                          STATE OF MICHIGAN

                           COURT OF APPEALS



MATTHEW T. THIEL and NIKOLE M. THIEL,                              UNPUBLISHED
                                                                   August 8, 2017
              Plaintiffs-Counter-
              Defendants/Appellants,
and

WILLIAM TRAYWICK and MARCIA
TRAYWICK,

              Intervening Plaintiffs-Counter-
              Defendants/Appellants,

v                                                                  No. 333000
                                                                   Allegan Circuit Court
DAVID L. GOYINGS and HELEN M.                                      LC No. 15-055184-CK
GOYINGS,

              Defendants-Counter-
              Plaintiffs/Appellees.


Before: HOEKSTRA, P.J., and MURPHY and K. F. KELLY, JJ.

PER CURIAM.

         Plaintiffs/counter-defendants-appellants, Matthew T. Thiel and Nikole M. Thiel, and
intervening plaintiffs/counter-defendants, William Traywick and Marcia Traywick (collectively
“plaintiffs”), appeal as of right an order dismissing for no cause of action their claims against
defendants/counter-plaintiffs, David L. Goyings and Helen M. Goyings. Plaintiffs sued
defendants for installing a modular home in the neighborhood in violation of a restrictive
covenant and asked the trial court to order the home removed. Defendants counter-sued for a
declaration that the home did not violate the restrictive covenant. Defendants also claimed that
the Traywicks violated the restrictive covenant and that equitable estoppel and waiver applied.
Following a three-day trial, the trial court determined that defendants’ home did not violate the
restrictive covenant. The trial court further found that the Traywicks’ home did not violate the
restrictive covenant and that neither equitable estoppel nor waiver was shown. We affirm the




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trial court’s order to the extent it denied defendants’ counter-claim.1 However, we reverse the
order to the extent the trial court ruled against plaintiffs. The trial court erred when it read an
ambiguity into the unambiguous restrictive covenant. It should have granted judgment in
plaintiffs’ favor and ordered defendants to remove the modular home.

                        I. BASIC FACTS AND PROCEDURAL HISTORY

        On June 18, 2015, the Thiels filed a complaint against defendants, alleging that
defendants violated Timber Ridge Bay’s “Declaration of Restrictions, Covenants and
Conditions” by installing a modular home on their property. The restrictive covenant provides,
in relevant part:

                     COVENANTS, RESTRICTIONS AND CONDITIONS

                  Section 1.      Establishment of Restrictions. In order to provide for
          congenial occupancy of the Premises, and for the protection of the value of the
          Parcels therein, the Parcels shall be subject to the limitations set forth below:

                                                 ***

          B. Building and Use Restrictions

                                                 ***

                 3.      Relocated Residences No residences, including modular,
                 manufactured, mobile or prefabricated homes, may be moved from a
                 location outside the Premises and placed or located within a Parcel within
                 the Premises.

                 4.      Manufactured Housing Units No manufactured homes whether
                 classified as a mobile home, modular home, or otherwise, and no
                 prefabricated homes shall be permitted on any Parcel in the Premises;
                 regardless of which building codes are applicable to said homes.

          C. Residential Dwelling Restrictions

                                                 ***

                 4.      The height of any building will not be more than four (4) stories. If
                 any portion of a level or floor within a residence is below grade all of the
                 level or floor shall be considered a basement level. All residences shall be
                 stick built on site and no geodesic dome; berm house, pre-fabricated or
                 modular home, mobile home, shack or barn will be erected on any of the
                 Parcels unless provided for herein.


1
    Defendants have not filed a cross appeal.


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Count I of the complaint alleged breach of contract and sought enforcement of the restrictive
covenant by full removal of the home. Count II sought a permanent injunction.

        Defendants filed a counter-claim, seeking a declaratory judgment to establish the legal
rights of the parties with respect to the restrictive covenant. Defendants also claimed equitable
waiver and estoppel of enforcement of the restrictive covenant, alleging that the Thiels
previously failed and refused to enforce numerous violations throughout the subdivision,
including matters involving driveway setbacks, docks, and liquid propane (LP) tanks.

       The Traywicks were allowed to intervene and filed a complaint on August 19, 2015.
Again, defendants filed a counter-claim as they did with the Thiels and also alleged that the
Traywicks were in violation of the restrictive covenant for having prefabricated panels in their
basement.

        In response to plaintiffs’ combined motion for summary disposition, defendants argued
that the restrictive covenant was ambiguous because there were no definitions for “pre-
fabricated” or “modular.” They argued that their home was “a mix, or hybrid” in that they
designed the home with Heritage Custom Builders using computer assisted design (CAD).
Defendants maintained that a majority of the home was to be stick built on site with only a
minority of the home built at the Ritz Craft facility. The trial court denied plaintiffs’ motion and
wondered aloud whether if the majority of the home was stick built on-site it complied with the
covenant.

