96-611
No. 96-611
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
WARREN V. TOAVS, JEFFREY W. TOAVS,
and JANA L. TOAVS,
Plaintiffs and Appellants,
v.
RANDY J. SAYRE, Individual, DONNA SIPES,
Individual, BRUCE R. SUNDSETH and LANA
G. SUNDSETH, Individuals,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane B. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Stewart R. Kirkpatrick, Bruce F. Fain; Murphy,
Kirkpatrick & Fain, Billings, Montana
For Respondents:
Earl J. Hanson; Hanson, Roybal, Lee & Todd,
Billings, Montana (for Sayer/Sipes)
William J. Mattix; Crowley, Haughey, Hanson, Toole
& Dietrich, Billings, Montana (for Sundseths)
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Submitted on Briefs: February 6, 1997
Decided: March 4, 1997
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
The Toavses filed suit against Sayre, Sipes and the Sundseths
to enforce restrictive covenants prohibiting mobile homes within a
subdivision. Each party filed a motion for summary judgment. The
District Court found that the covenants in question were ambiguous
and granted summary judgment to the owners of the mobile homes in
question. The Toavses appeal from that judgment. We affirm as to
Sayre/Sipes and reverse as to the Sundseths.
BACKGROUND
The Toavses own property within a subdivision in Yellowstone
County, Montana. All lots within the subdivision are subject to
certain covenants which became effective on August 12, 1977. All
of the parties to this litigation, plaintiffs and defendants alike,
purchased property within the exterior boundaries of the
subdivision and their respective properties are subject to the
restrictive covenants.
Sayre and Sipes purchased their tract in 1977; the Toavses
purchased their tracts in 1993 and 1994. Sundseths purchased their
tract in 1994. Sayre/Sipes built their main residence in 1977.
That residence is not in question. Sayre/Sipes placed a
manufactured guest house on the tract in October 1993. Donna
Sipes' elderly mother lives in the guest house. The Toavses seek
to have that guest house removed from the property.
The Sundseths also purchased a manufactured home which they
placed on their property. That home is also at issue. Both of the
homes in question were purchased from mobile home dealers and were
transported to the property where they were permanently connected
to and placed upon a foundation. Both homes had wheels and axles
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when purchased. The wheels and axles were removed when the homes
were attached to their respective foundations.
STANDARD OF REVIEW
This Court reviews a district court's summary judgment rulings
de novo. Estate of Strever v. Cline (Mont. 1996), 924 P.2d 666,
669, 53 St.Rep. 576, 578. This Court "will apply the same
evaluation as the district court based on Rule 56, M.R.Civ.P."
Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d
901, 903.
DISCUSSION
The Rules for Interpreting Restrictive Covenants
In interpreting restrictive covenants, we apply the same rules
as apply to interpreting contracts. Gosnay v. Big Sky Owners Ass'n
(1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250. We read all
covenants as a whole to ascertain their meaning. Gosnay, 666 P.2d
at 1250. Where the language of the covenant is clear and explicit,
that language will govern our interpretation of the covenants as a
whole. The language of the covenant is to be understood in its
ordinary and popular sense. Section 28-3-501, MCA. 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.
The District Court Ruling
As applicable to this case, Paragraph 5 of the Declaration of
Restrictions and Conditions provides as follows:
No tent, trailer or other temporary shelter [missing
words] for dwelling purposes nor shall any basement or
garage be so used unless and until there is a completed
private single family dwelling used in connection
therewith. The work of constructing the dwelling and
landscaping shall be prosecuted diligently from the
commencement thereof until completion. No mobile homes
or temporary dwellings may be used as the sole dwelling
on any tract after July 1, 1977. [Emphasis added.]
The District Court held that, due to the absence of critical
words, the first sentence was ambiguous. As to the last sentence,
it held: "In reading the covenants as a whole, it is unclear
whether that sentence restricts only mobile homes that are
temporary dwellings or all mobile homes, including those placed on
cement blocks, permanently hooked up to utilities and sanitary
facilities, and exhibiting the proper siding." In light of this
ambiguity, the court felt constrained to interpret the covenant in
favor of free use of the property. Accordingly, it granted summary
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judgment in favor of Sayre/Sipes and the Sundseths. We address the
issues separately as they pertain to the two homes in question.
The Sundseths' Home
The Sundseth home was originally located at Big Sky Mobile
Homes where wheels were mounted to attached axles. It was then
attached to a hitch and towed to the Sundseths' property where the
wheels and axles were removed. The home was then fitted with
masonite siding and asphalt shingles and attached to utilities.
The Sundseths' 1995 Assessment Notice indicates that the home is
taxed as personal property.
