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TSG Tulsa Retail, L.L.C. v. Independent School District #9 of Tulsa County

Court of Appeals of Oklahoma, Division I

April 20, 2018

TSG TULSA RETAIL, L.L.C., Plaintiff/Appellant,
v.
INDEPENDENT SCHOOL DISTRICT #9 OF TULSA COUNTY, OKLAHOMA, Defendant/Appellee.

          Mandate Issued: 07/18/2018

          APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE DANA KUEHN, JUDGE.

          S. Douglas Dodd, Tom Ferguson, Jon Brightmire, Tulsa, Oklahoma, for Appellant,

          Douglas Mann, Cheryl Dixon, Tulsa, Oklahoma, for Appellee.

          LARRY JOPLIN, JUDGE.

         ¶1 Appellant, TSG Tulsa Retail, L.L.C. (TSG), seeks review of the district court's grant of Appellee's, Independent School District #9 of Tulsa County, Oklahoma (the School District), motion for summary judgment, granted by order of the district court on March 6, 2017. TSG sought declaratory, injunctive and related equitable relief relating to the School District's use of a mutual access easement that facilitates traffic flow in and around Flynn Plaza in south Tulsa, Oklahoma. In granting the School's motion for summary judgment, the district court determined the School District's use of the mutual access easement to facilitate traffic from a neighboring property was reasonable and provided for in the deed of dedication. Further, the court determined the School was not burdening the servient estate (TSG's property) by sending school traffic over lot 5 to the mutual access easement. The court also found the road over lot 5, used to access the easement, was appropriate at the present time. The court concluded by finding the amended easement restriction did not preclude lot 5 from being used for "school use." TSG now appeals the district court's grant of the School's motion for summary judgment.

         ¶2 In December 2014, TSG purchased two lots in the Flynn Plaza subdivision, lots 2 and 3. The School District owns lot 5, which is adjacent to lots 2 and 3. The School District purchased lot 5 in 2007 and completed a roadway extension over the lot in 2012. Other than the roadway extension, the school has constructed no other improvements on lot 5. Tulsa Union High School sits to the north and east of lot 5. The lot 5 roadway extension takes traffic from the high school property to the mutual access easement and eventually to lots 2 and 3 and beyond.

         ¶3 On October 16, 2015, TSG filed a petition against Independent School District #9 of Tulsa County requesting declaratory, injunctive and related equitable relief with respect to the School's use of lot 5 and the mutual access easement. In its first claim under the petition, TSG asked the court to declare that the use of lot 5 is limited to "Use Unit 11" of the City of Tulsa Zoning Code, which permits low intensity uses, such as office buildings. TSG also requested a declaration that consents given by the 2006 owners of lots 1, 2 and 4, purporting to consent to the amendment to the deed of dedication of Flynn Plaza, are ineffective and not binding on TSG, because the consents and the amendment were never signed nor approved by the Tulsa Metropolitan Area Planning Commission. In addition, TSG asked the court to declare the consents and amendment ineffective as they were not filed prior to TSG's acquisition of lots 2 and 3. [1] TSG requested the School District be enjoined from using lot 5 for school uses until the planned unit development (PUD) and the deed of dedication are amended as required.

         ¶4 In the second claim of the petition, TSG requests the court to declare the School District is not permitted by the deed of dedication and the PUD to use lot 5 to provide access for the high school to and from 71st Street South. TSG also requests the School District be enjoined from using the easement to provide access to and from 71st Street South, or order the School District to refrain from overburdening the easement and exceeding the intended scope of the easement. TSG's third claim asks the court to declare that the existing site plan does not allow traffic circulation onto Flynn Plaza from lot 5 as the School District is currently doing and requests an injunction to prevent the School District from allowing traffic to circulate from the Union School campus to Flynn Plaza.

         ¶5 The School District filed a motion for summary judgment on September 15, 2016, asserting the easement is governed by the deed of dedication and under the terms of the deed the school has an absolute right to use the mutual access easement and to continue to use it in its current capacity. The School District also claimed it was not using lot 5 in an unlawful manner as alleged by TSG. Finally, the School District argued it had been using the easement in a manner consistent with its current use before TSG purchased lots 2 and 3 and TSG chose to complete its purchase of the lots anyway, indicating that the School District's use was not so burdensome as to prevent TSG's purchase. [2]

         ¶6 The appellate court will review the trial court's summary judgment decision under a de novo standard. This means the appellate court will review the entire summary judgement record without deference to the lower court and affirm the grant of summary judgment if the appellate court determines there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963.

         ¶7 The mutual access easement in the deed of dedication reads as follows:

D. Mutual Access Easements
The owner hereby grants and establishes perpetual non-exclusive mutual access easements depicted on the accompanying plat as "Mutual Access Easement" for the purposes of permitting the owner of each lot, their grantees, tenants, invitees, guests, successors and assigns to have vehicular and pedestrian access and passage within FLYNN PLAZA and to and from E. 71st Street South over, on and across the areas within each lot subject to a mutual access easement and to permit access to and from the properties to the East and West of FLYNN PLAZA. The mutual access easements shall be for the use and benefit of the owners of each lot within FLYNN PLAZA and their grantees, tenants, invitees, guests, successors and assigns, and shall be appurtenant to the ownership of each lot. Governmental agencies and the suppliers of utility services to FLYNN PLAZA shall have the use of such easements for vehicular and pedestrian access to the lots within FLYNN PLAZA.

         ¶8 TSG argues the mutual access easement is an appurtenant easement, as stated in the deed of dedication itself, and that the School District is impermissibly treating the easement as an easement in gross. [3] RESTATEMENT (THIRD) OF PROPERTY (Servitudes) §4.11 cmt. b, (2000). The Restatement (Third) of Property comment provides that "unless otherwise provided an appurtenant easement cannot be used to serve property other than the dominant estate[, ]" which in this case is lot 5. Id. The Restatement comment states, [t]he rationale is that use to serve other property is not within the intended purpose of the servitude." Id.

         ¶9 For this reason, TSG argues the School District cannot use the appurtenant easement for the use of the Tulsa Union property that lies north and east of the dominant estate, because the Tulsa Union property is not the dominant estate. And the roadway extension which is on lot 5 and carries the traffic from the Tulsa Union property, over lot 5, to the mutual access easement, is ...


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