UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KLAUS WILKE; RITA E. WILKE,

Plaintiffs-Appellees,

v.

No. 94-2062

WILDER CORPORATION, formerly

known as Wilder Mobile Homes,

Incorporated,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(CA-93-238-3-17)

Argued: October 30, 1995

Decided: January 8, 1996

Before NIEMEYER and MICHAEL, Circuit Judges,

and PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John F. Emerson, SINKLER & BOYD, P.A., Columbia,

South Carolina, for Appellant. Edward Mobley Woodward, Jr.,

WOODWARD, LEVENTIS, UNGER, DAVES, HERNDON &

COTHRAN, Columbia, South Carolina, for Appellees. ON BRIEF:

Palmer Freeman, Jr., SINKLER & BOYD, P.A., Columbia, South
Carolina, for Appellant. Darra W. Cothran, WOODWARD, LEVENTIS, UNGER, DAVES, HERNDON & COTHRAN, Columbia, South

Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In this diversity action Wilder Corporation (Wilder) appeals from

a judgment of the district court awarding damages for breach of obligations imposed in a Bond for Title. The principal assignment of error

is to a finding of fact which it is claimed was clearly erroneous and

infected the court's ultimate finding of liability. We conclude that the

challenged finding was not clearly erroneous and that no clearly erroneous finding affecting the judgment can be implied from it. Accordingly, we affirm.

I

In 1980, Wilder sold a South Carolina mobile home park, McGregor Downs, to Klaus and Rita Wilke. This sale was memorialized in

a Bond for Title, which provided that Wilder would retain possession

of the deed until the Wilkes had finished paying off the purchase

price. The Wilkes were entitled to and took immediate possession of

the property and were obligated to meet a schedule of payments that

ran through early 1995. Most importantly, the Bond included a special

provision that required Wilder to maintain responsibility for the

park's on-site sewer system even after the Wilkes took possession of

the property in 1980. The exact extent of that responsibility is the

issue in the case.

The park's sewer system had been deemed inadequate by the

state's Department of Health and Environmental Control well before

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the sale. The Wilkes had, therefore, secured the following provision

in the Bond:

The parties further acknowledge that presently the South

Carolina Department of Health and Environmental Control

is concerned with the adequacy of the sewage treatment

facility located on the subject property. The parties agree to

coordinate in resolving the difficulty. The obligor[Wilder]

agrees to contract with the Town of Springdale to join its

system as soon as practicable and to pay the cost, if any, of

upgrading said facility to meet the municipal and governmental requirements until the Springdale facility tap-on is

completed; provided, however, the obligor retains the right

to negotiate with the agencies involved in reaching an agreement on the measures required for upgrading the facility,

whether they be temporary or of a more permanent

nature. . . . Should the Springdale facility not be provided or

tap-on not completed, the obligors shall bear the costs of

complying with the South Carolina Department of Health

and Environmental Control requirements as to the existing

sewage treatment facility located on subject property, and

any penalties charged shall be paid by obligor. In the event

of non-payment by obligor, the obligees [the Wilkes] may,

at their option, elect to pay said penalty and deduct said

amount paid as an offset against the monthly installments

hereunder.

J.A. 209-10.

Wilder's attempt to connect the mobile home park to Springdale's

sewer system as contemplated by the Bond proved a failure by the

spring of 1983. So, in the fall of 1983, Wilder finally brought the onsite sewer system into compliance with state requirements and

received a permit to operate the facility, a permit that remained permanently in Wilder's name. At that point, it sought to have the Wilkes

agree that its obligations and potential liability were at an end. The

Wilkes, however, refused to sign a letter to that effect that Wilder had

sent them for signature. Four years later, they sought to sell the park

to a third party, at which time Wilder, as holder of the Bond for Title,

insisted again that it not only needed financial information about the

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new purchaser but assurances from the Wilkes and the purchaser alike

that Wilder bore no continuing responsibility for the sewer system.

