No. 13168 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

BETTY and LOUIS DeLAURENTIS, Plaintiffs and Appellants,

DR. L.E. VAINIO; HELEN 

### MARIE VANIO, and GLENN PRYOR, Defendants and Respondents.
Appeal from: District Court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellants

### : McCaffery and Peterson, Butte, Montana 

### W. Il. Murray, 

### Jr. argued, Butte, Montana For Respondents: Maurice Maffei argued, Butte, Montana

Submitted: March 

### 2, 1976 

## h!AM 3 Decided

# .

### ?~r. Justice Gene 3. 3aly .lelivereJ 

### rhe Jpinion 3i- rile Lourt. This isan appeal from a judgment of the district court, 

### 5ilver 3ow County, dissolving a temporary restraining order and hdlding defendants not inviolation of 

### a restrictive covenant ~rohibiting trailers or mobile homes being used as permanent residences on the property in question. On June 5, 1975, plaintiffs filed an action in the discrict court seeking an injunction to prevent defendants from v~olating a restrictive covenant. The complaint alleged that {)LaintiffsBetty and Louis Delaurentis, husband and wife, were the owners of Lot No. 

### 6, McNeece Addition to the cityof Butte, 'vlontana. That defendants L. E. Vainio and Helen Vainio were the Jwrlers of Lot No. 5, McNeece Addition. itwas alleged defendant 3~enn Pryor made a commitment topurchase Lot No. 5 from defendants Vainio and intended to install a "~arrington" double wide trailerupon a permanent foundation on Lot No. 

### 5. The complaint further alleged that the grant deeds toboth lots contained a restrictive covenant that provided: "NO trailers ormobile homes shallbe used asa permanent residence 

### on saidpremises. II Upon an allegation that the violation of the covenant would cause great and irreparable injury toplaintiffs, the district Lourt issued a temporary restraining order and an order to show cause ordering defendants to appear for hearing on June 16, 1975, 

### and tocease and desist from installing the double wide trailer on toc No. 

### 5 in violation of the restrictive covenant. Hearing was held on June 16, 1975, on the order to show cause. Thereafter, the district court enteredjudgment for defendants and dissolved the temporary restraining order. The court in itsjudgment and srder said:
I I9c ;I 

# * the Barrington Home being purchased by the Defendant Glenn Pryor, and tobe erected upon the Lot owned by the Defendants [Vainio] 

### isnot a trailer

### or mobile, but is 

### a modular home or house and therefore isnot in violation of the restrictive covenant

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# *.lI



### Plaintiffs appeal from thejudgment

# . Numerous issues arepresented forreview by this Court, but the controlling issue iswhether the structure intended tobe placed on Lot No. 

### 5 isa trailer ormobile home. Was there sufficient credible evidence to support thejudgment of the trialcourt, which was rendered without findings .of fact or conclusions of law? The structureinquestion isknown as a Barrington double wide "mobile home". It 

### consists of two units, each measuring 12' wide by 

### 64' long, and when joined form a home 

### 24' wide by 

### 64' long. It 

### has a shingled roof, house-type siding, and isa frame construction. Each unitwas received from the manufacturer withwheels and axles and was sold to Pryor with the wheels and axles intact. The structurewas manufactured in Idaho and

was certifiedby the Recreation and Mobile Home Department of that
state. The structurewas purchased from Great Western Trailer Sales inButte, Montana, and is 

### tobe placed on a permanent concrete foundation. Defendants claim and the district court found, that the
structure is a modular type home. Defendants giveus in theirbrief

on appeal, this definition of theword "modular", taken from the larest Merriam-ltrebster dictionary: "adj. relating to, orbasedJL Jimensions for flexibility and variety inuse. If Defendants allege there arethree differences between a modular home and



### a mobile home ; (1) A modular home can be constructed in duplicate cesilio~~ 

### Jn the 

### siteby a contractor. A mobile home cannot be luplicated by a contractor because "it is made of pieces of metal ,iding and the roof 

### is one piece of steel." (2) Plodular homes have eaves twelve to twenty-four inches wide which can be retracted during transportation. Mobile homes ionot have eaves because mobile homes are constructed strictly of nletal and the eaves cannot be retracted or folded during trans- ?oxtation. 

### (3) The purpose of wheels and axles on a modular unit is CU :~iuvide an inexpensive means of transporting the unit from :he factory to the dealer's lot and then to the building site. !'he purpose of wheels and axles on a mobile home 

### is toprovide
a chassis for movement upon a highway. The structure in question here may very wellbe characterized ds ,nodularunder the limited definition provided by defendants. !hd structure alsomeets the definition of a mobile home under "lorltana statutory law. The Montana legislaturehas given the donstruction and Maintenance Division of the Montana Department
II .JLAdministration authority to adopt a definition of mobile home" for purposes of adopting and enforcing building codes within the state. Sections 69-2105(14), 69-2122, R.C.M. 1947. Pursuant to that authority the Construction and Maintenance Division adopted this definition:

### "(13) Mobile home means any dwelling unit larger than two hundred fifty-six (256) square feet inareawhich 

### is eitherwholly or in substantial part manufactured at an off-site location and any movable orportable dwelling over thirty-two (32) feet in length and over eight (8) feet wide, constructed tobe towed on its 

### own chassis and designed without a permanent foundation foryear-round occupancy, which includes one (1) ormore components that can be retracted fortowing purposes and subsequently expanded for additional capacity, or of two (2) ormore units separately towable but designed tobejoined into one (I) integralunit, aswell asa portable dwelling composed 6f a singleunit." (Emphasis supplied). MAC 

### 2-2.10(6)-S10220 (13). See alsoMAC 

### 2-2.10(6)- S10180. Defendants argue the statutes and cases on the subject predate the modular home concept and the term "modular" should be 

### construed. This 

### is probably true, however, the construction should come from the legislature. There aremany reasons for this, inaddition tothe fact thisrecord doesnot contain expert testimony of such depth orquality topermit judicial definition. JerryHanson, salesman for Great Western Trailer Sales, who sold the double wide toGlenn Pryor, does not get into the subject firmenough orwith thekind of evidence that could take it 

### out of the Montana statutary definition. Defendants raise the issue that plaintiffs' complaintwas not properly verified. The objection placed in the district court was that the verification was on information and belief. The district court took the motion under advisement and asked for briefs and proceeded with thehearing. The district court thereafter ruled fordefendants on the merits and dissolved the temporary injunction. This had the legal effect of a denial of defendantsf motion todismiss plaintiffsf complaint. This denial of defendantsf motion is 

### an appealable order and cannot be reviewed on appeal from thejudgment on the merits. 

### LittleHorn StateBank v. Gross, 89Mont. 472, 476, 300 P. 

### 277. In any event, the verification requirement of section 93-4205, R.C.M. 

### 1947, 

### isgenerally conceded tobe for the purpose of 

### insuring good faithand truthfulness on the part of the complainant. Butte & 

### Boston Consolidated Mining Co. 

### v. Montana Ore::he complainant testified under dath on the matters contained
iri the complaint and at thisjuncture the issuewould become

We Find insufficient credible evidence to support the cr~a!.~ciurt.The judgment 

### isreversed and remanded with direction ::cj enter judgment for plaintiffs. 

# /? 

# LL&
Justice



# 4- M Justices

-- V ~dn. Bernard Thomas, ~iitrict .Tudgc, sitting in place of Chief 

### Justice James 

### T. Harrison.