VRANESEVICH v. CRAFT, 106

• Decision Date: 14 June 2010
• Docket Number: 541. Released for Publication by Order of the Court of Civil Appeals of Oklahoma,No. 106,Division No. 4.,106
• Citation: 2010 OK CIV APP 92,241 P.3d 250
• Parties: David M. VRANESEVICH, Plaintiff/Appellant, v. PEARL CRAFT, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

241 P.3d 250
2010 OK CIV APP 92

David M. VRANESEVICH, Plaintiff/Appellant,
v.
PEARL CRAFT, Defendant/Appellee.

No. 106,541. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

Court of Civil Appeals of Oklahoma,Division No. 4.

Oct. 9, 2009.
Rehearing Denied April 23, 2010.
Certiorari Dismissed June 14, 2010.

241 P.3d 251

Appeal from the District Court of Wagoner County, Oklahoma; Honorable Bruce Sewell, Trial Judge.

241 P.3d 252

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Lawrence D. Taylor, Tulsa, OK, for Plaintiff/Appellant.

Jon E. Brightmire, Amanda L. Thrash, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, OK, for Defendant/Appellee.

JOHN F. FISCHER, Judge.

¶ 1 David M. Vranesevich appeals from the judgment of the district court granting Pearl Craft's motion for summary judgment. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S. Supp.2008, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Based on our review of the record on appeal and applicable law, we reverse and remand for further proceedings.

BACKGROUND FACTS

¶ 2 The parties own adjoining tracts of property in Wagoner County. Both properties are subject to restrictive covenants. The covenants were created in 1994 by Mercedes L. Bruss, Trustee of the Mercedes L. Bruss Trust UID, the owner of the properties, “to provide for the orderly development of [the properties] and to provide restrictive covenants for the mutual benefit of herself and her successors entitled to tracts of land hereafter created.” Craft acquired her property in 1999. In August 2002, Craft moved a manufactured home onto her property. Alleging this and other conduct constituted a breach of three of the restrictive covenants, Vranesevich filed suit to enjoin the alleged violations. Craft filed a motion for summary judgment arguing that her manufactured home was moved onto the property more than five years before the filing of his suit and, therefore, Vranesevich's suit was barred by the applicable statute of limitations. ¹ Craft's motion was supported by evidentiary material showing the manufactured home was originally located on her property in August 2002. The Journal Entry of Judgment recites that the home was located on Craft's property more than five years before the filing of Vranesevich's suit and granted Craft's motion for summary judgment.

STANDARD OF REVIEW

¶ 3 We review a trial court's grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, we examine the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears “an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. The summary process requires that we determine whether the record reveals only undisputed material facts supporting only a single inference that favors the movant's motion for summary judgment. Id. Further, when considering a motion for summary judgment, the evidence and the inferences to be drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50. “Only if the court should conclude that there is no material fact in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary judgment in its favor.” Copeland, 2000 OK 36 at ¶ 8, 4 P.3d at 699.

DISCUSSION

[1] ¶ 4 The proper construction of Vranesevich's petition is dispositive of this appeal. He seeks to enjoin Craft's alleged

241 P.3d 253

violation of the restrictive covenants. ²

I. The Restrictive Covenant Claim

¶ 5 Craft relies on Russell v. Williams, 1998 OK CIV APP 135, 964 P.2d 231, for the proposition that the restrictive covenants Vranesevich seeks to enforce constitute a contract subject to the five-year statute of limitations in 12 O.S.2001 § 95(1). Russell decided a dispute between adjoining property owners arising from the encroachment of a structure onto the property of other land owners and its location beyond the set-back restrictions in restrictive covenants applicable to the property. The plaintiff sought removal of the structure from his property and attorney fees. It was undisputed that the encroachment had occurred more than five years prior to the filing of the plaintiff's suit. ³ The Russell Court applied the five-year statute of limitations applicable to written contracts and affirmed summary judgment on the breach of restrictive covenant claim because: “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.” Russell, 1998 OK CIV APP 135 at ¶ 7, 964 P.2d at 234. ⁴

[2] [3] ¶ 6 Because we view the statute of limitations analysis differently than the Russell Court, we find summary judgment in this case is not warranted. The Russell Court correctly states that a restrictive covenant is a contract enforceable as any other contract. However, that particular type of contract creates an interest in real property. “It has been said that a restriction arising from a restrictive covenant is not an estate in land, as is a legal easement, but is purely a creature of equity arising out of contract.” Van Meter v. Manion, 1934 OK 615, ¶ 10, 38 P.2d 557, 559. Nonetheless, as explained in O'Neil v. Vose, 1944 OK 26, 193 Okla. 451, 145 P.2d 411:

[W]e are not unmindful of the legal right of owners of adjoining properties to bind themselves by enforceable contract, restraining the use of their property for an unlimited period of time, wherein each separate owner grants to the other owners a right in his property in the nature of an easement and which shall run with the land and be binding upon the several property owners as well as all future owners, who succeed to title with actual or constructive notice of such contract or agreement and its terms.

Id. at ¶ 14, 145 P.2d at 414. A restrictive covenant, therefore, creates a property interest

241 P.3d 254

although that interest is created by contract.

¶ 7 Vranesevich's central allegation in his petition asserts that Craft violated the restrictive covenants by placing the manufactured home on her property. Although Vranesevich could have sued for breach of the covenants when the home was placed on the property, the five-year limitation period in 12 O.S.2001 § 95(1) only applies to any claim for damages resulting from a breach of the restrictive covenants. See Indian Terr. Illuminating Oil Co. v. Rosamond, 1941 OK 410, 190 Okla. 46, 120 P.2d 349 (holding that an implied covenant in an oil and gas lease to protect the lessor from drainage was a continuing covenant and that an action for breach could be maintained beyond the limitations period although damages would be limited to the five years preceding the filing of the suit). See also Bowman v. Oklahoma Natural Gas Co., 1963 OK 197, 385 P.2d 440.

¶ 8 O'Neil requires the same analysis. The property owners in O'Neil successfully enforced restrictive covenants limiting the...