Hoyler filed a motion challenging the findings in the
master's e-mail pursuant to Rule 59(e), SCRCP. The master denied this motion in a
Form 4 order.
On May 27, 2016, the master issued a written order concluding that the
conveyance to Crofut was a valid exercise of the State's authority under the law as it
6
The disputed marsh is contiguous to the Spanish Point subdivision in Port Royal.
7
Rule 20(a) states, in pertinent part,
All persons may be joined in one action as defendants if
there is asserted against them jointly, severally, or in the
alternative, any right to relief in respect of or arising out
of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or
fact common to all defendants will arise in the action. A
plaintiff or defendant need not be interested in obtaining
or defending against all the relief demanded. Judgment
may be given for one or more of the plaintiffs according
to their respective rights to relief, and against one or more
defendants according to their respective liabilities.
(emphasis added).
existed at the time of the conveyance but the property could not be accurately located
and, therefore, Hoyler was not entitled to a declaration that he held title to the
disputed marsh. On June 19, 2016, Hoyler filed a second Rule 59(e) motion in
response to the written order, and the master denied this motion. This appeal
followed.
ISSUES ON APPEAL
1. Did the master err by concluding Hoyler was not entitled to a declaration that
he held title to 95.27 acres of marshland as against the State?
2. Did the master err by allowing adjacent property owners to intervene in this
action?
3. Did the master err by concluding the adjacent property owners had standing?
4. Did the master abuse his discretion by keeping the record open to allow Merry
Land to submit additional testimony?
5. Did the master err by declining to hear post-trial motions in a timely manner?
STANDARD OF REVIEW
Declaratory Judgment
"A suit for declaratory judgment is neither legal nor equitable, but is
determined by the nature of the underlying issue." Query v. Burgess, 371 S.C. 407,
410, 639 S.E.2d 455, 456 (Ct. App. 2006) (quoting Felts v. Richland Cty., 303 S.C.
354, 356, 400 S.E.2d 781, 782 (1991)). "To make this determination [the appellate
court] look[s] to the main purpose of the action as determined by the complaint." Id.
(quoting Estate of Revis v. Revis, 326 S.C. 470, 476, 484 S.E.2d 112, 115 (Ct. App.
1997)). When the complaint's main purpose "concerns the determination of title to
real property, it is an action at law." Id.
"In an action at law, '[the appellate court] will affirm the master's factual
findings if there is any evidence in the record [that] reasonably supports them.'" Id.
(quoting Lowcountry Open Land Tr. v. State, 347 S.C. 96, 101–02, 552 S.E.2d 778,
781 (Ct. App. 2001)). Further, "[the appellate c]ourt reviews all questions of law de
novo." Fesmire v. Digh, 385 S.C. 296, 302, 683 S.E.2d 803, 807 (Ct. App. 2009);
see also Clardy v. Bodolosky, 383 S.C. 418, 425, 679 S.E.2d 527, 530 (Ct. App.
2009) ("Questions of law may be decided with no particular deference to the trial
court." (quoting S.C. Dep't of Transp. v. M & T Enters. of Mt. Pleasant, LLC, 379
S.C. 645, 654, 667 S.E.2d 7, 12 (Ct. App. 2008))).
Deed Interpretation
"In construing a deed, 'the intention of the grantor must be ascertained and
effectuated, unless that intention contravenes some well settled rule of law or public
policy.'" Windham v. Riddle, 381 S.C. 192, 201, 672 S.E.2d 578, 582 (2009)
(quoting Wayburn v. Smith, 270 S.C. 38, 41, 239 S.E.2d 890, 892 (1977)). "In
determining the grantor's intent, the deed must be construed as a whole and effect
given to every part if it can be done consistently with the law." Id. at 201, 672 S.E.2d
at 583 (quoting Gardner v. Mozingo, 293 S.C. 23, 25, 358 S.E.2d 390, 391–92
(1987)). "The intention of the grantor must be found within the four corners of the
deed." Id. (quoting Gardner, 293 S.C. at 25, 358 S.E.2d at 392).
However, "[w]here a deed describes land as it is shown on a certain plat, such
plat becomes part of the deed for the purpose of showing the boundaries, metes,
courses[,] and distances of the property conveyed." Hobonny Club, Inc. v.
McEachern, 272 S.C. 392, 397, 252 S.E.2d 133, 136 (1979). "[B]oundaries govern
acreage and inaccuracies relating to the area of a tract are generally immaterial."
Brownlee v. Miller, 208 S.C. 252, 260, 37 S.E.2d 658, 661 (1946). Further, "[i]f this
[c]ourt decides that the language in a deed is ambiguous, the determination of the
grantor's intent then becomes a question of fact" and evidence may be admitted to
show the intent of the parties. Santoro v. Schulthess, 384 S.C. 250, 272, 681 S.E.2d
897, 908 (Ct. App. 2009); see also S.C. Dep't of Nat. Res. v. Town of McClellanville,
345 S.C. 617, 623, 550 S.E.2d 299, 303 (2001) (applying rules of contract
construction to a restrictive covenant in a deed); id. at 623, 302–03 ("A contract is
ambiguous when the terms of the contract are reasonably susceptible of more than
one interpretation. It is a question of law for the court whether the language of a
contract is ambiguous. Once the court decides the language is ambiguous, evidence
may be admitted to show the intent of the parties. The determination of the parties'
intent is then a question of fact." (citations omitted)).
