      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00371-CV



                                    Johnie Jennings, Appellant

                                                  v.

      Carolyn Bindseil, Dan Bindseil, Jannalyn Welch, Julian Welch, Allen Knodel,
  Betty Knodel, Dale A. Friesenhahn, Horacio Ayala, Richard Aramendia, Daryl Payne,
     Melinda Payne, Deanna S. Wilson, Rodney Wilson, D.M. Stuller, William Hall,
 Clyde Marbach, Kurt Menking, Katherine Swoboda, Don Wallace, and Charles Wittler,
                                        Appellees


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
        NO. C2005-0149B, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



             CONCURRING AND DISSENTING OPINION


               I agree with the majority that the summary judgment in favor of the Bindseil

Landowners should be reversed. However, I do not agree that this case presents a material fact issue

for determination by a trier of fact. Consequently, I respectfully disagree with the majority on the

issue of remand, and I would render judgment in favor of Jennings as a matter of law.

               As an initial matter, I question the majority’s conclusion that the term “mobile home”

is unambiguous yet we cannot know whether the Jennings structure is a mobile home until a fact-

finder considers the issue. The problem with this position is illustrated by imagining two cases going

to jury trial on the question of whether certain structures are mobile homes under the deed restriction

at issue here. One jury considers this case and a second jury considers a later filed case of a person
two lots down from Jennings attempting to erect an identical structure. One jury concludes that

the structure is a “mobile home” and, therefore, the landowner is in violation of the deed restriction.

The other jury sees the issue differently and concludes the structure is not a “mobile home,” thus,

finding the landowner in compliance with the restriction.1 If such inconsistent results by jury

determination on a case-by-case basis are allowable under the majority’s view, the term “mobile

home” in this context is subject to more than one reasonable interpretation and must, therefore,

be ambiguous.2 If such inconsistent results are not acceptable, then the question of whether a

particular structure qualifies as a “mobile home” under the deed restriction at issue cannot turn

on a jury determination on a case-by-case basis and must be a question of law. In short, the

term “mobile home” cannot be both unambiguous and susceptible to complete reinterpretation on

a case-by-case basis.

                Although the term “mobile home” can hardly be said to be a term of precision, it is

not ambiguous with respect to whether it applies to the structure at issue, and the determination of

this question is a question of law.3 I believe the key to the analysis in this case is whether the

structure is designed to be a permanent residential structure erected and installed on a permanent

foundation system. See Tex. Occ. Code Ann. § 1202.002(a) (West 2004). It is not disputed that the


       1
           Which jury decides which case is not relevant to the analysis.
       2
         Under the majority’s view, each jury would decide what the term “mobile home” means
anew, creating the distinct possibility of entirely inconsistent application of the deed restriction to
the landowners bound by it.
       3
          This does not foreclose the possibility that the term “mobile home” could be ambiguous
in some contexts, i.e. that it could be subject to more than one reasonable interpretation in a given
application. However, I do not believe the term is ambiguous when applied on the facts presented
in this case.

                                                  2
structure at issue in this case is to be a permanent residential structure erected and installed on a

permanent foundation system. This undisputed, material fact is dispositive of whether the structure

is a “mobile home” as a matter of law.

               While there is little in the term “mobile home” that can be viewed as definitive, the

word “mobile” is certainly present and has to mean something. At the very least, we can know that

the restriction in this case only applies to homes that are, in fact, in some real sense mobile. It is

undisputed here that the structure in question is only mobile in the sense that any structure that can

conceivably be moved intact after it is erected is mobile. If this structure is “mobile,” then virtually

every pier-and-beam home ever built is “mobile,” as well as many structures no reasonable person

would ever describe as “mobile homes.”

               While the Jennings structure’s aesthetic qualities as a “nice enough home for our

street” might be in the eye of the beholder and subject to debate, what cannot be legitimately debated

is whether the structure is actually mobile. It is designed to be a permanent home, permanently

attached to real property as a fixture, and installed on a permanent foundation. Although technically

moveable at some point in the future as many homes are, it is designed to be as much of a permanent

home as any that are built. This is not true of manufactured homes (as defined in both federal and

Texas law), trailer homes, homes with permanent chassis, or other living spaces that are specifically

designed to be mobile. Thus, based on this uncontroverted, material fact the structure at issue here

does not qualify as a mobile home.

               Both the Bindseil Landowners and the majority place significance on the fact that

the Jennings home was built in modular sections off-site, delivered to the site, and then assembled.



