Opinion
C.A. No. 1476-K.
Date Submitted: December 12, 2003.
Final Report: March 18, 2004. (Motion for Summary Judgment)
Edward Curley, Esquire, Whitehurst, Curley Sunshine, P.A., Dover, Delaware; Attorney for Plaintiffs.
Robert A. Penza, Esquire and Peter M. Sweeney, Esquire, of Gordon, Fournaris Mammarella, P.A., Wilmington, Delaware; Attorneys for Defendant Savini Corp.
Steven Schwartz, Esquire, Schwartz Schwartz, Dover, Delaware; Attorney for Defendants Vernon L. and Cynthia A. Pope.
Gregory A. Morris, Esquire, Liguori, Morris Redding, Dover, Delaware; Attorney for Defendants Ralph M. And Karen K. Greenlee.
MASTER'S REPORT
This matter involves interpretation of a clause in a set of deed restrictions. The deed restrictions apply to property located in a subdivision called Tara in Kent County. Tara is located in an area zoned "RMH," in which mobile homes are permitted. Tara was developed and marketed by defendant Savini Corporation ("Savini"). The plaintiffs are homeowners in Tara who bought their lots before 2001. The individual defendants (the "Popes" and the "Greenlees") purchased their lots in Tara in 2001. The plaintiffs' homes in Tara are of "modular" construction: that is, the homes were built in sections off-site, trucked to the site and assembled on foundations. The houses lived in by the individual defendants are of "manufactured" construction, meaning that sections of each house were constructed off-site on a steel frame to which was attached wheels and a drawbar. These house sections were pulled behind a tractor, on their own wheels, to the site where the running gear and drawbar were removed and the house sections assembled on permanent foundations. The dispute is whether, under the deed restrictions applicable to all the lots in question, the manufactured houses owned by the Popes and the Greenlees are in violation of those deed restrictions. The plaintiffs ask this Court to enjoin the removal of the individual defendant's houses.
One of the homes in Tara is stick-built: that is, of frame construction assembled on site. It is not clear (nor important to my decision) whether the stick-built home is owned by one of the plaintiffs.
A request for a temporary restraining order to prevent construction of the individual defendants' houses was denied by the Court on May 25, 2001.
Defendant Savini Corporation has moved for summary judgment. Oral argument was held on December 12, 2003. Because I find that no material facts are in dispute and that under the undisputed facts in this matter the plaintiffs cannot prevail as a matter of law, summary judgment must be granted.
Legal Standard
The standard for addressing a motion for summary judgment is established and not in dispute here. Summary judgment under Rule 56 will be granted only where, viewing the evidence in the light most favorable to the non-moving party, I find that the moving party nonetheless has demonstrated that there are no genuine issues of material fact in dispute and that the moving party is entitled to a judgment as a matter of law. E.g., Haas v. Indian River Volunteer Fire Company, Del. Ch., No. 1785, Steele, V.C. (August 14, 2000) (Mem. Op.) at 3. Here, the plaintiffs maintain that the individual defendants' homes are in violation of Paragraph 2 of the applicable Deed Restrictions. They seek to permanently enjoin the individual defendants to remove the offending structures from their property. In order to be entitled to a permanent injunction, the plaintiffs must demonstrate a violation of a right (success on the merits of the claim), resulting irreparable harm, and that the resulting harm to them outweighs the harm that would result from the entry of the requested injunction. See, e.g., Christiana Town Center v. New Castle County, Del. Ch., No. 20215, Lamb, V.C. (June 6, 2003) (Mem. Op.) at 2; Slaughter v. Rotan, Del. Ch., No. 1224, Steele, V.C. (September 14, 1994) (Mem. Op.) at 2. I find, based on the undisputed facts of record, that the plaintiffs cannot show that the homes of the individual defendants are in violation of the deed restrictions. This finding is fatal to the request for injunctive relief, and I need consider only that factor to determine this summary judgment motion.
Facts
Savini has been marketing lots in Tara subdivision since at least the 1990's. Use of the lots by purchasers is constrained by a set of deed restrictions including paragraph 2 of the restrictions. That paragraph provides as follows:
"Trailers, Mobile Homes, Etc. No temporary structure, including but not limited to trailers, mobile homes, RVs, campers, shall be permitted or maintained upon any lot. Except those necessary for the construction of a permanent building and those structures shall be removed as soon as practical after completing the permanent building."