         A three-day trial ensued. At trial, Helen Goyings acknowledged that the home was
comprised in part of three modules that were manufactured at Ritz-Craft in Jonesville, Michigan,
brought to the lot on a trailer, and a crane was used to swing the modules into place. She
testified: “I would agree with you that my home is a system built home with three modules. It is
majority stick built on site. The entire house is stick built, it’s just part of it was not stick built
on site.” Much of the trial was focused on a differentiation between a “systems built home” and
a modular home, as well as the quality and value of defendants’ home.

         The trial court issued a lengthy opinion and order after trial. The trial court concluded
that, although defendants and their witnesses preferred to use the term “systems built,” it was
“clear that the term is similar to, if not synonymous with, modular.” Nevertheless, the trial court
concluded:

               The modules here are not a residence as they are delivered; additional
       construction is required to add in the electrical, duct work, plumbing, roof, and
       the various components that make a house a habitable home. The majority of the
       residence is being stick built on site. The parties here have allowed for other
       types of components to be prefabricated: trusses, foundation, cabinets, etc. The
       wording of the restrictive covenants is too broad and does not clarify what
       percentage of a home is allowed to be prefabricated before the entirety of the
       home is barred by the restrictions. If a home having prefabricated components is
       allowed to remain in Timber Ridge Bay, this home, containing components built
       elsewhere, must be allowed to remain.


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                Additionally, it is clear that Defendants’ home is not in violation of
        congeniality standards and does not endanger the value of the other parcels within
        the subdivision. In looking at the pictures of the home provided by Plaintiffs, it is
        apparent that the home is not an eyesore and it is unlikely that anyone would
        know that the home had been built anywhere but on the property. As stated in the
        facts above, this home meets all of the standards and specifications of a stick-built
        home. The aesthetics, quality and value are of the same standards as the other
        homes that exist and will be built within the subdivision.

As a result, the trial court ordered:

                 This Court declines to find that Defendants’ home is in violation of the
        wording of the deed restrictions, covenants and conditions. While the restrictions,
        covenants, and conditions in this deed may not seem to be ambiguous in their
        wording, they did not contemplate a home of the type built by Defendants.
        Because the home Defendants have designed and built in this case does not neatly
        fit into the category of modular or stick-built on site, the Court must look beyond
        the implied meaning of the undefined terms utilized in the deed restrictions,
        covenants and conditions.

                This Court finds that this home is in conformance with the intent of the
        drafter. Because the overriding goal is to ascertain the intent of the drafter and
        because the Michigan Supreme Court has indicated that all doubts should be
        construed in favor of the free use of the property, this Court will uphold the stated
        intent of the drafter: to provide for congenial occupancy of the Premises and for
        the protection of the value.

               While an entirely modular, premanufactured or prefabricated home cannot
        be moved onto the properties located within Timber Ridge Bay, the home
        designed by Defendants is sufficiently constructed, valued, and congenial as to
        allow it to remain. A systems-built home of similar value, construction and
        congeniality shall be allowed on the Timber Ridge Bay properties.

        Recognizing that the opinion did not dispose of all of the claims in the case, the trial court
entered an amended order on April 27, 2016, which dismissed for no cause of action plaintiffs’
complaints. The trial court ordered that none of the parties violated the restrictive covenants and
further ordered that there was no equitable estoppel and waiver. Plaintiffs now appeal by right.

                                          II. ANALYSIS

        Plaintiffs argue that defendants’ home was a modular home in violation of the restrictive
covenant and that the trial court was required to enforce the restrictions as written to uphold the
freedom of contract. We agree. “We review a trial court’s findings of fact in a bench trial for
clear error and its conclusions of law de novo.” Chelsea Inv Group LLC v Chelsea, 288 Mich
App 239, 250; 792 NW2d 781 (2010). A finding is clearly erroneous if there is no evidentiary
support for it or if this Court is left with a definite and firm conviction that a mistake has been
made. Id. “The interpretation of restrictive covenants is a question of law that this Court

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reviews de novo.” Johnson Family Ltd Partnership v White Pine Wireless, LLC, 281 Mich App
364, 389; 761 NW2d 353 (2008), citing Terrien v Zwit, 467 Mich 56, 60–61, 648 NW2d 602
(2002).

        Our Supreme Court has confirmed that restrictive covenants are contracts with a
particular value:

               Because of this Court’s regard for parties’ freedom to contract, we have
       consistently supported the right of property owners to create and enforce
       covenants affecting their own property. Such deed restrictions generally constitute
       a property right of distinct worth. Deed restrictions preserve not only monetary
       value, but aesthetic characteristics considered to be essential constituents of a
       family environment. If a deed restriction is unambiguous, we will enforce that
       deed restriction as written unless the restriction contravenes law or public policy,
       or has been waived by acquiescence to prior violations, because enforcement of
       such restrictions grants the people of Michigan the freedom freely to arrange their
       affairs by the formation of contracts to determine the use of land. Such contracts
       allow the parties to preserve desired aesthetic or other characteristics in a
       neighborhood, which the parties may consider valuable for raising a family,
       conserving monetary value, or other reasons particular to the parties. [Bloomfield
       Estates Improvement Ass’n, Inc v City of Birmingham, 479 Mich 206, 214; 737
       NW2d 670 (2007).]

