{ "id": 8550143, "name": "EDWIN L. VAN POOLE and LAURA D. VAN POOLE, and ROBERT L. HUDSON and wife, LINDA HUDSON v. VIOLET D. MESSER and RUTH E. DULL", "name_abbreviation": "Van Poole v. Messer", "decision_date": "1973-07-25", "docket_number": "No. 7319SC449", "first_page": "70", "last_page": "73", "citations": [ { "type": "official", "cite": "19 N.C. App. 70" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "144 S.E. 2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575696 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0453-01" ] }, { "cite": "120 S.E. 2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566993 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0023-01" ] }, { "cite": "281 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8577204 ], "opinion_index": 0, "case_paths": [ "/nc/281/0764-01" ] }, { "cite": "189 S.E. 2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548022 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0130-01" ] }, { "cite": "121 S.E. 2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569674 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0374-01" ] }, { "cite": "180 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560580 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0390-01" ] }, { "cite": "96 A.L.R. 2d 232", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "243 N.Y.S. 2d 210", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1963, "opinion_index": 0 }, { "cite": "40 Misc. 2d 387", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1130293 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/misc2d/40/0387-01" ] }, { "cite": "155 Mont. 294", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 5281071 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/mont/155/0294-01" ] }, { "cite": "186 S.E. 2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572515 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0460-01" ] }, { "cite": "283 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558411, 8558446, 8558479, 8558427, 8558460 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/283/0257-01", "/nc/283/0257-03", "/nc/283/0257-05", "/nc/283/0257-02", "/nc/283/0257-04" ] }, { "cite": "194 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "17 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555951 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/17/0445-01" ] } ], "analysis": { "cardinality": 389, "char_count": 6555, "ocr_confidence": 0.53, "pagerank": { "raw": 3.645440651867064e-07, "percentile": 0.8898121087368415 }, "sha256": "cfd4771c112fb339e45c56ccb85fb40797b471b597ce40b18c19d2f8f012c5fe", "simhash": "1:7e6bed1278012cd5", "word_count": 1108 }, "last_updated": "2023-07-14T21:32:34.966448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Parker concur." ], "parties": [ "EDWIN L. VAN POOLE and LAURA D. VAN POOLE, and ROBERT L. HUDSON and wife, LINDA HUDSON v. VIOLET D. MESSER and RUTH E. DULL" ], "opinions": [ { "text": "MORRIS, Judge.\nSummary judgment is proper only where there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Kiser v. Snyder, 17 N.C. App. 445, 194 S.E. 2d 638 (1973), cert. denied, 283 N.C. 257. The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact, and in that regard, the papers of.the opposing party are indulgently regarded.\u2019 Singleton v. Stewart, 280 N.C. 460, 186 S.E. 2d 400 (1972).\nWe are of the opinion that the trial judge committed error in entering summary judgment in favor of the plaintiffs in this case. The defendants contend that there is a material issue of fact as to whether a modern \u201cmobile, home\u201d is a \u201ctrailer\u201d within the meaning of the restrictive covenant placed on lot 39 of East Jackson Park Subdivision in 1955. It seems to us, however, that that issue is more properly one of interpretation of the restrictive covenant, and within the province of the trial judge to decide as a matter of law. Judge Seay concluded as a matter of law that a \u201cmobile home\u201d is a \u201ctrailer\u201d within the intendment of the restrictive covenant. With this conclusion we take no issue. That the term \u201ctrailer\u201d includes a \u201cmobile home\u201d within its meaning is the accepted rule in every authority we have found dealing with that issue. See Timmerman v. Gabriel, 155 Mont. 294, 470 P. 2d 528 (1970); Harriman v. Kabinoff, 40 Misc. 2d 387, 243 N.Y.S. 2d 210 (1963). In Annot. 96 A.L.R. 2d 232 (1964), at page 234, it is stated that \u201c[t]he term \u2018trailer\u2019 is understood in its usual meaning regardless of whether it is referred to or described as house trailer, mobile home, trailer coach, or some such term.