Moreover, "[a] deed or grant by [the State] is construed strictly in favor of the
State and general public and against the grantee." Query, 371 S.C. at 411, 639 S.E.2d
at 456–57 (second alteration in original) (quoting State v. Hardee, 259 S.C. 535,
539, 193 S.E.2d 497, 499 (1972)); accord Estate of Tenney v. S.C. Dep't of Health
& Envtl. Control, 393 S.C. 100, 106, 712 S.E.2d 395, 398 (2011) ("In areas subject
to the public trust doctrine, presumption of State ownership 'may be overcome only
by showing a specific grant from the sovereign[,] which is strictly construed against
the grantee.'" (quoting McQueen v. S.C. Coastal Council, 354 S.C. 142, 149 n.6, 580
S.E.2d 116, 119 n.6 (2003))); Grant v. State, 395 S.C. 225, 229, 717 S.E.2d 96, 98
(Ct. App. 2011).
LAW/ANALYSIS
I. Determination of Title
Hoyler argues that the 95.27 acres is readily identifiable from the plat
incorporated into the deed to Crofut and, therefore, the master improperly considered
extrinsic evidence. On the other hand, Merry Land contends the intent underlying
the deed's incorporation of the plat was to show the boundaries, metes, courses, and
distances of the property conveyed but the plat's information was insufficient to
identify those features. Likewise, the State maintains the plat provided insufficient
guidance. We agree with Merry Land and the State.
We begin our analysis with the foundation on which the determination of
property rights in tidelands rests, South Carolina's public trust doctrine. The public
trust doctrine provides that lands below the high water mark are presumptively
owned by the State and held in trust for the benefit of the public, and it has been a
vital part of the jurisprudence of South Carolina and many other states for centuries,
even pre-dating the beginning of our republic.8 The doctrine rightfully forbids the
State from permitting activity substantially impairing the public interest in marine
life, water quality, or public access.9
The underlying premise of the Public Trust Doctrine is that
some things are considered too important to society to be
owned by one person. Traditionally, these things have
included natural resources such as air, water (including
waterborne activities such as navigation and fishing), and
8
See McQueen, 354 S.C. at 149–50, 580 S.E.2d at 119–20; Grant, 395 S.C. at 230–
31, 717 S.E.2d at 99–100; Query, 371 S.C. at 410–11, 639 S.E.2d at 456; see also
State v. Pac. Guano Co., 22 S.C. 50, 55–56 (1884); Commonwealth v. City of
Roxbury, 75 Mass. 451, 478–79 (1857); Melissa K. Scanlan, Shifting Sands: A
Meta-Theory for Public Access and Private Property Along the Coast, 65 S.C. L.
Rev. 295, 307–13 (2013); William A. Clineburg and John E. Krahmer, The Law
Pertaining to Estuarine Lands in South Carolina, 23 S.C. L. Rev. 7, 10–24 (1971).
9
McQueen, 354 S.C. at 149–50, 580 S.E.2d at 119–20.
land (including but not limited to seabed and riverbed
soils). Under this Doctrine, everyone has the inalienable
right to breathe clean air; to drink safe water; to fish and
sail, and recreate upon the high seas, territorial seas and
navigable waters; as well as to land on the seashores and
riverbanks.
Sierra Club v. Kiawah Resort Assocs., 318 S.C. 119, 127–28, 456 S.E.2d 397, 402
(1995) (quoting Greg L. Spyridon and Sam A. LeBlanc, III, The Overriding Public
Interest in Privately Owned Natural Resources: Fashioning a Cause of Action, 6
Tul. Envtl. L.J. 287, 291 (1993)). In more recent years, our supreme court captured
the essence of the doctrine as it applies to tidelands: "Our State's tidelands are a
precious public resource held in trust for the people of South Carolina."10
It is through this lens that we examine the claim of a private individual to an
ownership interest in tidelands, an interest that would allow him to exclude the
public. Because the law, as a zealous guardian of the public interest, bestows
presumptive ownership of tidelands on the State for the benefit of the public, any
deed from the State purporting to convey tidelands to a private individual must be
strictly construed against the grantee and in favor of the public.11 In State v. Pacific
Guano Company, our supreme court explained,
In all grants from the government to the subject, the terms
of the grant are to be taken most strongly against the
grantee, and in favor of the grantor, reversing the rule as
between individuals, on the ground that the grant is
supposed to be made at the solicitation of the grantee, and
the form and terms of the particular instrument of grant
proposed by him and submitted to the government for its
allowance. But this rule applies a fortiori to a case where
such grant by a government to individual proprietors is
claimed to be not merely a conveyance of title to land[]
10
Kiawah Dev. Partners, II v. S.C. Dep't of Health & Envtl. Control, 411 S.C. 16,
22, 766 S.E.2d 707, 710 (2014).
11
Query, 371 S.C. at 411, 639 S.E.2d at 456–57; accord Estate of Tenney, 393 S.C.
at 106, 712 S.E.2d at 398 ("In areas subject to the public trust doctrine, presumption
of State ownership 'may be overcome only by showing a specific grant from the
sovereign[,] which is strictly construed against the grantee.'" (quoting McQueen, 354
S.C. at 149 n.6, 580 S.E.2d at 119 n.6)); Grant, 395 S.C. at 229, 717 S.E.2d at 98.
but also a portion of that public domain [that] the
government held in a fiduciary relation[] for general and
public use.
22 S.C. 50, 86 (1884).
For this reason, "the party asserting a transfer of title bears the burden of
proving its own good title,"12 and one claiming an interest in tidelands pursuant to
section 48-39-220(A) must convince the court that the State intended to include the
tidelands within the boundaries expressed in the deed.13 Necessarily, the claimant
must show that the language of the conveyance is specific enough to determine a
reasonably precise location of its boundaries so that members of the public will not
be excluded from property rightfully belonging to them.14
In Query v. Burgess, this court affirmed the master's finding that the plat
accompanying a 1786 deed to the disputed property near the Folly River was "not
sufficiently detailed to rebut the State's presumption of title to land below the high
water mark." 371 S.C. at 412, 639 S.E.2d at 457. The court noted that the plat
"contain[ed] the bare bones of a survey and [was] neither precise nor detailed." Id.
