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Russell v. Williams6/1/1998
Mandate Issued: October 1, 1998
Court of Appeals of Oklahoma
ALLEN E. RUSSELL,Plaintiff/Appellant, v. JOE S. WILLIAMS, EVA B. WILLIAMS, IKE W. POOR, and VICKI POOR, Defendants/Appellees.
APPEAL FROM THE DISTRICT COURT OF CADDO COUNTY, OKLAHOMA
HONORABLE JAMES R. WINCHESTER, JUDGE
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
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.
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. 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.
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. The 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.
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.
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. 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
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