Newman v. Wittmer

No. 95-406
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Larry Jent; Williams, Jent & Dockins,
Bozeman, Montana
For Respondents:
Donald E. White, Attorney at Law, Bozeman,
Montana
For Amicus:
Brenda R. Cole; Swandal, Douglass, Frazier
& Cole, Livingston, Montana (Montana Manufactured
Housing & Recreational Vehicle Association)

Submitted on Briefs: April 25, 1996
Decided: June 4, 1996
Filed:

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Justice W. William Leaphart delivered the Opinion of the Court.

Appellants, Arthur and Carlene Wittmer (Wittmers), appeal from
the Gallatin County, Eighteenth Judicial District Court's Findings
of Fact and Conclusions of Law determining 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.
The two issues on appeal are:
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 Temoorarv
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,
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 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 Home1 Movement
Declaration," the home was hauled to the Wittmers' lot in the
subdivision. See 5 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. & §§ 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

1
The terms mobile home and manufactured home are used
interchangeably by the State and by the manufactures.
3
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

4
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.
Gosnav, 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. Gosnav, 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
(X989), 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
(19801, 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 & Countrv, 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.

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 Regarding the Wittmers' first argument that the language of
the covenant prohibits llstructures 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

6
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 definitions of mobile home
are applicable to the term "mobile homes" as used by a restrictive

covenant. We agree that statutory definitions provide guidance in
interpreting the ordinary and popular meaning of undefined terms in
a restrictive covenant. This Court has previously looked to
statutory definitions of mobile homes to determine if a structure
were prohibited by a restrictive covenant. DeLaurentis v. Vainio
(19761, 169 Mont. 520, 523, 549 P.2d 461, 463. Other courts also
apply statutory definitions in interpreting restrictive covenants.
See Hill v. Community of Damien Molodai (N.M. 19961, 911 P.2d 861,
867-68 (using the definition of family within the zoning ordinances
as persuasive evidence for a proper interpretation of the undefined
term in the restrictive covenant); Westwood Homeowners Ass'n, Inc.
V. Lane County (Ore. 1993), 864 P.2d 350, 355 (applying the
statutory definitions of liens and encumbrances to restrictive
covenants); Adult Group Properties, Ltd. v. Imler (Ind. Ct. App.
1987), 505 N.E.2d 459, 465-67 (applying definitions from statutes,
case law and Black's Law Dictionary to interpret the term family in
a restrictive covenant); LuMac Dev. Corp. v Buck Point Ltd.
Partnership (Ohio Ct. App. 1988), 573 N.E.2d 681, 685-86 (looking
to the statutory definitions of house trailer and manufactured home
to determine the ordinary meaning of those terms in a restrictive
covenant). Consequently, we look to the following statutory
definitions for guidance in interpreting the ordinary meaning of
mobile home in the restrictive covenant.
"Mobile home" is defined several times in the Montana Code
Annotated. The Wittmers' home fits under each of these definitions
based on its dimensions, its transportability, and its designation
as a trailer on its Certificate of Title. Under Title 15,

8
Taxation, mobile home is defined twice. Initially at § 15-l-101
(1) (l), MCA:
The term "mobile home" means forms of housing known as
"trailers" "housetrailers" or "trailer coaches"
exceeding S feet in width or 45 feet in length, designed
to be moved from one place to another by an independent
power connected to them, or any trailer, housetrailer, or
trailer coach up to 8 feet in width or 45 feet in length
used as a principal residence.
Chapter 24, Special Property Tax Applications, Part 2, Mobile
Homes, Section 15-24-201(3), MCA, re-defines mobile home as
follows:
"Mobile home" means forms of housing known as "trailers",
"housetrailers" , or "trailer coaches" exceeding 8 feet in
width or 32 feet in length, designed to be moved from one
place to another by an independent power connected
thereto.
Additionally, Title 61, Motor Vehicles, under miscellaneous,
§ 61-l-501, MCA, provides the following definition:
"Mobile home" or "housetrailer" means a trailer or a
semitrailer that is designed, constructed, and equipped
as a dwelling place, living abode, or sleeping place
(either permanently or temporarily) and is equipped for
use as a conveyance on streets and highways . . .
Respondents argue that 5 15-24-201(3), MCA, clearly defines
mobile home and that the Wittmers' home is encompassed in this
definition. The Wittmers counter that because the definition found
at § 15-24-201(3), MCA, is from Chapter 24, Special Property Tax
Applications, and because the definitions are prefaced with the
phrase "[aIs used in this part," that this definition of mobile
home is confined to property tax purposes only. However, here, we
are not applying one part of the code to a different part of the
code. See § l-2-107, MCA; Stratemeyer v. Lincoln County (Mont.

