State ex rel. Tal v. City of Oklahoma City, 94,874.

• Citation: 19 P.3d 268,2000 OK 70
• Decision Date: 26 September 2000
• Docket Number: No. 94,874.,94,874.
• Parties: The STATE of Oklahoma, ex rel., Moshe TAL, resident taxpayer of The City of Oklahoma City; and Taxpayers Against Ripoffs ("T.A.R."), an association of more than ten resident taxpayers of the City of Oklahoma City, Oklahoma, Plaintiffs-Appellants, v. The CITY OF OKLAHOMA CITY, Oklahoma, a municipal corporation; Ronald J. Norick, in his personal and official capacity as the former Mayor of the City; Kirk D. Humphreys, in his personal and official capacity as the Mayor of the City; James E. Thompson, in his personal and official capacity as Assistant City Manager & former MAPS Director; William O. West, in his personal and official capacity as City's' Assistant Municipal Counselor; Daniel T. Brummitt, in his personal and official capacity as City's Assistant Municipal Counselor; The Oklahoma City Urban Renewal Authority, a public body corporate; Tiana P. Douglas, in her personal and official capacity as the Executive Director of Urban Renewal; Stanton L. Young, Fred Jones Hall, J. Larry Nichols, Warren Gardener, and James R. Tolbert III, in his personal and official capacities as Commissioners of Urban Renewal; William (Bill) O. Johnstone, in his personal and official capacity as the former Commissioner of Urban Renewal; Dan Batchelor, in his personal and official capacity as legal counselor of Urban Renewal; Bricktown Parking Investors, L.L.C., an Oklahoma limited liability company; Bricktown-Tmk/Hogan Parking, L.L.C., an Oklahoma limited liability company; Okc Athletic Club Limited Partnership; Bap-Bricktown, L.L.C., an Oklahoma limited liability company; Tmk/Hogan Entertainment, L.L.C., an Oklahoma limited liability company; Torchmark Corporation (TMK), an Alabama corporation; Torchmark Development Corporation, and TMK Income Properties, both subsidiaries of TMK; Dan Randolph (Randy) Hogan; Edwards Theatres Circuit, Inc., a California corporation; Oklahoma Gas & Electric Company (OG & E), an Oklahoma Corporation; The Benham Group, an Oklahoma corporation; and John Does 1-50; Defendants-Appellees.
• Court: Supreme Court of Oklahoma

19 P.3d 268

2000 OK 70

The STATE of Oklahoma, ex rel., Moshe TAL, resident taxpayer of The City of Oklahoma City; and Taxpayers Against Ripoffs ("T.A.R."), an association of more than ten resident taxpayers of the City of Oklahoma City, Oklahoma, Plaintiffs-Appellants, v. The CITY OF OKLAHOMA CITY, Oklahoma, a municipal corporation; Ronald J. Norick, in his personal and official capacity as the former Mayor of the City; Kirk D. Humphreys, in his personal and official capacity as the Mayor of the City; James E. Thompson, in his personal and official capacity as Assistant City Manager & former MAPS Director; William O. West, in his personal and official capacity as City's' Assistant Municipal Counselor; Daniel T. Brummitt, in his personal and official capacity as City's Assistant Municipal Counselor; The Oklahoma City Urban Renewal Authority, a public body corporate; Tiana P. Douglas, in her personal and official capacity as the Executive Director of Urban Renewal; Stanton L. Young, Fred Jones Hall, J. Larry Nichols, Warren Gardener, and James R. Tolbert III, in his personal and official capacities as Commissioners of Urban Renewal; William (Bill) O. Johnstone, in his personal and official capacity as the former Commissioner of Urban Renewal; Dan Batchelor, in his personal and official capacity as legal counselor of Urban Renewal; Bricktown Parking Investors, L.L.C., an Oklahoma limited liability company; Bricktown-Tmk/Hogan Parking, L.L.C., an Oklahoma limited liability company; Okc Athletic Club Limited Partnership; Bap-Bricktown, L.L.C., an Oklahoma limited liability company; Tmk/Hogan Entertainment, L.L.C., an Oklahoma limited liability company; Torchmark Corporation (TMK), an Alabama corporation; Torchmark Development Corporation, and TMK Income

Properties, both subsidiaries of TMK; Dan Randolph (Randy) Hogan; Edwards Theatres Circuit, Inc., a California corporation; Oklahoma Gas & Electric Company (OG & E), an Oklahoma Corporation; The Benham Group, an Oklahoma corporation; and John Does 1-50; Defendants-Appellees.