The court also concluded that the master "reasonably determined the 1786 grant and
accompanying plat did not demonstrate the State's intent to grant title to the
marshlands" based on "the absence of terms consonant with granting property below
the high water mark, such as 'marsh,' 'marshland,' 'high-water mark,' or 'low-water
mark.'" Id.
12
Lowcountry, 347 S.C. at 103, 552 S.E.2d at 782; see also State v. Fain, 273 S.C.
748, 752, 259 S.E.2d 606, 608 (1979) ("[I]t is well settled that the State comes into
court with a presumption of title, and, if an individual is to prevail, he must recover
upon the strength of his own title, of which he must make proof." (emphasis added)).
13
See Hobonny Club, 272 S.C. at 398, 252 S.E.2d at 136–37; Query, 371 S.C. at
411, 639 S.E.2d at 456 ("To establish ownership of tidelands or marshlands, a
claimant must show (1) the claimant's predecessors in title possessed a valid grant,
and (2) the grant's language was sufficient to convey title to land below the high
water mark.").
14
See Hobonny Club, 272 S.C. at 398, 252 S.E.2d at 136–37; Grant, 395 S.C. at
235–36, 717 S.E.2d at 102 (contrasting the plat to the disputed property with the
precise plats in Hobonny Club and highlighting expert testimony stating that the plat
was "poorly drawn and not capable of being relocated on the ground"); Query, 371
S.C. at 411–12, 639 S.E.2d at 456–57.
In contrast, in Hobonny Club, Inc. v. McEachern, our supreme court upheld
the circuit court's conclusion that the plaintiff had valid title to certain tidelands
"embraced within the boundaries of the plats attached to the royal grants . . . ." 272
S.C. at 398, 252 S.E.2d at 137. The court observed, "the failure of the grantor to use
'low water line' in describing the property conveyed was not significant in that the
attached plats precisely showed the boundaries of the land granted without the
necessity of resorting to words." Id. at 398, 252 S.E.2d at 136. The court added,
[T]he plats in question speak with a precision not usually
attainable by mere words, and they compel the conclusion
that the grantor intended to include the tidelands
encompassed within the perimeters of the plats. It is
difficult to imagine how more precisely to express intent
as to the location of boundaries than to incorporate an
accurate plat in the description. The plats incorporated in
the two grants to [the plaintiff's predecessor in title] are
exceptional. They are not mere maps on which boundary
waterways are drawn in free-hand to represent directions
and conformations of boundaries. These plats are
carefully scaled and platted so as to delineate the
boundaries of the tracts granted with mathematical
precision. It is undisputed that the boundaries are
accurately relocatable on the ground by contemporary
engineering methods. The specificity of the attached plats
outweigh, in our judgment, the general terms of the
descriptions in the grants in determining the intent of the
grantor. We conclude that it was the clear intent of the
grants in question to convey title to all tidelands lying
within the perimeter lines of the plats accompanying the
grants to [the plaintiff's] predecessor in title[].
Id. at 398, 252 S.E.2d at 136–37 (emphases added); see also Brownlee, 208 S.C. at
261, 37 S.E.2d at 662 (affirming the trial court's order dismissing a petition to set
aside a judicial sale and adopting the language of the order, which relied, in part, on
the sufficiency of the property description "to enable a person of ordinary prudence
acting in good faith and making inquiries suggested by the description to enable him
to identify the land"); id. at 260, 37 S.E.2d at 661 ("[B]oundaries govern acreage and
inaccuracies relating to the area of a tract are generally immaterial.").
In Grant v. State, this court once again addressed the plat examined in Query
and specifically noted that "in contrast to the plats in Hobonny Club, Grant's expert
land surveyor . . . testified the 1786 plat is poorly drawn and not capable of being
relocated on the ground." 395 S.C. at 236, 717 S.E.2d at 102 (emphasis added).
The court concluded that the claimant failed to rebut the State's presumptive title,
implicitly acknowledging the claimant's obligation to show the language of the
conveyance is specific enough to determine a reasonably precise location of its
boundaries. Id. at 236, 717 S.E.2d at 102.
While a property description need not be perfect, it must allow one examining
it to identify the property conveyed; otherwise, the conveyance is void. See Blake
v. Doherty, 18 U.S. 359, 362 (1820) ("It is undoubtedly essential to the validity of a
grant, that there should be a thing granted, which must be so described as to be
capable of being distinguished from other things of the same kind." (emphasis
added)).
"A deed is not void for uncertainty, because there may be
errors or an inconsistency, in some of the
particulars. . . . Generally the rule may be stated to be,
that the deed will be sustained, if it is possible from the
whole description, to ascertain and identify the land
intended to be conveyed." In a note to that section it is
said: "As that is certain which can be made certain, the
description, if it will enable a person of ordinary prudence
acting in good faith and making inquiries, which the
description would suggest to him to identify the land, is
sufficient."
Brownlee, 208 S.C. at 261, 37 S.E.2d at 662 (emphases added) (alteration in original)
(quoting McNair v. Johnson, 95 S.C. 176, 179, 178 S.E. 892 (1913)); see also Lord
v. Holland, 655 S.E.2d 602, 603–04 (Ga. 2008) ("One essential of a deed is that the
description of the premises sought to be thereby conveyed must be sufficiently full
and definite to afford means of identification." (quoting Crawford v. Verner, 50 S.E.