The District Court held that the first sentence of Paragraph
5 of the covenants is ambiguous due to the absence of essential
words. The court further held that the last sentence of the
provision is ambiguous since it is unclear whether that sentence
"restricts only mobile homes that are temporary dwellings or all
mobile homes, including those placed on cement blocks, permanently
hooked up to utilities and sanitary facilities, and exhibiting the
proper siding." We determine that the court's determination of
ambiguity is based upon a distinction without a difference in light
of our decision in Newman v. Wittmer (Mont. 1996), 917 P.2d 926, 53
St.Rep. 516. Newman involved a covenant which read as follows:
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. . . .
Newman, 917 P.2d at 929. In Newman, the Wittmers argued that the
above covenant prohibited structures of a "temporary" nature, not
permanent mobile homes and, alternatively, that their home was not
a mobile home.
Initially, we held that the covenant was not ambiguous; that
it expressly prohibited use of mobile homes as permanent
residences. Newman, 917 P.2d at 929. As to whether their home was
a "mobile home," we held that it was, despite the fact that
Wittmers' mobile home was bolted to a concrete pad with skirting.
In light of its dimensions, transportability and its DMV
designation as a trailer and tax assessment designation as personal
property, the home fit within numerous statutory definitions of
"mobile home." Newman, 917 P.2d at 930. Additionally, the home
fit within our case law definition of a mobile home, citing, inter
alia, Timmerman v. Gabriel (1970), 155 Mont. 294, 470 P.2d 528, in
which we held that the fact that a trailer was placed on a
foundation and connected to utilities did not transform it to a
permanent residence within the meaning of a prohibitive covenant;
that the nature of the construction of the home was determinative.
Newman, 917 P.2d at 931.
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Here, the last sentence of the covenant in question provides
that "[n]o mobile homes or temporary dwellings may be used as the
sole dwelling on any tract after July 1, 1977." This covenant,
like the covenant in Newman, does not lend itself to a distinction
between mobile homes which are used as temporary dwellings as
opposed to mobile homes which are set on cement blocks with siding
and used as permanent homes. Rather, given the broad definition of
mobile home in Newman, the covenant unambiguously prohibits all
mobile homes as permanent residences. Accordingly, we reverse the
District Court judgment as to Sundseths and remand for entry of
judgment in favor of the Toavses with regard to the Sundseths'
property.
The Sayre/Sipes Home
We held above that the last sentence of Paragraph 5 of the
covenant is not ambiguous; that it clearly proscribes mobile homes
and thus the Toavses' motion for summary judgment must be granted
as against Sundseths. However, the Sayre/Sipes guest home is
another matter. Even though the last sentence clearly says "[n]o
mobile homes . . . may be used," the covenant, when read as a
whole, contains two caveats which inure to the benefit of
Sayre/Sipes.
First of all, the initial sentence of Paragraph 5 of the
covenant states:
No tent, trailer or other temporary shelter [missing
words] for dwelling purposes nor shall any basement or
garage be so used unless and until there is a completed
private single family dwelling used in connection
therewith.
The District Court was correct in concluding that this opening
sentence, from which words were obviously omitted, is ambiguous.
Despite any ambiguities, it is clear that the author was attempting
to draft some sort of prohibition on use of temporary dwellings.
Whatever may have been intended by the prohibition, it is readily
apparent that it would not apply if the dwelling were used in
conjunction with a completed single family dwelling.
In light of the qualifying language, it is apparent that a
trailer or mobile home is allowed after a single family dwelling
has been built on the property.
Sayre/Sipes' position is further buttressed by the last
sentence of Paragraph 5 of the covenant which states: "No mobile
homes or temporary dwellings may be used as the sole dwelling on
any tract after July 1, 1977." The District Court concluded that
this sentence was ambiguous as to whether it restricted use of
mobile homes as temporary dwellings or restricted use of all mobile
homes, including those placed on cement blocks with proper siding.
That ambiguity, however, is immaterial to the Sayre/Sipes
situation. Again, the sentence in question contains qualifying
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language: "No mobile homes or temporary dwellings may be used as
the sole dwelling on any tract after July 1, 1977." The sentence
clearly contemplates that a mobile home is permissible so long as
it is used in addition to a main residence. Sayre/Sipes were not
using the mobile home as the "sole dwelling." Rather it was being
used as a guest house in conjunction with their main residence.
Accordingly, although we affirm the District Court's granting of
summary judgement for Sayre/Sipes, we do so, not because of
ambiguity, but because Sayre/Sipesþ guest home falls within the
permissive implication of the last sentence of Paragraph 5 of the
restrictive covenants.
Affirmed as to Sayre/Sipes and reversed as to the Sundseths.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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