COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED
March 24, 1998
DAVID HICKS, ) C/A NO. 03A01-9701-CH-00019
) Cecil Crowson, Jr.
Plaintiff-Appellant, ) Appellate C ourt Clerk
)
)
) APPEAL AS OF RIGHT FROM THE
v. ) CAMPBELL COUNTY CHANCERY COURT
)
)
)
GENE E. COX and CONNIE WHITTAKER,)
) HONORABLE BILLY JOE WHITE,
Defendants-Appellees ) CHANCELLOR
For Appellant For Appellees
JAMES L. ARNOLD PHILIP R. CRYE, JR.
LaFollette, Tennessee Magill, Crye & Cizek
Clinton, Tennessee
O P I N IO N
REVERSED AND REMANDED Susano, J.
1
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.
1
Mr. Hicks’ wife, Carolyn Hicks, was originally a plaintiff in this
case. She died while the case was pending below.
2
For ease of reference, Cox and Whittaker will be referred to
collectively as “the defendants.”
2
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
3
Mr. Waddell died prior to the commencement of this action.
4
The “ll” in covenant (3) was apparently intended to be the word “all.”
3
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
4
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
5
In his complaint, Hicks and his wife originally named Cox as the only
defendant. However, after Cox’s answer revealed that the property in question
was subject to the land contract with Whittaker, Hicks was permitted to amend
his complaint to include Whittaker as a defendant.
5
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 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
6
Hicks later purchased another lot on which he built a house. The
defendants’ property is next to that lot.
6
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
7
[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).
* * *
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 expressed intention of the
parties. (Citations omitted).
Benton v. Bush, 644 S.W.2d 690, 691 (Tenn.App. 1982); Jones, 870
S.W.2d at 529.
IV. Analysis
Our initial task is to ascertain the scope of the
restriction against “trailers.” Restrictive covenants similar to
the one now before us have been considered in a number of
Tennessee appellate decisions. Cf. Albert v. Orwige, 731 S.W.2d
63 (Tenn.App. 1987); Beacon Hills, 911 S.W.2d 736 (Tenn.App.
1995); Reece v. Lawson, 1994 WL 171056 (Tenn.App. 1994), an
unpublished opinion filed May 6, 1994; Reese v. Edwards, 1989 WL
51519 (Tenn.App. 1989), an unpublished opinion filed May 18,
1989. It is obvious from these and other cases that restrictive
covenants against “trailers” are not unusual in the development
and deeding of property. These cases have a common theme, i.e.,
-- that the terms “mobile homes” or “trailers” should be given a
broad construction because, historically speaking, such a
construction is consistent with the desire of developers to
8
prevent property owners from placing residential units that were
constructed off-site onto subdivision lots.
The Beacon Hills case is particularly instructive. In
that case, the court was faced with the following restrictive
covenant:
TEMPORARY STRUCTURES: No structure of a
temporary character, trailer, basement, tent,
shack, garage, barn or other outbuilding
shall be used on any lot at any time as a
residence either temporarily or permanently.
911 S.W.2d at 737. The question in Beacon Hills was whether a
“manufactured home” -- two units, each of which was to be
transported to the site by a tractor-truck and there attached
together and secured to a foundation -- fell within the quoted
restriction. In holding that the word “trailer” included the
defendant’s “manufactured home,” this court said the following:
Since, however, the restrictions in Beacon
Hills Subdivision do not mention “mobile
home” but prohibit “trailers,” it is
necessary for us to determine if “trailer” as
used in the restrictive covenants was
intended to apply to “mobile homes” or
“manufactured homes” as those terms are now
used. While we are aware of the rule in this
jurisdiction that restrictive covenants are
not favored and must be strictly construed,
we are of the opinion that the intent of the
parties is controlling.
Such restrictive covenants, of
course, will be enforced according
to the clearly expressed intention
of the parties; but being in
derogation of the right of
unrestricted use of property will
be strictly construed, and will not
be extended by implication to
anything not clearly and expressly
9
prohibited by their plain terms.
(Citations omitted).
Turnley v. Garfinkel, 211 Tenn. 125, 362
S.W.2d 921 (1962). See also the dissent by
Judge Crawford in Albert v. Orwige, supra.
Considerable evidence was adduced in this
case to demonstrate that, when completed, the
structure would be as attractive as a site
constructed home and some of the existing
homes in the subdivision. It appears from
the evidence on the point that, if
constructed in conformity with the plans of
the appellant, the aesthetics of the
neighborhood would not be adversely affected.
This fact, however, is of no consequence in
deciding the issue before the court.
It seems clear that it was the intent of the
parties who prepared the restrictive
covenants when using the term “trailer” were
contemplating a “trailer used as a
residence.” As the trial court pointed out
the use of the term “trailer” is no longer
utilized for structures in which people live
and even the term “mobile home” seems to be
passe. We have examined a number of cases in
this jurisdiction which use the term
“trailer” and “mobile home” in referring to a
residence and find that at the time of the
filing of the restrictive covenants in this
case, the terms “trailer” and “mobile home”
were used interchangeably with “trailer”
being the predominant term during that
period. Indeed, we find the terms to be used
by the courts interchangeably through 1994.
Id. at 738-39.