The individual defendants purchased their lots in Tara from defendant Savini in 2001. The individual defendants intended to place double-wide manufactured homes on their lots. As called for by another provision in the deed restriction Savini reviewed and approved the plans for construction on the individual defendants' lots. The individual defendants entered into contracts with suppliers of double-wide manufactured homes to erect homes upon their lots. Savini facilitated the construction by financing the purchase of the lots by taking from the individual defendants "balloon-type" notes which allowed the individual defendants to pay the bulk of the purchase price for their lots after the construction of the houses, at which point conventional mortgage financing would be available.
Deed restriction paragraph 1 provides that "[n]o building . . . shall be . . . erected . . . until . . . approved by. . . ." Savini.
The evidence is undisputed that the individual defendants' homes were constructed similarly. The homes were manufactured in two large pieces off-site. They were built upon steel trailer frames to which running gear and a drawbar could be attached. With this equipment in place, they were pulled over the road by tractors to the site in Tara. The two large pieces were then placed upon permanent foundations and roofing material and other details were applied. The running gear and drawbars were removed before placement on the foundations. Because they were considered over-the-road vehicles, each of the units which were assembled into the individual defendants' homes held a "mobile home" license, which was surrendered once they were placed on permanent foundations. The record is undisputed that the homes are architecturally unremarkable and indistinguishable from other homes in Tara.
The plaintiffs' homes, by contrast, are of "modular" construction. They were built in sections off-site, as were the individual defendants' homes, but were not constructed on a trailer frame. Instead, the individual pieces were trucked to the site at Tara and erected on a permanent foundation there.
With one possible exception. See footnote 1.
The plaintiffs' homes were all in place before the individual defendants' homes were erected in the year 2001. The plaintiffs are concerned that the erection of "manufactured" or "mobile" homes in Tara will reduce the value of their property. They maintain that the homes erected by the Popes and the Greenlees violate the deed restriction set forth in paragraph 2, as quoted above.
Discussion
"Amended" Deed Restriction Paragraph 2
After the onset of this controversy, defendant Savini purported to amend deed restriction paragraph 2 in a way which, both sides agree, would (if effective) authorize the construction of the individual defendants' houses. Savini (joined by the individual defendants) contends that the amendment was consistent with the power to amend the deed restrictions which it had expressly reserved in another part of those restrictions. The plaintiffs strenuously argue that the change in deed restriction paragraph 2 is not authorized by the power reserved by Savini, and is nothing but a sham to try to avoid an unfavorable outcome in this litigation. I need not consider whether the amended deed restriction 2 is either effective or applicable to the structures erected by the individual defendants, however, because it is clear to me that the original deed restriction paragraph 2 did not prohibit the homes which the individual defendants have erected."Original" Deed Restriction Paragraph 2
Delaware law is clear that deed restrictions must be interpreted to comport with the intent of the grantor as stated in the deed restriction in the context of the deed as a whole. See, e.g., Layton v. Keen, Del. Ch., 690, 1984, Longobardi, V.C. (Feb. 27, 1984) at 2. The deed restriction in question, paragraph 2, provides that:
"No temporary structures including but not limited to trailers, mobile homes, RVs, campers, shall be permitted or maintained upon any lot. Except those necessary for the construction of a permanent building and those structures shall be removed as soon as practical after completing the permanent building."
The dispute between the parties is in fact a simple one. It is the plaintiffs' contention that deed restriction paragraph 2 prohibits "mobile homes" from being "maintained upon any lot." They then point out that the manufactured houses erected by the Greenlees and the Popes were classified as mobile homes by the state, and are in fact double-wide mobile homes built upon trailer frames and hauled to the site in Tara over the highway. Although the defendants dispute whether manufactured housing of the type erected by the individual defendants is in fact a "mobile home," I find for purposes of this motion that the Greenlee and Pope houses, at the time they were mounted on wheels and pulled into Tara, were mobile homes. See Slaughter (Mem. Op.) at 2 (finding double-wide manufactured houses to be "mobile homes" under the plain language of a deed restriction).
