
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


C O N C U R R I N G   A N D   D I S S E N T I N G   O P I N I O N

		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
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. 
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
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
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
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.
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
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.