We believe that Beacon Hills is controlling. The
restrictive covenants in that case are similar to the ones before
us. Both are directed at “trailers”; both are aimed at
preventing “temporary” residential structures. We find and hold
that, when given its “usual, natural and ordinary meaning,”
Rainey, 836 S.W.2d at 119, the term “trailer” is subject to only
one reasonable interpretation in the context of the period of
10
time when the restriction was placed in the subject deed, i.e.,
1986. We believe, as the trial court suggested, that the word
“trailer” in the 1986 time frame would include not only a camping
trailer, but also a single-wide mobile home of the variety placed
on the defendants’ property. This holding is consistent with the
statutory definition of mobile home or house trailer set forth at
T.C.A. § 55-1-105(a),7 which definition is also cited in Beacon
Hills. See 911 S.W.2d at 737. Our holding is also consistent
with the restrictive covenant in the defendants’ deed prohibiting
a “structure of a temporary character...as a residence.” This
latter restriction is a further indication that the subject
restrictions prohibit the placement of a single-wide mobile home
on the defendants’ property.
Viewing the language in Cox’s deed in light of our
holding in Beacon Hills and the statutory definition of “mobile
home or house trailer,” we conclude that the restrictions at
issue here were intended to prohibit the placement of a single-
wide mobile home, such as Whittaker’s, on the subject property.
We find this intention within the language of the restrictions;
therefore, resort to extrinsic sources -- such as the statements
attributed to Waddell -- for interpretation of those restrictions
is not appropriate. Shea v. Sargent, 499 S.W.2d 871, 874 (Tenn.
1973). To the extent that the trial court relied upon testimony
pertaining to the statements of Waddell to vary the historical
7
T.C.A. § 55-1-105(a) provides as follows:
“Mobile home or house trailer” means any vehicle or
conveyance, not self-propelled, designed for travel
upon the public highways, and designed for use as a
residence, office, apartment, storehouse, warehouse,
or any other similar purpose.
11
definition of “trailer,” such reliance was not warranted.8 Until
the Supreme Court holds otherwise, we are constrained to
interpret broadly the word “trailer” in deed or subdivision
restrictions, unless other language in the restrictions dictates
a narrower interpretation.
We next consider the alternative basis of the trial
court’s holding -- “that enforcement of such restriction has been
waived or [Hicks] should be estopped to enforce same.” We first
note that it has been held that the right to enforce a
restrictive covenant may be forfeited due to waiver or estoppel.
Scandlyn v. McDill Columbus Corp., 895 S.W.2d 342, 349 (Tenn.App.
1994). Waiver generally is defined as a voluntary or intentional
relinquishment of a known right. American Home Assurance Co. v.
Ozburn-Hessey Storage Co., 817 S.W.2d 672, 678 (Tenn. 1991);
Faught v. Estate of Faught, 730 S.W.2d 323, 325 (Tenn. 1987).
Estoppel, on the other hand, has been described as follows:
... [estoppel] arises from the conduct or
silence of a party and is sometimes referred
to as equitable estoppel... When a man has
been misled by the untruth propounded by
another, and acted to his detriment in
reliance upon the misrepresentation, the
misleading party will be estopped to show
that the true facts are contrary to those he
first propounded.
Arthur v. Lake Tansi Village, Inc., 590 S.W.2d 923, 930 (Tenn.
1979)(quoting Duke v. Hopper, 486 S.W.2d 744, 748 (Tenn.App.
1972)(emphasis in Arthur opinion)).
8
Given this conclusion, we deem it unnecessary to consider the question
of whether Waddell’s statements constitute inadmissible hearsay.
12
Upon review of the record, we have concluded that the
doctrines of waiver and estoppel are not applicable to the facts
of this case. With respect to the issue of waiver, the record
contains no evidence of conduct by Hicks which would amount to an
intentional relinquishment of his right to enforce the
restrictions in Cox’s deed. It has been held by this Court that
a subdivision owner retains the right to object to violations of
restrictions on an adjacent lot, despite that same owner’s
failure to object to previous violations of similar restrictions
on lots in other parts of the subdivision. Jones v. Englund, 870
S.W.2d 525, 528 (Tenn.App. 1993). This Court recently relied
upon the following language from an earlier decision in affirming
the issuance of an injunction against the installation of a
manufactured home:
When one buys a lot in a subdivision with
restrictions and builds a home for his
family, and has a right to rely on the same
restrictions applying to other lots, he
cannot be held estopped as to a lot next to
him because he did not object to a violation
of the restrictions on another street.
Fields v. Moore, C/A No. 03A01-9401-CH-00013, 1994 WL 287563, *1
(Tenn.App., E.S., filed June 30, 1994, Franks, J.)(quoting Carson
v. Knaffl, 15 Tenn.App. 507, 514 (1932)). Thus, we find no
evidence that Hicks has waived his right to enforce the
restrictions in Cox’s deed. Certainly, we find no legal basis
for holding that Waddell’s action or inaction can be imputed to
Hicks.
13
With regard to estoppel, the record contains no
indication that Cox or Whittaker acted in reliance upon any acts
or statements by Hicks; therefore, an essential element of
estoppel is absent. Arthur, 590 S.W.2d at 930. We find that the
doctrine of estoppel is not applicable to the facts of this case.
Furthermore, we are aware of no authority that would support a
finding in this case that Hicks is estopped from enforcing the
restrictions in Cox’s deed by virtue of any conduct on the part
of Waddell or others. Accordingly, we hold that the trial court
erred in relying upon waiver or estoppel as an alternative basis
for its decision.
V. Conclusion
We therefore hold that Whittaker’s mobile home falls
within the restrictions applicable to the defendants’ property.
We further hold that Hicks has the right to enforce those
restrictions. It results that the decision of the trial court is
reversed. Costs on appeal are taxed to the appellees. This case
is remanded to the trial court for the entry of an order
enjoining the defendants from causing or allowing the placement
or the continued presence of the mobile home at issue on the
subject property, and for such other proceedings as are
necessary, consistent with this opinion.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
14
_________________________
Houston M. Goddard, P.J.
_________________________
Herschel P. Franks, J.
15