Newman v. Wittmer

• Decision Date: 04 June 1996
• Docket Number: No. 95-406,95-406
• Citation: 277 Mont. 1,917 P.2d 926
• Parties: Stewart NEWMAN, Susan Newman, Dale Stelter, Mary Stelter, Dave Klatt and Cory Klatt and Susan Brantsma, Petitioners and Respondents, v. Arthur WITTMER, Jr. and Carlene Gail Wittmer, Respondents and Appellants.
• Court: Montana Supreme Court

Page 926

917 P.2d 926

277 Mont. 1

Stewart NEWMAN, Susan Newman, Dale Stelter, Mary Stelter Dave Klatt and Cory Klatt and Susan Brantsma Petitioners and Respondents, v. Arthur WITTMER, Jr. and Carlene Gail Wittmer, Respondents and Appellants.

No. 95-406.

Supreme Court of Montana.

Submitted on Briefs April 25, 1996.

Decided June 4, 1996.

Larry Jent; Williams, Jent & Dockins, Bozeman, for Appellants.

Donald E. White, Bozeman, for Respondents.

Brenda R. Cole; Swandal, Douglass, Frazier & Cole, Livingston, for Amicus (Montana Manufactured Housing & Recreational Vehicle Association).

LEAPHART, Justice.

Appellants, Arthur and Carlene Wittmer (Wittmers), appeal from the Gallatin County, Eighteenth Judicial District Court's Findings of Fact and Conclusions of Law determining The two issues on appeal are:

that the Wittmers' mobile home violated subdivision covenants. In its Conclusions of Law, the District Court issued a mandatory injunction ordering the Wittmers to remove their home from their lot in the subdivision. The court also concluded that Stewart Newman, Susan Newman, Dave Stelter, Mary Stelter, Dave Klatt, Cory Klatt and Susan Brantsma (Respondents) were entitled to recover attorney's fees and costs. We affirm in part and reverse in part.

1. Whether the Wittmers' home is a mobile home and, thus, prohibited by the subdivision's restrictive covenant for use as a permanent residence?

2. Did the District Court err in awarding attorney's fees to the Respondents?

BACKGROUND

The parties in this action are real property owners in the Bear Trap Ranch Subdivision No. 2 (subdivision), Gallatin County, Montana. In 1971, the owners of the subdivision adopted restrictive covenants "designed to provide a uniform plan for the development of the property covered." The fourth restrictive covenant provides:

4. Trailers, Mobile Homes, Basement Homes and Temporary Structures. No structure of a temporary character, including but not limited to trailers, mobile homes, basements, tents, shacks, garages, barns or other out-bildings [sic] shall be used upon any lot or portion thereof at any time as a permanent residence, provided, however, this shall not exclude the temporary parking for short periods of time of self-powered trailers or small trailers towed by passenger cars. [Emphasis added.]

In 1991, the Wittmers bought a 26 feet by 60 feet Brookfield "manufactured home" from Ponderosa Homes in Belgrade, Montana. After obtaining the required "Mobile/Manufactured Home ¹ Movement Declaration," the home was hauled to the Wittmers' lot in the subdivision. See § 61-4-310, MCA. The home is designed to be hauled by truck in two sections. It has a permanent steel I-beam frame to attach wheels, axles, and a hitch with which to pull the home. Upon its arrival in the subdivision, the home was placed on a prepared foundation and the attached wheels and the hitch were removed. The home has a Certificate of Title issued by the Montana Department of Justice, Motor Vehicle Division, in which the home is described as a 1992 Brookfield trailer. The Motor Vehicle Division issued a title number and a vehicle identification number for the home as required under Montana law. See §§ 61-3-107 and 61-3-202, MCA.

The foundation prepared for the Wittmers' home consists of three concrete pads running the length of the home. One pad is seven feet wide the others are two feet wide. The pads are fitted with cable tie downs to fasten the home to the foundation. The home was bolted to the foundation and styrofoam skirting was placed around its base to keep the wind from blowing between the floor and the foundation. The Gallatin County tax assessor testified that because the foundation is not permanent, the home was assessed as personal rather than real property.

Two days after the home was moved into place and had been roofed and carpeted, the Respondents sent the Wittmers a letter informing them that their home violated the subdivision's restrictive covenants.

DISCUSSION

1. Whether the Wittmers' home is a mobile home and, thus, prohibited by the subdivision's restrictive covenant for use as a permanent residence?

