                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                November 17, 2005 Session

              JAMES L. WILLIAMS, ET AL. v. JORDAN LEE FOX

                      Appeal from the Circuit Court for Sevier County
                       No. 2004-0577-III    Rex Henry Ogle, Judge



                 No. E2004-03027-COA-R3-CV - FILED MARCH 20, 2006


James L. Williams, Brenda G. Williams, Charles Roberson, and Marjorie Roberson (“Plaintiffs”)
sued Jordan Lee Fox (“Defendant”) claiming, in part, that Defendant was constructing a mobile
home/modular home in the Oma Lee Williams subdivision in violation of the subdivision
restrictions. Plaintiffs sought, among other things, a restraining order prohibiting Defendant from
constructing and completing the mobile home/modular home. The case proceeded to trial. The Trial
Court entered an order finding and holding, inter alia, that the structure in question is a modular
home and that under existing case law Defendant was in violation of the subdivision restrictions.
The Trial Court awarded Plaintiffs a permanent injunction and ordered Defendant to remove the
structure. Defendant appeals to this Court claiming, in part, that the existing case law upon which
the Trial Court based its decision dealt with double wide or manufactured homes, not modular
homes. We affirm.


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


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR., and
SHARON G. LEE, J.J., joined.


Brian T. Mansfield, Sevierville, Tennessee for the Appellant, Jordan Lee Fox.

Charles S. Sexton, Sevierville, Tennessee for the Appellees, James L. Williams and wife, Brenda
G. Williams, and Charles Roberson and wife, Marjorie Roberson.

Matthew J. Scanlan, Nashville, Tennessee for Amicus Curie, Tennessee Manufactured Housing
Association.
                                              OPINION

                                            Background


             Plaintiffs and Defendant own lots in the Oma Lee Williams subdivision in Sevier
County, Tennessee that are subject to recorded subdivision restrictions, which state, in pertinent part:

       1. No temporary building of any kind including mobile homes, tents, or trailers, or
       the like shall be built or placed on any lot at any time, except that temporary
       construction contractor’s trailers may be placed upon a lot during the time of
       construction of the permanent improvements on the lot.

                                                 ***

       3. No trailer or mobile homes may be erected on any lot in the subdivision at any
       time.

               Defendant had a modular home delivered to his lot in two pieces via truck and began
to assemble the modular home. Plaintiffs obtained a temporary restraining order prohibiting
Defendant from continuing construction and placement of the modular home on Defendant’s lot.
Plaintiffs then sought to have their temporary restraining order converted into a permanent
injunction.

                The bench trial was on October 18, 2004. The Trial Court heard opening statements
and then essentially announced that it would accept as true Defendant’s evidence as to the
characteristics and nature of the home including the factual statements made by Defendant’s attorney
as to how the home in question was constructed and how it was delivered to Defendant’s lot. In his
opening statement, Defendant’s attorney asserted that Defendant’s modular home is completely
different from a manufactured home or double-wide and is built to be as good as, or better than, a
home built on-site or what also is known as a stick-built home, but simply is constructed in a
controlled environment rather than on-site. Defendant’s attorney admitted that the home was
fabricated off-site and transported to Defendant’s lot via trucks. Defendant’s attorney further
asserted that the modular home is not built on a permanent chassis, which makes it different from
manufactured homes and mobile homes as defined in Tenn. Code Ann. §§ 47-9-102, 55-1-105, and
68-126-202. Defendant’s attorney asserted that the existing case law in Tennessee concerning
restrictions of this type dealt with double-wide homes that had axles, wheels, tongue, title, and
license, and not with modular homes.

               The Trial Court allowed both sides to make an offer of proof of further evidence and
both sides did so. Defendant submitted the plans for the modular home, the Oma Lee Williams
subdivision restrictions, and six sets of subdivision restrictions for other subdivisions that were
recorded around the same time as the Oma Lee Williams restrictions. Plaintiffs submitted two


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photographs showing the pieces of the modular home on Defendant’s lot. The Trial Court in
rendering its decision considered the additional evidence offered by Defendant in its offer of proof
as evidence in the case.

