Martin Coker LASSITER, Petitioner, v. Elmer BLISS et ux., Respondents, 559 S.W.2d 353

McGEE, Justice. This is a suit for a permanent injunction, brought by Martin Coker Lassiter, to enjoin Elmer Bliss from maintaining a mobile home on a lot in the Memorial Park Addition of Kermit, Texas due to the restrictive covenants of the addition. The trial court, without a jury, granted the permanent injunction. The court of civil appeals reversed and rendered the judgment of the trial court and denied Lassiter any relief being sought. 545 S.W.2d 571. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Bliss purchased lot 13, block 7, in the Memorial Park Addition on May 24, 1975 from Jimmy K. Stroud. Stroud told Bliss at the time of sale that the restrictive covenants of the Addition prohibited trailers and “that the mobile home could not be put on that property.” Bliss lived across the street from the mobile home’s location and intended to either rent it or let his mother-in-law live in it.

Stroud showed Bliss a copy of the restrictions at the time of sale, which provides in pertinent part: No trailer, basement, tent, garage or temporary quarters shall at any time be used as a residence on any portion of said Memorial Park Addition. Lassiter resides on the lot adjacent to where Bliss seeks to put the mobile home. Lassiter’s attorney told Bliss about the restrictive covenants and Lassiter’s intention to enforce the covenants on the day Bliss put the mobile home on the lot.

Bliss testified that when he talked to Lassiter’s attorney the wheels were off of the mobile home and he was in the process of blocking it up. The record discloses that the mobile home is 12 feet wide, 65 feet long, and is connected to water, but has not been connected to a sewerage system; it is unclear whether or not the electricity has been hooked up. The record also discloses that a mobile home park is located within viewing distance of the lot in question but outside of Memorial Park Addition. We hold that the restrictive covenant in this ease prohibited Bliss from putting the mobile home on the lot.

In Bullock v. Kattner, 502 S.W.2d 828 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.), a party moved a mobile home into a subdivision and thereafter removed the wheels, connected water pipes, electric lines, and put blocks under it as a foundation. The restrictive covenant sought to be enforced provided: No trailer, basement, tent, shack, garage, barn or other outbuildings erected in this subdivision shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence.

The court in Bullock held that the restriction proscribed trailers used as residences temporarily or permanently and held as a matter of law that a mobile home with the wheels removed, placed on blocks and hooked to lights and water is still a trailer. In Phillips v. Zmotony, 525 S.W.2d 736 (Tex.Civ.App.—Houston [14th Dist.]), rev’d per curiam, 529 S.W.2d 760 (Tex.1975), the court of civil appeals construed the following restrictive covenant to preclude mobile homes or trailer houses. The restrictive covenant stated in pertinent part: 3.

Except as herein provided, no part of said tract shall be used for anything other than residential purposes . 6. No trailer, . . placed on any part of said tract, shall at anytime be used as a residence, nor shall any residence of a temporary character be permitted. Zmotony, the party seeking to maintain the mobile home, received notice of the restrictions at the time the mobile home was being pulled by a truck to the lot. Subsequent to the notice the mobile home was moved onto the lot.

The mobile home, which was 14 feet wide and 80 feet long, was connected to a private water supply, the wheels and the trailer tongue were removed, a metal skirt was installed around the bottom of the mobile home, the mobile home was put on concrete blocks and anchored to the ground with “tie downs.” Zmotony had contracted for electric power and installation of a septic tank. Phillips sought a temporary injunction prohibiting the mobile home, which was denied by the trial court. The court of civil appeals reversed and remanded the cause, stating: [T]he intent of the restrictions are clear.

The 67.61 acres of land is to be used only for residential purposes. No trailer is to be used as a residence. The mobile home is a trailer and is excluded by the restrictions. 525 S.W.2d 736, 739. This court, pursuant to Texas Rules of Civil Procedure 483, granted the writ and without hearing oral argument reversed the court of civil appeals because the evidence raised the question of whether the covenant had been waived. 529 S.W.2d 760, 762. The present case is distinguishable because here the trial judge granted the injunction and waiver of the covenant is not asserted.