958, 959 (Ga. 1905)); Katz v. Daughtrey, 151 S.E. 879, 880 (N.C. 1930) ("If the land
intended to be conveyed cannot be identified from the description contained in the
deed, it follows as a necessary corollary that as the deed is, for this reason,
inoperative, it is equally inoperative as color of title.").
In identifying the land intended to be conveyed, it is permissible to rely on
extrinsic evidence if it is necessary to clarify a property description. See Blake, 18
U.S. at 362 ("[I]t is not necessary that the grant itself should contain such a
description as, without the aid of extrinsic testimony, to ascertain precisely what is
conveyed." (emphasis added)); Lord, 655 S.E.2d at 604 ("While it is not necessary
that the instrument should embody a minute or perfectly accurate description of the
land, yet it must furnish the key to the identification of the land intended to be
conveyed by the grantor." (quoting Crawford, 50 S.E. at 959)). However, if it is
impossible to locate a key identifier referenced in the deed, the grant is void. Blake,
18 U.S. at 362–63. In Blake, the plaintiff, who claimed title to certain land through
a grant from the State of Tennessee, filed an ejectment action against the defendants,
who claimed the land under a patent from the State of North Carolina. Id. at 360.
The property description in the North Carolina patent designated a hickory tree as
the beginning of a survey. Id. Using the hickory to illustrate the degree of certainty
required in a property description, the Court explained,
Almost all grants of land call for natural objects which
must be proved by testimony consistent with the grant, but
not found in it. Cane Creek, and its wes[t] fork, are to be
proved by witnesses. So the hiccory which is to constitute
the beginning of a survey of a tract of land to lie on the
west fork of Cane Creek. If, in the nature of things, it be
impossible to find this hiccory, all will admit the grant
must be void. But if it is not impossible, if we can imagine
testimony which will show any particular hiccory to be
that which is called for in the grant, then it is not absolutely
void for uncertainty, whatever difficulty may attend the
location of it.
Id. at 362–63 (emphasis added).
Here, the Governor's deed to Hoyler's predecessor in title, J.M. Crofut,
employed the terms high water mark and low water mark, but it also incorporated
the 1891 plat in conveying "A Plantation or Tract of Vacant Land, situate in Beaufort
[illegible] of Beaufort County and State aforesaid containing ninety-five [and]
27/100 (95 27/100) acres, more or less, [b]eing a parcel or tract of land on the
Beaufort River in County and State aforesaid and lying between high and low water
mark[s] on [the] river above mentioned[,] having such shape, form[,] and marks as
are represented by a Plat of said land on file in the office of the Secretary of State in
Book 2 of Public Land Plats, Page 16." (emphasis added).15 See Hobonny Club, 272
15
The State reserved mineral and phosphate rights to itself.
S.C. at 397, 252 S.E.2d at 136 ("Where a deed describes land as it is shown on a
certain plat, such plat becomes part of the deed for the purpose of showing the
boundaries, metes, courses[,] and distances of the property conveyed."). The
incorporated plat designates specific bearings and distances, some of which are
illegible, for the boundary lines.
The plat's illegibility effectively made the deed ambiguous as to the precise
location of the 95.27 acres in dispute. Therefore, the master properly considered
extrinsic evidence. See Santoro, 384 S.C. at 272, 681 S.E.2d at 908 ("If this [c]ourt
decides that the language in a deed is ambiguous, the determination of the grantor's
intent then becomes a question of fact."); see also McClellanville, 345 S.C. at 623,
550 S.E.2d at 303 (applying rules of contract construction to a restrictive covenant
in a deed); id. at 623, 302–03 ("A contract is ambiguous when the terms of the
contract are reasonably susceptible of more than one interpretation. It is a question
of law for the court whether the language of a contract is ambiguous. Once the court
decides the language is ambiguous, evidence may be admitted to show the intent of
the parties. The determination of the parties' intent is then a question of fact."
(emphasis added) (citations omitted)).
This extrinsic evidence consisted of expert testimony presented at the final
merits hearing. First, Hoyler presented the testimony of his expert in land surveying,
Lorick Fanning, who provided his opinion regarding identification of the area
referenced in the deed to Crofut. Fanning recreated the boundaries of the parcel,
relying on field work as well as an 1882 plat that purportedly encompassed the parcel
conveyed to Crofut. He established the eastern and western boundaries of the parcel
by using the current location of the mean high water and mean low water marks.
Merry Land's land surveying expert, Donald Cook, testified that he examined
the 1882 plat and the 1891 plat and noticed the absence of a "scale" and a "point of
beginning" or "point of commencement." Cf. Lord, 655 S.E.2d at 604 ("The
description set forth in plaintiff's deed did not include a beginning point or other
specifications enabling one to definitively locate the property to be conveyed. It
follows that plaintiff's deed was invalid . . . ." (citations omitted)); Katz, 151 S.E. at
880 (holding that a deed purporting to convey twenty-five acres of a fifty-acre tract
"without fixing the beginning point or any of the boundaries of the twenty-five acres"
was void for vagueness and uncertainty of description because it failed to describe
with certainty the property sought to be conveyed, and it contained no reference to
"anything extrinsic, which by recourse thereto [wa]s capable of making the
description certain"). Cook explained, "without a point of beginning[,] you
have . . . no point to start to locate the parcel on the ground. Without a scale[,] you
can't . . . tell . . . what measurement of units they were using. So, therefore, scaling
it, you don't know really how big the parcel is or potentially how big it is." See
Brownlee, 208 S.C. at 260, 37 S.E.2d at 661 (holding that boundaries govern
acreage); cf. Hobonny Club, 272 S.C. at 394, 252 S.E.2d at 134 (noting the plat
annexed to the deed was drawn to a scale of one inch to twenty chains); State v.
