Van Poole v. Messer , 19 N.C. App. 70 ( 1973 )

198 S.E.2d 106 (1973) 19 N.C. App. 70

Edwin L. VAN POOLE et al.
v.
Violet D. MESSER and Ruth E. Dull.

No. 7319SC449.

Court of Appeals of North Carolina.

July 25, 1973.

Rutledge & Friday, by Clinton S. Forbis, Jr., Kannapolis, for plaintiff appellees.

Grant & Grant, by Adam C. Grant, Jr., Concord, for defendant appellants.

MORRIS, Judge.

Summary 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, 195 S.E.2d 689. 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. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

We 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 "mobile home" is a "trailer" 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 "mobile home" is a "trailer" within the intendment of the restrictive covenant. With this conclusion we take no issue. That the term "trailer" includes a "mobile home" 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 "[t]he term ``trailer' 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."

Although 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' assertions is, therefore, not a "genuine issue of fact". 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, 191 S.E.2d 361. Summary judgment would not, therefore, be precluded by the issue of whether a "mobile home" is a "trailer" within the meaning of the restrictive covenant placed on lot 39.

However, 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.

The 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 "temporary" in that restrictive covenant rendered a sensible and uniform interpretation of the restrictive covenant imposssible. In this case, the determinative issue in interpreting the restrictive covenant is merely whether a "mobile home" is a "trailer" within its meaning.

For the reasons stated, the entry of summary judgment is

Reversed.

BRITT and PARKER, JJ., concur.