Mark A. Benner v. Jeffrey A. Hammond

• Decision Date: 15 March 1996
• Docket Number: 95 CA 2116,96-LW-0561
• Parties: Mark A. Benner, et al., Plaintiffs-Appellees v. Jeffrey A. Hammond, et al., Defendants-Appellants Case
• Court: Ohio Court of Appeals

Mark A. Benner, et al., Plaintiffs-Appellees v. Jeffrey A. Hammond, et al Defendants-Appellants

No. 95 CA 2116.

96-LW-0561 (4th)

Court of Appeals of Ohio, Fourth District Ross

March 15, 1996

James L. Mann, FOSSON, MANN & PRESTON, Chillicothe, Ohio, for appellants.

Jack C Kellenberger, WARD, KELLENBERGER, NUSBAUM & WISSLER Chillicothe, Ohio, for appellees.

DECISION

Kline J.

This appeal arises from the granting of an injunction by the Ross County Court of Common Pleas. Plaintiffs-appellees Mark A. Benner and fifteen neighbors in the Sunset View subdivision, Block A of Union Township (hereinafter "Sunset View") successfully obtained an injunction ordering defendant-appellant Jeffrey A. Hammond(fn1) to remove his manufactured home from lot twenty-five of Sunset View. Appellant was the owner of lot twenty-five but his deed, as well as the appellees' deeds, referred to restrictions filed with the Ross County Recorder's office which prohibited the use of a trailer as a residence. The trial court found that appellant's manufactured home was a trailer barred by the restrictive covenant and therefore granted the injunction.

Appellant appeals and presents a wealth of assignments of error:

I. The trial court erred as a matter of law in holding that the issue before the court was whether the 1994 Champion Home placed on lot twenty-five by appellant was a trailer within the meaning of restrictive covenant number eight.

II. The trial court erred as a matter of law in holding that defendant-appellant's home must be determined to be a house trailer because of the provisions of section 4501.01(0) of the Revised Code which were in effect in 1983.

III. The trial court erred as a matter of law in holding that the character of the home for purposes of the restrictive covenant must be determined based upon the condition of the home at the time it was brought to the lot and not as it appeared later after it had been erected.

IV. The trial court erred and judgment was against the manifest weight of the evidence in holding that the appellant's home was not attached to a permanent foundation.

V. The trial court erred as a matter of law in applying as controlling the decision of the Ross County Common Pleas Court in Ellis v. Caplinger (Nov. 9, 1990), Ross Cty. C.P. No. 90-CI-257, unreported.

VI. The trial court erred and its judgment was against the manifest weight of the evidence in holding that the appellees had proved by clear and convincing evidence that they had sustained irreparable damage because the value of their homes had been diminished by the presence of appellant's home.

VII. The trial court erred as a matter of law in holding that the appellees had sustained irreparable damage because appellant's home would cause the style of the subdivision to be altered.

VIII.

The trial court erred as a matter of law by applying the wrong legal standard to the application of the restrictive covenant.

IX. The trial court erred as a matter of law by interpreting the restrictive covenant to hold that all manufactured homes are trailers; that manufactured homes are therefore temporary structures; and that therefore all manufactured homes are excluded from this subdivision or any subdivision containing the language of the restrictive covenant at issue in direct violation of controlling federal law.

Sunset View restrictive covenant number eight filed on December 22, 1983 states:

Temporary Structures. No structures of a temporary character, trailer, basement, tent, shack, garage, barn, or other out building shall be used on any lot at any time as a residence, either temporarily or permanently.

Appellees urge that appellant's structure is either a trailer or of a temporary character.

Appellant's structure is a 1994 Champion Model 045 manufactured home which appellees characterize as a double-wide mobile home. The structure arrived at appellant's lot in two sections on wheels and with tongues attached to trucks. The wheels and tongues were removed and the structure was placed upon a foundation. The foundation consisted of concrete footing installed thirty-eight to forty-two inches below grade supporting above grade pilasters and a perimeter wall, both of concrete blocks which were not mortared together. The president of J.M. Mobile & Modular Homes, the manufacturer of the structure, testified that there is no need to mortar the blocks above grade because the pressure of the structure keeps the blocks in place. Wood blocks were placed between some of the concrete blocks and the structure for balance. The home is also anchored to the ground. The trial court termed appellant's foundation as temporary.