9
1996), 915 P.2d 175, 181, 53 St.Rep. 245, 250; State ex rel. Dep't
of Health v. LaSorte (1979), 182 Mont. 267, 273, 596 P.2d 477, 481.
Rather, as we have stated, we look to all the statutory definitions
of mobile home for guidance in interpreting the popular and
ordinary meaning of mobile homes in the restrictive covenant.
Alternatively, the Wittmers argue that the definition found at
5 15-24-201(3), MCA, cannot apply to their home because the
definition states that a mobile home is "designed to be moved from
one place to another by an independent power connected thereto."
They assert that because their home was designed to be moved only
once, the definition does not describe their home. We cannot
accept this statutory interpretation. The statute says nothing
about how many times the home is to be moved, only that it is
designed to be moved. The record shows that the Wittmers' home was
moved onto the site by being hauled down the highway as
contemplated by § 15-24-201(3), MCA.
Additionally, our case law definition of mobile home
encompasses the Wittmers' home. In Timmerman v. Gabriel (1970),
155 Mont. 294, 470 P.2d 528, the Gabriels appealed the district
court's mandatory injunction requiring them to remove their mobile
home because the subdivision's covenants prohibited the use of
trailers as residences. Similar to the instant case, the covenant
in question stated:
NO structure 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 . . .
Timmerman, 470 P.2d at 529. The issue was whether the Gabriels'
10
double wide mobile home was a trailer and thus prohibited as a
residence by the covenant. The home was composed of two sections,
ten feet wide by fifty feet long, which were designed to be bolted
together. Each section had a steel frame with springs, axles,
wheels, and a drawbar. The home was hauled to the lot and placed
on a concrete block foundation. This Court held that the
characteristics of the mobile home were very similar to the typical
trailer house and the fact that some of the features used to
transport the home were removable did not change the basic
structure of the home. Timmerman, 470 P.2d at 530. Nor did the
fact that the trailer was placed on a foundation and connected to
utilities transform it to a permanent residence within the meaning
of the covenant. Timmerman, 470 P.2d at 530. We held that the
restrictive covenant prohibited a type of structure and that the
nature of the construction of the home rather than its subsequent
mobility was determinative. Timmerman, 470 P.2d at 530.
A covenant prohibiting mobile homes as permanent residences
was brought before this Court again in DeLaurentis, 549 P.2d 461.
In DeLaurentis, the restrictive covenant in question prohibited
trailers or mobile homes as permanent residences. The owners of
the home argued that it was not a mobile home but rather a modular
home and therefore not in violation of the covenant. The district
court agreed. DeLaurentis, 549 P.2d at 462. Thus, the controlling
issue on appeal was whether the home in question was a mobile or a
modular home. The home was a Barrington double wide "mobile home"
consisting of two sections 12 feet wide by 64 feet long. The home