I part company with the plaintiffs, however, in their contention that deed restriction paragraph 2 amounts to a blanket prohibition on mobile homes. Explicitly, and unambiguously, paragraph 2 prohibits "temporary structures" from being "permitted or maintained upon any lot," except as necessary for the construction of a "permanent building." The real question here is whether the homes now lived in by the individual defendants are "temporary structures." Deed restriction paragraph 2 goes on to provide a list of the type of temporary structures which are prohibited, except for use in the construction of permanent structures: trailers, mobile homes, RVs and campers. Thus, a mobile home that is a type of temporary structure is among the kind of thing which deed restriction paragraph 2 prohibits.
Paragraph 2 does not prohibit all mobile homes, however. It only prohibits those which are temporary structures. Even mobile homes which are temporary structures are permitted to the extent necessary for the construction of "permanent buildings." The plaintiffs' argument, that anything which can be called a mobile home is prohibited under the terms of paragraph 2 because "mobile home" is listed as an example of a temporary structure, is misplaced. For instance, if a hypothetical deed restriction prohibited "unlicenced vehicles" from being maintained upon any lot, including "trucks, campers, motorcycles, boat trailers, Fords, Chryslers and Chevys," it would not be reasonable to assume that all motorcycles and all Chevrolets, even those with current registrations, were prohibited. Similarly, by its plain language, paragraph 2 prohibits mobile homes and things like mobile homes, but only when those things are "temporary structures." Here, the undisputed evidence demonstrates that the houses lived in by the individual defendants are structures 60 feet long by 28 feet wide, sitting on a permanent foundation. They have no running gear or other implements to make them readily removable from the lot. They are not temporary structures. The plaintiffs point out that, theoretically, the individual defendant's homes could, with a certain amount of disassembly and reconstruction, be made "mobile" once more and removed from the lots. All things must pass away: While any structure may be removed or demolished (even Dorothy's farmhouse was removed via cyclone), and thus any structure is, in some theoretical sense, "temporary," there is nothing about the houses lived in by the individual defendants that makes them temporary structures as that phrase would normally be used.
Websters's New International Dictionary defines "temporary" as "lasting for a time only; existing or continuing for a limited time; not permanent; ephemeral; transitory." By contrast, "permanent" is defined as "[c]ontinuing or enduring in the same state, status, place, or the like, without fundamental or marked change. . . ." G. C. Merriam Co., 2d. Ed., 1961. Clearly, a 28' by 60' house on a concrete foundation is a permanent building, and not a temporary structure.
Moreover, to the extent that the sections of the individual defendants' double-wide homes were "temporary structures" when they were brought into Tara Subdivision, their presence was permissible under paragraph 2 because they were "necessary for the construction" of the permanent structures that now exist. I find nothing in the language of the deed restriction which prohibits the maintenance of the individual defendants' houses upon their lots.
The plaintiffs attempt to rely on the holding of Slaughter (Mem. Op.) as controlling here. The Slaughter case involved enforcement of a deed restriction prohibiting all mobile homes from being place in the subdivision: "No mobile home shall be erected or placed temporarily or permanently on any lot. . . ."Slaughter, (Mem. Op.) at 1. If the deeds in Tara contained a similar restriction, the homes of the individual defendants would be prohibited. The actual restriction in question (deed restriction paragraph 2), however, prohibits only temporary structures, and even temporary structures are permitted as necessary to the erection of permanent structures. The rationale of Slaughter is not applicable, therefore.
Representations made by Savini
In an attempt to raise an issue of fact here, the plaintiffs have filed affidavits which raise troubling allegations about the behavior of employees of defendant Savini. According to the affidavits, Savini's employees or principals, in order to encourage individuals to purchase lots in Tara, represented to some potential buyers that the deed restriction language prohibited double-wide manufactured housing. Some of the affiants, plaintiffs here, aver that they purchased their lots in Tara in reliance on such representations on behalf of Savini. The plaintiffs maintain that these misrepresentations raise at least an issue of fact under doctrine of unclean hands.
However disturbing the allegations, they are inapposite here. The plaintiffs here seek only an injunction to remove the individual defendants' houses. They have not stated an independent claim of action against Savini Corp. for misrepresentation. The doctrine of unclean hands does not apply, because the defendants here are not seeking to use this court's equitable powers to do anything: it is the plaintiffs who seek equitable relief here. Nothing in this report, however, should be construed as a finding on the viability of any claim by the plaintiffs against Savini for damages or other relief based upon the alleged misrepresentations.
CONCLUSION
For the foregoing reasons, I find that under the undisputed facts here the plaintiffs cannot show a breach of the deed restrictions and therefore the defendants' motion for summary judgment must be granted.