IN THE DISTRICT COURT OF TULSA COUNTY,STATE OF OKLAHOMA

FAIRWAY VILLAS at theGREENS HOMEOWNERSASSOCIATION,

Plaintiff,

VICKI KRAFFT and DENNYKRAFFT,

Intervenors,

vs.

JAMES R. VIRTUE and PAULAJ. VIRTUE,

Defendants.

JAMES VIRTUE and PAULAVIRTUE,

Plaintiffs,vs.

VICKI KRAFFT, DENNYKRAFFT, and FAIRWAY VILLASat the GREENS HOMEOWNERS'ASSOCIATION,

Defendants.

Case No.: CV-2010-296

DISTHICT COURT

may 2 9 2014

S^YHOWE SMITH, COURT CLERKSTATE OF OKIA TULSA GOINTY

Consolidated withCase No.: CJ-2012-1906Judge Linda Morrissey

JAMES and PAULA VIRTUE'S RESPONSE and OBJECTION toMOTION to ENFORCE SETTLEMENT AGREEMENT

I. Fairway Villas and the Kraffts have asked the Court toorder "the wall be removed and cleanup paid for, at thesole and exclusive cost of the Virtues." They base theirrequest on the alleged violation of the SettlementAgreement. The Settlement Agreement listed ten items,none of which involved a wall. Because the Kraffts andFairway Villas have demanded enforcement of a term

not included in and extrinsic to the SettlementAgreement their request should be denied.

This issue is controlled by 15 O.S. 137 and Oklahoma's parol

evidence case law. Section 137 states:

The execution of a contract in writing, whether thelaw requires it to be written or not, supersedes allthe oral negotiations or stipulations concerning itsmatter, which proceeded or accompanied theexecution of the instrument.

The purpose of the parol evidence rule is to give effect to the intention the

parties had to make their writing a complete expression of their

agreement, to the exclusion of all prior negotiations, whether oral or

written. The written contract is the only legitimate evidence of the parties'

intentions. Those intentions cannot be divined from extrinsic evidence -

they must be garnered from the four-corners of the contract. Pitco

Production Co. v. Chaparral Energy, Inc} The Contract of Compromise,

Settlement and Release ("Settlement Agreement") (Exhibit No. 1) is a

written contract, signed by all of the parties to the litigation and their

respective attorneys. Under the terms of 137, the Settlement Agreement

superseded all prior negotiations, oral and written, and all other written

' 2003 OK 5, ^ 14, 63 P.3d 541.

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documents, including the original Petitions and Answer - neither of which

asserted a claim concerning the "boundary wall."

The Settlement Agreement contained ten elements^, none of which

involved, discussed, or referenced in any manner the "boundary wall"

between the Virtues' house and the Kraffts' house. The reference by the

Kraffts and Fairway Villas to a "proposed paragraph 7" which was not

incorporated into the final, written Settlement Agreement is without

merit. "By force of the parol evidence rule pre-contract negotiations and

oral discussions are merged into, and superseded by, the terms of an

executed writing ... Parol evidence cannot vary, modify or contradict the

terms of an executed written agreement." (citation omitted) Am. Econ. Ins.

Co. V. Bogdahn.^

The Kraffts and Fairway Villas cite Coulter v. Carewell Corporation

of Oklahoma^ to support their argument. As quoted by the Kraffts and

Fairway Villas, Coulter states, "Second, in Oklahoma, a settlement

^ The Virtues have complied with the term of the SettlementAgreement, see: Exhibit No. 2, Virtues granted an easement to the Kraffts;Exhibit No. 3, paid Mr. Holladay $125 for the Virtues' share of the costrelated to the easement; Exhibit No. 4, Virtues have moved the grill andchiminea from the boundary wall; and Exhibit No. 5, Virtues' lawyersigned a Mutual Dismissal with Prejudice.

2004 OK 9, t 6, n.l2, 89 P.3d 1051.

^ 2001 OK CIV APP 36, t 13, 21 P.3d 1079.

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agreement 'constitutes a contract between the parties which should not

be set aside absent fraud, duress, undue influence, or mistake.'" (Internal

citations omitted)(emphasis added). Although Fairway Villas and the

Kraffts state "the parties actually went through two mediation procedures

which did help the parties eventually reach the settlement agreement

made," (Motion at p. 6) they make no claim (nor can they) that the

Settlement Agreement was obtained through fraud, duress, undue

influence, or mistake.

Because the Settlement Agreement is a written contract and neither

Fairway Villas nor the Kraffts have asserted fraud, duress, undue

influence, or mistake, there is no basis for setting aside, modifying, or

enlarging its terms. The Oklahoma Supreme Court, in Ollie v. H.E.

