Russell v. Williams, No. 89569

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Writing for the Court: BUETTNER
• Citation: 1998 OK CIV APP 135,964 P.2d 231
• Parties: Allen E. RUSSELL, Plaintiff/Appellant, v. Joe S. WILLIAMS, Eva B. Williams, Ike W. Poor, and Vicki Poor, Defendants/Appellees. Court of Civil Appeals of Oklahoma, Division
• Docket Number: No. 89569,No. 3
• Decision Date: 28 April 1998

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964 P.2d 231 Allen E. RUSSELL, Plaintiff/Appellant,
v.
Joe S. WILLIAMS, Eva B. Williams, Ike W. Poor, and Vicki
Poor, Defendants/Appellees. No. 89569. Release for Publication by Order of the Court
of Civil Appeals of Oklahoma, Division No. 3. Court of Civil Appeals of Oklahoma,
Division No. 3. April 28, 1998.
As Amended June 1, 1998.

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Richard A. Williams, Pain and Garland, Anadarko, for Plaintiff/Appellant.

John P. Buzbee, Buzbee and Upchurch, Anadarko, for Defendants/Appellees Joe S. and Eva B. Williams.

Barry Squires, Carnegie, for Defendants/Appellees Ike W. and Vicki Poor.

BUETTNER, Presiding Judge.

¶1 Plaintiff/Appellant Allen E. Russell (Russell) appeals from the trial court's grant of summary judgment to Defendants/Appellees Joe S. Williams, Eva B. Williams (collectively, Williams), and Ike W. Poor and Vicki Poor (collectively, Poors). Russell filed his petition against the Williams and Poors April 25, 1996. Russell alleged that a modular home on land owned by the Williams, and being purchased by the Poors under a contract for deed, encroached on property owned by Russell. Russell also asserted that the location of the house trailer violated the restrictive covenants of the Fly Inn Resort No. 1. Russell requested that the court enjoin the Williams and Poors from maintaining the encroachment and order them to abate and remove the house trailer from Russell's property, as well as grant attorney fees to Russell. The Williams and Poors subsequently filed a motion for summary judgment on the grounds that Russell's claims were barred by the statute of limitations, laches, accord and satisfaction, and a previous adjudication. The motion for summary judgment was granted May 14, 1997. Because we find issues of material fact in dispute as to certain claims, we remand for trial.

¶2 In 1995 Russell purchased lots 3, 5, 15, and 16 in Block 2, Fly Inn Resort No. 1, part of the Rodger D. and Connie C. Willis Subdivision, NE/4 NE/4 SE/4 of Section 6-8N-12W in Caddo County. ¹ Russell purchased lot 3 from John and Donna Ricketson and John R. and Verna Bostick. Russell purchased lot 5 from Dale and Wanda Marie Smallwood.

¶3 The Williams had purchased lots 1 and 2 in the same block in 1983. The modular home at issue in this case was placed on lot 2 prior to the Williams' purchase. ² The

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Williams both testified that after purchasing their property in 1983 they enclosed the porches around the house and had a new roof put on. The Poors entered into a contract for deed with the Williams in 1991. The Poors extended a bedroom on the east side of the home sometime after acquiring possession.

¶4 Russell alleged in his petition that the modular home on lot 2 encroaches .8 foot over lot 5 (on the south edge of lot 2) and 1.7 feet on lot 3 (on the west edge of lot 2). Russell further alleged that the location of the modular home violated covenant 2 of the subdivision's restrictive covenants which provides that no building shall be located on any residential lot nearer than 5 feet from any side street line or any interior lot line. Relief requested by Russell included an injunction preventing the Williams and/or Poors from maintaining and occupying the encroaching home and requiring them to abate or remove the home from Russell's property.

¶5 In its order granting summary judgment, the court simply stated that there is no substantial controversy of any material fact and that the Williams and Poors are entitled to judgment as a matter of law. The court dismissed Russell's petition with prejudice. ³

¶6 Summary judgments will only be affirmed when it is apparent from the record presented to the trial court that there is no substantial controversy of material fact and that one party is entitled to judgment as a matter of law. 12 O.S.1991 Ch. 2, App., Dist. Ct. Rule 13(e); Seitsinger v. Dockum Pontiac, Inc., 1995 OK 29, 894 P.2d 1077. When summary judgment is granted based on affirmative defenses, the record must show no substantial controversy as to facts that are material to the affirmative defense, and that the facts and inferences that may be drawn from them are in the defendant's favor. Daugherty v. Farmers Cooperative Association, 1984 OK 72, 689 P.2d 947, 949. The court did not state the grounds on which summary judgment was granted. We therefore determine whether summary judgment was proper under any of the grounds alleged in the Williams' and Poors' motion.

¶7 The Williams' and Poors' first proposition in support of summary judgment is that Russell's claim, that they have violated restrictive covenant 2, is barred by the statute of limitations. ⁴ A covenant is in the nature of a contract and when a covenant is breached it confers the same right of action as for any other contract. Ball v. Coyle, 108 Okla. 30, 233 P. 750 (1925). The statute of limitations for breach of contract is five years. 12 O.S.1991 § 95(1); Mounts v. Parker, 1986 OK 66, 727 P.2d 594. The evidence established that the Williams extended the size of the modular home in 1983. Russell did not file his petition until 1995. Certainly, the limitations period had run for the violation of covenant 2 occurring in 1983. Ike Poor testified that when the Poors took possession of the modular home in 1991 they extended a bedroom on the east side, but that it did not extend the exterior walls of the home. The encroachments are on the south and west sides of the home. We find therefore that there is no controversy of material fact as to whether the statute of limitations had run on the breach of covenant claim based on the modular home being situated less than five feet from any interior lot

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line. The trial court's order with respect to this claim is affirmed.

¶8 The Williams' and Poors' second ground alleged in support of summary judgment is that the statute of limitations has also run on Russell's encroachment claim. The Williams and Poors assert that the encroachment is a trespass which has a two year limitations period. 12 O.S.1991 § 95(3)....