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Seventeen South LLC v. D. R. Horton Inc.

United States District Court, D. South Carolina, Florence Division

May 6, 2016

Seventeen South, LLC and G.W. Myrtle Beach Development, LLC, Plaintiff,
v.
D.R. Horton, Inc., Defendant.

ORDER AND OPINION

Bruce Howe Hendricks United States District Judge

This matter is before the Court on Defendant’s renewed motion for summary judgment (ECF No. 129), Plaintiffs’ motion to extend discovery (ECF No. 132), and Defendant’s motions in limine (ECF Nos. 134, 135, 136, 137). For the reasons set forth in this order, Defendant’s renewed motion for summary judgment is denied, Plaintiff’s motion to extend discovery is granted, and Defendant’s motions in limine are denied without prejudice.

BACKGROUND

This action concerns the interpretation of a Reciprocal Easement and Right of Way Agreement (“the Agreement”) dated September 16, 2005, between the Wizman Group, LLC, (“Wizman”) and Rose Real Estate, Inc., (“Rose”). The Agreement appears to govern the development of 39.117 acres of real property bordering U.S. Highway 17 south of Myrtle Beach, which includes both residential and commercial parcels. The various provisions of the Agreement purport to be binding on Wizman, Rose, and their successors. Plaintiffs G.W. Myrtle Beach Development, LLC (“GWMB”) and Seventeen South, LLC (Seventeen South) contend that they are successors to Wizman and that Defendant D.R. Horton (“DRH”) is a successor to Rose.

DRH owns a portion of the property in a residential subdivision known as Ocean Walk. Ocean Walk consists of approximately sixty-five (65) residential lots, some of which have been sold and conveyed to individuals as residences. DRH owns most of the remainder of the lots and is building houses for sale upon them. Plaintiffs own parcels of commercial property adjacent to the Ocean Walk subdivision. A road known as Castle Harbor Drive extends from Hwy 17, along the southwest boundary of the commercial property and Ocean Walk. DRH purchased the lots within Ocean Walk on September 27, 2012, approximately five months before Plaintiff GWMB purchased its property. At the time of DRH’s purchase of the Ocean Walk property, Castle Harbor Drive was complete and in use, as were all roads within the Ocean Walk Subdivision. GWMB has developed or is planning to develop a Dollar General on its property. Seventeen South is likewise planning a commercial enterprise.

GWMB claims that in order to build the Dollar General Store, it was required by the South Carolina Department of Transportation (“SCDOT”) to construct an acceleration/deceleration lane on Castle Harbor Drive. The Agreement contains a number of provisions that address how the successors of Wizman and Rose would share (or not share) in the responsibility for paying for the construction of roads. GWMB claims that the Agreement requires DRH to reimburse GWMB for funds spent to build the acceleration/deceleration lanes on Castle Harbor Drive (referred to in the Agreement as RE2). Seventeen South makes similar claims with regard to a different road, Coral Beach Circle (referred to in the Agreement as RE1), which now apparently also requires turn lanes. GWMB alleges that it constructed acceleration/deceleration lanes at a cost of over $130, 000 and requested reimbursement from DRH, which has refused to pay. Seventeen South has yet to construct acceleration/deceleration lanes, but claims that they are required and expects that their construction will cost $110, 000.

The parties previously filed a number of motions in this case, including Defendant’s initial motions for summary judgment, which the Court addressed in a January 26, 2015 Order. (ECF No. 101.) In that Order, the Court found that the Agreement was ambiguous as to whether reimbursement was required here and that the parties’ conflicting interpretations were reasonable. The Court further found that the extrinsic evidence submitted did not resolve the ambiguity, and denied the motion for summary judgment against GWMB (ECF No. 53). The Court granted the motion for summary judgment against Seventeen South (ECF No. 54) without prejudice for failure to assert the appropriate causes of action-Seventeen South has since amended the Complaint to assert the appropriate causes of action for prospective relief.

On October 14, 2015, Defendant filed a renewed motion for summary judgment, presenting the affidavit of Dennis Permenter (“Permenter”), Rose’s signatory to the Agreement, as extrinsic evidence of the signatories’ intentions. Plaintiffs filed a response in opposition on November 2, 2015, offering the affidavit of Fred Newby (“Newby”), a drafter of the Agreement, as contradictory evidence of intent. On the same date, Plaintiffs also filed a motion to extend discovery so that the Court would allow them to add Mr. Newby’s affidavit to the record. Defendant filed a reply to its renewed motion for summary judgment on November 9, 2015, and a response in opposition to the motion to extend discovery on November 19, 2015.

DISCUSSION

I. Motion to Extend Discovery (ECF No. 132)

The discovery period ended on September 30, 2015. Plaintiffs filed a motion to extend discovery on November 2, 2015, asking that the Court open discovery to allow Plaintiffs to add the affidavit of Newby to the record. (ECF No. 132 at 2.) In their motion, Plaintiffs explain that after Defendant filed the renewed motion for summary judgment, they obtained an additional copy of the Agreement and reviewed the witnesses to the Agreement recorded in the Register of Deeds for Horry County. (Id. at 1.) They were eventually able to contact Newby who indicated he had signed as a witness to the Agreement and had also helped draft the Agreement. (Id.) Plaintiffs maintain that they conducted a good faith effort to locate any witnesses who could testify as to the meaning and intent of the Agreement. (Id. at 2.)

Defendant opposes the motion to extend discovery, arguing that Plaintiffs offer no good cause as to why the discovery deadline should be retroactively extended. (ECF No. 139 at 1–2.) However, “[t]he scope and conduct of discovery are within the sound discretion of the district court.” Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995) (citing Erdmann v. Preferred Research, Inc. of Ga., 852 F.2d 788, 792 (4th Cir. 1988)); see also Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 402 (4th Cir. 2003) (“[C]ourts have broad discretion in [their] resolution of discovery problems arising in cases before [them].” (alterations in original and internal quotation marks omitted)). Although Defendant asserts it would be prejudiced if the Court were to extend discovery, there is little evidence this would be the case. Accordingly, the Court grants Plaintiffs’ motion to extend discovery and considers Mr. Newby’s affidavit as part of the record.

II. Renewed Motion for Summary Judgment (ECF No. ...


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