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I do not find the manner in which a structure that is designed to be a permanent fixture is delivered

to its permanent site to be helpful to the analysis of whether it is a “mobile home.” If Jennings had

moved a classic Victorian home to his lot that had been built elsewhere and was large enough that

it had to be moved in sections and reassembled, no one would be arguing that the house is a mobile

home. Similarly, if a house that was built in exactly the same fashion as any typical on-site

construction were built off-site, trucked to the site in moveable sections, and reassembled on a

permanent foundation, no one would think of describing it as a “mobile home.” The reason for this

is that we do not focus on the place of construction or means of delivery to a site when determining

whether a structure should be described as a mobile home. We focus on its mobility. This is further

illustrated by imagining a person building a structure entirely on site that is identical in both design

and quality to a modular home (i.e., it looks just like a modular home), and that is designed as a

permanent residence attached to a permanent foundation. This structure would not be a mobile home

because it is not mobile—not because it was built on-site. Thus, how a structure gets to a site cannot

be a significant part of the analysis of whether that structure is a mobile home or not. More

significant is whether the structure is designed to be mobile or permanent, and whether it is, in fact,

a mobile structure.

               This permanence vs. mobility feature is the primary difference between industrialized

(or modular) housing and manufactured (or mobile) homes. It is also the underlying reason why

manufactured/mobile homes are titled and taxed like cars and industrialized/modular housing is

considered a fixture on real property and is financed, titled, and taxed as real property.4 The


        4
           In Dempsey v. Apache Shores Property Owners Ass’n, 737 S.W.2d 589
(Tex. App.—Austin 1987, no writ), this Court (without any explanation or reasoning) described the

                                                   4
permanence vs. mobility distinction is also a means of analyzing the few Texas cases decided in

this area consistently with one another.       Cases deciding that the structure is barred by a

deed covenant restricting mobile homes have involved structures designed to be mobile,

with permanent chassis, and fitting the definition of a manufactured home. See Wilmoth v. Wilcox,

734 S.W.2d 656 (Tex. 1987); Pebble Beach Prop. Owners’ Ass’n v. Sherer, 2 S.W.3d 283

(Tex. App.—San Antonio 1999, pet. denied); Dempsey v. Apache Shores Prop. Owners Ass’n,

737 S.W.2d 589 (Tex. App.—Austin 1987, no writ). Cases deciding the structure does not violate

such a deed restriction have involved structures that are consistent with industrialized

housing/modular homes that are designed to be permanent. See Ussery Invs. v. Canon & Carpenter,

Inc., 663 S.W.2d 591 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d w.o.j.). The permanence

vs. mobility feature was also relied on by the Tennessee Supreme Court in Williams v. Fox,

219 S.W.3d 319 (Tenn. 2007), in a case involving nearly identical facts to this case. In a well-

reasoned opinion, the Tennessee Supreme Court concluded that the modular home at issue in that

case did not violate a restrictive covenant barring “mobile homes” as a matter of law because it was

not designed to be mobile, fit the statutory definition of industrialized/modular housing, and was

designed to be affixed to a site permanently via a permanent foundation system.

               I agree with the approach of the Tennessee Supreme Court in Fox. I am of the

opinion that whatever else the term “mobile home” might mean it certainly requires that the structure



differences between manufactured homes and industrialized housing as “technical and minor.” This
language is both unfortunate and erroneous. The two different types of structures have completely
different and detailed statutory schemes that apply to them. One type is designed to be mobile while
the other is not. They are owned and transferred differently and they are regulated differently. They
are treated differently for zoning purposes. In fact, the differences are significant enough to warrant
the structures being regulated differently as both federal and state law recognize.

                                                  5
be mobile in some fashion that is more than simply being moveable after construction. I would hold

that industrialized/modular housing as defined in Texas Occupations Code section 1202.002(a) is

not a “mobile home” as that term is used in the deed restriction at issue in this case as a matter of

law. The structure in question complies with the definition of industrialized housing in the

occupations code and is designed to be permanently affixed to the site in question by means of a

permanent foundation system. It is a fixture and is titled, held, and taxed as real property. The

regulatory and statutory distinction between industrialized housing (not mobile) and modular

homes (mobile) is sensible, and provides a method of distinguishing between structures that are

permanent homes and those that are mobile homes. The Jennings structure (whatever its aesthetic

qualities) meets the definition of industrialized housing, is a permanent structure, and therefore,

is not a “mobile home” as a matter of law. Consequently, I concur in the judgment of the court

reversing the grant of summary judgment in favor of the Bindseil Landowners, and I respectfully

dissent in the judgment of the court remanding the case for trial. I would render judgment in favor

of Appellant Jennings.




                                              ___________________________________________

                                              G. Alan Waldrop, Justice

Before Chief Justice Law, Justices Waldrop and Henson

Filed: February 22, 2008




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