Town of Lexington v. Patty Cox Wingard

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

Town of Lexington, Respondent,

v.

Patty Cox Wingard, as Trustee for PLCW Trust, and
Scott's Furniture Company, Inc., Appellants.

Appellate Case No. 2020-001043

Appeal From Lexington County
Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2023-UP-003
Submitted November 1, 2022 – Filed January 4, 2023

AFFIRMED

James Edward Bradley and Sierra Danielle Carini, both
of Moore Bradley Myers, PA, of West Columbia, for
Appellants.

Adam Tremaine Silvernail, of Law Ofc. of Adam T.
Silvernail, of Columbia, and Bradford T. Cunningham, of
Lexington, both for Respondent.

PER CURIAM: Patty Cox Wingard, as Trustee of the PLCW Trust, and Scott's
Furniture Company, Inc. (Scott's) appeal the decision of the circuit court declaring
the Town of Lexington (the Town) had the right to terminate water service to
property owned by Wingard and leased by Scott's if Wingard refused to agree to
the annexation of the property. On appeal, Wingard argues the circuit court erred
by (1) ruling the term "heirs and assigns" was not a term of duration that obligated
the Town to provide water service to the heirs and assigns of Henry Wingard; (2)
determining the term "heirs and assigns" was not ambiguous and not interpreting
the term in favor of the heirs of Henry Wingard; and (3) failing to require that the
Town return title to the two-inch water main to Wingard. We affirm.

We hold the term "heirs and assigns" is unambiguous and is not a term of duration.
See Blackmon v. Weaver, 366 S.C. 245, 249, 621 S.E.2d 42, 44 (Ct. App. 2005)
("On appeal from an action at law that was tried without a jury, the appellate court
can correct errors of law, but the findings of fact will not be disturbed unless found
to be without evidence which reasonably supports the judge's findings."); S.C.
Dep't of Nat. Res. v. Town of McClellanville, 345 S.C. 617, 623, 550 S.E.2d 299,
302 (2001) ("A contract is ambiguous when the terms of the contract are
reasonably susceptible of more than one interpretation."); id. at 623, 550 S.E.2d at
302-03 ("It is a question of law for the court whether the language of a contract is
ambiguous."); Heir, Black's Law Dictionary (11th ed. 2019) (defining "heirs and
assigns" as a "term of art formerly used to create a fee simple"). Therefore, we
hold the October 1961 agreement between Henry Wingard and the Town was
terminable at will by either party upon reasonable notice. See Carolina Cable
Network v. Alert Cable TV, Inc., 316 S.C. 98, 101, 447 S.E.2d 199, 201 (1994)
("Historically, perpetual contracts have not been favored in South Carolina and are
generally upheld only where the perpetual nature of the agreement is an express
term of the contract."); Childs v. City of Columbia, 87 S.C. 566, 572, 70 S.E. 296,
298 (1911) ("Where the parties to a contract express no period for its duration, and
no definite time can be implied from the nature of the contract or from the
circumstances surrounding them, it would be unreasonable to impute to the parties
an intention to make a contract binding themselves perpetually."); id. ("[T]he only
reasonable intention that can be imputed to the parties is that the contract may be
terminated by either[,] on giving reasonable notice of his intention to the other.").
Finally, because the Town did not rescind the agreement, Wingard is not entitled to
the return of the title to the two-inch water line. See Ellie, Inc. v. Miccichi, 358
S.C. 78, 95, 594 S.E.2d 485, 494 (Ct. App. 2004) ("Rescission is an abrogation or
undoing of [a contract] from the beginning, which seeks to create a situation the
same as if no contract ever had existed." (alteration in original)).1

1
Additionally, we note the "heirs and assigns" language was included only in the
October 1961 agreement, not the September 1961 agreement. The circuit court
AFFIRMED. 2

GEATHERS, MCDONALD, and HILL, JJ., concur.

found Scott's Furniture was served by the six-inch main referenced in the
September agreement, and Wingard has not challenged this finding. Atl. Coast
Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285
(2012) ("[A]n unappealed ruling, right or wrong, is the law of the case").
2
We decide this case without oral argument pursuant to Rule 215, SCACR.