IN THE DISTRICT COURT OF TULSA COUNTY,

STATE OF OKLAHOMA
FAIRWAY VILLAS at the
GREENS HOMEOWNERS
ASSOCIATION,
Plaintiff,
VICKI KRAFFT and DENNY
KRAFFT,
Intervenors,
vs.
JAMES R. VIRTUE and PAULA
J. VIRTUE,
Defendants.
JAMES VIRTUE and PAULA
VIRTUE,
Plaintiffs,
vs.
VICKI KRAFFT, DENNY
KRAFFT, and FAIRWAY VILLAS
at the GREENS HOMEOWNERS'
ASSOCIATION,
Defendants.
Case No.: CV-2010-296
DISTHICT COURT
may 2 9 2014
S^YHOWE SMITH, COURT CLERK
STATE OF OKIA TULSAGOINTY
Consolidated with
Case No.: CJ-2012-1906
Judge Linda Morrissey
JAMES and PAULA VIRTUE'S RESPONSE and OBJECTION to
MOTION to ENFORCE SETTLEMENT AGREEMENT
I. Fairway Villas and the Kraffts have asked the Court to
order "the wall be removed and cleanup paid for, at the
sole and exclusive cost of the Virtues." They base their
request on the alleged violation of the Settlement
Agreement. The Settlement Agreement listed ten items,
none of which involved a wall. Because the Kraffts and
Fairway Villas have demanded enforcement of a term
not included in and extrinsic to the Settlement
Agreement 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 the
law requires it to be written or not, supersedes all
the oral negotiations or stipulations concerning its
matter, which proceeded or accompanied the
execution 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superseded all prior negotiations, oral and written, and all other written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.
-2-
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 Settlement
Agreement, see: Exhibit No. 2, Virtues granted an easement to the Kraffts;
Exhibit No. 3, paid Mr. Holladay $125 for the Virtues' share of the cost
related to the easement; Exhibit No. 4, Virtues have moved the grill and
chiminea from the boundary wall; and Exhibit No. 5, Virtues' lawyer
signed 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.
-3-
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, and
superseded by, the terms of the executed written
agreement or instrument. Parol evidence cannot
vary, modify or contradict the terms of the
instrument. Where a contract is complete in itself
and, as viewed in its entirety, is unambiguous, its
language is the only legitimate evidence of what
the parties intended. The intention of the parties
cannot be determined from the surrounding
circumstances, but must be gathered solely from
the words used.
' 1983 OK 79, 669 P.2d 275, 279.
-4-
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.
-5-
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^.: 1B168
Jody R. Na,thaii^^p^A No.M1685
Lawrence WTZ^ingue, OBA No.: 9996
P.O. Box 702860
Tulsa, OK 74170-2860
918-592-7070 (Telephone)
918-592-7071 (Facsimile)
Attorneys for James and Paula Virtue
-6-
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of^e
foregoing document was deposited in the U.S. Mail on the day of
May 2014, addressed to the following, with proper postage thereon, fully
prepaid:
Thomas B. Baker
12315 E. 86'^ St. N.
Owasso, OK 74055
Attorney for the ICraffts
R. Scott Savage
2300 Mid-Continent Tower
401 S. Boston Ave.
Tulsa, OK 74103
Attorney for Kraffts and Fairway Villas
at the Greens Homeowners Assoc.
-7-
c '

... 'COISTTRACT OF COMPROMISE. SETTLEMENTAITO RELEASE
Parties: The parties to this Contract are Fkrvv^y Villas at the Greens
Homeo'wners* Association, hereinafterHOA,VlckiKxafft andDennyKxa[t, hereinafterICrafft and
JamesR. Virtue and Paala J. Virtue, hereinafter Virtue.
Subject oftheContract: Two cases arepen&igin'TuIsaCounty, namely CV-
2010-296 and CJ-2012-1906 whichhavebeenconsolidatedfor trial. Generally, the cases involve
issues, tights, andresponsibilities oftheHOAandlandowners witiiin FairwayVillas at theGreens.