These assurances were not forthcoming, and the sale was never completed.

During the subsequent years, problems with the system continued.

The Wilkes apparently paid some small fines that the state imposed

for violations of state regulations. When they were hit with a fine of

$5,000 in 1989, however, they decided it was too big for them to handle and that Wilder should pay it. Failing to get Wilder to pay that

fine, they eventually withheld it from their monthly payments on the

Bond. They also brought a declaratory judgment action, seeking a ruling that Wilder was still obliged to absorb the ongoing costs associated with the sewer system. Without conceding that point, Wilder

eventually settled the case and agreed to absorb the $5,000 rather than

litigate so small a dispute. J.A. 52-53.

In 1990, the state finally insisted that the Wilkes hook on to a

larger sewer system, Midlands Utility, and obtained a consent decree

to that effect. The Wilkes completed the hook-up in 1991 at a cost of

about $124,000. The Wilkes asserted that the Bond obligated Wilder

to pay that cost, and so they sought to have Wilder reimburse them.

Wilder took the position that its obligation had expired no later than

the fall of 1983 and refused to pay for the 1991 hook-up. The Wilkes

then brought this diversity action in which they sought a declaratory

judgment that Wilder's obligation extended to the $124,000.

Following a bench trial, the district court found that the parties had

intended to impose on Wilder a general, ongoing responsibility for

resolving the problems with the sewer; that they had failed to place

any time limit on that responsibility; and that the Wilkes' contract

with Midlands occurred within a reasonable time after the imposition

of that ongoing responsibility. On that basis, the court concluded that

the cost of the hook-up remained Wilder's responsibility and not the

Wilkes' within the meaning of the Bond provision. Judgment against

Wilder in that amount was entered accordingly.

This appeal followed.

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II

Wilder's specific challenge is to the last sentence of the district

court's Finding of Fact 23: that Wilder had not asserted a claim

against the Wilkes in response to their withholding of the $5,000

owed Wilder to apply against the fine imposed against them in 1989.

Wilder's essential defense to the action was that the parties had

intended that Wilder be released once the sewer was brought into

compliance, which he claims occurred in 1983. Its argument is that

the district court's ultimate finding that the obligation extended past

that point was necessarily predicated materially on its finding that as

late as 1989, Wilder was effectively conceding continuing obligation

by not attempting to recoup the $5,000 payment withheld by the

Wilkes. And, Wilder contends, the finding was clearly erroneous

because the evidence clearly shows that the failure to assert a claim

involved no such concession on its part.

Reviewing this finding for clear error, we ask whether our consideration leaves us with a definite and firm conviction that a mistake

has been made. Wileman v. Frank, 979 F.2d 30, 34 (4th Cir. 1992).

On that point, we are by no means satisfied, certainly not definitely

and firmly convinced, that looked at in isolation the specific finding

that "Wilder never assert[ed] a claim against Wilke for the $5,000"

is erroneous. Indeed it seems literally correct. As Wilder's counsel

conceded in oral argument, Wilder indeed never asserted such a

claim. What Wilder really is challenging is not the accuracy of that

specific finding but an implication from it which it thinks must have

been drawn by the district court: that Wilder never objected in any

way to the withholding of the $5,000. Such a further finding, whether

made expressly or by necessary implication, would have been clearly

erroneous for, as Wilder points out without contradiction, it forewent

the $5,000 simply as an aspect of a settlement in which nothing was

conceded. And such a finding might have raised legitimate questions

of prejudice to the judgment. But such a more expansive and possibly

prejudicial finding was not expressly made and we are satisfied that

it is not necessarily implicit in the district court's ultimate finding of

continuing obligation.

To conclude that such a finding was necessarily implicit in the ultimate finding of obligation would require us to discount the substantial

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indication that the judge accurately understood the true implications

of Wilder's conduct vis-a-vis the $5,000. The record plainly reveals

that understanding. In colloquy respecting the settlement negotiations

that followed the Wilkes' withholding of the $5,000 owed Wilder, the

following exchange occurred:

THE COURT: . . . That settlement was totally without

prejudice to both sides' right to litigate this issue?