               The Trial Court entered its order on November 23, 2004, finding and holding, inter
alia:

        The Court heard from respective counsel for Plaintiffs and Defendant, considered all
        of the arguments of counsel, the stipulated facts, and further considered the
        documents tendered by the Defendant (to be tendered as post hearing documents) and
        the entire record, the Court makes the following findings:

               1. The Court finds that the structure in question is a modular home.

                2. The Court finds that the modular home was built by Redman Homes
        according to standards set by the State Fire Marshall’s Office in the Codes
        Enforcement Section of the Department of Commerce and Insurance according to the
        plans submitted in the post-hearing filings and having those construction elements
        as represented by Defendant’s counsel at the hearing.

               3. That the home was delivered to the site in sections by a carrier with a
        hauling system as reflected in the photographs (stipulated exhibits) filed post-hearing.

                4. That the Court believes the Apollo Shores Community and
        Maintenance, Inc. v. Lynn, Tennessee Court of Appeals, June 21, 2000, E-199-
        00946-COA-R3-CV is the controlling authority under the facts and circumstances
        before this Court. That opinion states that “the manner of construction between a
        ‘modular home’ and a ‘mobile home’ was a difference without a distinction.”

                                                 ***

                IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
        Plaintiffs are entitled to a temporary injunction and a mandatory injunction against
        the Defendant requiring the Defendant, Jordan Lee Fox, to remove this structure
        within thirty (30) days after the Order becomes final.

Defendant appeals the Trial Court’s November 23, 2004 order to this Court.

                                             Discussion

               Although not stated exactly as such, Defendant raises one issue on appeal: whether
the Trial Court erred in holding that Defendant’s modular home violated the Oma Lee Williams
subdivision restrictions.


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                Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn.
R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of
law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v.
Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

              Defendant argues, in part, that the Trial Court’s reliance upon this Court’s decision
in Apollo Shores Community and Maintenance v. Lynn is misplaced because, Defendant asserts,
Apollo Shores and the cases relied upon in that Opinion dealt with double-wide or manufactured
homes and not modular homes. Apollo Shores Cmty. & Maint. v. Lynn, No. E-1999-00946, COA-
R3-CV, 2000 Tenn. App. LEXIS 403 (Tenn. Ct. App. June 21, 2000), no appl. perm. appeal filed.
Defendant asserts that his structure is a modular home which differs from double-wide or
manufactured homes both in fact and in its treatment under Tennessee law.

                 Defendant argues that the appellate courts in Tennessee never have addressed a case
actually involving a modular home. In support of this position, Defendant’s appellate brief asserts:
“The semantical problem arose in Albert v. Orwige when the defendant attempted to describe the
disputed structure as a “modular home” (when it was a double-wide) in order to attempt to
distinguish it from a “mobile home” prohibited under the subject restrictions.” Defendant argues
that the appellate courts in Tennessee never have addressed a case “involving a true modular home
built in conformity with and regulated under the Tennessee Modular Building Act, and neither titled
nor containing the other ‘mobile’ characteristics of double-wide manufactured homes.” Defendant
asserts that “[t]rue modular homes are built for permanent installation, with ‘modules’ or
components completed at the factory and then transported to the site.…[and that the] materials and
construction are on par or arguably better than site built homes.”

                 Defendant asserts that his modular home differs factually in a significant manner from
double-wide or manufactured homes. At trial, Defendant asserted that his modular home is built to
be as good as, or better than, a stick-built home, but merely is constructed in a controlled
environment rather than at the site. Defendant asserted that his modular home differs from a
manufactured home or a mobile home because the modular home is not built on a permanent chassis.
However, Defendant admitted that his modular home was fabricated off-site and transported to
Defendant’s lot via trucks. Defendant submitted the plans for the modular home and asserts in his
appellate brief that the plans show that the modular home “is constructed with 2 x 6 exterior framing;
2 x 4 interior framing; truss floor systems with plywood flooring; flat interior ceilings; dry wall
interior walls; shingled roof, R38 roof insulation and R19 wall and floor insulation ….” While the
plans in the record may indeed show these features, the record is devoid of any evidence that would
show how these features compare with the framing, flooring, ceilings, walls, roof, etc. used in a
manufactured home, a mobile home, or a site-built home. There is nothing in the record with which
to contrast and compare Defendant’s modular home plans. Nor is there any proof in the record that
would show this Court the import of the facts detailed in the modular home plans.