Rainbolt^ stated:

All previous oral discussions are merged into, andsuperseded by, the terms of the executed writtenagreement or instrument. Parol evidence cannotvary, modify or contradict the terms of theinstrument. Where a contract is complete in itselfand, as viewed in its entirety, is unambiguous, itslanguage is the only legitimate evidence of whatthe parties intended. The intention of the partiescannot be determined from the surroundingcircumstances, but must be gathered solely fromthe words used.

' 1983 OK 79, 669 P.2d 275, 279.

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The Settlement Agreement's terms are complete, clear, and unambiguous.

As the Oklahoma Supreme Court, in Coker v. Hudspeth,^ stated "that

where a written contract is complete in itself, and viewed in the entirety, is

unambiguous, its language is the only legitimate evidence of what the

parties intended." A plain reading of the Settlement Agreement shows the

parties did not intend to address or include the "boundary wall" in the

Settlement Agreement. The "boundary wall" was not part of the

Settlement Agreement and cannot now be added as an additional term, no

matter how much the Kraffts or Fairway Villas would like to do so.

Fairway Villas and the Kraffts' rely upon extrinsic evidence - draft

documents, e-mail, and the oral discussions surrounding signing the

Settlement Agreement - in their attempt to prove there was an agreement

about the height of the "boundary wall." Their reliance on extrinsic

evidence - pre-contract negotiations, documents (proposed paragraph 7

and e-mail), and oral discussions - to support their claim violates the parol

evidence rule and the 137. Therefore, it is proper for the Court to rule as

a matter of law that the claim is without legal support. Snow v. WinnJ

Conclusion

1957 OK 15, 308 F.2d 291, 294.

' 1980 OK 27, 607 P.2d 678, 682.

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The Contract of Compromise, Settlement and Release is a written

contract, complete in itself and, when viewed in its entirety, is

unambiguous. Because there has been no fraud, duress, undue influence,

or mistake, neither the Kraffts nor Fairway Villa may use extrinsic

evidence in violation of the parol evidence or 15 O.S. 137 to change or

expand the terms of the Contract of Compromise, Settlement and Release.

The Kraffts and Fairway Villas' Motion to Enforce Settlement Agreement

should be denied.

WHEREFORE, James and Paula Virtue pray the Court deny the

Motion to Enforce Settlement Agreement, that the Virtues be awarded

their costs, attorney fees, and all other relief the Court deems just and

proper.

Respectfully submitted,

STAUFFER & NATHAN, P.C.

Neal E. Stauffer, OBA N^.: 1B168Jody R. Na,thaii^^p^A No.M1685Lawrence WTZ^ingue, OBA No.: 9996P.O. Box 702860Tulsa, OK 74170-2860918-592-7070 (Telephone)918-592-7071 (Facsimile)Attorneys for James and Paula Virtue

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CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of^eforegoing document was deposited in the U.S. Mail on the day ofMay 2014, addressed to the following, with proper postage thereon, fullyprepaid:

Thomas B. Baker12315 E. 86'^ St. N.Owasso, OK 74055Attorney for the ICraffts

R. Scott Savage2300 Mid-Continent Tower401 S. Boston Ave.Tulsa, OK 74103Attorney for Kraffts and Fairway Villasat the Greens Homeowners Assoc.

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c '

... 'COISTTRACT OF COMPROMISE. SETTLEMENT AITO RELEASEParties: The parties to this Contract are Fkrvv^y Villas at the Greens

Homeo'wners* Association, hereinafterHOA,VlckiKxafftandDennyKxa[t, hereinafterICrafftand

JamesR. Virtue and Paala J. Virtue, hereinafter Virtue.

SubjectoftheContract: Two cases arepen&ig in'TuIsa County, namely CV-2010-296 and CJ-2012-1906 whichhavebeenconsolidated for trial. Generally, the cases involve

issues, tights, andresponsibilities oftheHOAandlandownerswitiiin FairwayVillas at theGreens.

Ali parties to this Contract have disputes over these issues. By signing below,eachpartyrepresents thathehasread and understood the compromises^pmdeandbysigning agrees

exhibit 1

APPROVED AS TO FORM AND CONTENT:

FAIRWAYVILLASAS THE GREENSHOMEOWNERS' ASSOCIATION by:

OFFICER

R. SCOTT SAVAGE,Attorney for HOA

VICKIKRAFFT

DENNY KRAFFT

THOMAS E. BAKER,Attorney for Kraffts

m

P^ULAJ.VIRTUI

teALE. STAUFFB' Attorney forVirtues

02/10/2014 15:38 FAX 31853270T1 STAUFFER LAU FIRM

APPROVED AS TO FORM AND CONTENT:

FAIRWAYVILLASAS THE GREENSHOMEOWNERS' ASSOCIATION by;