Holston Land Co., 272 S.C. 65, 67, 248 S.E.2d 922, 924 (1978) (same).
Merry Land also presented the deposition testimony of a second surveyor, Jim
Gardner. Gardner analyzed the 1882 and 1891 plats with the assistance of a
computer assisted drafting (CAD) technician in entering the plats' bearings and
distances into the CAD program. He concluded the bearings and distances that they
could discern had shortcomings creating a degree of uncertainty exceeding the
allowed tolerance for error, and there were certain bearings and distances that were
illegible. In particular, Gardner explained one of the standards for professional
surveyors that requires "mathematical closure of surveys," i.e., making the boundary
lines "come back together," and described the tolerance for error in the following
manner: "anything less than a 1-to-10,000 closure should be dismissed."
Gardner also explained, "if you have a break in the survey, it's not going to
close mathematically to any effect, which means . . . it's kind of floating out there."
He continued,
the plat not closing, not coming back together, in other
words, if you started at a point, you're supposed to come
around and end at the starting point. This survey, if it
didn't do that, then everything could be shifted one way or
the other. And you wouldn't know where these corners
were, truly, without . . . other surveys specifying adjoining
corners or adjacent boundaries.
Cook's testimony concerning the failure to close was consistent with Gardner's
testimony: "It means that the points are just kind of hanging out there in space." As
to the intent of the surveyor who created the 1882 and 1891 plats, Gardner stated
that the absence of the terms "mean high water" or "mean low water" indicated that
the surveyor's intent was to designate the acreage by bearings and distances on the
plat.
In reaching his determination that the property could not be accurately located,
the master concluded that Hoyler's "efforts to recreate the 1882 plat and the
conveyance to Crofut [were] unreliable." Whereas Hoyler relied on natural
monuments "utilizing mean high and mean low water to reflect high and low water
as stated in the [deed]," the plats did not "rely on natural monuments and instead
articulate[d] specific directions in express bearings and distances." The master
found that the deed's "express reference to the 1891 plat" and the plat's specificity
overrode the use of mean high water and mean low water to fix the location of
Hoyler's property.
The master also concluded, "Since the plat references a surveyed boundary,
replication of the plat should, in the first instance, be based on the surveyed boundary
instead of a natural boundary." The master noted that Fanning erred in replicating
the 1891 plat "by relying on 'Mean High Water' and 'Mean Low Water' when the
[deed] only refer[red] to 'high' and 'low' water" and did not identify high and low
water as the parcel's boundaries. We agree with the master's assessment of Fanning's
testimony as having negligible probative value because he did not use the plat's
bearings and distances for all of the boundary lines—rather, he "relied on [the] mean
high and mean low water mark[s] for the eastern and western boundaries[] and
extrapolated the north-westerly property corner." See Fletcher v. Med. Univ. of S.C.,
390 S.C. 458, 463, 702 S.E.2d 372, 374 (Ct. App. 2010) ("The probative value of
expert testimony stands or falls upon an evidentiary showing of the facts upon which
the opinion is, or must logically be, predicated." (quoting Ward v. Epting, 290 S.C.
547, 563, 351 S.E.2d 867, 876 (Ct. App. 1986))); see also Blake, 18 U.S. at 364, 367
(reversing a judgment for the defendants on the ground that the trial court improperly
instructed the jurors they could use a private survey "made by direction of a party
interested under the grant" for the purpose of "ascertaining the land contained in the
grant under which the defendants claimed").
We consider all of this evidence within the confines of a narrow scope of
review, an obligation to defer to the fact finder's assessment of witness credibility,
and longstanding precedent requiring construction of the State's purported
conveyance of tidelands against the grantee. Query, 371 S.C. at 411, 639 S.E.2d at
456–57 ("A deed or grant by [the State] is construed strictly in favor of the State and
general public and against the grantee." (quoting Hardee, 259 S.C. at 539, 193
S.E.2d at 499)); see also Lollis v. Dutton, 421 S.C. 467, 483, 807 S.E.2d 723, 731
(Ct. App. 2017) ("[T]he credibility of testimony is a matter for the finder of fact to
judge." (quoting S.C. Dep't of Soc. Servs. v. Forrester, 282 S.C. 512, 516, 320 S.E.2d
39, 42 (Ct. App. 1984)); id. ("In a bench trial, the judge, as the finder of fact, may
believe all, some, or none of the testimony, even when it is not contradicted."); id.
("Because the appellate court lacks the opportunity for direct observation of the
witnesses, it should accord great deference to [circuit] court findings where matters
of credibility are involved." (alteration in original) (quoting Forrester, 282 S.C. at
516, 320 S.E.2d at 42)).
We cannot ignore the testimony of Donald Cook and Jim Gardner supporting
the master's finding that the deed to Crofut and the 1891 plat it incorporated were
insufficient to convey title to a defined location of marsh bordering the Beaufort
River. See Blake, 18 U.S. at 362 ("It is undoubtedly essential to the validity of a
grant, that there should be a thing granted, which must be so described as to be
capable of being distinguished from other things of the same kind." (emphasis
added)); Brownlee, 208 S.C. at 261, 37 S.E.2d at 662 (holding a deed will be
sustained if "it is possible from the whole description, to ascertain and identify the
land intended to be conveyed"); cf. id. (noting that the surveyors in that case had no
trouble in locating the land).
Therefore, we are compelled to affirm the master's finding. See Query, 371
S.C. at 410, 639 S.E.2d at 456 ("In an action at law, '[the appellate court] will affirm
the master's factual findings if there is any evidence in the record [that] reasonably
supports them.'" (quoting Lowcountry, 347 S.C. at 101–02, 552 S.E.2d at 781)).