No. 94,874.

Supreme Court of Oklahoma.

September 26, 2000.

Rehearing Denied February 5, 2001.

Mary Gaye LeBoeuf, Oklahoma City, Oklahoma, for Plaintiffs-Appellants.

Melvin R. McVay, Jr., Robert N. Sheets, Heather L. Hintz, Ellen K. Spiropolous, Phillips, McFall McCaffrey, McVay & Murrah, Oklahoma City, Oklahoma, for Defendants-Appellees, Bricktown TMK/Hogan Entertainment, L.L.C., Bricktown Parking Investors, L.L.C., OKC Athletic Club, TMK/Hogan, Hogan Properties, and Dan Randolph Hogan.

John T. Edwards, Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, Oklahoma, for Defendant-Appellee, Torchmark Corporation.

Patrick M. Ryan, Phillip G. Whaley, Ryan & Whaley, Oklahoma City, Okl. for Defendant-Appellee, Edwards Theatres Circuit, Inc.

James F. Davis, Kieran D. Maye, Jr., Sheila D. Tims, L. Elizabeth Brown, Andrews, Davis, Legg, Bixler, Milsten, & Price, Oklahoma City, Oklahoma for Defendants-Appellees, The City of Oklahoma City, Oklahoma, Ronald J. Norick, Kirk D. Humphreys, James E. Thompson, William O. West, and Daniel T. Brummitt.

James Dan Batchelor and Janis S. Powers, Batchelor & Powers, Oklahoma City, Oklahoma for Defendants-Appellees, Oklahoma City Urban Renewal authority, Authority Commissioners Stanton L. Young, Fred Jones Hall, J. Larry Nichols, Warren Gardner, James R. Tolbert III, former Commissioner William O. (Bill) Johnstone, Executive Director Tiana P. Douglas and General Counsel James Dan Batchelor.

Joseph H. Bocock, Robert J. Ross, McAfee & Taft, Oklahoma City, Okl. for Defendant-Appellee, Bap-Bricktown, L.L.C.

Rod L. Cook, Roberta Browning Fields, Patricia L. Franz, Rainey, Ross, Rice & Binns, Oklahoma City, Okl. for Defendant-Appellee, Oklahoma Gas & Electric Company (OG & E).

OPINION

PER CURIAM,

¶ 1 On March 15, 2000, Plaintiffs, Moshe Tal and a group of Oklahoma City citizens he organized called Taxpayers Against Ripoffs (T.A.R.), filed suit against the City of Oklahoma City and many other defendants under the Qui Tam statutes, 62 O.S.1991 §§ 372 and 373.¹ Tal's and T.A.R.'s suit was based on a notice, denominated a "Written Demand," which they had filed with the City Clerk on January 12, 1999. Defendants moved to dismiss on the ground that this Court had held in City of Oklahoma City v. Oklahoma City Urban Renewal Authority, 1999 OK 71, 988 P.2d 901, Tal I, that Tal and T.A.R. lacked standing to prosecute a Qui Tam action. Prior to filing his Written Demand Tal had led a group that had made an unsuccessful bid to develop a part of the Bricktown project. The nature of the project and Tal's claims are spelled out in some detail in Tal I.

¶ 2 In Tal I, Tal and T.A.R. based their claims on the same Written Demand, dated January 12, 1999, that they rely on here. The issue in Tal I was whether Tal and T.A.R. had standing to intervene in a declaratory judgment action, which the City of Oklahoma City had filed in response to Tal and T.A.R.'s Written Demand. We held that Tal and T.A.R. had no such right because,

... there is nothing in the record to reflect that Oklahoma City acted in bad faith. Its actions were taken under the glare of public scrutiny and were resisted by a significant minority of the City Council. That the disagreements among Council members were resolved in a way that Tal and the other T.A.R. members do not like does not support in any way T.A.R.'s claim that the Development Agreements were either fraudulent, unlawful, or otherwise inadequate.

