Hicks v. Cox

• Decision Date: 24 March 1998
• Citation: 978 S.W.2d 544
• Parties: David HICKS, Plaintiff-Appellant, v. Gene E. COX and Connie Whittaker, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 544

978 S.W.2d 544

David HICKS, Plaintiff-Appellant, v. Gene E. COX and Connie Whittaker, Defendants-Appellees.

Court of Appeals of Tennessee Eastern Section, at Knoxville.

March 24, 1998.

Application for Permission to Appeal

Denied by Supreme Court

Oct. 12, 1998.

James L. Arnold, LaFollette, for appellant.

Philip R. Crye, Jr., Magill, Crye & Cizek, Clinton, for appellees.

OPINION

SUSANO, Judge.

The plaintiff, David Hicks ("Hicks"), ¹ sued Gene E. Cox ("Cox") and Connie Whittaker ("Whittaker") ², each of whom owns an interest in property immediately adjacent to Hicks' subdivision lot, seeking to enforce deed restrictions that prohibit, among other things, the placing of "trailers" on the defendants' property. The trial court held that, even assuming the restrictions pertaining to the defendants' property were broad enough to cover Whittaker's single-wide mobile home, the "enforcement of such restriction has been waived or [Hicks] should be estopped to enforce same." Hicks appealed, arguing that the single-wide mobile home is a "trailer," as that term is used in the restrictive covenants; that the trial court erred in admitting hearsay testimony as to the developer's intent with respect to the use of the word "trailers"; and, finally, that the trial court erred when it ruled that Hicks was precluded from enforcing the restrictive covenant against "trailers" under the doctrines of waiver and estoppel.

I. Facts

In 1993, Hicks purchased Lot H-7 in Shady Cove Subdivision in Campbell County. Cox owns property adjacent to Hicks' lot. Cox's lots are designated as H-8, H-9, and H-10. He has lived in a double-wide mobile home on Lot H-10 since 1988.

The subdivision was developed by Fred Waddell ("Waddell") ³ over 20 years ago. When the subdivision plat was recorded, Waddell did not record restrictions as to the subdivision as a whole. Instead, he chose to place restrictive covenants in the individual deeds as the lots were sold. The record reflects that some of the deeds do not contain an express prohibition against "trailers," while others do. For example, Hicks' deed, which incorporates restrictions by reference to an earlier deed in his chain of title, includes a prohibition against the placement of "a mobile home or trailer" on his lot. The deed at issue here, by which Waddell conveyed Lot H-8 to Cox, recites "[t]hat no trailers shall be placed on [the] subject property." The full restrictive covenants in Cox's deed are as follows:

Said property is sold subject to the following restrictions which shall be binding upon the grantee, his successors and assigns: (1) That no horse, cow, hog, goat or similar animal shall be kept or maintained on said premises or any part thereof, nor shall any chicken yard be maintained thereon; (2) That no building nor structure shall be used for any purpose whatsoever other than that of a residence and especially said property shall not at any time be used for the purposes of any trade, business or manufacture; (3) That ll [sic] ⁴ lavatories and/or toilets shall be built indoors and connected with outside septic tanks or cesspool; (4) That no tents, shacks, garages, barns, or other outbuildings erected on this tract shall [sic] any structure of a temporary character be used as a residence; (5) That said conveyance is made subject to the restrictions placed upon said land conveyance of said property from the United States to Fred Waddell, et ux; (6) These restrictions and reservations are made for the benefit of any and all persons who now may own, or who may hereafter own property in the Shady Cove Subdivision, and such persons are specifically given the right to enforce these restrictions and reservations; (7) As stated above the party of the second part is to have the use of the private road owned by parties of the first part which leads to the county road for recreational purposes only; (8) That no trailers shall be placed on subject property.

(Emphasis added.)

Mobile homes--primarily of the double-wide variety--have been placed on several lots in the subdivision. As indicated earlier, Cox lives in a double-wide mobile home, which is situated on Lot H-10. His deed contains a prohibition against "trailers." Lot H-4, which is located down the road from Hicks' property, is occupied by a double-wide mobile home; however, the ownership of that lot is not burdened with a deed restriction against "trailers." The same is true of Lot H-1, on which is located a single-wide mobile home. In addition, Margaret Carter, who testified on behalf of the defendants, lives in a double-wide mobile home on Lot G-27 in the same subdivision, to the rear of Cox's double-wide mobile home. The restrictions in her deed are the same as in the deed covering the defendants' property.

