VRANESEVICH v. PEARL CRAFT

VRANESEVICH v. PEARL CRAFT
2010 OK CIV APP 92
Case Number: 106541
Decided: 10/09/2009
Mandate Issued: 10/08/2010
DIVISION IV
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

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

APPEAL FROM THE DISTRICT COURT OF WAGONER COUNTY, OKLAHOMA

HONORABLE BRUCE SEWELL, TRIAL JUDGE

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

Lawrence D. Taylor, Tulsa, Oklahoma, for Plaintiff/Appellant
Jon E. Brightmire, Amanda L. Thrash, DOERNER, SAUNDERS, DANIEL & ANDERSON, L.L.P., Tulsa, Oklahoma, 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

¶4 The proper construction of Vranesevich's petition is dispositive of this appeal. He seeks to enjoin Craft's alleged violation of the restrictive covenants.2

¶5 Craft relies on Russell v. Williams,

¶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,

[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.

¶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

¶8 O'Neal requires the same analysis. The property owners in O'Neal successfully enforced restrictive covenants limiting the affected property to residential use. Although the non-conforming use had begun more than ten years prior to the filing of the plaintiffs' suit, the defendants' statute of limitations argument was specifically rejected:

[C]ovenants restricting the use of property are generally held to be covenants running with the land, . . . such covenants are binding upon the successors in interest to the parties, although there was no privity of interest between such successors and the original parties. The portion of the restricted agreement would be as binding upon subsequent owners as on the original parties to the agreement.

O'Neal

¶9 From these authorities, it is clear that restrictive covenants, although created by private contract, create an interest in the property affected. That property interest is protectable as are other property interests. Consequently, an action to enforce restrictive covenants is an equitable action, which may be subject to equitable defenses,

II. The Nuisance Claim

¶10 Further, Vranesevich alleges that Craft is maintaining a nuisance. Although the restrictive covenants specifically prohibit such conduct, the maintenance of a nuisance may exist regardless of whether Craft has violated the restrictive covenants. Title

A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:

First. Annoys, injures or endangers the comfort, repose, health, or safety of others;
. . . .

For example, the operation of an otherwise lawful sanitation plant but with insufficient capacity or inadequate procedures may constitute a nuisance. See Theatre Estates, Inc. v. Village,

¶11 We find Moneypenney v. Dawson,

¶12 As noted by Vranesevich, Craft's motion for summary judgment does not address the nuisance issue. The nature of the alleged nuisance is not apparent from Vranesevich's petition or his objection to Craft's motion.

CONCLUSION

¶13 Although a restrictive covenant affecting the use of real property is created by contract, the property interest created thereby "runs with the land." Consequently, Vranesevich's suit to enjoin an alleged breach of restrictive covenants is not barred by the five-year statute of limitations applicable to written contracts. Likewise, he may maintain an action to abate a private nuisance, subject to any defenses Craft may assert. The judgment of the district court is reversed, and this case is remanded for further proceedings.

¶14 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GABBARD, P.J., and RAPP, J., concur.

FOOTNOTES