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10/26/2007

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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2007-2008 _________________________ 2060552 _________________________ Danny L. Traweek v. John K. Lincoln, Jr., and G. Daniel Kearley Appeal from St. Clair Circuit Court (CV-05-212) BRYAN, Judge. The defendant, Danny L. Traweek, appeals from a judgment entered in favor of the plaintiffs, John K. Lincoln, Jr., and G. Daniel Kearley, in their action to enforce the restrictive covenants that encumber the lots in Funderburg Cove

2060552 Subdivision ("the subdivision") in St. Clair County. We

reverse and remand with instructions. In 1964, the then owners of the land constituting the subdivision created and recorded restrictive covenants that encumbered the lots in the subdivision. the restrictive covenants provide: "[T]he owners and developers of all the property known as the Funderburg Cove Subdivision ... being desirous of attaching to the subdivision certain restrictions, make[], adopt[], and publish[] this as restrictions and [these restrictions] shall pertain to all of said lots in said Funderburg Cove Subdivision, with the exception of Lots 1 and 2, Lots 20, 21 and 22 and Lots 26 through 38, both inclusive, as hereinafter explained. "1. No dwelling costing less than Five Thousand and no/100 ($5,000.00) Dollars shall be constructed on any of the lots of said Funderburg Cove Subdivision as covered by these restrictions. The ground floor area of the main structure, exclusive of open porches and garages, shall not be less than one thousand (1,000) square feet in the case of one story structures, and not less than eight hundred fifty (850) square feet in the case of one and a half or two story structures. "2. All lots upon which residences may be built, shal1 be equipped with septic tanks of proper size and location and with sufficient disposal fields to meet the requirements of the County and State Health authorities. "3. Any house constructed on this subdivision shall be covered with a roof of composition or other like resistant materials.
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In pertinent part,

2060552 "4. All lots covered by these restrictions in this subdivision shall be known and described as residential lots with the exception as hereinbefore mentioned. No structure shall he erected, altered, placed, or permitted to remain on any residential building lot other than one single family dwelling, not to exceed two stories in height and appropriate out-buildings. No buildings covered by these restrictions shall be used for any business purpose, but only for residential purposes. ".... "6. Lots 1 and 2, lots 20, 21, and 22 and lots 26 through 38, both inclusive, may be used as business or residential lots. If used as residential lots, they shall be subject to the same restrictions as other residential lots." Lincoln and Kearley each own one lot in the subdivision, and Traweek owns three lots, although only one of those three lots, lot 21, is involved in this action. In addition, Traweek operates a trailer park on a five-acre parcel of land across the street from the subdivision. Sometime before June 17, 2005, Traweek placed a mobile home on lot 21. The mobile home had a living space of 1,280 square feet and was covered by a composite roof. On June 17, 2005, Lincoln and Kearley sued Traweek, seeking a judgment declaring that Traweek had violated the restrictive covenants by placing the mobile home on lot 21 and an injunction enjoining Traweek from violating the restrictive
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2060552 covenants. In response, Traweek asserted that the restrictive covenants did not prohibit him from placing a mobile home on lot 21 because, he said, (1) he was using lot 21 for a business purpose, i.e., the expansion of his trailer park, and, therefore, lot 21 was not subject to the restrictions applicable to residential lots and (2) the language of the restrictive covenants did not prohibit mobile homes from being placed on residential lots. Following a bench trial at which it received evidence ore tenus, the trial court entered a judgment stating, in

pertinent part: "The Court having taken testimony ore tenus finds as follows: "1. This is a case involving use of lots within the Funderburg Cove Subdivision .... "2. That the lands lying within the Funderburg Cove Subdivision are subject to certain covenants and restrictions .... "3. That [Traweek] is the owner of Lot 21 in Funderburg Cove Subdivision. "4. That [Traweek] has placed or caused to be placed a mobile home upon Lot 21, and [Lincoln and Kearney] aver that the placement of said mobile home on Lot 21 of Funderburg Cove Subdivision violates the restrictive covenants of the subdivision.

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2060552 "5. That the restrictive covenants [in] question were drafted in 1964 and the bulk of the developers or owners of Funderburg Cove Subdivision are now deceased. However, one, James T. Funderburg, testified and stated that it was his intent to allow some of the lots to be used for business and some for residential purposes, those restrict[ed] [to] residential purposes were to [have] homes built on the lots. It was not his intent to allow mobile homes on the residential property[,] [a]lthough there is no restriction within the covenants prohibiting mobile homes in that exact language. "6. However, paragraph one of the subdivision regulations states in part 'no dwelling ... shall be constructed.' Paragraph two states 'all lots upon which residence may be built.' Paragraph three [states] 'any lot constructed.' Paragraph four [states] 'no structure shall be erected.' "7. It would there[fore] appear to the Court that it was the intent of the developers and owners of Funderburg Cove Subdivision to restrict the residential lots to homes of a certain size, constructed or built on said lots. "8. It is the opinion of the Court that the Subdivision restrictions of Funderburg Cove Subdivision prohibit the placement of a mobile home on any lot within the subdivision for any purpose whatsoever. "It is therefore ORDERED, ADJUDGED AND DECREED that the defendant, Danny L. Traweek, has violated the restrictive covenants of the Funderburg Cove Subdivision and that the violation be abated. That [Traweek] is to remove said mobile home from the lot in question within ninety (90) days from the date hereof and is permanently enjoined and prohibited from placing a mobile home on any lot in the Funderburg Cove Subdivision."

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2060552 Traweek timely moved the trial court to alter, amend, or vacate the judgment; the trial court denied the motion. Traweek then timely appealed to the supreme court and moved the trial court to stay the judgment pending the resolution of his appeal. The trial court stayed the judgment and ordered the parties to maintain the status quo pending the resolution of the appeal. The supreme court transferred the appeal to this court, pursuant to

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