Opinion:Suburban Realty Co. v. Cantley, 2021 OK CIV APP 23
Subject matter:Reformation of Deed
Date Decided:May 27, 2021; Mandate Issued June 30, 2021.
Trial Court:District Court of Tulsa County; Judge Sellers
Route to this Court:Appeal of judgment after non-jury trial; Assigned to COCA, Division II
Facts:Developers filed a plat in 1966. The plat established all residential lots except for Block 9, a single commercial lot. The Deed of Dedication of the plat exempted Block 9 from the residential restrictions. The addition was replatted in 1989 as the Country Crossings Addition to the City of Bixby, Oklahoma. The Country Crossings plat maintained Lot 1, Block 9, consisting of just under two acres, the same as in the original 1966 plat. Lot 1, Block 9’s zoning on the Plat is CS “commercial shopping.” This CS zoning preceded the filing of the new 1989 plat. 
During the past years, Lot 1, Block 9 has been used for commercial purposes to sell fireworks. At one time, the owner of Lot 1, Block 9 posted a large “for sale” sign on the property and the sign noted the lots commercial zoning. Lo1 1, Block 9 is a corner lot abutting two arterial streets. There is no access to Lot 1 for the residential lots abutting it. Lot 1 is fenced on the residential sides. 
Suburban entered into a contract to sell Lot 1, Block 9 for $1,000,000. During the title examination, a title requirement was made to address paragraph D.1. of the Deed of Dedication of the Country Crossings Addition, which provides:
“D.1. No lot shall be used for business or professional purposes of any kind or for any commercial or manufacturing purpose.” 
Suburban brought this action and asked the trial court to reform the Deed of Dedication to insert “residential” before “lot” in paragraph D.1. Suburban. At trial, the surveyor of the plat testified that the intent was to preserve Lot 1, Block 9 as a commercial tract. A witness involved in the development of the Addition testified that the language in paragraph D.1. was a mistake and that Lot 1, Block 9 was always intended to be a commercial tract. Suburban also argued that Defendants/Appellants had waived or were estopped from asserting the restriction because they had never before taken any action to enforce the restriction. Defendants/Appellants argued, inter alia, that the statute of limitations bars Suburban’s action. 
The trial court found that a mistake had been made in paragraph D.1. of the Deed of Dedication and reformed the Deed of Dedication by inserting “residential” before “lot” in paragraph D.1.
Standard of Review:Mixed. An action to reform a deed is equitable and judgment will be sustained on appeal unless it is found to be against the clear weight of the evidence or is contrary to law or established principles of equity. Whether a contract is ambiguous and hence requires extrinsic evidence is a question of law, thus de novo review. Statutes of limitations issues are ordinarily reviewed as questions of law, thus de novo review. 
Analysis:A mistake was clearly made in paragraph D.1. by the use of the all inclusive language. It is clear that Lot 1, Block 9 is not a residential lot and never was intended to be a residential lot. Considering the Plat and Deed of Dedication together creates an ambiguity because two inconsistent results are possible for Lot 1, Block 9. “The presence of an ambiguity requires the court to resolve its meaning by determining what was intended.”
“The statute of limitation[s] cannot be pleaded as a defense to an action for reformation of a deed for mistake, if the party proceeding has been in continual, peaceable, and uninterrupted possession of the premises since the time of execution of the instrument. The statute of limitations is no defense to an action by a grantee in possession of real estate to have his deed reformed before his possession is disputed.” Hoskins v. Stites, 1938 OK 259. 
Defendants’/Appellants’ laches claim fails because the facts show that Defendants/Appellants contributed to the delay by not seeking enforcement of the all-inclusive language when Suburban openly used and advertised Lot 1, Block 9 as commercial property.
Vote:Wiseman, J. (author), Barnes, J., and Hixon, J. (sitting by designation), concur.
Other: “Joint Advice to the Court” filed after the opinion issued advising that case had been settled and that mandate should issue.