                                                  -4-
               The facts contained in the record on appeal are similar to, but not identical to, the
facts contained in the Albert v. Orwige case about which Defendant complains. Albert v. Orwige,
731 S.W.2d 63 (Tenn. Ct. App. 1987). The Albert Court stated that the structure at issue in that case:

       consisted of two units, each fifty-two feet long and approximately thirteen feet wide.
       Each unit was pulled by a tractor-truck over the public highways to defendants’ lot
       in Riverview Subdivision. Concrete footers were poured at the site for the
       foundation. Anchors were imbedded in the footers on which were built pillars of
       concrete blocks. The two units were bolted together and secured to the anchors by
       means of metal straps. The assembled structure was constructed on four I-beams
       running the length of the units. The space between the foundation or footing and the
       structure was subsequently enclosed on three sides by an additional concrete block
       foundation.

                                                 ***

               In support of their contention that the structure is a “modular home” rather
       than a “mobile home,” defendants rely heavily on the manner in which their structure
       was constructed, when compared to a conventional mobile home. It was pointed out
       that defendants’ structure was made with wooden studs and roof trusses, an asphalt
       shingle roof, and a plywood subfloor with exterior masonite siding. As we shall see
       from the following authorities, this is a distinction without a difference.

Albert, 731 S.W.2d at 64-65. Although Defendant points out that his modular home is not
constructed on I-beams, we find this difference of no more significance than the similarities between
Defendant’s structure and the structure in Albert. As in Albert, Defendant’s home consisted of two
units that were brought to the site by trucks. Id. at 64. In addition, although Defendant argues that
the construction elements in his modular home differ from that of a manufactured home, the
construction elements as introduced into the record show that just as in Albert, Defendant’s home
had wooden framing, a plywood subfloor, and a shingle roof. Id. at 65. As such, the construction
elements that Defendant argues provide for a significant factual difference between his modular
home and a manufactured home do not support his argument.

                We also note that the facts in the record regarding Defendant’s modular home while
not identical are similar not only to the facts regarding the structure in Albert, but also to the facts
regarding manufactured homes in other cases including Beacon Hills Homeowners Ass’n, Inc. v.
Palmer Props., Inc., which stated:

       The structure here consisted of two units. Each unit was pulled by a tractor-truck
       over the public highways to defendants’ lot in Beacon Hills Subdivision. Concrete
       footers were poured or proposed to be poured at the site for the foundation. The two
       units were to be attached together and secured to the foundation. The assembled
       structure was constructed on four I-beams running the length of the units. The space


                                                  -5-
       between the foundation or footing and the structure was to be enclosed. The only
       difference between the case under consideration and Albert is that, here, the appellant
       proposed to add a garage, porch and use brick on a large portion of the exterior of the
       structure.

Beacon Hills Homeowners Ass’n, Inc. v. Palmer Props., Inc., 911 S.W.2d 736, 738 (Tenn. Ct. App.
1995).

                As this Court reaffirmed in Apollo Shores: “The Court [in Albert v. Orwige] noted
that the manner of construction between a ‘modular home’ and a ‘mobile home’ was a difference
without a distinction. We agree that the same reasoning can be applied to a ‘manufactured home’
and a ‘mobile home.’” Apollo Shores, 2000 Tenn. App. LEXIS 403 at *9.

               Defendant also argues that his modular home should be treated differently than
double-wide and manufactured homes have been treated under Tennessee case law because our
Legislature has enacted statutes that define these terms differently. Defendant cites to the Tennessee
Modular Building Act, which defines the term ‘modular building unit’ as:

       (6) “Modular building unit” means a structural unit, or preassembled component unit
       including the necessary electrical, plumbing, heating, ventilating and other service
       systems, manufactured off-site and transported to the point of use for installation or
       erection, with or without other specified components, as a finished building and not
       designed for ready removal to another site. “Modular building unit” does not apply
       to temporary structures used exclusively for construction purposes or nonresidential
       farm buildings.

Tenn. Code Ann. § 68-126-303(6) (2001). Defendant cites the Tennessee Motor Vehicle Title and
Registration Law, which defines the terms ‘manufactured home’ and ‘mobile home’ as:

       (1) “Manufactured home” means any structure, transportable in one (1) or more
       sections, which, in the traveling mode, is eight (8) or more body-feet in width or forty
       (40) or more body-feet in length, or when erected on site, is three hundred twenty
       (320) or more square feet, and which is built on a permanent chassis and designed to
       be used as a dwelling with or without a permanent foundation when connected to the
       required utilities, and includes the plumbing, heating, air-conditioning and electrical
       systems contained therein.…

       (2) “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.
       “Mobile home or house trailer” shall include any “manufactured home” as defined
       in subdivision (5);



                                                 -6-
Tenn. Code Ann. § 55-1-105 (2004)1.

               These statutes as relied upon by Defendant, however, do not apply to the issue
involved in this case. The Tennessee Modular Building Act was enacted:

         (b) Because of the nature of the construction of modular building units, which arrive
         at the site of installation with some or all of the electrical, mechanical, plumbing and
         other systems already built into the unit and not able to be inspected at the site
         without disassembly or destruction, it is the purpose of this part to provide for the
         inspection of modular building units for compliance with building codes at the place
         of manufacture.

Tenn. Code Ann. § 68-126-302(b) (2001). Thus, the Tennessee Modular Building Act addresses and
applies to “inspection of modular building units for compliance with building codes …,” and does
not address the issue of defining the term ‘modular building unit’ for any other purpose. Id. In
addition, the definitions of ‘manufactured home’ and ‘mobile home’ that Defendant cites appear
within the Tennessee Motor Vehicle Title and Registration Law and likewise are not intended to
address the issue of defining these terms for purposes of restrictive covenants. As such, Defendant’s
reliance upon the differences in these definitions is misplaced, particularly in light of the existing
case law as discussed above.

                Defendant also argues that the Oma Lee Williams subdivision restrictions do not
specifically state that modular homes are prohibited and adding modular homes to the restrictions
would impermissibly broaden them. As this Court stated in Apollo Shores:

                 Generally speaking, restrictions on the free use of real property are not
         favored and will be strictly construed. Hicks v. Cox, 978 S.W.2d 544, 548 (Tenn.
         App. 1998); Beacon Hills v. Palmer Properties, Inc., 911 S.W.2d 736, 739.
         However, the overriding consideration is the intent of the parties. Hicks, 978 S.W.2d
         at 548; Beacon Hills, 911 S.W.2d at 739.

Apollo Shores, 2000 Tenn. App. LEXIS 403 at *7.

                This Court discussed the difficulties inherent with the changing terminology as
regards these types of restrictive covenants in Beacon Hills stating:

                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


         1
         The term ‘manufactured home’ also is defined in Tenn. Code Ann. § 47-9-102(53) (2001) and Tenn. Code
Ann. § 68-126-202(4) (2001). The definitions contained in these two statutes are substantially similar to the definition
of ‘manufactured home’ contained in Tenn. Code Ann. § 55-1-105(1) (2004).

                                                          -7-
       utilized for structures in which people live and even the term “mobile home” seems
       to be passé.

Beacon Hills, 911 S.W.2d at 739.

                Defendant argues that the term “modular home” was in use in 1995, when the Oma
Lee Williams subdivision restrictions were recorded and, if the intent were to prohibit modular
homes then that term should have been used. The problem with this argument is that terms of art
and their meanings often change over time. It is impossible for a subdivision restriction to state with
certainty every term that may ever be coined for a similar item being prohibited. For this reason, we
look to the intent behind the subdivision restrictions. See Apollo Shores, 2000 Tenn. App. LEXIS
403 at *7. The subdivision restrictions applicable in this case provide:

       1. No temporary building of any kind including mobile homes, tents, or trailers, or
       the like shall be built or placed on any lot at any time, except that temporary
       construction contractor’s trailers may be placed upon a lot during the time of
       construction of the permanent improvements on the lot.

                                                ***

       3. No trailer or mobile homes may be erected on any lot in the subdivision at any
       time.

                As discussed above, “the manner of construction between a ‘modular home’ and a
‘mobile home’ was a difference without a distinction. We agree that the same reasoning can be
applied to a ‘manufactured home’ and a ‘mobile home.’” Apollo Shores, 2000 Tenn. App. LEXIS
403 at *9. Whether Defendant’s home is called a modular home, a manufactured home, a mobile
home, a sectional home, or some other term of art, we find, as did the Trial Court, that the intent of
the parties in adopting these restrictive covenants was to prohibit this type of structure from being
erected on any lot in the subdivision. We find no error by the Trial Court in its holding that
Defendant’s structure does violate the Oma Lee Williams subdivision restrictions. We, therefore,
affirm the Trial Court’s November 23, 2004 order.

                                             Conclusion

               The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for collection of the costs below. The costs on appeal are assessed against the Appellant,
Jordan Lee Fox, and his surety.



                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE


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