               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              February 10, 2016 Session

             DENVER NAPIER, ET AL. v. GAIL HOWARD, ET AL.

               Appeal from the Chancery Court for Grainger County
               No. 2013CH38     Telford E. Forgety, Jr., Chancellor


                No. E2015-01222-COA-R3-CV-FILED-JULY 25, 2016
                       _________________________________

Gail Howard purchased at auction a subdivision lot in Grainger County. The deed to
Howard’s lot, as well as the deeds to the other lots in the subdivision, contains a
restrictive covenant prohibiting “single wide mobile homes.” Howard converted her lot
into a campground with sixteen camper trailer sites for rent. Denver Napier, Sheryl
Napier, and Jeffrey Bryant (collectively the plaintiffs), each of whom had purchased a lot
in the subdivision, filed a complaint against Howard seeking an injunction enjoining her
from using her property as a campground. They based their complaint on the restrictive
covenant against “single wide mobile homes.” The trial court held that the restrictive
covenant prohibited, in the court’s words, “camping trailers and/or single wide mobile
homes” in the subdivision. Accordingly, the trial court permanently enjoined Howard
and all other owners of lots from having, again in the court’s words, “camping
trailers/single wide mobile homes” on their property. Howard appeals. We affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                           Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

N. Craig Strand and Gina C. Sarli, Knoxville, Tennessee, for the appellant, Gail Howard.

Thomas C. Jessee, Johnson City, Tennessee, for the appellees, Denver Napier, Sheryl
Napier, and Jeffrey Bryant.
                                       OPINION

                                            I.

        At an auction on June 20, 2012, Howard purchased Lot 3 in the Louisa Long
Estate subdivision in Grainger County. The deed for each lot in the subdivision contains
a restrictive covenant provision. As pertinent to this case, the covenant in Howard’s deed
included the following language:

             THIS CONVEYANCE is made and accepted subject to . . .
             the following restrictions: no single wide mobile homes will
             be permitted[.]

(Capitalization in original.) In the ensuing months, Howard converted her property into a
campground. She graded the lot, installed two septic tanks, and set up sixteen separate
camper trailer sites, each of which had individual plumbing and electricity hookups.
After obtaining a campground permit from the State, Howard began renting out the
camper sites on a month-to-month basis.

        Each of the plaintiffs started the construction of a home. When they learned that
Howard was converting her lot into a campground, they filed this complaint against her.
The plaintiffs alleged that Howard was acting in violation of the restriction against the
placing of “single wide mobile homes” on the lots. They sought an injunction to prevent
Howard from using her property as a “mobile home/camping park.” Howard filed a
motion for partial summary judgment, contending that “there are no genuine issues of
material fact with regard to what constitutes a ‘mobile home’ in Tennessee.” Essentially,
Howard argued that a camper trailer did not qualify as a “single wide mobile home”
under Tennessee law. The trial court did not rule on Howard’s motion; rather, the case
proceeded to trial. Following a bench trial, the court held that the placing of camper
trailers on Howard’s property violated the restrictive covenant against single wide mobile
homes. Accordingly, the court permanently enjoined Howard from having camper
trailers on her property.

                                           II.

      Howard raises a single issue on appeal. As quoted verbatim from her brief, it is as
follows:

             Whether . . . Howard is barred from the free use of having
             “camper trailers” on her property based on a restrictive

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             covenant against “single-wide mobile homes” when, strictly
             construing the restrictive covenant, the term “single-wide
             mobile homes” does not include “camper trailers” based on
             its ordinary meaning, statutory definitions, and case law.

                                           III.

        Our review is de novo upon the record, with a presumption of correctness as to the
trial court’s factual determinations, a presumption we must honor unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Murfreesboro Med. Clinic, P.A. v.
Udom, 166 S.W.3d 674 (Tenn. 2005). The trial court’s conclusions of law are not
accorded such a presumption. Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn.
1996). Our de novo review is subject to the well-established principle that the trial court
is in the best position to assess the credibility of the witnesses; accordingly, such
determinations are entitled to great weight on appeal. Columbus Med. Servs., LLC v.
Thomas, 308 S.W.3d 368, 383 (Tenn. Ct. App. 2009); Vantage Tech., LLC v. Cross, 17
S.W.3d 637, 644 (Tenn. Ct. App. 1999).

                                           IV.

       Howard maintains that the restrictive covenant in her deed that bars “single wide
mobile homes” must be strictly construed. As she applies that principle to the facts of
this case, she concludes that “camper trailers” would not be prohibited. She relies upon
well-established principles as announced by the Supreme Court:

             [R]estrictive covenants are not favored in Tennessee because
             they are in derogation of the right of free use and enjoyment
             of property. See Arthur v. Lake Tansi Vill., Inc., 590 S.W.2d
             923, 927 (Tenn. 1979); Shea v. Sargent, 499 S.W.2d 871,
             873 (Tenn. 1973). Therefore, such restrictive covenants are
             strictly construed. See Arthur, 590 S.W.2d at 927; Shea, 499
             S.W.2d at 873-74. Courts refrain from extending a restrictive
             covenant to any activity not clearly and expressly prohibited
             by its plain terms. See Turnley v. Garfinkel, 362 S.W.2d
             921, 923 (Tenn. 1962); Beacon Hills Homeowners Ass’n,
             Inc. v. Palmer Props., Inc., 911 S.W.2d 736 739 (Tenn. Ct.
             App. 1995). When the terms of a covenant may be construed
             more than one way, the courts must resolve any ambiguities
             against the party seeking to enforce the restriction and in a
             manner which advances the unrestricted use of the property.

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             See Hillis v. Powers, 875 S.W.2d 273, 275-76 (Tenn. Ct.
             App. 1993); Parks v. Richardson, 567 S.W.2d 465, 468
             (Tenn. Ct. App. 1977).

Williams v. Fox, 219 S.W.3d 319, 324 (Tenn. 2007). Consistent with Supreme Court
teaching, we have explained that when construing a restrictive covenant, “the overriding
factor is the intent of the parties.” Hicks v. Cox, 978 S.W.2d 544, 548 (Tenn. Ct. App.
1998) (citing Beacon Hills, 911 S.W.2d at 739); see also Benton v. Bush, 644 S.W.2d
690, 691 (Tenn. Ct. App. 1982) (“[n]otwithstanding 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 . . . intention of the parties”). While
interpreting restrictive covenants pertaining to the difference between mobile homes and
trailers, “past cases have tended to broadly construe restrictions against ‘trailers’ and
‘mobile homes’ on the basis that such a broad construction was consistent ‘with the
desire of developers to prevent property owners from placing residential units that were
constructed off-site onto subdivision lots.’ ” Williams, 219 S.W.3d at 324 (quoting
Hicks, 978 S.W.2d at 548). In fact, a string of cases dating back to Albert v. Orwige, 731
S.W.2d 63 (Tenn. Ct. App. 1987) essentially address the issue now before us and
illustrate the broad interpretation given to the terms “trailer” and “mobile home.” In each
case, this Court was tasked with interpreting a restrictive covenant and determining
whether a structure that was not explicitly named in the covenant was prohibited.

        In Albert, we analyzed a restrictive covenant in a subdivision against “trailers or
mobile homes.” Id. at 64. The defendants in that case had been enjoined from
maintaining a “manufactured or factory-built home” on their property after the trial court
had concluded that it was actually a mobile home. Id. The “manufactured or factory-
built home” had been “pulled by a tractor-truck over the public highways” to the
defendants’ lot where it was assembled on top of a concrete foundation. Id. Following
installation, the “wheels, axles and tongues,” which had enabled over-the-road
transportation, were removed. Id. Relying upon persuasive authority from a number of
other jurisdictions, this Court acknowledged that “the removing of wheels or running
gear of a mobile home and placing it on a permanent foundation does not convert the
home into a permanent structure.” Id. at 67. As a result, we reasoned that the home had
“no more of an air of permanency” than a typical mobile home because it was “just as
capable of being separated and transported to and reassembled at another lot.” Id. at 68.
Ultimately, we concluded that the structure still possessed the potential for movement, a
characteristic that made it sufficiently temporary in nature to fall under the restriction
against “trailers or mobile homes.”




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        Two years later, the holding in Albert was reaffirmed in Reese v. Edwards, No.
22, 1989 WL 51519 (Tenn. Ct. App., filed May 18, 1989). In that case, the defendants
assembled a manufactured home on a lot they had purchased in a subdivision that had a
restrictive covenant against temporary residences. Id. at *1. Specifically, the restrictive
covenant stated, “TEMPORARY STRUCTURES: NO STRUCTURE OF A
TEMPORARY CHARACTER, TRAILER, BASEMENT, TENT, SHACK, GARAGE,
BARN, OR OTHER OUTBUILDING SHALL BE USED IN ANY LOT AY ANY TIME
AS A RESIDENCE, EITHER TEMPORARILY OR PERMANENTLY.” Id. at *2
(capitalization in original). Though the manufactured home was installed on a concrete
foundation, anchored to the ground, and the “wheel assembly with an axle attached to the
substructure of the home” had been removed, the trial court still ordered the removal of
the home. On appeal, we relied upon the rationale in Albert in affirming the trial court.

       In 1995, we expanded on the holding in Albert with our opinion in Beacon Hills
Homeowners Association, Inc. v. Palmer Properties, Inc. 911 S.W.2d 736 (Tenn. Ct.
App. 1995). In that case, the defendant sought to install a manufactured home on a lot in
a subdivision subject to the following restrictive covenant: “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.” Id. at 737. As was
the case in both Albert and Reese, the home was “pulled by a tractor-truck over the
public highways,” was to be secured to a concrete foundation, and was to have the
“wheels, axles and tongues” removed. Id. at 738. However, before the defendant could
complete assembly, the trial court decided that the manufactured home was a “trailer”
and subject to the subdivision’s restrictive covenant. On appeal, we noted that, when
construing a restrictive covenant, “we are of the opinion that the intent of the parties is
controlling.” Id. at 739. We highlighted the fact that the terms “trailer” and “mobile
home” had been used interchangeably in the cases and concluded that the holding in
Albert was still controlling on this issue. Id. As a result, we affirmed the trial court’s
determination that the manufactured home qualified as a “trailer” under the restrictive
covenant. Id.

        Three years later, in Hicks v. Cox, we examined whether a single-wide mobile
home would qualify as a “trailer” under a restrictive covenant that prohibited trailers in a
subdivision, essentially the inverse of the issue now before us. 978 S.W.2d 544 (Tenn.
Ct. App. 1998). In Hicks, the defendants sought to place a single-wide mobile home on a
lot in a subdivision that had the following restrictive covenant:

              Said property is sold subject to the following restrictions
              which shall be binding upon the grantee, his successors and
              assigns . . . (4) That no tents, shacks, garages, barns, or other

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              outbuildings erected on this tract shall [sic] any structure of
              a temporary character be used as a residence . . . (6) These
              restrictions and reservations are made for the benefit of any
              and all persons who now may own, or who may hereafter own
              property in the [subdivision], and such persons are
              specifically given the right to enforce these restrictions and
              reservations . . . . (8) That no trailers shall be placed on
              subject property.

Id. at 546 (emphasis and bracketing in original). Though the trial court eventually
dismissed the action for reasons that are not pertinent to the issue now before us, on
appeal, this Court sought to “ascertain the scope of the restriction against ‘trailers.’ ” Id.
at 548. After noting that “restrictive covenants against ‘trailers’ are not unusual in the
development and deeding of property,” we pointed out the fact that earlier cases had
broadly interpreted the terms “mobile home” and “trailer” in a way which was consistent
with developers’ intention to prohibit such “temporary” structures in their subdivisions.
Id. Thereafter, we reasoned that the word trailer would “include not only a camping
trailer, but also a single-wide mobile home of the variety placed on the defendants’
property.” Id. at 549. In support of this conclusion, we pointed out the prohibition
against structures of a “temporary character” that were used “as a residence” before
reasoning that “[t]his latter restriction is a further indication that the subject restrictions
prohibit the placement of a single-wide mobile home on the defendants’ property.” Id.
Finally, we stated that “[u]ntil 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.” Id.

       In 2000, this Court again reviewed a dispute over a restrictive covenant that did
not address by name the structure in question in that case. Apollo Shores Cmty. &
Maint., Inc. v. Lynn, No. E1999-00946-COA-R3-CV, 2000 WL 796126 (Tenn. Ct. App.,
filed June 21, 2000). Specifically, the restrictive covenant prohibited “[t]he placing of
house trailers” on lots in the subdivision. Id. at *1. The defendants purchased a “double-
wide mobile home” and began installing the unit on their lot. Id. The plaintiffs filed a
complaint seeking a permanent injunction against the installation of the double-wide
mobile home predicated on the subdivision’s restrictive covenant. The trial court
subsequently issued a memorandum opinion finding that the mobile home was in fact
prohibited by the restrictive covenant against “house trailers.” Id. On appeal, we
affirmed the trial court’s decision by noting the interchangeable nature of the terms
“mobile home” and “trailer.” Id. at *4.




                                              6
        The Supreme Court has yet to hold against a broad construction of the terms
“mobile home” and “trailer.” On the contrary, in Williams v. Fox, the High Court openly
acknowledged how the Court of Appeals had deviated from the general principle that
restrictive covenants are to be strictly construed when analyzing restrictions on “mobile
homes” and “trailers.” 219 S.W.3d at 324. In its opinion, the Supreme Court discussed
the cases we have previously mentioned and did not overturn a single one of our
holdings, which were all predicated on a broad interpretation of “mobile home” and
“trailer.” Furthermore, when discussing mobile homes and trailers, the Supreme Court
said,

             Both trailers and mobile homes are defined and regulated by
             statute in a similar manner. A [m]obile home or house trailer
             is defined as any vehicle or conveyance, not self-propelled,
             designed for travel upon the public highways, and designed
             for use as a residence[.]

                                     *      *      *


             Additionally, all mobile homes and house trailers are required
             to be titled as motor vehicles under the Tennessee Motor
             Vehicle Title and Registration Law. Both these provisions
             illustrate the temporary and mobile nature of these structures.

Id. at 322-23 (internal citations omitted) (emphasis in original). The Supreme Court has
subsequently reinforced the view of mobile homes and trailers as short-term and
transportable residences by saying, “[t]he very nature of a . . . trailer park containing
house trailers and mobile homes give[s] rise to the assumption of transient occupancy[.]”
Smith Cnty. Reg’l Planning Comm’n v. Hiwassee Vill. Mobile Home Park, LLC, 304
S.W.3d 302, 315 (Tenn. 2010). Moreover, mobile homes and trailers are both built on
permanent chassis, thus making them easily capable of being transported elsewhere.
Williams, 219 S.W.3d at 323. When taking all of these facts into account, it appears to us
that a restrictive covenant barring “single wide mobile homes” would evidence a clear
intent to prohibit temporary housing from occupying lots in the subdivision. In our view,
such a prohibition would naturally include the “camper trailers” at issue in this case, a
conclusion further supported by the fact that Howard rents out her camper trailer sites on
a month-to-month basis. Accordingly, we conclude the trial court was correct in holding
that the restrictive covenant against “single wide mobile homes” would extend to
“camper trailers.”



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                                          V.

       The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Gail Howard. The case is remanded to the trial court, pursuant to applicable
law, for enforcement of the judgment and collection of costs assessed below.



                                                 _______________________________
                                                 CHARLES D. SUSANO, JR., JUDGE




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