No. 13168 

IN THE 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 

Decided h!AM 3 . 
?~r. Justice Gene 3. 3aly .lelivereJ rhe Jpinion 3i- rile Lourt. 

This is an appeal from a judgment of the district court, 

5ilver 3ow County, dissolving a temporary restraining order and 

hdlding defendants not in violation 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 arestrictive covenant. The complaint alleged that 

{)Laintiffs Betty and Louis Delaurentis, husband and wife, were 

the owners of Lot No. 6, McNeece Addition to the city of Butte, 

'vlontana. That defendants L. E. Vainio and Helen Vainio were the 

Jwrlers of Lot No. 5, McNeece Addition. it was alleged defendant 

3~enn Pryor made a commitment to purchase Lot No. 5 from defendants Vainio and intended to install a "~arrington" double wide 

trailer upon a permanent foundation on Lot No. 5. The complaint 

further alleged that the grant deeds to both lots contained a 

restrictive covenant that provided: 

"NO trailers or mobile homes shall be used 

as a permanent residence on said premises. I I 

Upon an allegation that the violation of the covenant 

would cause great and irreparable injury to plaintiffs, 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 to cease 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 entered judgment for defendants and dissolved 

the temporary restraining order. The court in its judgment and 

srder said: 

I I 9c ;I * the Barrington Home being purchased by the 

Defendant Glenn Pryor, and to be erected upon the 

Lot owned by the Defendants [Vainio] is not a trailer 
or mobile, but is a modular home or house and 

therefore is not in violation of the restrictive 

covenant * * *. l I 

Plaintiffs appeal from the j udgmen t . 

Numerous issues are presented for review by this Court, 

but the controlling issue is whether the structure intended to be 

placed on Lot No. 5 is a trailer or mobile home. Was there 

sufficient credible evidence to support the judgment of the 

trial court, which was rendered without findings .of fact or 

conclusions of law? 

The structure in question is known 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 is a 

frame construction. Each unit was received from the manufacturer 

with wheels and axles and was sold to Pryor with the wheels 

and axles intact. The structure was manufactured in Idaho and 

was certified by the Recreation and Mobile Home Department of that 

state. The structure was purchased from Great Western Trailer 

Sales in Butte, Montana, and is to be placed on a permanent concrete foundation. 

Defendants claim and the district court found, that the 

structure is a modular type home. Defendants give us in their brief 

on appeal, this definition of the word "modular", taken from the 

larest Merriam-ltrebster dictionary: "adj. relating to, or based 
JL Jimensions for flexibility and variety in use. If Defendants 

allege there are three differences between a modular home and 

a mobile home ; 

(1) A modular home can be constructed in duplicate 

cesilio~~ Jn the site by 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 

io not 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 to provide 

a chassis for movement upon a highway. 

The structure in question here may very well be characterized 

ds ,nodular under the limited definition provided by defendants. 

!hd structure also meets the definition of a mobile home under 

"lorltana statutory law. The Montana legislature has given the 

donstruction and Maintenance Division of the Montana Department 

I I .JL Administration 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 in area which 

is either wholly or in substantial part manufactured at 

an off-site location and any movable or portable dwelling 

over thirty-two (32) feet in length and over eight (8) feet 

wide, constructed to be towed on its own chassis and 

designed without a permanent foundation for year-round 

occupancy, which includes one (1) or more components that 

can be retracted for towing purposes and subsequently 

expanded for additional capacity, or of two (2) or more 

units separately towable but designed to be joined into 

one (I) integral unit, as well as a portable dwelling 

composed 6f a single unit." (Emphasis supplied). 

MAC 2-2.10(6)-S10220 (13). See also MAC 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 are many reasons for 

this, in addition to the fact this record does not contain expert 

testimony of such depth or quality to permit judicial definition. 

Jerry Hanson, salesman for Great Western Trailer Sales, who sold 

the double wide to Glenn Pryor, does not get into the subject 

firm enough or with the kind of evidence that could take it out 

of the Montana statutary definition. 

Defendants raise the issue that plaintiffs' complaint was 

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 the hearing. 

The district court thereafter ruled for defendants on the 

merits and dissolved the temporary injunction. This had the legal 

effect of a denial of defendantsf motion to dismiss plaintiffsf 

complaint. This denial of defendantsf motion is an appealable 

order and cannot be reviewed on appeal from the judgment on the 

merits. Little Horn State Bank v. Gross, 89 Mont. 472, 476, 300 

P. 277. In any event, the verification requirement of section 

93-4205, R.C.M. 1947, is generally conceded to be for the purpose 

of insuring good faith and 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 this juncture the issue would become 

We Find insufficient credible evidence to support the 

cr~a!. ~ciurt. The judgment is reversed and remanded with direction 

::cj enter judgment for plaintiffs. /? LL& Justice 

Justices 

M 4- 

-- V 

~dn. Bernard Thomas, ~iitrict .Tudgc, 

sitting in place of Chief Justice 

James T. Harrison.