The structure is ranch-style and encompasses seventeen hundred square feet. Drywall is used throughout the interior of the structure, while the exterior is covered with vinyl siding. Plumbing, electric, and heating were installed at the factory. The roof is pitched and covered with shingles. Appellant added a site built garage which attached to the structure, a large deck, and landscaping.(fn2)

Appellant financed the structure and lot by means of a mortgage. The mortgage originally covered only the lot, while the manufactured home was covered by a separate security interest. However, once the structure was completed, the title of the structure was surrendered to the Ross County Auditor(fn3) and the security interest on the structure merged into the mortgage. See 1993 Ohio Atty.Gen.Ops. No. 93-078. Further, the surrendering of title to the auditor dictates that the structure will be taxed as part of the real property instead of as a mobile home. See R.C. 4503.06(F)(1); R.C. 5701.02; 1993 Ohio Atty. Gen. Ops. No. 93-078. Appellant initially paid motor home taxes in the amount $369.77. See R.C. 4503.06.

J.M. Mobile & Modular Homes started to move the structure onto appellant's property on May 3, 1994. Appellees filed a complaint on May 25, 1994 seeking a temporary restraining order, which the trial court subsequently denied, and an injunction. A hearing on the permanent injunction was held on August 25, 1994 and October 6, 1994. The trial court found that appellant's structure was a trailer pursuant to the restrictive covenant and that appellees were entitled to enforce the restrictive covenant. The trial court therefore granted an injunction ordering appellant to remove the structure from lot twenty-five in Sunset View. At the time the injunction was granted, appellant's structure was fully installed, the deck was built, and the garage was completed.

We first address appellant's second, third, fifth, and eighth assignments of error. Appellant, in these assignments of error, challenges the trial court's interpretation of the restrictive covenant. At issue is whether appellant's structure is a trailer. If appellant's structure is not a trailer, the restrictive covenant has not been violated.

Restrictive covenants in deeds are generally enforceable, unless contrary to public policy, if the purpose is to establish a general scheme in a tract of property to make it more attractive for residential purposes. Dixon v. Van Sweringen Co. (1929), 121 Ohio St. 56, paragraph one of the syllabus. Determining the intent of the parties through the language the parties have employed is the goal of interpreting a restrictive agreement. Hitz v. Flower (1922), 104 Ohio St. 47, 57. The court must construe the language of the covenant by giving it its common and ordinary meaning in light of the factual circumstances surrounding the writing of the restrictive covenant. Arnoff v. Chase (1920), 101 Ohio St. 331, 335; Hunt v. Held (1914), 90 Ohio St. 280, 287. Further, where the language contained in a deed restriction is unclear and capable of contradictory interpretation, the deed restriction must be construed against the restriction and in favor of the free use of land. Houk v. Ross (1973), 34 Ohio St.2d 77, paragraph two of the syllabus; Bove v. Giebel (1959), 169 Ohio St. 325, paragraph one of the syllabus; Hitz v. Flower, supra.

As the prototypical trailer has evolved, questions have arisen concerning whether certain structures, often called manufactured homes, are still properly referred to as trailers. This semantical query has become most important in the interpretation of restrictive covenants prohibiting trailers. Appellees argue that these new structures are still properly referred to as trailers because the word trailer is defined by mobility and the mode of delivery. These new structures arrive on wheels with tongues which may be reattached and thus remain mobile. See Lumac Development Corp. v. Buck Point, Ltd. Partnership (1988), 61 Ohio App.3d 558, 566. Conversely, appellant argues that these structures when installed are permanent and therefore lose the label of trailer as they lose their mobility. See Moscow v. Skeene (1989), 65 Ohio App.3d 785, 789; Sylvester v. Howland Twp. (1986), 34 Ohio App.3d 270, 271. See, generally, 5 Powell on Real Property (1968), 60-88.12 to 6088.13, fn. 19; Annotation, What is "Temporary" Building or Structure within Meaning of Restrictive Covenant (1986), 49 A.L.R.4th 1018, 1025-1040; Annotation, Use of Trailer or similar Structures for Residential Purposes as within Limitation of Restrictive Covenant, Zoning Provision, or Building Regulation, (1964), 96 A.L.R.2d 232, 263, Section 15.

These opposing views on whether manufactured homes are barred by restrictive covenants prohibiting trailers center on (1) the period when the structure should be evaluated to determine whether it is a trailer and (2) the mobility of manufactured homes once installed. Addressing the first issue, the trial court held that the condition of the structure at the time it was brought to the lot, as opposed to once it was installed was the proper...