Date: 04-25-2016

Case Style: Lone Oak Homeowners' Association, Inc. v. Marshal Lowrance

Case Number: CJ-2015-6176

Judge: Patrica G. Parrish

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Matt Winton

Defendant's Attorney: Pro se

Description: Oklahoma City, OK - Lone Oak Homeowners' Association, Inc. sued Marshal Lowrance seeking injunctive relief to enforce condominium covenants:

1 . Plaintiff Association is an Oklahoma community association existing under the plat for Lone Oak Park Addition (the Addition), the Declaration of Conditions, Restrictions, Covenants and Easements for Lone Oak Park at Book 9317, Page I I 07, within the Oklahoma County Clerk's office, attached to this Petition as Exhibit A (the Declaration), the Articles of Association for Lone Oak Park Homeowners' Association, Inc., an Oklahoma Not for Profit Corporation filed at Book 9344, Page 1836 within the Oklahoma County Clerk's office, attached to this Petition as Exhibit B (the Articles of Association), the Bylaws of Lone Oak Park Homeowners' Association, Inc. dated May 28, 2004, attached to this Petition as Exhibit C (the Bylaws), and the Articles of Incorporation filed with the Oklahoma Secretary of State on May 28, 2004 (collectively, the Governing Documents). The Association is a duly organized Oklahoma nonprofit, nonstock corporation in good standing.

2. Defendant Marsha Lowrance (Lowrance) is a single person.

3. Defendant Lowrance is the owner of real estate within the Addition located at:
Lot Twenty-four (24) of Block Six (6) in LONE OAK PARK, an Addition to the City of Oklahoma City, Oklahoma County, Oklahoma, according to the recorded plat thereof.
(the Lot)

4. Pursuant to 12 O.S. §134 and 12 O.S. §1653, this Court has jurisdiction over the parties and issues, and venue within this honorable Court is proper.
FIRST CAUSE OF ACTION - BREACH OF DECLARATION

5. The Plaintiff incorporates each of the prior averments.

6. Plaintiff is charged by the Declaration with the operation of the Association, maintenance of the Common Areas, and enforcement of the Declaration within the Addition.

7. The Declaration Section 8.1.4 provides:
No above-ground-level swimming pool may be placed on any Lot.

8. Defendant was aware or should have been aware of this restriction prior to installing an above-ground-level swimming pool upon the Lot.

9. The presence of an above-ground-level swimming pool on the Lot is in violation of the
restrictions contained within the Declaration.

10. Plaintiff requested Defendant's removal of such pool pnor to litigation; however, the Defendant refused to bring her Lot into compliance with the plain and reasonable terms of the Declaration.

11. Therefore, the Plaintiff requests judgment declaring the Defendant in violation and breach of
the Declaration, judgment in an amount of the Plaintiff's damages, and an award of its attorneys' fees and costs.

SECOND CAUSE OF ACTION - INJUNCTION


12. The Plaintiff incorporates each of the prior averments.

13. The continued state of the Defendant's Lot will result in irreparable injury to the Plaintiff Association and its member-owners by way of diminution of property values and a continuing breach of the Declaration. The very breach of the Declaration by the Defendant serves as evidence of irreparable harm.

14. The harm if injunctive relief is not granted will outweigh the harm to the Defendant if injunctive relief is granted.

15. Plaintiff has no other adequate remedy at law.

16. Therefore, Plaintiff seeks injunctive relief from this Court, requiring the Defendant to bring its Lot into compliance with the Declaration; specifically, the Plaintiff seeks this Court to
require the Defendant to remove the nonconforming above-ground0level pool from the Lot, including an award of the Plaintiff s attorneys' fees and costs.


PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Comes now, the Plaintiff Lone Oak Park Homeowners' Association, Inc. (the Association) and submits its Motion for Summary Judgment. Because no material facts are in dispute as to the Plaintiff s causes of action for breach of declaration and a permanent and mandatory injunction, the Court may grant judgment as a matter of law.

