Real Property — Easements – Subdivided Property – Lis Pendens – Road-Building Costs – Forum Selection Clause

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Seventeen South, LLC v. D.R. Horton, Inc. (Lawyers Weekly No. 002-023-15, 24 pp.) (Bruce Howe Hendricks, J.) 4:13-cv-03119; D.S.C.

Holding: Plaintiffs’ claims require the court to interpret a reciprocal easement and right-of-way agreement, and plaintiffs argue that the obligations in question run with the land and attach to those who purchase parcels from defendant, making a lis pendens appropriate to warn possible purchasers that they may incur these obligations. Since defendant has not directed the court to any conclusive authority indicating that the lis pendens is improper, the court declines to cancel it.

Plaintiffs’ motion to dismiss defendant’s counterclaims is denied. Plaintiffs’ motion to amend the complaint is granted. Defendant’s motion to cancel the lis pendens is denied. Plaintiffs’ second cause of action – apparently asking the court to issue a lis pendens when one has already been recorded – is dismissed. Plaintiffs’ motion to remand to state court is denied. The claims brought by plaintiff Seventeen South, LLC are dismissed without prejudice as premature. Defendant’s motion for summary judgment against plaintiff G.W. Myrtle Beach Development, LLC is denied.

The filing of a lis pendens is privileged against a cause of action for slander of title; however, a maliciously filed lis pendens may be challenged via other causes of action, such as abuse of process. Plaintiff is not entitled to have defendants’ counterclaims (abuse of process, intentional interference with contract, intentional interference with prospective contractual relations, and civil conspiracy) dismissed on the basis that the recordation of a lis pendens is absolutely privileged.

The Reciprocal Easement and Right of Way Agreement between the parties’ (purported) predecessors says its provisions “shall be enforceable in a court of competent jurisdiction in South Carolina and the parties, their successors and assigns, stipulate and agree to venue in Horry County, South Carolina.”

The term “of competent jurisdiction” does not exclude a federal court, and the term “in South Carolina” is a matter of geography, not jurisdiction.

Although there is no federal courthouse in Horry County, the court agrees with defendant that the language “stipulate and agree to venue” is permissive rather than exclusive.

Even if the court interpreted the language as mandatory, defendant argues that it should not prevent defendant from removing the case to the Florence Division, which encompasses Horry County. The Fourth Circuit has not resolved this issue definitively, and other courts are split on the issue. This court respectfully sides with those courts that have found that the requirement of venue in a particular county does not preclude litigation in the federal division encompassing that county. The location of federal courthouses is, to some extent, arbitrary and inconstant.

Plaintiff Seventeen South is seeking only prospective relief because it has not actually spent any money constructing the road lanes for which it is supposedly seeking reimbursement under the Agreement. The court dismisses Seventeen South’s claims without prejudice.

Where the Agreement is, at the very least, ambiguous as to whether defendant should be considered a successor to one of the original parties, defendant is not entitled to summary judgment on this basis.

Finally, the Agreement’s provisions regarding the sharing of the costs of road-building are ambiguous, and both of the parties’ conflicting interpretations are reasonable. The court cannot grant summary judgment solely on the basis of the document.

Motions granted in part and denied in part.