We hold that the intention of the restrictive covenant in the present case was to prohibit trailers from being used as residences “at any time,” whether as a temporary or permanent residence. Under the Bullock and Zmotony cases, we hold that the mobile home in this case was a “trailer” and was prohibited by the restrictive covenant. The term “trailer” is to be understood in its usual meaning regardless of whether it is referred to or described as a house trailer or mobile home. See Jones v. Beiber, 251 Iowa 969, 103 N.W.2d 364 (1960); Mouille v. Henry, 321 So.2d 377 (La.App.1975); Timmerman v.

Gabriel, 155 Mont. 294, 470 P.2d 528 (1970); Van Poole v. Messer, 19 N.C.App. 70, 198 S.W.2d 106 (1973); cf. Village of Harriman v. Kabinoff, 243 N.Y.S.2d 210 (Sup.Ct.1963); Astoria v. Notwang, 221 Or. 452, 351 P.2d 688 (1960). Bliss relies on Crawford v. Boyd, 453 S.W.2d 232 (Tex.Civ.App.—Port Worth 1960, writ ref’d n. r. e.), and contends that his mobile home should be allowed to remain on the lot. Crawford sued Boyd to enforce restrictive covenants of a subdivision in Denton County, Texas. The restrictive covenants there provided: 2. No shacks or tents shall be permitted on this property . . . .

Trailer homes are permitted on lots approved for trailers, being 33 through 54, both inclusive, and trailers may not be older than 1955 models. 6. All lots shall be residence lots and shall not be used for business, except lots No. 1, 55, 56, 57, 58, 59, 60, 61, 95, 96, 124 and 123, which each may be used for a bona-fide business. All other lots shall be residence lots only and no trailer homes shall be permitted thereon, except as provided in restriction two hereinabove, except that lots 33 through 54, inclusive, may be permitted for trailers, not older than 1955 models as set out in restriction No.

Two hereinabove. . Boyd owned several lots in the subdivision including lots 56, 57, 58, 59, 89 and 90. Boyd and his family lived in a house on lots 89 and 90 which burned in August 1967. Boyd then contracted with a mobile home manufacturer to build a building 12 feet wide and 65 feet long. Boyd built a concrete foundation for the building consisting of four slabs of reinforced concrete about 12 feet long. Boyd also built and installed a large septic tank to be used in connection with the building.

It is important to note that the building was built to Boyd’s specifications and was fabricated without axles or wheels. The structure was delivered by placing wheels and axles under the building and pulling it with a special truck that had a fifth wheel. The wheels and axles were taken out from under the building, and it was placed on the concrete foundation. The company then took the wheels and axles back with them. Subsequent to delivery, Boyd built a 12 foot by 16 foot room onto the building and poured a 12 foot by 20 foot foundation in front of the structure which Boyd hoped to use as a rumpus room.

The buildings were tied down with cables and could not be moved without damaging them materially. The trial court rendered judgment for Boyd and filed no findings of fact and conclusions of law. The court of civil appeals affirmed the trial court, stating: It is settled in Texas that in a non jury trial where findings of fact and conclusions of law are not requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup., 1968). . . .

In such a case the trial court’s judgment implies that all necessary fact findings were made by that court in support of the judgment. In determining whether there is any evidence to support the judgment and the implied findings of fact incident thereto the appellate court can consider only that evidence that is most favorable to the issue and must disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). 453 S.W.2d at 233. The court of civil appeals also noted that the physical design of the structure did not include axles or wheels.

The court stated: The structure complained of was built by a mobile home company and from its description it looked a lot like a mobile home in that it was 12 feet wide and 64 feet long, with a wooden frame and with the exterior siding of aluminum. But it did not have axles or wheels. The owner never intended to use it as a trailer or as a vehicle. He bought it for the purpose of putting it on his lots, affixing it to his realty, and he says his intentions are to use it from now on as a home for himself and family at the location where it has been placed.

It is tied to the ground with cables and connected to the septic tank and has become a part of the real estate. The physical structure of the building involved in the Crawford case is substantially different from the structure of the trailer house in our case. The additions Boyd made to the building also serve to distinguish the Crawford case from the present case. In addition, the court of civil appeals was required to indulge in every presumption that the facts supported the findings of the trial court. We do not think that the Crawford case is authority for the proposition that a mobile home is not a trailer.

Bliss also relies on the case of Hussey v. Ray, 462 S.W.2d 45 (Tex.Civ.App.—Tyler 1970, no writ). Hussey sought to enforce a restrictive covenant and enjoin Ray from maintaining a mobile home on a lot in the subdivision where Hussey lived. The restrictive covenant provided: No trailer, tent, shack, stable or barn shall be placed, erected or be permitted to remain on any lot, nor shall any structure of a temporary character be used at any time as a residence. [Emphasis added]. Ray put the trailer on the lot, removed the wheels and placed it upon a concrete block foundation.

Ray obtained connections to city water lines, electric power lines, telephone lines and installed a permanent type sewerage system. The trial court entered a

summary judgment in favor of Ray, thus denying Hussey any injunctive relief. The court of civil appeals affirmed the trial court and held “that the primary purpose of the restriction, insofar as it relates to human habitation, was to prevent the property owner from using any temporary structure for a residence. . . . The use of a ‘trailer’ as a place of residence would likewise be prohibited if the same was temporary in nature.” The language in the restriction of the Hussey case differs substantially from the language in the present case.

The restriction before us at this time precludes trailers from being used as a residence “at any time” while the court of civil appeals construed the restriction in Hussey to preclude only those trailers used as a temporary residence. We do not believe that the Hussey case is dispositive of our question and specifically disapprove the case if it conflicts in any way with our holding that Bliss’ trailer house or mobile home is a trailer. The restrictive covenant in the present case had the specific intent of prohibiting trailers from being used at any time as residences in the Memorial Park Addition.

We hold that Bliss’ mobile home was a trailer within the meaning of the restrictive covenant and Bliss is precluded from maintaining it in the Memorial Park Addition. Bliss asserts by cross-point that the trial court erred in failing to file findings of fact and conclusions of law pursuant to Texas Rules of Civil Procedure 296 and 297. The record reveals the judgment was announced in open court on February 16, 1976. Bliss filed his motion for new trial on February 25, 1976. On April 8, 1976, the trial court signed and entered the judgment in this cause.

Under Rule 306a the date of rendition of the judgment in determining the time to file a motion for new trial ran from the date the judgment was signed. The motion for new trial was filed prior to the signing of the judgment. Under Rule 306c the motion was not invalid but was deemed to have been filed on the date of the rendition of judgment, April 8, 1976. Pursuant to Rule 329b(3) the motion for new trial was overruled by operation of law 45 days later, on May 24, 1976.

On May 24, 1976, Bliss filed his first request for findings of fact and conclusions of law, which was within the ten-day filing period of Rule 296. The trial judge failed to file findings of fact and conclusions of law within the time period provided by Rule 297. Bliss timely filed his complaint of the failure of the trial judge to file findings of fact and conclusions of law on June 25, 1976. No findings of fact or conclusions of law have been filed in the record of this case.

Bliss’ assertion of error because of the failure to file findings of fact and conclusions of law cannot be sustained because there is nothing in the record to indicate that the requests for findings of fact were ever presented to the judge. The request for findings of fact and conclusions of law, as well as the subsequent complaint for failure to file under Rule 297, must be presented to the judge. Merely filing the request and complaint with the clerk is insufficient. Deweese v. Crawford, 520 S.W.2d 522, 527 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.); LaPlace v.

LaPlace, 390 S.W.2d 381, 382 (Tex.Civ.App.—Texarkana 1965, no writ); Spradlin v. Rosebud Feed & Grain Co., 294 S.W.2d 301, 302 (Tex.Civ.App.—Waco 1956, writ ref’d n.r.e.); Birdwell v. Pacific Finance Corp., 259 S.W.2d 957, 958 (Tex.Civ.App.—Dallas 1953, no writ); 4 McDonald, Texas Civil Practice, § 16.06, at 15-16 (rev.ed. 1971). There being nothing in the record to show that the request or complaint was ever presented to the trial judge, there is no reversible error in failing to file the findings of fact and conclusions of law.

The judgment of the trial court must be affirmed if questions of fact exist as to the applicability of the covenant to Bliss’ mobile home. Since Bliss did not properly present his requests for findings of fact to the trial judge, all questions of fact are presumed found in support of the judgment. Buchanan v. Byrd, 519 S.W.2d 841, 842 (Tex.1975); Morris v. Texas Elks Crippled Children’s Hosp., Inc., 525 S.W.2d 874, 881 (Tex.Civ.App.—El Paso 1975, writ ref’d n.r.e.); Harcrow v. Reed, 425 S.W.2d 59, 61 (Tex.Civ.App.—Waco 1968, writ ref’d n.r. e.).

Where findings of fact and conclusions of law are not properly requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968); City of Dallas v. Furrh, 541 S.W.2d 271, 273 (Tex.Civ.App.—Texarkana 1976, writ ref’d n.r.e.); Durr v. Newman, 537 S.W.2d 323, 325 (Tex.Civ.App.—El Paso 1976, writ ref’d n.r.e.).

We have held that the restrictive covenant in this case precluded mobile homes from being used as residences in Memorial Park Addition, but even if a mobile home could become so affixed to the realty as to lose its status as a trailer, it must be presumed that the trial judge found that the mobile home in this case was still a trailer at the time of the suit. Bliss asserts that the trial court erred in proceeding to judgment on the basis of the hearing of February 16,1976, because proper notice was not given that the hearing was to decide the merits of the case.

The record indicates that on January 5,1976, all parties were present in open court for a hearing on a temporary injunction. Bliss sought a continuance which was granted subject to there being no more work done on the property. The court stated: “The court will set the day certain, not later than the month of February, in which a full blown hearing shall be had, and I can’t do that until after the docket call of January 12th.” Court was recessed for a few minutes while the calendar was checked.

Then the following was stated in open court: “The defendants are restrained from any further activity on the property in question until we have a full hearing on February the 16th, 1976, at 10:00 A.M. This court is in recess.” The judge recorded on his docket: “Case called. Continuance granted subject to the Def’s [sic] being restrained from any further action on property. Case set for 2/16/76 at 10 A.M.” On February 16, 1976, Bliss announced ready for a hearing on a temporary injunction.

The court stated that it had been announced in open court and agreed to by the parties on January 5, 1976, that the next hearing was to be a full hearing. The court stated that the hearing of February 16, 1976, was to be a full hearing on the merits. Bliss argues that under Rule 680 there was no notice or inadequate notice that the hearing was to be on the merits of the case. The parties agreed at the January 5, 1976, hearing that Bliss was to be temporarily restrained until the full hearing on February 16, 1976.

The judge announced in open court that a full hearing was to be held on February 16,1976, and noted on his docket “case set.” We hold that this was adequate notification that the subsequent hearing was to be a full hearing on the merits of the case. Bliss has failed to allege harm due to the notice given by the trial court and the record reveals that Bliss was represented by counsel and called witnesses on his behalf. The record does not reveal that Bliss was prejudiced in any way. The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

Bliss is therefore enjoined from maintaining his mobile home in the Memorial Park Addition. Dissenting Opinion by SAM D. JOHNSON, J., in which STEAKLEY and POPE, JJ., join. . All references to Rules will be Texas Rules of Civil Procedure.