II. Intervention and Joinder
Hoyler also argues the master erred by allowing Merry Land and the other
adjacent property owners to "intervene in the action" because they did not claim an
interest in tidelands, their boundary lines would not change as a result of the action,
and therefore, they had no interest in the outcome. Hoyler maintains that section
48-39-220 allows the participation of only those parties "claiming a 'right, title[,] or
interest' below the high-water mark." We disagree with this reasoning.
Rule 24, SCRCP, states, in pertinent part,
(a) Intervention of Right. Upon timely application
anyone shall be permitted to intervene in an action: (1)
when a statute confers an unconditional right to intervene;
or (2) when the applicant claims an interest relating to the
property or transaction [that] is the subject of the action
and he is so situated that the disposition of the action may
as a practical matter impair or impede his ability to protect
that interest, unless the applicant's interest is adequately
represented by existing parties.
(b) Permissive Intervention. Upon timely application
anyone may be permitted to intervene in an action: (1)
when a statute confers a conditional right to intervene; or
(2) when an applicant's claim or defense and the main
action have a question of law or fact in common. . . . In
exercising its discretion[,] the court shall consider whether
the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
(emphases added).
Here, the master executed a consent order allowing Merry Land to intervene
in this action. The consent order does not reference Rule 24, and the motion to
intervene, which was served with Merry Land's answer and counterclaim, is not in
the record. The order states, in pertinent part, "this [c]ourt was advised that
[Hoyler] . . . [does] not object to intervention but reserve[s] any claims and defenses
that [he] may have as to [Merry Land]." Subsequently, Hoyler sought to dismiss
Merry Land from the action on the ground that it did not have standing. The master
denied this motion.
As to the other adjacent property owners, the master, sua sponte, invoked Rule
20(a) to join them as defendants because they could lose their right of access to the
Beaufort River upon a declaration that Hoyler held title to the disputed marsh. As
we previously stated, Rule 20(a), entitled "Permissive Joinder," provides, in
pertinent part,
All persons may be joined in one action as defendants if
there is asserted against them jointly, severally, or in the
alternative, any right to relief in respect of or arising out
of the same transaction, occurrence, or series of
transactions or occurrences and if any question of law or
fact common to all defendants will arise in the action. A
plaintiff or defendant need not be interested in obtaining
or defending against all the relief demanded. Judgment
may be given for one or more of the plaintiffs according
to their respective rights to relief, and against one or more
defendants according to their respective liabilities.
(emphases added).
Here, Hoyler's complaint references the dock construction permit obtained by
one of the adjacent property owners. The complaint seeks not only a declaration that
Hoyler owns the disputed marsh but also a declaration that he "possesses all rights
of a fee simple property owner[,] including the right to exclude dock construction."
(emphasis added). This language asserts a right to relief arising out of the
then-existing and possible future dock construction by adjacent property owners.
Further, the legal question of ownership of the disputed marsh was a question that
was common to all of the defendants. Hoyler's complaint called into question not
only the State's competing claim of ownership but also the rights of adjacent property
owners to use the marsh to access the Beaufort River and their eligibility to build
docks originating from their respective lots and extending into the disputed marsh.16
If the master had granted Hoyler's request for a declaration that he had the right to
exclude dock construction, the rights of the joined parties to access the river or to
build in the disputed marsh would have been extinguished. Therefore, the master
properly joined the adjacent property owners as defendants in this action.
Turning back to Merry Land's participation in this action, the master was
authorized to allow intervention under Rule 24(b),17 which states,
anyone may be permitted to intervene in an action: (1)
when a statute confers a conditional right to intervene;
or (2) when an applicant's claim or defense and the
main action have a question of law or fact in common.
. . . In exercising its discretion[,] the court shall
consider whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties.
(emphases added). This standard is similar to the standard for permissive joinder
under Rule 20(a), and Merry Land is similarly situated to the other adjacent property
16
Included in the master's list of thirty-two adjacent property owners is one owner
who was ineligible to build a dock due to insufficient frontage. Eight neighboring
owners were listed as eligible for a community dock, and the remaining adjacent
owners had sufficient frontage for singular docks.
17
Hoyler argues none of the adjacent property owners could intervene under Rule
24(a), which governs mandatory intervention. However, there is nothing in the
record indicating the master or Merry Land invoked Rule 24(a) in support of
intervention. Because the master was authorized to allow permissive intervention
under Rule 24(b), we need not consider Hoyler's arguments concerning Rule 24(a).
owners. Merry Land has already obtained a permit to build a community marina in
the disputed marsh. Because the permit depends on the State's ownership of the
disputed marsh, a declaration favoring Hoyler's ownership would extinguish Merry
Land's right to build the marina or otherwise access the Beaufort River. As a result,
Merry Land asserted that the doctrines of estoppel and laches barred Hoyler from
excluding marina construction in the marsh. Therefore, the legal question of
ownership of the disputed marsh was common to both Hoyler's action and Merry
Land's assertions.
Further, Merry Land's intervention has not caused any undue delay or unfairly
prejudiced the master's determination of the merits of Hoyler's claim to ownership.
Hoyler himself unnecessarily delayed the case by seeking review of two
unappealable interlocutory orders. Moreover, the master's decision to hold the
record open for 45 days to allow Merry Land to obtain deposition testimony caused
only minimal delay. Additionally, the inadequacy of the information in the deed and
plat provided to Hoyler's predecessor in title would have defeated Hoyler's
ownership claim even if Merry Land had not intervened in the action.
Based on the foregoing, the master properly denied Hoyler's motion to dismiss
Merry Land from the action.
III. Standing
Hoyler further argues the master erred by allowing the joined parties to
continue to participate in the trial because they lacked standing. We disagree.