BRIEF STATEMENT OF THE CASE
Plaintiff operates as a homeowners' association for the Lone Oak Park Addition to the City of Oklahoma City, Oklahoma County, State of Oklahoma (the Addition). Defendant is the owner of a lot within the Addition. At the outset of the development, a declaration of covenants, conditions, and restrictions (the Declaration) was filed with the Oklahoma County Clerk establishing typical real property restrictions. Specifically, the Declaration prohibits above-ground-level swimming pools. The prohibition for above­ ground swimming pools within the Addition is abundantly clear.
At present, a common development scheme exists regarding pools within the Addition due to the overall adherence of owners to the prohibition on above-ground-level

Plaintiff's Motion for Summary Judgment
Lone Oak Park HOA v. Lowrance; CJ-2015-6176

pools. When the Association became aware that the Defendant had installed an above­ ground swimming pool, the Plaintiff immediately made contact with the Defendant. The Defendant refused to remove the above-ground-level swimming pool. The Declaration provides for the Association to enforce the terms of the Declaration through actions at law and in equity. Accordingly, the present lawsuit ensued.

UNCONTROVERTED MATERIAL FACTS
(WITH CITATION TO THE SUMMARY JUDGMENT RECORD/EVIDENCE)

l . The Plaintiff exists as a duly organized and operating Oklahoma nonprofit corporation in good standing. Undisputed.
2. The Plaintiff administers the real property located within the Addition and wholly within Oklahoma County, State of Oklahoma, as an Oklahoma homeowners' association pursuant to 60 O.S. § 851, et seq., and was created and operates under the Declaration for the Addition, filed on May 17, 2004, at Book 9317, Page 1107 within the records of the Oklahoma County Clerk. Exhibit 1 - Declaration.
3. The Articles of Association for Lone Oak Park Homeowners' Association, Inc., an Oklahoma Not for Profit Corporation were filed on June 7, 2004 at Book 9344, Page 1836 within the Oklahoma County Clerk's office. Exhibit 2 - Articles of Association.
4. The Bylaws of Lone Oak Park Homeowners' Association, Inc. were executed on May 28, 2004. Exhibit 3 - Bylaws.
5. The applicable language of Section 8.1.4 of the Declaration provides:
No above-ground-level swimming pool may be placed on any Lot.

Exhibit 1.
6. Persons taking title to a lot within the Addition are automatically subject to the Declaration. 16 O.S. §16; 60 O.S. §852; Exhibit 1.





Plaintiff's Motion for Summary Judgment
Lone Oak Park HOA v. Lowrance; CJ-2015-6176

7. Defendant took title to Lot 24 in Block 6 of the Addition (the Lot) on May 8, 2013, the title instrument being recorded on May 14, 2013 at Book 12244, Page 1743. Exhibit 4 -Warranty Deed.
8. On or about June, 2015, the Defendant installed an above-ground-level swimming
pool on the Lot. Affidavit -Association President; Exhibit 5 -2015 Photo.
9. The Defendant's Lot is the only lot within the Addition with an above-ground­ level swimming pool. Affidavit -Association President.
10. The Plaintiff contacted the Defendant multiple times regarding the nonconforming above-ground-level swimming pool. Exhibit 6 -June 25, 2015 Letter; Exhibit 7
- September 23, 2015 Letter.


ARGUMENTS AND AUTHORITIES

ISSUE 1: THE COVENANTS FOR THE ADDITION PROHIBIT THE DEFENDANT'S ABOVE-GROUND SWIMMING POOL.

The Declaration was recorded at the outset of the Addition's development, and each lot owner within the Addition takes title subject to the Declaration. 16 O.S. §16. The filed Declaration itself serves as notice of the terms and conditions of owning property within the Addition. Warwick Estates Ass'n, Inc. v. Anderson, 1989 OK CIV APP 65.
Section 2.1 of the Declaration provides that any person taking title to a Lot within the Addition shall be subject to the restrictions and reservations set out within the Declaration.
The Declaration sets out the purpose for having such covenants, conditions, and restrictions, providing at Section 2.1 that the covenants exist "in furtherance of a general plan and scheme for the sale of Lots, and all of which are declared and established for the purpose of enhancing and protecting the value, desirability, and attractiveness of the Property." Among other covenants and restrictions, Section 8.1.4 of the Declaration provides in plain and unambiguous language that "No above-ground-level swimming pool may be placed on any Lot."


Plaintiff's Motion for Summary Judgment
Lone Oak Park HOA v. Lowrance; CJ-2015-6176

3 I P a g e

In the present case, the Defendant wholly failed to comply with the plain and unambiguous provisions of the Declaration when she installed an above-ground swimming pool on her lot. When the Plaintiff brought the covenant requirements to the Defendant's attention, the Defendant failed to remove the non-conforming swimming pool. Thus, the Defendant's lot is out of compliance with the Declaration.


ISSUE 2: A MANDATORY INJUNCTION IS THE APPROPRIATE REMEDY FOR THE COVENANT VIOLATION IN THIS CASE.