Tal I, 1999 OK 71 at ¶ 20, 988 P.2d 901. Appellee's contended in their brief in support of their motions to dismiss that our opinion in Tal I precluded the re-litigation of Tal and T.A.R.'s claims because it determined that Tal and T.A.R. lacked standing to prosecute a Qui Tam action under their Written Demand of January 12, 1999 against the City and the other appellees. We agree.

¶ 3 In their brief in opposition to appellants' motions to dismiss, Tal and T.A.R. reargued the claims that they had unsuccessfully asserted in Tal I. They claimed that the City could not adequately represent Tal and T.A.R.'s interests and that the allegations in their Written Demand showed that they had a right to prosecute a Qui Tam action. Nowhere in their brief did Tal and T.A.R. attempt to explain why they had standing to prosecute a Qui Tam action under their Written Demand, although we had held in Tal I that they lacked standing to do so.

¶ 4 Tal and T.A.R. filed a second action that resulted in a second appeal in Tal v. Norick, 1999 OK 85, 991 P.2d 999, Tal II. There, Tal and T.A.R. brought another Qui Tam suit against the City and others that involved the Bricktown Ballpark project. In Tal II we affirmed the trial court, who had granted the defendants' motions to dismiss saying,

The arguments Tal and T.A.R. make here were fully discussed and disposed of in Tal I. The similarity between the record presented here and the record we considered in Tal I convinces us that there is no reason to restate here our reasoning in Tal I. We therefore hold that the trial court did not err in concluding that the qui tam action was prematurely brought.

Tal II, 1999 OK 85 at ¶ 9, 991 P.2d 999. We so held because we had previously held in Tal I that the City of Oklahoma City had adequately represented the interests of all its taxpayers, including the members of T.A.R., and was entitled to the presumption that it was doing so in good faith. In their brief Tal and T.A.R. disingenuously claimed that because the trial court in Tal II had dismissed their suit there because it was "premature," they had a right to bring this suit. But Tal II involved a different written demand and a different project. Further, we expressly held in Tal II that the issues in Tal I and Tal II were "substantially similar." Tal II, at ¶ 8. Nothing in Tal II, therefore, supports Tal and T.A.R.'s claim that they had a right to reassert here the claims they had made in Tal I.

¶ 5 Although, a central issue in this appeal is whether the appeal is a collateral attack on the judgment entered in Tal I, Tal and T.A.R. failed to fulfill the requirements of Part III of our petition in error form, which calls for information concerning "Related or Prior Appeals."² All prior appeals involving the same parties or involving the same issue must be divulged and if there are none the appellant must so state. Nevertheless, Tal and T.A.R. left blank this section of their petition in error.

¶ 6 We hold that Tal and T.A.R.'s Qui Tam action here raises issues that were disposed of in Tal I. The trial court, therefore, correctly dismissed Tal and T.A.R.'s suit. In Tal I we held that Tal and T.A.R. lacked standing to prosecute a Qui Tam action because they failed to make a showing that the City was not adequately representing their interests. That holding should have ended Tal and T.A.R.'s attacks against the City and the other participants in the Bricktown development projects but it did not do so. We hold that Tal and T.A.R.'s claims here were clearly and unequivocally disposed of in Tal I. Further, Tal and T.A.R. violated our rules in failing to divulge in their petition in error in this appeal the relationship between this appeal, Tal I, and Tal II.

¶ 7 Finally, we address Tal and T.A.R.'s August 28, 2000 motion to strike the supplement to the record filed by OG & E. Tal and T.A.R. claim that OG & E's supplement should be stricken because OG & E's motion to dismiss was not ruled on in the trial court order dismissing the actions against the other defendants. We disagree.

¶ 8 Clearly, our ruling in Tal I, which we have reaffirmed here, stands for the proposition that Tal and T.A.R. lacked standing to prosecute Qui Tam actions arising from the Bricktown project, regardless of whom the individual defendants might be. Tal and T.A.R. have no more standing to prosecute a Qui Tam action against OG & E than they had to prosecute one against the other defendants to this appeal. A...