"Standing refers to [] '[a] party's right to make a legal claim or seek judicial
enforcement of a duty or right.'" Powell ex rel. Kelley v. Bank of Am., 379 S.C. 437,
444, 665 S.E.2d 237, 241 (Ct. App. 2008) (second alteration in original) (quoting
Black's Law Dictionary 1413 (7th ed. 1999)). "Standing is . . . that concept of
justiciability that is concerned with whether a particular person may raise legal
arguments or claims." Id. (quoting 1A C.J.S. Actions § 101 (2005)). "It concerns an
individual's 'sufficient interest in the outcome of the litigation to warrant
consideration of [the person's] position by a court.'" Id. (alteration in original)
(quoting 1A C.J.S. Actions § 101 (2005)).
Standing consists of the following elements:
First, the plaintiff must have suffered an 'injury in fact'—
an invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not
'conjectural' or 'hypothetical'. Second, there must be a
causal connection between the injury and the conduct
complained of—the injury has to be "fairly . . . trace[able]
to the challenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party not
before the court." Third, it must be 'likely,' as opposed to
merely 'speculative,' that the injury will be 'redressed by a
favorable decision.'
Sea Pines Ass'n for Prot. of Wildlife, Inc. v. S.C. Dep't of Nat. Res., 345 S.C. 594,
601, 550 S.E.2d 287, 291 (2001) (alterations in original) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992); accord Carnival Corp. v. Historic
Ansonborough Neighborhood Ass'n, 407 S.C. 67, 75, 753 S.E.2d 846, 850 (2014).
Here, Merry Land's asserted injury-in-fact is its inability to move forward
with its development plans despite its considerable investment of time and money to
(1) ensure the property it ultimately purchased could support a mixed-use
development and marina; (2) obtain government approvals for construction of the
development; and (3) obtain federal and state permits for marina construction. In
fact, Merry Land delayed closing its purchase of the property until it obtained the
permits authorizing marina construction due to its cognizance of the value the real
estate market places on deep water access. This injury is clearly "concrete and
particularized" and "actual," rather than "conjectural" or "hypothetical." See Sea
Pines, 345 S.C. at 601, 550 S.E.2d at 291 (setting forth the first element of standing).
With title to the disputed marsh brought into doubt by Hoyler's filing of this
action, Merry Land's development project has remained in limbo, preventing Merry
Land from realizing any return on its investment. See id. (describing the second
element of standing as a "causal connection between the injury and the conduct
complained of"). A decision favoring Hoyler would effectively void the marina
permit and result in Merry Land's loss of access over the disputed marsh to the river.
The State would no longer have the authority to manage these tidelands for public
use or to permit adjacent property owners to build docks in these tidelands. Further,
there is no realistic expectation that Hoyler would give Merry Land permission to
build in the disputed tidelands given his request for a declaration that he can exclude
dock construction. See S.C. Code Ann. Regs. 30-2(I)(4) (2011) (providing that if a
decision in an action under section 48-39-220 determines that the plaintiff owns the
disputed tidelands and has a right to exclude others, a critical area permit will not be
issued unless "the applicant presents the Department with a copy of a deed, lease, or
other instrument from the adjudicated critical area landowner that would allow
construction of the proposed project[] or written permission from such owner to
carry out the proposal").
On the other hand, a decision favoring the State redresses Merry Land's
injury-in-fact by validating not only the State's title to the disputed marsh but also
the federal and state permits allowing Merry Land to move forward with its
development plans. See Sea Pines, 345 S.C. at 601, 550 S.E.2d at 291 (setting forth
the third element of standing: "it must be 'likely,' as opposed to merely 'speculative,'
that the injury will be 'redressed by a favorable decision'").
Similarly, the other adjacent upland property owners were injured by Hoyler's
action. Those who had not yet built docks were unable to begin that process without
the risk of losing their financial investment upon having to remove them later.
Further, those who had already built docks would have had to remove them upon a
ruling favorable to Hoyler. Moreover, all of the adjacent owners would have lost
access to the Beaufort River upon a ruling favorable to Hoyler. These injuries were
clearly "concrete and particularized" and "actual or imminent," rather than
"conjectural" or "hypothetical," and they resulted from Hoyler's filing of this action.
See id. (setting forth the first element of standing and describing the second element
of standing as a "causal connection between the injury and the conduct complained
of"); cf. Ogburn-Matthews v. Loblolly Partners (Ricefields Subdivision), 332 S.C.
551, 565, 505 S.E.2d 598, 605 (Ct. App. 1998), overruled on other grounds by
Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002)
(holding the appellant's claim of an individual injury in the adverse effect of a
certificate of consistency on her use and enjoyment of a wetland adjacent to her
residence was sufficient to provide standing); S.C. Wildlife Fed'n v. S.C. Coastal
Council, 296 S.C. 187, 190, 371 S.E.2d 521, 523 (1988) (holding several
environmental groups' allegations of an individualized injury in the adverse effect of
a Coastal Council decision on their members' use and enjoyment of wetlands' fish
and wildlife were sufficient to show standing).
In other words, the State would no longer have the authority to manage the
disputed marsh for public use or to permit adjacent property owners to build in the
marsh, and Hoyler has explicitly indicated an intent to exclude dock construction
upon a ruling in his favor. On the other hand, a decision favoring the State redresses
the adjacent owners' injuries by validating the existing dock permits and the State's
authority to grant future dock permits. See Sea Pines, 345 S.C. at 601, 550 S.E.2d
at 291 (setting forth the third element of standing: "it must be 'likely,' as opposed to
merely 'speculative,' that the injury will be 'redressed by a favorable decision'").