OFFICER

004/005

R, SCOTT SAVAGE,AttoDifiy for HOA

pXutAJ.vmtufe

(

VICKIKRAFFT

D^JNYKRAFFI

adAJi

LB.STAAttorneyfor Virtnfis

APPROVED Ai5:'rQ. FORM AND GONTENT;:

FAIRWAYmLAS AS THE GREENS

Attorney for HOA

VICKlKRAFFT

DENNYKRASBt

Attorney for

JAMES R. VIRTUE:

PAULA j.VKTtfE

NEALE.STii.lMERjAttorney fot Virtues

EASEMENT

KNOW ALL MEN BY THESE PRESENTS:

That JAMES R. VIRTUE and PAULA J. VIRTUE, husband and wife("GRANTORS"), for the sum of One Dollar ($1.00) and other good andvaluable consideration, the receipt and sufficiency of which is herebyacknowledged, do hereby grant, bargain, sell and convey unto DENNYKRAFFT and VICKI KRAFFT, husband and wife, and their successors andassigns ("GRANTEES"), a perpetual easement and right-of-way over, upon,across, through, and under the following described tract of land:

A strip, piece or parcel of land situated in LotThirty-Six (36), Block One (1), FAIRWAY VILLASAT THE GREENS, a subdivision in the City ofBroken Arrow, Tulsa County, State of Oklahoma,according to the recorded plat thereof, said strip,piece or parcel being more particularly described asfollows, to-wit:

COMMENCING at a found 3/8" iron pin withplastic cap (Lewis) marking the Northeast corner ofsaid Lot Thirty-Six (36); thence N 8623'54" W asfield measured (N 8630'33" W as platted), alongthe North line of said Lot Thirty-Six (36), for adistance of 43.70 feet to the POINT OFBEGINNING; thence continuing N 8623'54" W asfield measured (N 8630'33" W as platted), alongthe North line of said Lot Thirty-Six (36), for adistance of 68.15 feet; thence S 336'06" W,perpendicular to the North line of said Lot Thirty-Six (36), for a distance of 1.15 feet; thence S8623'54" E, parallel with the North line of said LotThirty-Six (36), for a distance of 68.15 feet; thenceN 336'06" E, perpendicular to the North line ofsaid Lot Thirty-Six (36), for a distance of 1.15 feetto the POINT OF BEGINNING.

Reference is made to Sheets 1 through 3 of thatcertain survey performed by Harden & Associates

exhibit 2

Surveying and Mapping, PC, Tulsa, Oklahoma,dated April 16, 2013 under Project No. 13-2008.

for the several purposes of pedestrian ingress and egress, and constructing,operating, maintaining, repairing, reconstructing, and removing a gutterand eve and all appurtenances related thereto. For the same consideration,GRANTORS further grant to GRANTEES the perpetual right, privilege,and authority to remove and to prevent the placement of anything which,in GRANTEES' judgment, interferes with or may interfere withGRANTEES' exercise of their easement rights granted hereunder.

The failure of GRANTEES to exercise any of the rights grantedhereby, in whole or in part, for any period of time shall not constitute awaiver, release, abandonment, or limitation of the foregoing easement orthe rights, privileges, or authority granted herein.

TO HAVE AND TO HOLD the above described premises unto saidGRANTEES and their successors and assigns, forever. GRANTORS herebycovenant and warrant unto GRANTEES, their successors and assigns, thatGRANTORS are the owners in fee simple of the above described premisesand that same is free and clear of all liens and claims whatsoever.

GRANTORS further covenant and warrant unto GRANTEES, theirsuccessors and assigns, that GRANTORS and their heirs, successors, andassigns, will forever defend the easement and all rights, privileges, andauthorities hereby granted against every person or persons who maylawfully claim an interest in the above described property contrary hereto.

IN WITNESS WHEREOF, GRANTORSjet^heir hand and seal this13 day ofApifit 2014.

Jame Viftile

Paula J. Virftie

Page 2 of 3

STATE OF OKLAHOMA

COUNTY OF TULSA

)ss.

)Before me, the undersigne^ notary public, in and for said county and

state, on this )3 day of^^^^^2014, personally appeared JAMES R.VIRTUE and PAULA J. VIRTUE, married persons, to me known to be theidentical persons who executed the within and foregoing instrument andacknowledged to me that they executed the Easement as their free andvoluntary act and deed for the uses and purposes therein set forth.

Notary Public

My Commission Expires: ^ 7My Commission No,: ^Soi-^

SUE SULLIVANNotary Public in and forSTATE OF OKLAHOMACommission #05002527Expires March) 10 2017

Page 3 of 3

STAUFFER & NATHAN,PCOPERATING ACCOUNT

P.O. BOX 702860TULSA, OK 74170-2860

(918)592-7070

YORKTOWN BANK5705 E. 71 ST ST. S.TULSA, OK 74136

86-282-1031

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