Ali parties to this Contract have disputes over these issues. By signing below,
eachpartyrepresents that hehasreadand understoodthe compromises^pmdeandbysigning agrees
exhibit 1
APPROVED AS TO FORM AND CONTENT:
FAIRWAYVILLASAS THEGREENS
HOMEOWNERS' ASSOCIATIONby:
OFFICER
R. SCOTT SAVAGE,
Attorneyfor 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 FORMAND CONTENT:
FAIRWAYVILLASAS THE GREENS
HOMEOWNERS' ASSOCIATION by;
OFFICER
004/005
R, SCOTTSAVAGE,
AttoDifiy for HOA
pXutAJ.vmtufe
(
VICKIKRAFFT
D^JNYKRAFFI
adAJi
LB.STA
Attorneyfor Virtnfis
APPROVED Ai5:'rQ. FORMAND GONTENT;:
FAIRWAYmLAS ASTHE GREENS
Attorney for HOA
VICKlKRAFFT
DENNYKRASBt
Attorney for
JAMES R. VIRTUE:
PAULAj.VKTtfE
NEALE.STii.lMERj
Attorney 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 and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, do hereby grant, bargain, sell and convey unto DENNY
KRAFFT and VICKI KRAFFT, husband and wife, and their successors and
assigns ("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 Lot
Thirty-Six (36), Block One (1), FAIRWAY VILLAS
AT THE GREENS, a subdivision in the City of
Broken Arrow, Tulsa County, State of Oklahoma,
according to the recorded plat thereof, said strip,
piece or parcel being more particularly described as
follows, to-wit:
COMMENCING at a found 3/8" iron pin with
plastic cap (Lewis) marking the Northeast corner of
said Lot Thirty-Six (36); thence N 8623'54" W as
field measured (N 8630'33" W as platted), along
the North line of said Lot Thirty-Six (36), for a
distance of 43.70 feet to the POINT OF
BEGINNING; thence continuing N 8623'54" W as
field measured (N 8630'33" W as platted), along
the North line of said Lot Thirty-Six (36), for a
distance 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 S
8623'54" E, parallel with the North line of said Lot
Thirty-Six (36), for a distance of 68.15 feet; thence
N 336'06" E, perpendicular to the North line of
said Lot Thirty-Six (36), for a distance of 1.15 feet
to the POINT OF BEGINNING.
Reference is made to Sheets 1 through 3 of that
certain 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 gutter
and 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 with
GRANTEES' exercise of their easement rights granted hereunder.
The failure of GRANTEES to exercise any of the rights granted
hereby, in whole or in part, for any period of time shall not constitute a
waiver, release, abandonment, or limitation of the foregoing easement or
the rights, privileges, or authority granted herein.
TO HAVE AND TO HOLD the above described premises unto said
GRANTEES and their successors and assigns, forever. GRANTORS hereby
covenant and warrant unto GRANTEES, their successors and assigns, that
GRANTORS are the owners in fee simple of the above described premises
and that same is free and clear of all liens and claims whatsoever.
GRANTORS further covenant and warrant unto GRANTEES, their
successors and assigns, that GRANTORS and their heirs, successors, and
assigns, will forever defend the easement and all rights, privileges, and
authorities hereby granted against every person or persons who may
lawfully claim an interest in the above described property contrary hereto.
IN WITNESS WHEREOF, GRANTORSjet^heir hand and seal this
13 day of Apifit 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 the
identical persons who executed the within and foregoing instrument and
acknowledged to me that they executed the Easement as their free and
voluntary act and deed for the uses and purposes therein set forth.
Notary Public
My Commission Expires: ^ 7
My Commission No,: ^Soi-^
SUE SULLIVAN
Notary Public in and for
STATE OF OKLAHOMA
Commission #05002527
Expires March) 10 2017
Page 3 of 3
STAUFFER & NATHAN,PC
OPERATING ACCOUNT
P.O. BOX 702860
TULSA, OK 74170-2860
(918)592-7070
YORKTOWN BANK
5705 E. 71 ST ST. S.
TULSA, OK 74136
86-282-1031
OLLARS fi Sk!'
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*1025B9459*
INTHE DISTRICT COURT OF TULSA COtlNTY,
STATE OF OKLAHOMA
FAIRWAYVILLAS AT THE
r
GREENS HOMEOWNERS'
ASSOCIATION,
Plaintiff Case No.: CV.2010-296
Consolidateiljsith /^>v
T[Cia KRAFFT and DENNY
0aset5j::'^-2012-l9"66
<ifCRAl?n,
JudgeIV^omsseyl
Intervenors,
DISTRICT COURT
/:VS.
V
filed
JAMES R. VIRTUE and PAULAJ.
MAR 1 7 2014
VIRTUE,
S1Y^SMITH, CCXJAT CLERK
Defendants,
> STATEOFOKLA. TULSA COUNTV
MUTUALDISMISSALWITH PREJUDICE
COMES NOWthePlaintiff, Fairway Villas atthe'Greens Homeowners'
Association, by andtliroughitsattorneys R, Scott Savage andJeffrey C. Baum,
andtheDefendants^ James R. Virtue and PaulaJ. Virtue,.by andthroughtheir
attorneys Stauffer &Nathan, P.O., andthe Intervenors, Vicki Krafft andDenny
KrafEt, by and throu^their attorney Thomas E. Baker,^and hereby mutually
dismiss any and all causes of action brought by Plaintiff, Defendants, and
Intervenors with prejudice.
EXHIBIT 5
\
Javage/bBANo. 7926
Jef&ey C. Baum, OBANo. 16443
Savage BaumGlass &Hart, PLLC
401 S. Boston Ave, Ste 2300
Tulsa, OK 74103
Attorneys for Plaintiff
The Baic^LawFIRM,'pLLC
12315 E. 86th St. N.
Owasso, OK 74055
Attorney for Intervenors
, OBA No.
Jody R. Nathan, OBANo.
Nathaniel G. Parrilli, OBANo. 18798
Lawrence W. Zeringue, OBANo. 9996
Staotpejr &Nathan, P.O.
P.O. Box 702860
Tulsa, OK 74170 2860
Attorneys for Defendants
-2-