{ "id": 8523107, "name": "RONALD WAYNE BARBER and wife, MONA LISA BARBER; GILBERT R. HERSHEY and wife, FRANCES O. HERSHEY; JAMES L. GENTRY, SR. and wife, BEULAH ANN GENTRY v. HERMAN F. DIXON and wife, MATILDA P. DIXON", "name_abbreviation": "Barber v. Dixon", "decision_date": "1983-06-07", "docket_number": "No. 824DC554", "first_page": "455", "last_page": "460", "citations": [ { "type": "official", "cite": "62 N.C. App. 455" } ], "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": "156 S.E. 2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "710" } ], "opinion_index": 0 }, { "cite": "271 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564209 ], "year": 1967, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0401-01" ] }, { "cite": "268 S.E. 2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564183 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0621-01" ] }, { "cite": "120 S.E. 2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "828" } ], "opinion_index": 0 }, { "cite": "255 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566993 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0023-01" ] }, { "cite": "217 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565536, 8565571, 8565606, 8565514, 8565498 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0239-03", "/nc/288/0239-04", "/nc/288/0239-05", "/nc/288/0239-02", "/nc/288/0239-01" ] }, { "cite": "214 S.E. 2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "621" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549811 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0087-01" ] }, { "cite": "96 A.L.R. 2d 232", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "198 S.E. 2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "107" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550143 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0070-01" ] }, { "cite": "181 S.E. 2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555480 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0427-01" ] }, { "cite": "274 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "302 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563796 ], "year": 1981, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0064-01" ] }, { "cite": "178 S.E. 2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "829" } ], "opinion_index": 0 }, { "cite": "278 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559708 ], "year": 1971, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0095-01" ] }, { "cite": "156 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "239" } ], "opinion_index": 0 }, { "cite": "271 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563495 ], "year": 1967, "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0264-01" ] }, { "cite": "197 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "18 N. C. App. 371", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550014 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0371-01" ] }, { "cite": "82 S.E. 2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600532 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0382-01" ] } ], "analysis": { "cardinality": 632, "char_count": 11469, "ocr_confidence": 0.782, "pagerank": { "raw": 4.984122678046594e-07, "percentile": 0.935682929776987 }, "sha256": "55ec4d0bb5fa31c64cc47b0f731bb96d4f54905f33aaa36aad3f37f1fb44fad9", "simhash": "1:fbf9eda8784167c7", "word_count": 1909 }, "last_updated": "2023-07-14T22:38:59.213578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge HEDRICK concur." ], "parties": [ "RONALD WAYNE BARBER and wife, MONA LISA BARBER; GILBERT R. HERSHEY and wife, FRANCES O. HERSHEY; JAMES L. GENTRY, SR. and wife, BEULAH ANN GENTRY v. HERMAN F. DIXON and wife, MATILDA P. DIXON" ], "opinions": [ { "text": "ARNOLD, Judge.\nWe first note that injunction is a proper equitable remedy to enforce a restrictive covenant when the plaintiffs show that their remedy at law is inadequate and that they will suffer irreparable damage if the violation is allowed to continue. See Ingle v. Stubbins, 240 N.C. 382, 82 S.E. 2d 388 (1954); Franzle v. Waters, 18 N. C. App. 371, 197 S.E. 2d 15 (1973). Because the plaintiffs here have met this burden, the judgment is affirmed.\nNorth Carolina follows the rule of strict construction when interpreting restrictive covenants. That is, any ambiguities will be resolved in favor of unrestricted use. But this rule must not be applied to defeat the plain and obvious purposes of the restriction. Long v. Branham, 271 N.C. 264, 268, 156 S.E. 2d 235, 239 (1967). See also, J. Webster, Real Estate Law in North Carolina \u00a7 388 (Hetrick rev. 1981). As owners of lots in the subdivision, the plaintiffs are proper parties to enforce the restrictive covenants. Stegall v. Housing Authority, 278 N.C. 95, 102, 178 S.E. 2d 824, 829 (1971).\nThis dispute turns on if the defendants\u2019 structure violates clause six\u2019s prohibition of temporary structures and house trailers. Neither of these terms are defined in the restrictive covenants. In such cases, we follow the intentions of the parties. \u201c[E]ach part of the covenant must be given effect according to the natural meaning of the words....