11
was certified by the State of Idaho Recreation and Mobile Home
Department. This Court held that the home met the definition of
mobile home under Montana statutory law and reversed the district
court's finding that the home was a modular home and not a mobile
home. DeLaurentis, 549 P.2d at 464.
In the instant case, the District Court's determination that
the Wittmers' home is a mobile home comports with the statutory
definitions of mobile home and conforms with our previous decisions
interpreting restrictive covenants prohibiting mobile homes.
Additionally, the home has a registered vehicle title on which it
is described as a trailer, it has a vehicle identification number,
and the Gallatin County Appraiser lists it as a mobile home. It
has a permanent steel I-beam frame for attaching wheels, axles and
a hitch. Given these characteristics along with the statutory and
case law definitions, the District Court's finding that the
Wittmers' home is a mobile home surely conforms to the ordinary
definition of mobile home as contemplated by the restrictive
covenant. We hold that the District Court's finding that the
Wittmers' home is a mobile home is supported by substantial
evidence, the court did not misapprehend the evidence, and no
mistake has been committed.
2. Did the District Court err in awarding
attorney's fees to the Respondents?
In addition to granting a mandatory injunction, the District
Court awarded the Respondents attorney's fees and costs. The
general rule for awarding attorney's fees is that, absent statutory
or contractual authorization, attorney's fees will not be awarded.
12
Greenwood v. Steve Nelson Trucking (1995), 270 Mont. 216, 221, 890
P.2d 765, 768. However, a successful applicant for a writ of
mandate may recover reasonable attorney's fees. & Kadillak v.
Montana Dep't of State Lands (19821, 198 Mont. 70, 643 P.2d 1178.
Respondents argue that under the court's equitable powers to grant
a mandatory injunction the court has the power to grant attorney's
fees because the remedy of mandatory injunction is identical to the
remedy of mandamus. Alternatively, they argue that, as a matter of
equity, courts can award attorney's fees to make an injured party
whole. Greenwood, 890 P.2d at 768; Goodover v. Lindey's (1992),
255 Mont. 430, 446, 843 P.2d 765, 774-75.
This Court has distinguished a mandatory injunction from
mandamus as follows:
Another material distinction between the two remedies is
found in the relief which they are designed to afford.
Injunction is a remedy to restrain the doing of injurious
acts or, in its mandatory form, to require the undoing of
injurious acts and restoration of the status quo, while
mandamus commands the performance of a particular duty
which rests upon the defendant, or respondent, because of
his official status or by operation of law. . .
In re the l'Att Family (1979), 184 Mont. 145, 153, 602 P.2d 157, 162
(quoting 42 Am.Jur.2d 750 Injunctions 5 19). In "A" Familv, we
held that because the district court order commanded the school
district to perform a clear legal duty, the true nature of the
order was that of mandamus and not that of a mandatory permanent
injunction. 602 P.2d at 162.
The same cannot be said of the instant case because the
requirements for a writ of mandate were not met. Pursuant to § 27-
26-102, MCA, a two-part standard applies to the issuance of a writ
13
of mandate. Franchi v. County of Jefferson (Mont. 1995), 908 P.2d
210, 212, 52 St.Rep. 1229, 1230; Becky v. Butte-Silver Bow Sch.
Dist. 1 (Mont. 1995), 906 P.2d 193, 212, 52 St.Rep. 1154, 1155;
State ex rel. Chisholm v. District Court (1986), 224 Mont. 441,
443, 731 P.2d 324, 325. First, the writ is available when the
party requesting it is entitled to the performance of a clear legal
duty by the party against whom the writ is sought. Becky, 906 P.2d
at 195. Second, if there is a clear legal duty, the district court
must grant the writ if there is no plain, speedy, and adequate
remedy available in the ordinary course of law. Section
27-26-102(2), MCA; Franchi, 908 P.2d at 212. In Chisholm, we
clarified the inquiry as follows: "A negative answer to the first
question bars the issuance of the writ, and, irrespective of the
answer to that question, an affirmative answer to the second,
divests the court of authority to issue it." Chisholm, 731 P.2d at
325.
The cases Respondents cite in support of the proposition that
a mandatory injunction can fill the role of a writ of mandamus,
involve the duties of governmental agencies. See Bissey v. City of
Marion (Kan. 1919), 178 P. 611; State v. Board of County Comm'rs
(Okla. 1940), 107 P.2d 542. These decisions are further support
for the proposition that mandamus is the appropriate vehicle to
compel "the performance of a particular duty which rests upon the
defendant, or respondent, because of his official status or by
operation of law." "A" Family, 602 P.2d at 162.
Here, the restrictive covenant did not impose a legal duty

14
upon the Wittmers because of their "official status;" they had
none. Nor did it impose a duty by operation of law. Thus, the
claim fails the first prong of the two part test and the resulting
judgment cannot be considered a writ of mandamus. We decline to
equate a mandatory injunction with a writ of mandamus for purposes
of awarding attorney's fees.
Additionally, we reject the invitation to award attorney's
fees on the basis of equitable principles. We have applied the
equitable exception to the general rule only in those unique
situations in which a party is forced into a frivolous lawsuit and
must incur attorney's fees to dismiss the claim. In such cases,
"equity requires an award of attorney fees to 'make the party
whole."' Goodover, 843 P.2d at 775. We have affirmed the grant of
attorney's fees to defendants in cases where there were no reasons
or justifications for the suit, and where a party had to defend
against a frivolous action through no fault of her own. &
Stickney v. State (1981), 195 Mont. 415, 636 P.2d 860; Holmstrom
Land Co. v. Hunter (1979), 182 Mont. 43, 595 P.2d 360; Foy v.
Anderson (1978), 176 Mont. 507, 580 P.2d 114. We have also held
that where a plaintiff, or as in the instant case a petitioner,
chooses to institute a suit against others, an award of attorney's
fees to the plaintiff will normally be precluded. Goodover, 843
P.2d at 776. Here, Respondents were not forced to defend a wholly
frivolous litigation, rather they initiated this suit.
Respondents' suit was both reasonable and justifiable, it does not
present one of the rare cases in which a district court could use

15
its equitable powers to award such fees. We hold that the District

Court erred in awarding attorney's fees to the Respondents.
Affirmed in part and reversed in part.

Justices

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