Prior to the filing of this suit, Whittaker entered into a land contract with Cox, by the terms of which Whittaker obtained a possessory interest in Lot H-8 and a portion of Lot H-9. After that contract was executed, Whittaker placed on the property a single-wide mobile home, which she thereafter occupied as her residence. Although it is not entirely clear from the record, it appears that Whittaker's mobile home is situated primarily on Lot H-8, which is the tract immediately adjacent to Hicks' property.

Hicks filed this action in response to the placement of Whittaker's single-wide mobile home. His complaint requests the trial court to order the removal of the mobile home and seeks to permanently enjoin the defendants from placing similar structures on the property in question. ⁵ He contended in the trial court, as he contends here, that the restriction in the deed to Lot H-8--"[t]hat no trailers shall be placed on [the] subject property"--prohibits single-wide mobile homes such as the one placed on the subject property. The defendants, on the other hand, argue that the restriction was intended to exclude only silver-sided or camping-type trailers, and that in any event, the right to enforce the restriction has been waived or is not available to Hicks by reason of estoppel.

In support of their contention that Whittaker's mobile home does not fall within the ambit of the subject restrictions, the defendants rely upon trial testimony regarding statements made by Waddell. Witnesses testified that Waddell told certain individuals who purchased lots in the subdivision that the restriction as to "trailers" was meant to apply to "a travel trailer, one you pull behind an automobile," and specifically a "silver-side" or camper-type trailer. Hicks objected to this testimony, but the trial court allowed it, noting that Waddell was "the predecessor to title." Hicks had earlier testified, over the defendants' objection, that Waddell told him in 1988 that he, Hicks, could not put a mobile home on a lot he was considering. Hicks testified that because of Waddell's statement, he did not purchase that lot. ⁶

Following the hearing, the trial court ruled as follows:

Until the Court's [sic] heard testimony that during Mr. Waddell's lifetime, that there were double-wides, at least on property in this subdivision, Ms. Carter testified that he was an often times visitor in her home, and she lived in a double-wide. Double-wide, single-wide, and manufactured homes are all the same under restrictions. We've heard testimony as to what [Waddell] intended. And he said he intended to restrict silver-sides, such as are ordinarily parked on the lake for fishing cabins. I'm of the opinion that these restrictions, if they would cover single-wide trailers as in question here, were waived, or the--Mr. Waddell would be estopped either to now attempt to enforce restrictions that have been waived by him for many, many years. So, I don't think it's--would be proper to order the removal of this single-wide trailer. The case is dismissed.

II. Standard of Review

In this non-jury case, our review is de novo upon the record of the proceedings below; but the record comes to us with a presumption of correctness as to the trial court's factual findings that we must honor "unless the preponderance of the evidence is otherwise." Rule 13(d), T.R.A.P. "The scope of review for questions of law is de novo upon the record of the [trial court] with no presumption of correctness." Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997).

III. Applicable Law

Generally speaking, unambiguous restrictive covenants are to be interpreted in the same manner as any writing, Aldridge v. Morgan, 912 S.W.2d 151, 153 (Tenn.App.1995); thus, words in such covenants must be given their usual and ordinary meaning. Id.; Rainey v. Stansell, 836 S.W.2d 117, 119 (Tenn.App.1992). Furthermore, when the meaning of a restriction "is reasonable and unambiguous, there is no need to seek further clarification outside its language." Shea v. Sargent, 499 S.W.2d 871, 874 (Tenn.1973). The terms of an unambiguous restrictive covenant cannot be varied or altered by parol evidence. See Jones v. Brooks, 696 S.W.2d 885, 886 (Tenn.1985); Rolen v. Rolen, 57 Tenn.App. 637, 423 S.W.2d 280, 282 (1967); Moon v. Webb, 584 S.W.2d 803, 805 (Tenn.App.1979); In re Johnson, 187 B.R. 598, 602 (E.D.Tenn.1994).

It is true that restrictions on the free use of real property are not favored and will be strictly construed. Beacon Hills Homeowners Ass'n, Inc. v. Palmer Properties, Inc., 911 S.W.2d 736, 739 (Tenn.App.1995); Jones v. Englund, 870 S.W.2d 525, 527 (Tenn.App.1993). Nevertheless, the overriding factor is the intent of the parties. Beacon Hills, 911 S.W.2d at 739. This Court has stated that

[i]t is well established law in this State that a person owning a body of land may sell portions thereof and make restrictions as to its use for the benefit of himself as well as those to whom he sells. (Citations omitted).

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Notwithstanding the law's unfavorable regard toward restrictive covenants and its strict construction of them, such restrictions, like other contracts, will be enforced according to the clearly...