Based on the foregoing, Merry Land and the other adjacent property owners
had a "sufficient interest in the outcome of the litigation to warrant consideration of
[their] position by a court." Powell, 379 S.C. at 444, 665 S.E.2d at 241 (quoting 1A
C.J.S. Actions § 101 (2005)). Therefore, the master properly allowed these
defendants to participate in this action.
IV. Additional Testimony
Hoyler maintains the master erred by granting Merry Land's request to keep
the record open to allow it to submit the testimony of its surveyor. Hoyler argues
the master effectively granted a continuance that was not authorized by Rule
40(i)(2), SCRCP. We disagree.
Rule 40(i), SCRCP, governs continuances and states,
(1) For Cause. As actions are called, counsel may request
that the action be continued. If good and sufficient cause
for continuance is shown, the continuance may be granted
by the court. Ordinarily such continuances shall be only
until the next term of court. Each scheduled calendar week
of circuit court shall constitute a separate term of court.
(2) For Absence of Witness. No motion for continuance
of trial shall be granted on account of the absence of a
witness without the oath of the party, his counsel or agent,
to the following effect, to wit: That the testimony of the
witness is material to the support of the action or defense
of the party moving; that the motion is not intended for
delay; but is made solely because the party cannot go
safely to trial without such testimony; that there has been
due diligence to procure the testimony of the witness or of
such other circumstances as will satisfy the court that the
motion is not intended for delay. . . . A party applying for
such postponement on account of the absence of a witness
shall set forth under oath in addition to the foregoing
matters what fact or facts he believes the witness if present
would testify to, and the grounds for such belief.
(emphases added).
However, once a trial begins, "[t]he conduct of trial, including the admission
and rejection of testimony, is largely within the trial judge's sound discretion, the
exercise of which will not be disturbed on appeal absent an abuse of that discretion
or the commission of legal error that results in prejudice for the appellant." S.C.
Dep't of Highways & Pub. Transp. v. Galbreath, 315 S.C. 82, 85, 431 S.E.2d 625,
628 (Ct. App. 1993). "An abuse of discretion occurs when the judge issuing the
order was controlled by some error of law or when the order, based upon factual, as
distinguished from legal conclusions, is without evidentiary support." Sundown
Operating Co. v. Intedge Indus., Inc., 383 S.C. 601, 607, 681 S.E.2d 885, 888 (2009).
Further, "[t]o warrant a reversal based on the admission of evidence, the appellant
must show both error and resulting prejudice." Conway v. Charleston Lincoln
Mercury Inc., 363 S.C. 301, 307, 609 S.E.2d 838, 842 (Ct. App. 2005).
At the November 2015 hearing, Merry Land presented the testimony of
Gregory Baisch, a civil engineer employed with Ward Edwards Engineering. Baisch
testified that he asked the Ward Edwards survey staff to attempt to close the
boundaries of the 1882 and 1891 plats. However, the master sustained Hoyler's
objections to Baisch attempting to recount the surveyors' investigation and
determinations. At the conclusion of Baisch's testimony, Merry Land moved to keep
the record open after the hearing to allow it to locate the surveyor who worked with
Baisch, Jim Gardner, and obtain his deposition testimony. The master granted the
motion, allowing the record to stay open for 45 days and requiring subsequent
post-trial briefs.
The master's ruling did not constitute a continuance as contemplated by the
language of Rule 40. With the exception of Gardner's deposition testimony, the
master conducted a full bench trial upon remand from Hoyler's unsuccessful,
years-long, interlocutory appeals. Hoyler has not shown that he was unfairly
prejudiced by the record staying open for a mere 45 days after trial. Hoyler
participated in the deposition and had the opportunity to submit a post-trial brief
after the deposition. Further, he does not allege in his appellate brief that the slight
post-trial delay unfairly prejudiced him.
Based on the foregoing, the master acted within his discretion in allowing the
record to remain open to allow Merry Land to submit Gardner's testimony. See
Galbreath, 315 S.C. at 85, 431 S.E.2d at 628 ("The conduct of trial, including the
admission and rejection of testimony, is largely within the trial judge's sound
discretion, the exercise of which will not be disturbed on appeal absent an abuse of
that discretion or the commission of legal error that results in prejudice for the
appellant."); Conway, 363 S.C. at 307, 609 S.E.2d at 842 ("To warrant a reversal
based on the admission of evidence, the appellant must show both error and resulting
prejudice.").
V. Post-trial Motions
Hoyler's final argument is that the master erred by "refusing to hear post-trial
motions in a timely manner." This issue is unpreserved because Hoyler's supporting
discussion is conclusory and cites no authority. See S.C. Dep't of Soc. Servs. v.
Mother ex rel. Minor Child, 375 S.C. 276, 283, 651 S.E.2d 622, 626 (Ct. App. 2007)
(noting an issue was abandoned because the appellant made a conclusory argument
without citation of any authority to support her claim).
In any event, the record does not support Hoyler's assertion that the master
refused to hear any "post-trial motions." The master gave all parties the opportunity
to submit post-trial briefs, and they took advantage of this opportunity. See supra
section IV. Further, to the extent Hoyler is arguing that the master did not properly
consider his Rule 59(e) motions, neither Hoyler's e-mail request to "make [his] post
trial motions for the record" nor his request for "guidance as to Post-Trial Motions"
communicated a request for a hearing on a motion for reconsideration, especially
given the fact that the requests pre-dated the master's announcement of his decision.
Therefore, we reject Hoyler's argument that the master refused to timely consider his
post-trial motions.
CONCLUSION
Based on the foregoing, we affirm the master's order.
AFFIRMED.
WILLIAMS and HILL, JJ., concur.