UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1688

INVESTORS TITLE INSURANCE COMPANY,

Plaintiff - Appellee,

v.

CAROLYN BAIR, a/k/a Carolyn Songer Austin,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Beaufort. Patrick Michael Duffy, District

Judge. (9:05-cv-1434-PMD)

Submitted: September 9, 2008 Decided: October 14, 2008

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert E. Austin, Jr., ROBERT E. AUSTIN, JR. LAW OFFICES, Leesburg,

Florida; Mark Weston Hardee, MARK W. HARDEE LAW OFFICES, Columbia,

South Carolina, for Appellant. Robert P. Wood, ROGERS, TOWNSEND &

THOMAS, PC, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM: 

Carolyn S. Bair appeals from the district court’s

declaratory judgment, entered after a bench trial, that an

exclusion in a title insurance policy Bair had with Investors Title

Insurance Company (“Investors”) (the “Policy”) applies to release

Investors from its obligation to defend Bair’s title to certain

real property located in Hilton Head, South Carolina in an

underlying lawsuit. She asserts error in the district court’s

finding that she had actual knowledge of the claim of Forest Beach

Owners Association at the time of issuance of the title Policy;

claims the district court failed properly to consider the

applicable Policy provisions; and contends the district court erred

in failing to recognize that the quit claim deed from Property

Research Holdings was a matter of public record at the time the

title Policy was issued. She further appeals the district court’s

denials of her motions filed pursuant to Fed. R. Civ. P. 59(e). We

affirm.

The factual background of this case is somewhat complex

and involved, and we dispense with a complete recitation of the

facts, as they are fully set forth in the district court’s findings

of fact and conclusions of law, and are well known to the parties.

On appeal from a bench trial, we may set aside the district court’s

findings of fact only if they are clearly erroneous, and we give

due regard to the opportunity of the district court to judge the
3

credibility of the witnesses. Fed. R. Civ. P. 52(a); see also

Ellis v. Thornton, 530 F.3d 280, 286-87 (4th Cir. 2008). The trial

court, sitting as a trier of fact, has the duty to weigh evidence

and draw reasonable inferences and deductions from that evidence.

United States v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987). An

inquiry as to what a person knew at a given point in time is a

question of fact. Bose Corp. v. Consumers Union of U.S., Inc., 466

U.S. 485, 498 (1984). 

We find without difficulty that the district court’s

findings, based upon its consideration of the pleadings, the public

records of Beaufort County, the arguments and briefs of counsel,

and the evidence offered at trial, that Bair was aware of the title

risk in the contested portion of the lot were amply supported by

the evidence. Specifically, evidence exists to support the

conclusions that Bair contrived to obtain title to a portion of the

insured premises by adverse possession, filed a quiet title lawsuit

that purposely failed to name important parties, and colluded with

a local businessman to obtain a quit claim deed covering the

property to the end of Avocet Street. Evidence was presented

during trial that Bair failed to disclose her knowledge of these

facts, or her possession of many documents reflective of these

dealings that were not part of the public record, to the closing

attorney, the agent for Investors. 
4

We will not disturb the district court’s determination

that Bair’s testimony that she did not have actual knowledge that

members of the Forest Beach community retained an easement across

the portion of her lot that was formerly Avocet Street was not

credible. This finding was based on Bair’s familiarity with the

law of easements (as evidenced by other lawsuits she had filed), a

letter she received from an attorney with whom she had consulted

warning her that the Forest Beach community might retain an

interest to that piece of property, and her husband’s admission

that he had superior knowledge of title issues on Hilton Head. The

district court’s determination that Bair knew that all Subdivision

No. 1 lot owners owned an easement across Avocet Street was

supported by the fact that she took by adverse possession the end

of Avocet Street, filed for judgment wherein she failed to name

members of the Forest Beach community as defendants, and then

obtained (for no consideration) a quit claim deed to the land from

the businessman with whom she had arranged obtaining the judgment.

Evidence further establishing Bair’s lack of credibility was the

fact that just two months after the closing, Bair, represented by

Austin, filed a brief in a lawsuit, in which they argued that the

streets of Hilton Head Beach Subdivision No. 2 were open to the

public, a position inconsistent with her position in this lawsuit.

The court’s conclusion that Austin, her attorney husband, had

“expertly orchestrated” the quiet title suit likewise is adequately
1

That determination, contrary to Bair’s contention, is

consistent with Spence v. Spence, 368 S.C. 106, 628 S.E.2d 869

(2006), as Spence holds that “[a]ctual notice may be shown by

direct evidence or inferred from factual circumstances.” 368 S.C.

at 118, 628 S.E.2d at 875.

5

supported by Austin’s testimony that he tried to keep the quiet

title suit “quiet,” that he purposely failed to determine the

identities of Bair’s neighbors to notify them, and that he

published the notice of the quiet title suit in a neighboring

town’s newspaper, rather than the primary paper dispensed in the

area. Moreover, Austin testified that Bair was fully aware of all

his actions taken on her behalf, and Bair testified that Austin

“would not hold anything back from [her].” The sum total of the

oral and documentary evidence amply supports the district court’s

factual determination that Bair had actual notice that Forest Beach

Owner’s Association would have had a claim on the subject

property.1

Nor do we find to have merit Bair’s assertion that the

district court failed properly to consider the applicable Policy

provisions, as the record demonstrates that the court carefully

reviewed the Policy at issue, and expressly considered the proper

legal standards for construction of insurance policies in rendering

its carefully considered decision. The district court correctly

applied South Carolina insurance contract law in holding that the

language of an exclusion, where ambiguous, will be resolved in
2See, e.g., Helena Chemical Co. v. Allianz Underwriters Ins.

Co., 357 S.C. 631, 639, 594 S.E.2d 455, 459 (2004).

3

See New York Underwriters Ins. Co. v. Central Union Bank of

S. Carolina, 65 F.2d 738, 739 (4th Cir. 1933).

4Appellee asserts that the quit claim deed referred to by Bair

was not included in the record until the Fed. R. Civ. P. 59(e)

stage of the case, a statement Bair does not dispute.

6

favor of the insured and coverage,2 and determined that Investors

would be entitled to avoid payment under the Policy only if Bair

had actual knowledge of the title risk at issue.3

 The district

court then analyzed the evidence before it and determined with ease

that Bair had actual knowledge that members of the Forest Beach

Community retained an easement across the contested portion of

Avocet Street in spite of the 1999 judgment purporting to quiet

title in Bair. We find no error in the district court’s

construction of the Policy provisions.

Bair further asserts that the district court failed to

consider that a quit claim deed from Property Research Holdings to

Forest Beach Homeowners Association, recorded on July 25, 2001, was

a matter of public record at the time the title Policy was issued,

such that the Policy exclusions should not apply. Our review of

the record reveals that the district court considered all the

evidence before it during the bench trial,4 and properly determined

that the title search conducted by Investors’ agent, in which she

found the 1999 judgment purporting to quiet title to the contested

property on Avocet Street, was properly limited to matters of
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public record, and that the agent was not required to consider

“local ordinances, the pleadings from the quiet-title action, or

other papers not recorded in the Office of the Registrar of Deed

[of Beaufort County] which may have impugned the legal

effectiveness of the 1999 judgment.” Investors Title Ins. Co. v.

Bair, No. 9:05-cv-1434-PMD (D.S.C. April. 27, 2007).

Bair raises a number of issues in her reply brief. To

the extent these issues were not raised in her opening brief, she

has waived consideration of them on appeal. See Yousefi v. INS,

260 F.3d 318, 326 (4th Cir. 2001).

Finally, we review for abuse of discretion the district

court’s denial of a Rule 59(e) motion. Temkin v. Frederick County

Comm’rs, 945 F.2d 716, 724 (4th Cir. 1991). We find that the

district court properly exercised its fact-finding function in

inferring from the plethora of direct evidence that Bair was aware

of the title risk relative to the contested portion of the

property. Even assuming, arguendo, that we were to determine that

there existed the reasonable inference from the evidence that Bair

was not aware of the risk, the factfinder’s choice that she was

aware cannot be clearly erroneous. See Anderson v. Bessemer City,

470 U.S. 564, 574 (1985). Given that the district court’s

determination that Bair had actual knowledge of the title risk was

factually supported by sufficient evidence and legally justified,
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we find no abuse of discretion in the district court’s denial of

Bair’s Rule 59(e) motions.

Accordingly, we affirm the district court’s declaratory

judgment and its denials of Bair’s Rule 59(e) motions. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED