Slf Iii Hardeeville Llc V Rsv Hardeeville Llc
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
SLF III - Hardeeville, LLC, Respondent,
v.
RSV - Hardeeville, LLC, Appellant.
Appellate Case No. 2023-000277
Appeal From Jasper County
Carmen T. Mullen, Circuit Court Judge
Unpublished Opinion No. 2025-UP-263
Heard December 3, 2024 – Filed July 23, 2025
REVERSED AND REMANDED
Keating L. Simons, III, of Simons & Dean, of
Charleston, for Appellant.
J. David Black, of Maynard Nexsen, PC, of Columbia;
Cheryl D. Shoun, of Maynard Nexsen, PC, of Charleston;
and Scott Franklin Talley, of Talley Law Firm, P.A., of
Spartanburg, all for Respondent.
PER CURIAM: RSV – Hardeeville, LLC (RSV) appeals the circuit court's order
denying its motion for summary judgment, granting summary judgment in favor of
SLF III – Hardeeville, LLC (SLF), and finding that the assignments by which RSV
obtained its development rights in the property prohibited the conversion of more
than 155 acres from residential to light industrial use. On appeal, RSV argues the
circuit court erred by (1) ignoring language in the Reed-HTI Assignment showing
that conversion rights were intended to be included; (2) construing the Reed-HTI
Assignment to prohibit the conversion of property from residential to light
industrial use without an explicit prohibition on doing so; (3) concluding that the
language in the Reed-HTI Assignment created a restrictive covenant; (4) failing to
strictly construe the Reed-HTI Assignment and resolve doubts and ambiguities
therein in favor of RSV's free use of the property; (5) construing the Reed-HTI
Assignment in a manner contrary to the public policy of the City of Hardeeville
(City); (6) holding that RSV may only develop for light industrial use the 155 acres
referenced in the SLF/Reed-HTI Assignment; (7) granting declaratory relief
without the City being a party; and (8) failing to consider affidavits and exhibits.
We reverse and remand.
RSV is the owner of approximately 800 acres of land in Hardeeville, known as the
"Savannah Tract," which is, in turn, part of a larger parcel known as the
"Hardeeville Tract." The Savannah Tract is zoned as a Planned Development
District (PDD) pursuant to a Development Agreement (DA) entered into by the
City and the previous Hardeeville Tract landowner, Copper Station Holdings, LLC
(Copper Station). The DA and its exhibits, including the PDD, control the
development and permitted uses of the Savannah Tract. The DA provides for
mixed use, residential, and commercial development, with 1,026 acres designated
for light industrial use. However, both the DA and the PDD grant "[t]he Owner
and Developer . . . the right to convert residential acreage to any commercial or
light industrial acreage" without a cap.
In May 2006, Reed-HTI acquired 1,163.89 acres of the Hardeeville Tract from
Copper Station and JPR Land Co., LLC (JPR) acquired the remaining 5,284.38
acres. As part of the land transactions, Copper Station assigned all of its
development rights to JPR. Reed-HTI then obtained its development rights
pursuant to assignments from JPR and SLF: the Reed-HTI Assignment (Reed-HTI
Assignment) and the SLF/Reed-HTI Assignment (SLF Assignment). It seems the
parties do not dispute that, at some point, RSV acquired whatever rights were
conveyed to Reed-HTI by the Reed-HTI and SLF Assignments.
Pursuant to the Reed-HTI Assignment, JPR assigned rights to Reed-HTI to
develop 2,262 residential dwelling units and 75 acres of land for general
commercial use. It purported to reserve any development rights not expressly set
forth therein for SLF, provided that any restrictions would run with the land and be
enforceable against a successor in interest, and made SLF a third-party beneficiary
to the assignment.
The relevant portions of Item 1 of the Reed-HTI Assignment are as follows:
(a) Assignor does hereby transfer, assign, convey and deliver unto
Assignee, its successors and assigns, Assignor's rights, privileges and
obligations under the [DA] to develop (i) up to 2,262 Residential
Dwelling Units (as such term is currently defined in the [DA] and the
PDD), and (ii) up to 75 upland acres of General Commercial (including
all Permitted Uses set forth under the General Commercial designation)
as currently defined in the PDD, except for the Excluded Obligations
identified below. Accordingly, Assignee may (i) develop and use up to
75 upland acres of the Property for any and all "Permitted Uses" set
forth under the "General Commercial" designation as currently defined
in the PDD, and (ii) develop and use the balance of the Property only
for (A) up to 2,261 Residential Dwelling Units (in the aggregate) of
Single-Family Residential, Multi-Family Residential (but only for
multi-family units with an average sales price in excess of $180,000 per
unit), and Model Homes/Sales Center, (B) Community Recreation, (C)
Institutional/Civic, (D) Maintenance Areas, (E) Open Space, (F) Roads,
(G) Setback and Buffers, (H) Signage Control, (I) Silviculture, (J)
Wetlands, (K) Utilities, and (L) Recreational Vehicle Parks, as all the
foregoing use categories are currently defined in the PDD, and for no
other use or purpose. The foregoing rights hereby assigned by Assignor
to Assignee shall be subject to the terms, obligations and conditions of
and under the PDD and the [DA]. Other than those rights assigned
hereby as specifically set forth above, the Assignor shall not be required
to assign or transfer to Assignee, and Assignee shall not be entitled to,
any other development rights under the [DA] or the PDD, all of which
are retained by Assignor to be assigned to [SLF].