\u201d Hobby & Son, Inc. v. Family Homes, 302 N.C. 64, 71, 274 S.E. 2d 174, 179 (1981).\nWith these general principles in mind, we turn to cases that have considered similar restrictions. In Strickland v. Overman, 11 N.C. App. 427, 181 S.E. 2d 136 (1971), the restriction stated: \u201cNo trailer, tents or temporary structures shall be erected or allowed on any lot. . . .\u201d The court held that the defendants\u2019 \u201cprefabricated modular unit\u201d violated the covenant.\nThe restriction in Van Poole v. Messer, 19 N.C. App. 70, 198 S.E. 2d 106 (1973), stated: \u201cNo 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 either temporarily or permanently.\u201d The court held that there was no material issue of genuine fact that \u201ca modern mobile home\u201d is a \u201ctrailer\u201d within the meaning of that covenant.\nJudge Morris (later Chief Judge) continued:\nThat 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. (Citations omitted.) 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\n19 N.C. App. at 72, 198 S.E. 2d at 107.\nWe also note City of Asheboro v. Auman, 26 N.C. App. 87, 214 S.E. 2d 621, cert. denied, 288 N.C. 239, 217 S.E. 2d 663 (1975), where the court upheld a permanent injunction prohibiting the defendants from allowing a mobile home to remain in an area where it was prohibited by an ordinance. According to that case, \u201cthe mere removal of the wheels, tongue and the erection of a foundation . . . did not change the nature of the offending use of the property.\u201d 26 N.C. App. at 88, 214 S.E. 2d at 621. The evidence here showed that the two units that comprise the defendants\u2019 structure were transported by wheels, tongues and axles that were bolted on at the place of manufacture and removed about two days after the units were located on the lot.\nThe expressed intent of these covenants also supports our holding that the defendants\u2019 structure is a violation. An introductory paragraph states that one purpose of the covenants is \u201cto prevent uses which might tend to diminish the value of said property and any part thereof. . . As was found in the judgment, the defendants\u2019 structure \u201cmaterially impairs the uniform scheme of development of said subdivision and threatens to impair the marketability of the property of the plaintiffs. . . .\u201d\nThus, there was sufficient evidence to support the trial judge\u2019s findings that the defendants\u2019 structure was a trailer and a temporary structure within the meaning of the restrictive covenants.\nThe defendants raise waiver as a possible defense. The evidence shows that one of the plaintiffs has a storage shed on his land that was there when he bought his lot and that another owner in the subdivision has a building on his lot in which he stored his boat. Because the plaintiffs\u2019 have not enforced the covenants against those two owners, the defendants contend that the right to enforce the covenants has been waived. We disagree.\nWhether acquiescence in violations of restrictive covenants is a waiver by owners in a subdivision of the right to enforce the restrictions was addressed in Tull v. Doctors Bldg., Inc., 255 N.C. 23, 120 S.E. 2d 817 (1961). Restrictive covenants will be given full effect unless changed conditions within the covenanted area are \u201cso radical as practically to destroy the essential objects and purposes\u201d of the scheme of development. 255 N.C. at 39, 120 S.E. 2d at 828. See also, Webster, supra, at \u00a7 389. The two examples cited by the defendants, if they are violations, are not so drastic as to warrant the removal of the restrictions.\nTwo other arguments are raised by the defendants. They first contend that their witness Gene Longo should have been allowed to answer certain questions, including defining the terms \u201ctrailer\u201d and \u201cmanufactured home.\u201d According to the defendants, Longo was an expert as a result of his training and ten years of experience in the manufactured home business.\nOur examination of the record shows that Longo was never tendered by the defendants as an expert. When the plaintiffs objected to Longo\u2019s defining \u201ctrailer\u201d and \u201cmanufactured home\u201d and distinguishing the structures in the subdivision based on their construction, the defendants should have requested the court to find him qualified as an expert. \u201c|I]f there is no such request, and no finding or admission that the witness is qualified, the exclusion of his testimony will not be reviewed\u201d on appeal. 1 Brandis, N.C. Evidence \u00a7 133 (2d rev. ed. 1982); State v. Satterfield, 300 N.C. 621, 268 S.E. 2d 510 (1980). Although no expertise is necessary to distinguish the structures based on their appearance, it was harmless error to refuse to let Longo answer that question. See G.S. 1A-1, Rule 61.\nFinally, the defendants argue that all parties necessary for a decision were not before the court. Although the defendants\u2019 son and his wife were not parties named in the pleadings, the judgment purports to enjoin them from putting a mobile home or trailer on the defendants\u2019 lot. The defendants contend that this part of the judgment exceeds the court\u2019s jurisdiction. We agree.\nAs stated in Buncombe County Bd. of Health v. Brown, 271 N.C. 401, 404, 156 S.E. 2d 708, 710 (1967): \u201c[A] judgment rendered by a court against a citizen affecting his vested rights in an action or proceeding to which he is not a party is absolutely void and may be treated as a nullity whenever it is brought to the attention of the Court.\u201d\nAs a result, that part of the judgment enjoining Herman Franklin Dixon, Jr. and wife, Ellen G. Dixon, is void. The remainder of the judgment against the named defendants is valid and stands as rendered.\nWe note that even with this change, the practical effect of the judgment will be to prevent anyone from placing a violating structure on the defendants\u2019 lot. The judgment permanently enjoins the defendants from violating the covenant in question by \u201clocating or causing to be located upon their property\u201d a violating structure (emphasis added).\nAffirmed as modified.\nChief Judge VAUGHN and Judge HEDRICK concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Warlick, Milsted, Dotson and Carter, by Marshall F. Dotson, Jr., for plaintiff-appellee.", "Thomasine E. Moore and Bowen C. Tatum, Jr., for defendant-appellants." ], "corrections": "", "head_matter": "RONALD WAYNE BARBER and wife, MONA LISA BARBER; GILBERT R. HERSHEY and wife, FRANCES O. HERSHEY; JAMES L. GENTRY, SR. and wife, BEULAH ANN GENTRY v. HERMAN F. DIXON and wife, MATILDA P. DIXON\nNo. 824DC554\n(Filed 7 June 1983)\n1. Deeds \u00a7 20.3\u2014 restrictive covenants \u2014 prohibiting use of house trailer\nThere was sufficient evidence to support the trial judge\u2019s findings that defendants\u2019 structure was a trailer and a temporary structure within the meaning of a subdivision\u2019s restrictive covenants where the evidence showed that two units that comprised the defendants\u2019 structure were transported by wheels, tongues and axles which were bolted on at the place of manufacture and removed about two days after the units were located on the lot.\n2. Deeds \u00a7 20.6\u2014 restrictive covenants \u2014 no waiver of right to enforce\nPlaintiffs did not waive their right to enforce restrictive covenants in a subdivision by failing to enforce the covenants against one. plaintiff who had a storage shed on his land that was there when he bought his lot and where another owner in the subdivision has a building on his lot in which he stores his boat.\n3. Deeds \u00a7 20.7\u2014 witness not tendered as expert \u2014 not allowed to define terms \u2014 no error\nWhere defendants never tendered their witness as an expert, the trial court did not err in failing to allow the witness to answer certain questions, including defining the terms \u201ctrailer\u201d and \u201cmanufactured home.\u201d\n4. Partied \u00a7 1.1\u2014 necessary party \u2014not before court\nThe trail judge\u2019s judgment exceeded the court\u2019s jurisdiction where, although the defendants\u2019 son and his wife were not parties named in the pleadings, the judgment purported to enjoin them from putting a mobile home or trailer on the defendants\u2019 lot.\nAPPEAL by defendants from Erwin, Judge. Judgment entered 1 February 1982 in District Court, ONSLOW County. Heard in the Court of Appeals 18 April 1983.\nThe plaintiffs here seek a permanent injunction requiring the defendants to remove the structure in which they live from their lot in Blue Creek Park Subdivision in Onslow County. All parties are lot owners in the subdivision.\nIn their 3 December 1981 complaint, the plaintiffs allege that the defendants\u2019 structure violates restrictive covenants applicable to all lots in the subdivision, that the defendants have failed to remove the structure after a request to do so, and that their remedy at law is inadequate.\nThe defendants\u2019 answer denies that their structure violates the restrictive covenants and also alleges that the covenants are too vague to be enforced against them.\nThe relevant restrictive covenant, which was recorded on 3 June 1968, states:\n6. Temporary Structures: No structure of a temporary character (including house trailers) shall be used upon any lot at any time.\nThree issues were submitted to the trial judge by stipulation of the parties. Those issues and his answers were:\nISSUE 1: Is the improvement placed upon the property of the defendants a trailer within the meaning of the restrictive covenants?\nAnswer: Yes.\nISSUE 2: Have the plaintiffs waived their right to enforce a violation of the restrictive covenants?\nAnswer: No.\nISSUE 3: Is the improvement placed upon the property of the defendants a structure of a temporary character within the meaning of the restrictive covenants?\nAnswer: Yes.\nThe trial judge held for the plaintiffs and ordered the defendants to remove their structure from their lot and enjoined them from placing it, a trailer or a mobile home upon the lot. The defendants then appealed to this Court.\nWarlick, Milsted, Dotson and Carter, by Marshall F. Dotson, Jr., for plaintiff-appellee.\nThomasine E. Moore and Bowen C. Tatum, Jr., for defendant-appellants." }, "file_name": "0455-01", "first_page_order": 487, "last_page_order": 492 }