In terms of restrictive covenants, our Supreme Court has recognized “two essential principles,
which at times can appear inconsistent. The first is that owners of land have broad freedom to
make legal use of their property. The second is that courts must normally enforce unwaived
restrictions on which the owners of other similarly burdened property have relied.” O’Connor v
Resort Custom Builders, Inc, 459 Mich 335, 343; 591 NW2d 216 (1999). These types of cases
are, therefore, decided on a case-by-case basis. Id.

        “In construing restrictive covenants, the overriding goal is to ascertain the intent of the
parties. Where the restrictions are unambiguous, they must be enforced as written.” Johnson,
281 Mich App at 389 (citations omitted). “[T]he language employed in stating the restriction is
to be taken in its ordinary and generally understood or popular sense, and is not to be subjected
to technical refinement, nor the words torn from their association and their separate meanings
sought in a lexicon.” Borowski v Welch, 117 Mich App 712, 716–17; 324 NW2d 144 (1982).
Our Supreme Court has cautioned against judicial over-stepping when interpreting restrictive
covenants:

               The dissent justifies its amending from the bench by asserting that “[t]he
       absence of a definition in the restrictive covenants” of the terms “commercial,
       industrial, or business enterprises” leaves these terms ambiguous, and thus “opens
       the terms to judicial interpretation.” We find this to be a remarkable proposition
       of law, namely, that the lack of an explicit internal definition of a term somehow
       equates to ambiguity—an ambiguity that apparently, in this case, allows a court
       free rein to conclude that a contract means whatever the court wants it to mean.
       Under the dissent’s approach, any word that is not specifically defined within a

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       contract becomes magically ambiguous. If that were the test for determining
       whether a term is ambiguous, then virtually all contracts would be rife with
       ambiguity and, therefore, subject to what the dissent in “words mean whatever I
       say they mean” fashion describes as “judicial interpretation.” However,
       fortunately for the ability of millions of Michigan citizens to structure their own
       personal and business affairs, this is not the test. As this Court has repeatedly
       stated, the fact that a contract does not define a relevant term does not render the
       contract ambiguous. Rather, if a term is not defined in a contract, we will interpret
       such term in accordance with its “commonly used meaning.” [Terrien v Zwit, 467
       Mich 56, 75–76; 648 NW2d 602, 613 (2002) (citations and footnotes omitted).]

        Here, the restrictive covenant was not rendered ambiguous for failure to specifically
define “modular.” Nor does defendants’ tortured use of the term “systems built” at trial render
the covenant unambiguous. In fact, the trial court correctly concluded that the two terms were
synonymous. The trial court later erred, however, when it concluded that the covenant was
nevertheless ambiguous because “modular” was not defined in the restrictive covenant. Just as
in Terrien, this was inappropriate. The Random House Dictionary of the English Language:
Second Unabridged Edition, p 1237, defines “modular” as “ . . .1. of or pertaining to a module or
a modulus. 2. composed of standardized units or sections for easy construction or flexible
arrangement: a modular home; a modular sofa. . . ..” The restriction should have been accorded
its ordinary and generally understood or popular sense, without technical refinement. The trial
court was required to enforce the restrictions as written.

       We acknowledge that these types of cases are difficult and that the trial court strived to
find an equitable solution. Nevertheless, where defendants’ home was in clear violation of the
unambiguous restrictive covenant, the only solution was to grant injunctive relief and order that
the non-conforming home be removed. Our Court has explained:

                Michigan courts generally enforce valid restrictions by injunction.
       Moreover, courts typically do not consider the parties’ respective damages, as is
       illustrated by the case law that follows. Owners may enforce negative easements
       regardless of the extent of the owners’ damages. When enforcing a negative
       easement, it is wholly immaterial to what extent any other lot owner may be
       injured by the forbidden use. The economic damages suffered by the landowner
       seeking to avoid the restriction do not, by themselves, justify a lifting of the
       restrictions. [Webb v Smith, 224 Mich App 203, 211; 568 NW2d 378 (1997).]

There are certain equitable exceptions, including “(1) technical violations and absence of
substantial injury, (2) changed conditions, and (3) limitations and laches.” Webb, 224 Mich App
at 211. None of these exceptions apply.

        Defendants’ labored attempt to argue that a modular home is just as good as a stick built
on site home is of no consequence in the face of the plain reading of the restrictive covenant.
The construction and value of the home is not at issue and, in fact, defendants’ tactic in
presenting numerous witnesses who testified that defendants’ home was high-quality and that
any assumption to the contrary was unfounded supports the basis for the restrictive covenant.
Justified or not, there is a perception that modular homes are of lesser quality and will bring

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down the value of the neighborhood. The restrictive covenant was drafted for that precise
reason. The trial court was not at liberty to decide whether it agreed with the covenant; it was
required to enforce the restrictions as written.

        Affirmed in part and reversed in part. Remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.

                                                           /s/ Joel P. Hoekstra
                                                           /s/ William B. Murphy
                                                           /s/ Kirsten Frank Kelly




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