(b) Assignee hereby covenants and agrees not to develop or use the
Property (i) in a manner inconsistent with the foregoing development
rights assigned . . . pursuant to Paragraph 1(a) above, or (ii) for any use
not specifically listed in Paragraph 1(a) above, and that such restriction
shall be a covenant and restriction running with the Property and shall
be binding upon and enforceable against Assignee, its successors and
assigns, and any subsequent owner(s) of the Property (or any portion
thereof), and shall inure to the benefit of and be enforceable by
Assignor and SLF and their respective representatives, successors and
assigns (and by any subsequent owner of all or any portion of the
property subject to the PDD owned or to be owned by SLF). . . .
(c) Notwithstanding anything herein to the contrary, Assignee shall not
convert (and shall have no right to convert) any of the 75 upland acres
designated for General Commercial to use for Residential Dwelling
Units or for the purpose of increasing the number of Residential
Dwelling Units. . . .
(f) Assignee hereby assumes and agrees to perform all of Assignee's rights,
privileges and obligations as described in the [DA], applicable to the
Property, except for the Excluded Obligations. Assignee acknowledges
receipt of the [DA] and all Exhibits thereto and agrees to be bound by
the terms thereof and to develop the Property in accordance with such
terms and the development rights assigned hereby. The rights and
obligations hereby assigned and assumed shall be covenants running
with the land, binding upon the parties hereto and their successors and
assigns.
(g) SLF is hereby deemed a third-party beneficiary of this Partial
Assignment and Assumption with respect to the rights and remedies of
SLF as provided herein. . . .
Item 3 states:
For purposes of illustration only, and not as a limitation on the
assignment and assumption effectuated by Paragraph 1 above, Assignor
hereby assigns and Assignee hereby assumes and agrees to perform and
be bound by the following:
(a) Assignor does hereby assign and transfer to Assignee all of Assignor's
rights, title and interest under the [DA] to develop up to 2,262
Residential Dwelling Units (as such term is currently defined in the
[DA] and the PDD) and up to 75 upland acres of General Commercial
(as such term is currently defined in the PDD). . . .
Finally, Item 10 states that "[a]ll other terms, conditions, rights and privileges
contained in the [DA] and not specifically referenced herein shall remain in full force
and effect and binding upon the parties hereto and their successors and assigns."
In May 2019, RSV submitted a master plan for the Savannah Tract to the City for
approval, in which RSV sought to develop over 577 acres for light industrial use.1
The City approved the plan in July 2019. SLF then filed a complaint in October
2020 seeking a declaratory judgment that RSV was prohibited from developing
more than 155 acres of the Savannah Tract for light industrial use. In December
2021, RSV filed a motion for summary judgment, and SLF renewed its previously
filed summary judgment motion. The circuit court denied RSV's motion and
granted summary judgment in favor of SLF. RSV filed a motion to reconsider,
which the circuit court also denied.
ISSUES ON APPEAL 2
1. Did the circuit court err by ignoring language in the Reed-HTI Assignment
showing that conversion rights were intended to be included, instead construing it
to prohibit the conversion of property from residential to light industrial use, such
that RSV may only develop for light industrial use the 155 acres referenced in the
SLF Assignment?
2. Did the circuit court err by concluding that language in the Reed-HTI
Assignment was sufficient to prove a restrictive covenant?
3. Did the circuit court err by failing to construe the Reed-HTI Assignment in favor
of RSV's free use of the property and in a manner contrary to the public policy of
the City of Hardeeville?
4. Did the circuit court err by granting declaratory relief in the absence of the City
of Hardeeville as a party?
5. Did the circuit court err by failing to consider affidavits and exhibits?
1
Pursuant to Item 1(b) of the SLF Assignment, Reed-HTI received "SLF's rights,
privileges, and obligations under the [DA] to develop, on the Reed-HTI Property,
up to one hundred fifty-five (155) acres of [l]ight [i]ndustrial use, as currently
defined in the PDD." Although not expressly stated in the master plan, the parties
agree that RSV intended to convert acreage from residential to light industrial use
pursuant to the Reed-HTI Assignment to supplement the 155 light industrial acres
assigned via the SLF Assignment.
2
Because some of the issues are interconnected and rely on the same law and/or
facts, we have combined them for purposes of our analysis.
STANDARD OF REVIEW
"In reviewing a grant of summary judgment, [an] appellate court applies the same
standard as the [circuit] court under Rule 56(c), SCRCP." Woodson v. DLI Props.,
LLC, 406 S.C. 517, 528, 753 S.E.2d 428, 434 (2014). "A [circuit] court may
properly grant a motion for summary judgment when 'the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.'" Buonaiuto v. Town of Hilton
Head Island, 440 S.C. 144, 150, 889 S.E.2d 625, 628 (Ct. App. 2023) (quoting
Rule 56(c), SCRCP). "Questions of law may be decided with no particular
deference to the [circuit] court." 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).
INTERPRETATION OF THE REED-HTI ASSIGNMENT
RSV argues the plain language of the Reed-HTI Assignment shows that the parties
intended for conversion rights to be included. Specifically, it points to Item 3(a),
which states that "all" of JPR's rights under the DA in the 2,262 residential units
were assigned and transferred, and Item 10, which states that "[a]ll other terms,
conditions, rights and privileges contained in the [DA] not specifically referenced
[in the assignment] shall remain in full force and effect." It further notes the
Reed-HTI Assignment included an express prohibition on the conversion of
property from general commercial to residential use but is silent regarding
conversions from residential to light industrial use. RSV asserts that these
provisions express an intent to assign conversion rights, or in the alternative, create
an ambiguity that makes summary judgment improper. We agree with RSV's latter
contention and find the Reed-HTI Assignment is ambiguous.
"The cardinal rule of contract interpretation is to ascertain and give legal effect to
the parties' intentions as determined by the contract language." Beaufort Cnty. Sch.
Dist. v. United Nat. Ins. Co., 392 S.C. 506, 516, 709 S.E.2d 85, 90 (Ct. App. 2011).
"The parties' intention must be gathered from the contents of the entire agreement
and not from any particular clause thereof." Ecclesiastes Prod. Ministries v.
Outparcel Assocs., LLC, 374 S.C. 483, 498, 649 S.E.2d 494, 502 (Ct. App. 2007).
"A contract is ambiguous when the terms of the contract are reasonably susceptible
of more than one interpretation." S.C. Dep't of Nat. Res. v. Town of
McClellanville, 345 S.C. 617, 623, 550 S.E.2d 299, 302 (2001). "[S]ummary
judgment is improper where the motion presents a question as to the construction
of a written contract, and the contract is ambiguous because the intent of the parties
cannot be gathered from the four corners of the instrument." HK New Plan Exch.
Prop. Owner I, LLC v. Coker, 375 S.C. 18, 23, 649 S.E.2d 181, 184 (Ct. App.
2007). "Whether an ambiguity exists in the language of a contract is . . . a question
of law." Laser Supply & Servs., Inc. v. Orchard Park Assocs., 382 S.C. 326, 344,
676 S.E.2d 139, 144 (Ct. App. 2009).
We note that the parties filed cross-motions for summary judgment and neither
party contended to the circuit court that the contract was ambiguous. However, the
parties "presented opposing arguments before the [circuit] court and this [c]ourt on
the interpretation of the contract." Wallace v. Day, 390 S.C. 69, 75, 700 S.E.2d
446, 449 (Ct. App. 2010). "The issue of a contract's interpretation necessarily
subsumes the primary question of whether the contract's language is clear or
ambiguous," and it is a question of law for this court to determine whether the
Reed-HTI Assignment is ambiguous. Id. "Therefore, we have not only the
authority but also the responsibility to recognize an ambiguity in a contract when
determining whether the [circuit] court appropriately relied on the contract's
language in granting summary judgment." Id. at 75, 700 S.E.2d at 450.
Here, Item 1(a) of the Reed-HTI Assignment states that JPR transferred and
assigned its "rights, privileges and obligations under the [DA] to . . . develop and
use the balance of the Property only for (A) up to 2,261 Residential Dwelling
Units . . . and Model Homes/Sales Center, (B) Community Recreation, (C)
Institutional/Civic, (D) Maintenance Areas, (E) Open Space, (F) Roads, (G)
Setback and Buffers, (H) Signage Control, (I) Silviculture, (J) Wetlands, (K)
Utilities, and (L) Recreational Vehicle Parks, as all the foregoing use categories are
currently defined in the PDD, and for no other use or purpose," and that
Reed/RSV "shall not be entitled to, any other development rights under the [DA]
or the PDD, all of which are retained by Assignor to be assigned to [SLF]."