. . . .

MR. WOODWARD: That's right. . . . Because there

was $5000 at risk, nobody wanted to litigate something of

this magnitude over $5000.

J.A. 53. Given that necessary understanding of the situation, we could

not ascribe to the court any implied finding that Wilder's conduct

involved a concession of continued liability at that point.

Even more critically, the district court's express reasoning on the

way to its ultimate finding of continuing obligation belies any conclusion that it rested at all on Wilder's conduct vis-a-vis the $5,000. The

court correctly drew on South Carolina law for the propositions that

interpretation of a contract requires the factfinder to determine the

true intentions of the parties in light of all the circumstances,

Langston v. Niles, 219 S.E.2d 829, 833 (S.C. 1975), and that the

absence from a contract of a date for performance means that the obligations under the contract extend only for a "reasonable time," Drews

Co. v. Ledwith-Wolfe Assocs., 371 S.E.2d 532, 533 (S.C. 1988). Then,

in determining under this case law whether Wilder's obligations

under the contract extended to payment for the hook-up to Midlands

in 1991, the court relied explicitly and reasonably on a number of

pieces of evidence without mentioning, let alone relying on, the parties' conduct respecting the $5,000 fine.

In determining the parties' intent, the court first noted Klaus

Wilke's testimony that he had had no experience in running a sewer

system and had had no interest in getting into the wastewater treatment business. On this basis, the court found that the parties had

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intended that Wilder, which was experienced in managing sewer systems for mobile home parks, should "take complete responsibility for

remedying the sewer problems." J.A. 280. In particular, the "basic

intent . . . was that Wilder would pay to hook McGregor Downs onto

a municipal or commercial sewer facility" and that the specification

of Springdale's facility was not a material term of the contract. J.A.

280. In the meantime, Wilder was obligated to bear the costs of keeping the sewer system in the condition required by the state, but that

obligation did not replace its obligation eventually to pay for a hookup to a municipal system. Finally, the court found that the costs

incurred in 1991 did arise within a reasonable time of the signing of

the contract in 1980, especially because the sewer system had experienced continuing problems through much of those eleven years while

Wilder ignored Wilke's requests for help in resolving those problems.

J.A. 281.

The court also offered a variation on this interpretation of the contract, which rested on the clause that required Wilder, in any event,

"to bear the cost of complying" with the state's requirements "as to

the existing sewage facility." In light of testimony by a state environmental official that the park's facility had been identified by 1979 as

needing to be hooked up to a municipal or commercial sewer system,

the court found that the "broad language of the Contract quoted above

encompasses DHEC's requirement that McGregor Downs be connected to Midlands Utility." That is, according to the court, the parties

knew at the time of contracting that the park would very likely be

required to hook up to a larger system, and they agreed that Wilder

would pay the costs of whatever the state required to be done about

the defective facility, including the cost of hooking up to a system

such as Midlands once the state so required. J.A. 282-83.

Finally, almost incidentally, the court found that Wilder believed

as late as 1987 that "it still had potential liability for the McGregor

Downs sewer system under the Bond for Title," citing a 1987 letter

from Wilder's Assistant Corporate Secretary. That letter had first

requested assurances from Klaus Wilke and a potential buyer of the

park that Wilder had "no further liability" regarding the sewer system

and then went on to say that, "At that point , the only obligation of

Wilder Corporation would be to continue to have the sewer plant

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operating permit in the name of Wilder Corporation .. . ." District

Court Opinion at J.A. 284 (emphasis added by district court).

We conclude that the district court's ultimate finding of continuing

obligation on which its judgment was based was not infected with any

clearly erroneous finding of fact, express or implied, and was amply

supported by the evidence.

AFFIRMED

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