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2004-UP-148 - Lawson v. Irby
THE STATE OF SOUTH CAROLINA

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Augusta S. Lawson,        Appellant,

v.

Karen Irby,        Respondent.


Appeal From Laurens County
James W. Johnson, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-148
Submitted November 19, 2003 – Filed March 2, 2004


AFFIRMED


Edward D. Sullivan and Katherine Carruth Link, of Columbia, for Appellant.

Andrew M. Jones, of Greenville, for Respondent.

PER CURIAM: Augusta Lawson appeals from an order decreeing that a certain structure is a modular home and not a trailer. We affirm.

FACTS    

Karen Irby bought a lot in the Green Acres subdivision in 1999. That lot was subject to certain covenants and restrictions, one of which stated “[n]o structure of a temporary character (trailer, basement, tent, shack, garage, barn, or other out-building) shall be used on any lot at any time as a residence, either temporarily or permanently.” In 2001, Irby attempted to move a structure onto her lot. The structure was “hauled into the Subdivision in two pieces on transport trailers.” Augusta Lawson, a homeowner in the same subdivision, obtained a temporary restraining order against Irby. About a week later, Lawson moved for a temporary injunction. The court granted the motion, enjoining Irby from “placing, constructing, and/or erecting” her structure on her lot. Following a non-jury trial, the court found “as a matter of law, that [Irby’s] house is a modular home and that it is not temporary in nature.” The trial court vacated its previous order and denied Lawson’s motion for a permanent injunction.

 ISSUES

(1)   Did the trial court err in finding that the structure was not temporary and therefore not prohibited by the covenants?

(2) Did the trial court err in admitting some of Irby’s exhibits?

(3) Did the trial court err in finding certain facts?

ANALYSIS  

“A suit seeking an injunction to enforce restrictive covenants is an action in equity.” Arnoti v. Lukie, 350 S.C. 177, 179, 564 S.E.2d 691, 692 (Ct. App. 2002). Therefore, “this Court may take its own view of the preponderance of the evidence.” Id.

Lawson argues that the structure is a trailer because it was carried to the subdivision in two parts, joinable in the middle; it can easily be separated and moved again; and it looks like a trailer. Lawson also points to Irby’s purchase agreement that lists the structure as a “Mobile/Manufactured Home” and cites the UCC as the law governing the transaction. [1] For her part, Irby admits that her home was moved in two pieces and has vinyl siding, but contends that such is not prohibited by Green Acres’ covenants. Irby points to two houses in the subdivision that were moved there after being erected elsewhere. More importantly, Irby testified that the State of South Carolina had certified her home as modular. [2]

The South Carolina Modular Buildings Construction Act provides, in part

Modular building units bearing evidence of approval must be acceptable in all localities as meeting the requirements of this chapter and must be considered and accepted equivalent to a site-built structure as meeting the requirements of safety to life, health, and property imposed by any ordinance of any local government if the units are erected or installed in accordance with all conditions of the approval.

S.C. Code Ann. § 23-43-130 (Supp. 2001).

The Act has been interpreted to define a modular home. See Henry v. Chambron, 304 S.C. 351, 352, 404 S.E.2d 518, 519 (Ct. App. 1991) (ruling that a modular home is one “built off site … transported to its intended location in as many as twenty sections … affixed permanently to the property” that has been certified by the South Carolina Building Code Council as a modular home). In contrast, a mobile home “does not undergo the same certification process as a modular home and it need not comply with the standard building code applicable to site built homes. Furthermore, there is no requirement that a mobile home be permanently affixed to the property.” Id. at 353, 404 S.E.2d 519.

Green Acres’ restrictions prohibit the use of any “structure of temporary character (trailer, basement, tent, shack, garage, barn, or other out-building,)” but they do not prohibit the use of modular homes. Lawson’s expert witness admitted that “[b]ased on the State’s criteria for what a modular home is, [Irby’s house] would be a modular home.” Based on that testimony and other evidence, the trial court found that Irby’s home was not a trailer, but a modular home and was therefore permissible. That conclusion is well supported by the record. See Taylor v. Lindsey, 322 S.C. 1, 4, 498 S.E.2d 862, 863 (1998) (explaining that words used in restrictive covenants are to be given their “common, ordinary meaning” and that “restrictions as to the use of real estate should be strictly construed and all doubts resolved in favor of free use of the property”). We therefore decline to find otherwise.

The trial court’s order is

AFFIRMED.

Huff, Stilwell, and Beatty, JJ., concur.


[1] It is unclear that Lawson presented that argument at trial, though she introduced the document itself into evidence.

[2] Irby’s counsel tried to introduce an “inspector’s certificate” while cross-examining Lawson’s expert witness, but Lawson objected to the introduction of the document and the trial court sustained the objection. Counsel then showed “a document” to Irby while she was on direct examination purported to be a state certificate from her home, showing that the home was modular. That document was not introduced into evidence. Lawson did not object to the testimony, however.