\u201d\nAlthough it appears that the case of Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971), would preclude the trial judge from entering summary judgment in favor of the party with the burden of proof when his right to recover depends upon the credibility of his evidence, in the case before us, the fact that the defendants had placed a mobile home upon lot 39 of the East Jackson Subdivision was admitted in the pleadings and interrogatories of the defendants, and the credibility of the plaintiffs\u2019 assertions is, therefore, not a \u201cgenuine issue of fact.\u201d Chisholm v. Hall, 255 N.C. 374, 121 S.E. 2d 726 (1961); Wyche v. Alexander, 15 N.C. App. 130, 189 S.E. 2d 608 (1972), cert. denied, 281 N.C. 764. Summary judgment would not, therefore, be precluded by the issue of whether a \u201cmobile home\u201d is a \u201ctrailer\u201d within the meaning of the restrictive covenant placed on lot 39.\nHowever, the defendants contend, and we agree, that a material issue of fact arises on the documents included in the record on appeal and considered by the trial judge, as to whether, due to the existence of other trailers in the East Jackson Park Subdivision, the plaintiffs are estopped from enforcing the restriction in issue. See Tull v. Doctors Building, Inc., 255 N.C. 23, 120 S.E. 2d 817 (1961). This issue of fact alone is sufficient to preclude the entry of summary judgment.\nThe case of Hullett v. Grayson, 265 N.C. 453, 144 S.E. 2d 206 (1965), is inapposite to the case at bar, the restrictive covenant in that case having been declared ambiguous and unenforceable because the word \u201ctemporary\u201d in that restrictive covenant rendered a sensible and uniform interpretation of the restrictive covenant impossible. In this case, the determinative issue in interpreting the restrictive covenant is merely whether a \u201cmobile home\u201d is a \u201ctrailer\u201d within its meaning.\nFor the reasons stated, the entry of summary judgment is\nReversed.\nJudges Britt and Parker concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Rutledge and Friday, by Clinton S. Forbis, Jr., for plaintiff appellees.", "Grant and Grant, by Adam C. Grant, Jr., for defendant appellants." ], "corrections": "", "head_matter": "EDWIN L. VAN POOLE and LAURA D. VAN POOLE, and ROBERT L. HUDSON and wife, LINDA HUDSON v. VIOLET D. MESSER and RUTH E. DULL\nNo. 7319SC449\n(Filed 25 July 1973)\nDeeds \u00a7 20 \u2014 violation of restrictive covenant as to trailers on subdivision lot \u2014 defense of estoppel\nIn an action to restrain and enjoin defendants from using a subdivision lot as a site for a mobile home in violation of a restrictive covenant on the lot prohibiting the use of a trailer for a residence thereon, the trial court erred in entering summary judgment for plaintiffs, not on the issue of whether a mobile home was a trailer within the meaning of the restrictive covenant, but on the issue of whether, due to the existence of other trailers in the subdivision, the plaintiffs were estopped from enforcing the restriction in issue.\nAppeal by defendants from Seay, Judge, 22 January 1973 Session of Superior Court, Rowan County.\nThis is an appeal from Judge Seay\u2019s order allowing summary judgment against the defendants upon plaintiffs\u2019 motion therefor. At the hearing on the motion, the trial judge considered the amended complaint, the answers of the defendants, and the answers to interrogatories of the plaintiffs and the defendants. In their answers to the amended complaint, defendants demanded a jury trial.\nThe amended complaint alleged that plaintiffs and defendant Dull were lot owners in East Jackson Park Subdivision in China Grove Township, Rowan County, and that all lots in the subdivision were subject to the following restriction, duly recorded in the Rowan County Register of Deeds office:\n\u201c6. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence \u00bfither temporarily or permanently.\u201d\nPlaintiffs alleged, and the defendants admitted, that the defendants had placed on lot 39 in East Jackson Park, owned by defendant Dull, a \u201cmobile home.\u201d A permanent house was also located on lot 39.\nThe answers of the defendants and the answers to interrogatories by the plaintiff Robert Hudson tended to show that there was at least one other \u201ctrailer\u201d in the East Jackson Park Subdivision at the time the lawsuit was commenced. The defendants alleged by way of defense, that if there was any violation of the restrictive covenant set forth above, then that violation was waived and acquiesced in by the plaintiffs, in that plaintiffs and others in the subdivision have allowed similar violations of restrictive covenant number six in the past and have abandoned that restriction and are estopped from enforcing it by their actions in having acquiesced in past violations-.\nFrom summary judgment entered in favor of the plaintiffs, the defendants appealed, assigning error.\nRutledge and Friday, by Clinton S. Forbis, Jr., for plaintiff appellees.\nGrant and Grant, by Adam C. Grant, Jr., for defendant appellants." }, "file_name": "0070-01", "first_page_order": 94, "last_page_order": 97 }