In reviewing a district court's conclusions of law, we determine whether the court's conclusions are correct. Maloney v. Heer (1993), 257 Mont. 500, 504, 850 P.2d 957, 959 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603). The standard of review of a district court's findings of fact is whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. To determine if the court's findings are clearly erroneous we first determine whether the findings are supported by substantial evidence. Daines, 888 P.2d at 906. If the findings are supported by substantial evidence, we determine whether the district court has misapprehended the evidence. Daines, 888 P.2d at 906. Finally, if both these prongs are satisfied, this Court may still determine that a finding is clearly erroneous if, after a review of the record, we have a definite and firm conviction that a mistake has been committed. Daines, 888 P.2d at 906.

The Wittmers argue that the District Court's conclusion of law that their home is a mobile home prohibited by the covenants is incorrect for two reasons. First, they argue that the language of the covenant prohibits "structures of a temporary character" not permanent mobile homes. Second and alternatively, they argue that their home is not a mobile home.

The same rules of construction apply to interpreting restrictive covenants as apply to interpreting contracts. Gosnay v. Big Sky Owners Ass'n (1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250. We read the covenants as a whole to ascertain their meaning. Gosnay, 666 P.2d at 1250. Where the language of the covenants is clear and explicit, that language will govern our interpretation of the covenants as a whole. Gosnay, 666 P.2d at 1250. The language of the covenant is to be understood in its ordinary and popular sense. Section 28-3-501, MCA; Hillcrest Homeowners Ass'n v. Wiley (1989), 239 Mont. 54, 56, 778 P.2d 421, 423. Additionally, restrictive covenants are to be strictly construed and ambiguities in a covenant are to be construed to allow free use of the property. Town & Country Estates Ass'n v. Slater (1987), 227 Mont. 489, 492, 740 P.2d 668, 670-71 (quoting State v. District Court (1980), 187 Mont. 126, 130, 609 P.2d 245, 248). However, the free use of the property must be balanced against the rights of the other purchasers in the subdivision. Town & Country, 740 P.2d at 671. Generally, restrictive covenants are valid if they tend to maintain or enhance the character of a residential subdivision and if they are used in connection with a general plan or scheme. Town & Country, 740 P.2d at 671.

Regarding the Wittmers' first argument that the language of the covenant prohibits "structures of a temporary character," not mobile homes, the relevant language of the subdivision covenant states:

4. Trailers, Mobile Homes, Basement Homes and Temporary Structures. No structure of a temporary character, including but not limited to trailers, mobile homes, basements, tents, shacks, garages, barns or other out-bildings [sic] shall be used upon any lot or portion thereof at any time as a permanent residence.... [Emphasis added.]

The Wittmers argue that the terms following "including but not limited to" modify the term "structure of a temporary character." According to the Wittmers, the fact that mobile homes, basements, garages, and barns are not temporary structures creates an inherent ambiguity in the covenant. Given the Wittmers' interpretation, the only structures barred by this covenant are structures which are temporary such as trailers, tents and perhaps shacks. Notwithstanding the potential debate over whether a barn, garage or basement is a structure of "temporary character," there is little doubt but that a mobile home can be considered to be a structure of a "temporary character" and that it is included within the proscription of the covenant.

The language of the covenant is clear. The covenant expressly prohibits use of a mobile home as a permanent residence. Whether the covenant wrongly characterizes garages, basements, barns, or even mobile homes as structures of temporary character is beside the point. The restrictive covenant has defined its own terms and has clearly included "mobile homes" as structures which shall not be used as permanent residences. We hold that the District Court correctly concluded that the subdivision covenants clearly and explicitly prohibit mobile homes as permanent residences.

The Wittmers' second argument, that the District Court erroneously found that their home is a mobile home, is contradicted by Montana law. The covenant does not define the term mobile home, thus, we understand the term in its ordinary and popular sense. Hillcrest Homeowners Ass'n, 778 P.2d at 423. In its Findings of Fact, the District Court determined that the Wittmers' "structure is a mobile home under Montana law." The court specified the following characteristics and events that led to the court's finding that the home was a mobile home: the Wittmers completed a "Mobile/Manufactured Home Movement Declaration" before moving their home; the home is described as a "Manufactured Home by Fleetwood;" the home was issued a Montana Motor Vehicle Certificate of Title number and a vehicle identification number; the home is listed as a "trailer" on the Certificate of Title; the home was brought to the lot in two separate units and then joined together; the home has its own steel frame undercarriage and uses axles and wheels for the purpose of transport; the home has metal joists; the home is taxed as personal property; the home is not set on a permanent foundation; and the home is designed to be moved from one place to another by "independent power connected thereto."

Respondents allege that statutory...