Further, Item 1(b) states that Reed/RSV "covenants and agrees not to develop or
use the Property (i) in a manner inconsistent with the foregoing development rights
assigned by Assignor to Assignee pursuant to Paragraph 1(a) above, or (ii) for any
use not specifically listed in Paragraph 1(a)."
We acknowledge that these provisions seem to demonstrate an intent to restrict the
range of uses for the property, and the circuit court found the Reed-HTI
Assignment to be unambiguous based largely on the force of these provisions.
However, the circuit court's order does not analyze, or even mention, other
provisions in the Reed-HTI Assignment that seem to show an intent to convey all
of JPR's rights, which would include conversion rights. Rather, the order's analysis
focuses on two sentences from Item 1(a), without considering the broader context
of the contract as a whole; this was error. See Ecclesiastes Prod. Ministries, 374
S.C. at 498, 649 S.E.2d at 502 ("The parties' intention must be gathered from the
contents of the entire agreement and not from any particular clause thereof.").
For example, Item 1(a) also states that all of "[t]he foregoing rights hereby
assigned . . . shall be subject to the terms, obligations and conditions of and under
the PDD and the [DA]." The DA and PDD provide that a developer "shall . . .
have the right to convert residential acreage to any commercial and/or light
industrial acreage" without a cap. Additionally, Item 1(f) states that Reed/RSV
"assumes and agrees to perform all of [JPR's] rights, privileges and obligations as
described in the [DA], applicable to the Property, except for Excluded
Obligations." 3 Item 3 provides that JPR assigned and transferred "all of [its]
rights, title and interest under the [DA] to develop up to 2,262 Residential
Dwelling Units." Finally, Item 10 states that "[a]ll other terms, conditions, rights
and privileges contained in the [DA] and not specifically referenced herein shall
remain in full force and effect and binding upon the parties hereto and their
successors and assigns."
Other provisions further muddy the waters. For example, the Reed-HTI
Assignment also contains an explicit restriction on conversion rights for the 75
acres designated for general commercial use, but does not contain such a provision
for the residential acreage. See Ellie, Inc. v. Miccichi, 358 S.C. 78, 94, 594 S.E.2d
485, 494 (Ct. App. 2004) ("Parties are governed by their outward expressions and
the court is not at liberty to consider their secret intentions."). Additionally, it
repeatedly refers to "Residential Dwelling Units (as such term is currently defined
in the [DA] and the PDD)." However, the DA and PDD do not define "Residential
Dwelling Units" or "residential acreage," and thus it is unclear what implications
those terms carry in the context of conversion rights or how they relate to each
other, particularly since the DA and PDD specifically allow for the free conversion
of residential acreage to light industrial use.
Accordingly, we hold the Reed-HTI Assignment is ambiguous because it is
reasonably susceptible to more than one interpretation as to whether it conveyed all
of JPR's development rights, including conversion rights, or whether it restricted
development of the residential acreage only to the uses and purposes set forth in
Item 1(a). See McClellanville, 345 S.C. at 623, 550 S.E.2d at 302 ("A contract is
ambiguous when the terms of the contract are reasonably susceptible of more than
3
"Excluded Obligations" are defined in Item 2, and conversion rights are not listed
among the excluded obligations.
one interpretation."); Ecclesiastes Prod. Ministries, 374 S.C. at 498, 649 S.E.2d at
502 ("The parties' intention must be gathered from the contents of the entire
agreement and not from any particular clause thereof."). Therefore, we reverse the
circuit court's grant of summary judgment and remand for trial because "the
determination of the parties' intent at the time they executed the contract is a
question of fact that should not have been decided on summary judgment." 4 See
Wallace, 390 S.C. at 76, 700 S.E.2d at 450 (reversing the grant of summary
judgment when the parties offered competing interpretations of a lease, even
though neither party asserted the lease was ambiguous). 5
REVERSED AND REMANDED.
WILLIAMS, C.J., and MCDONALD and TURNER, JJ., concur.
4
This holding is dispositive of the remaining issues on appeal. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (explaining an appellate court need not address remaining issues when its
resolution of a prior issue is dispositive).
5
To the extent either party contends this court should look to the SLF Assignment
or other documents not specifically referenced in the Reed-HTI Assignment to aid
in its interpretation, we find our analysis must be confined to the four corners of
the contract at issue, and thus, we have concentrated solely on the Reed-HTI
Assignment. See Silver v. Aabstract Pools & Spas, Inc., 376 S.C. 585, 591, 658
S.E.2d 539, 542 (Ct. App. 2008) ("In construing and determining the effect of a
written contract, the intention of the parties and the meaning are gathered primarily
from the contents of the writing itself, or, as otherwise stated, from the four corners
of the instrument . . . ." (quoting McPherson v. J.E. Sirrine & Co., 206 S.C. 183,
204, 33 S.E.2d 501, 509 (1945))).