An injunction is the appropriate remedy for a breach of plain and unambiguous real property covenants. Mattson v. Fez/er, 1949 OK 230, 10; Twin Creek Estates, LLC
v. Tipps, 2011 OK CIV APP 53. Where the covenant to be enforced is plain and unambiguous and the facts are not in dispute, injunctive relief on summary judgment is appropriate. Parrish v. Flinn, 1996 OK CIV APP 104, 6, 18. In the absence of plain and unambiguous covenant language, context, meaning, and object of purpose are each factors in determining the scope and enforcement of a real property covenant. Bumgarner v. Pruitt, 1966 OK 254, 12.
Section 10.2.3 of the Declaration provides:
The Declarant, the Association, or any Lot Owner shall have the right to enforce by any proceeding at law or in equity all provisions of this Declaration. Failure by the Declarant, the Association or any Lot Owner to enforce such provision, covenant or restriction of this Declaration shall in no event be deemed a waiver of the right to do so thereafter.

Oklahoma courts have long held to the position that a mandatory injunction 1s an appropriate remedy for the violation of a structural real property restriction. In Moore v. White, 1958 OK 59, the defendants completed a structure in violation of applicable real property covenants despite possessing knowledge of such covenants. The trial court refused to grant a mandatory injunction for removal of the defendants' completed structure. Reversing the trial court, the appellate court held:




Plaintiff's Motion for Summary Judgment
Lone Oak Park HOA v. Lowrance; CJ-2015-6176

4 1 P a g e

The judgment is reversed and the cause remanded with directions to grant plaintiffs the issuance of a permanent injunction which is mandatory to the extent of requiring the defendants to remove the building or alter it in size and character so as to conform to the building restrictions within a fixed reasonable time.

Id. at 10.
Likewise, in Hull v. Bullard, 1969 OK 103, 20, the court held that a plain violation of a covenant should be remediated by a permanent injunction. In Hull, the defendants had expended some $5,000.00 to renovate their garage into a beauty parlor. Despite the defendants' expenditures, the court stated:
Defendants had notice of the restrictive covenants, by the recorded instrument and by actual knowledge, that lots in the addition were restricted to private residential dwellings exclusively. In disregard of this notice, they proceeded to expend their money in a project they knew or should have known was in violation of the restrictions. The present case is an example of an initial violation of a restrictive covenant which, if allowed to continue, would be an excuse on the basis for additional violations that would finally defeat the purpose of the restrictions and destroy the exclusive residential character of the addition.

Id. at 20.
In the present case, there exists no fact question that the Defendant is bound by the Declaration and had at least constructive, if not actual, notice that above-ground-level swimming pools were prohibited within the Addition. The Defendant chose to ignore the Declaration at her own peril. Accordingly, the Court should sustain the Plaintiff s motion and grant the requested injunctive relief requiring the Defendant to remove the nonconforming swimming pool.

ISSUE 3: THE PLAINTIFF SHOULD BE AWARDED ITS REASONABLE ATTORNEYS FEES AND COSTS.

Oklahoma law provides for Plaintiff s recovery of prevailing party attorney's fees. The Plaintiff's lawsuit and Defendant's defenses relate to real property covenants. Title 60, Section 856 provides in part that "in any action to enforce any restriction or covenant pursuant to the provisions of this section, the prevailing party shall be entitled to recover


Plaintiff's Motion for Summary Judgment
Lone Oak Park HOA v. Lowrance; CJ-2015-6176

reasonable attorney's fees to be fixed by the court, which shall be taxed as costs in the action." See also, Twin Creek Estates, at 14, 17.
In Cebuhar v. Bovaird, 2003 OK CIV APP 19, 113, the Court of Civil Appeals interpreted the term "prevailing party" in 60 O.S. §856 to refer to either a plaintiff or defendant within a lawsuit for either enforcement or non-enforcement of a real property covenant. This case falls squarely within 60 O.S. §856 and the appellate court's interpretation of 60 O.S. §856. See, Whitehall Homeowners Association, Inc. v. Appletree Enterprises, Inc., et al., 2013 OK CIV APP 77.
The Plaintiff expended time and money in its attempt to enforce the Declaration, caused solely by the Defendant's failure to adhere to the plain language of the Declaration. Accordingly, the Court should grant judgment to the Plaintiff and against the Defendant for an award of the Association's reasonable attorney's fees and costs.

Outcome: Motion for summary judgment granted.

Plaintiff's Experts:

Defendant's Experts:

Comments: