UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, LEVEN-
TIS, UNGER, DAVES, HERNDON & COTHRAN, Columbia, South
Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In this diversity action Wilder Corporation (Wilder) appeals from
a judgment of the district court awarding damages for breach of obli-
gations 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 erro-
neous finding affecting the judgment can be implied from it. Accord-
ingly, we affirm.

I

In 1980, Wilder sold a South Carolina mobile home park, McGre-
gor 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 govern-
          mental 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 agree-
          ment 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 on-
site sewer system into compliance with state requirements and
received a permit to operate the facility, a permit that remained per-
manently 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 com-
pleted.

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 han-
dle 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 rul-
ing that Wilder was still obliged to absorb the ongoing costs associ-
ated 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 consid-
eration 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 ulti-
mate finding of obligation would require us to discount the substantial

                     5
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 conclu-
sion 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 obli-
gations 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 par-
ties' 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 treat-
ment business. On this basis, the court found that the parties had

                    6
intended that Wilder, which was experienced in managing sewer sys-
tems 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 keep-
ing the sewer system in the condition required by the state, but that
obligation did not replace its obligation eventually to pay for a hook-
up 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 experi-
enced 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 con-
tract, 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 environ-
mental 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 con-
nected 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

                    7
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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