Cebuhar v. Bovaird, 96,144.

• Decision Date: 11 October 2002
• Docket Number: No. 96,144.,96,144.
• Citation: 2003 OK CIV APP 19,67 P.3d 348
• Parties: Frances O. CEBUHAR, Plaintiff/Appellee, v. William J. BOVAIRD, Marian Bovaird, William P. Huckin and Freda Huckin, Defendants/Appellants, Newport Realty Corporation, an Oklahoma Corporation; H.J. Trinder, III, Deborah Trinder; Edward E. Packel, Kathryn D. Packel; Sooner Federal Savings and Loan Association; Western National Bank of Tulsa, a national banking association; Bank of Oklahoma, Broken Arrow, N.A., a national banking association; Ridgely M. Bond and Maxine V. Bond, Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

67 P.3d 348

2003 OK CIV APP 19

Frances O. CEBUHAR, Plaintiff/Appellee, v. William J. BOVAIRD, Marian Bovaird, William P. Huckin and Freda Huckin, Defendants/Appellants, Newport Realty Corporation, an Oklahoma Corporation; H.J. Trinder, III, Deborah Trinder; Edward E. Packel, Kathryn D. Packel; Sooner Federal Savings and Loan Association; Western National Bank of Tulsa, a national banking association; Bank of Oklahoma, Broken Arrow, N.A., a national banking association; Ridgely M. Bond and Maxine V. Bond, Defendants.

No. 96,144.

Court of Civil Appeals of Oklahoma, Division No. 1.

October 11, 2002.

Certiorari Denied December 18, 2002.

William P. Huckin, Jr., Tulsa, OK, for Appellants.

Louis Levy, and James F. Gassaway, Tulsa, OK, for Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Opinion by LARRY JOPLIN, Vice-Chief Judge:

¶ 1 Defendants/Appellants William J. Bovaird, Marian Bovaird, William P. Huckin and Freda Huckin (separately, the Bovairds and the Huckins, or collectively, Appellants) seek review of the trial court's order granting attorney's fees to Plaintiff/Appellee Frances O. Cebuhar (Appellee) as prevailing party on her successful claims challenging validity of certain covenants and restrictions affecting her real property. In this proceeding, Appellants assert Appellee is not entitled to an award of attorney's fees under the governing statutory authority, 60 O.S. § 856.

¶ 2 In 1950, L.D. and Laura McKay, owners of Lots 1, 2 and 3,¹ Block 1, Braniff Hills Addition to the City of Tulsa, conveyed Lot 3 to Rhea Burke by Warranty Deed containing restrictive covenants proscribing Burke's subdivision and sale of Lot 3 otherwise than as a "single tract," and the McKays' subdivision of "any of their remaining land abutting upon and adjacent to" Lot 3. In 1956, the McKays filed a "Restriction Agreement" imposing some limits on improvements to Lot 1:

1. No portion of the land ... described shall be used except for residential purposes.

2. No residence may be constructed on any portion of the land ... described which portion is less than one acre in area including any land subject to easements.

. . .

These covenants shall run with the land and shall be binding upon us and all persons claiming under us until August 1, 1976, at which time these covenants shall be automatically extended for successive periods of five (5) years, unless by vote of the majority of the then owners of the lands ... described, it is agreed to change the said covenants in whole or in part.

¶ 3 Notwithstanding the covenants contained in the conveyance of Lot 3, between 1956 and 1964, the McKays subsequently subdivided, sold and conveyed parts of Lots 1 and 2 to Appellee (and her husband, now deceased), the Bovairds, the Huckins' predecessor-in-interest, and the other individual defendants or their predecessors-in-interest. In a subsequent 1970 suit by Burke against the McKays and the other then owners of property in Braniff Hills, the district court vacated the covenants proscribing subdivision of Lots 1, 2 and 3 for failure of the McKays or any other grantee to demand compliance therewith. By that judgment, the district court also recognized the right of Appellee and Burke to mutual, reciprocal and exclusive use of Golden Pond, a small, specifically described lake located wholly upon Lot 3 and Appellee's portion of Lots 1 and 2.

¶ 4 In 1983, Appellee conveyed to Defendant Newport Realty Corporation all or part of her interest in Lots 1 and 2, in consideration for which, Defendant Newport executed a promissory note secured by a mortgage.

¶ 5 In 1984, the purported "majority of the owners of lands in Lot 1" executed and filed an amendment to the 1956 Restriction Agreement, striking the one-acre lot-size minimum. However, in a subsequent suit by Appellants and the other then owners, the district court vacated the 1984 amendment as ineffective.

¶ 6 In 1986, Appellants and some of the owners of the land in Lot 1, "being a majority of the owners," and after notice to the remaining owners of record, executed and filed an "Agreement Respecting Covenants" (ARC), whereby they "ratified, renewed and ratified" the terms of the 1956 Restriction Agreement. The ARC further specified:

4. No structure may be erected in or overhanging any part of the area presently occupied by Golden Pond, being defined as that part of Lot 1, Block 1 lying below 750.8 feet mean sea level, nor may the contours of that area be changed, nor may any part of that area be included in calculating the lot area for the purposes of paragraph 2 [the one acre minimum lot size restriction] hereof.

¶ 7 In 1988, Appellee commenced the instant action to foreclose her mortgage upon Defendant Newport's default. Appellee named Appellants as defendants who "may claim some right, title or interest in and to the mortgaged premises arising from" the 1986 ARC, and sought an adjudication of the superiority of her claim. One or more of the named defendants challenged the foreclosure and any attendant forced sale of the mortgaged parcel as an impermissible "lot-split," proscribed by both statute and prior rulings of the Tulsa County Metropolitan Planning Commission.

¶ 8 In 1990, the trial court granted foreclosure, and directed...