453 F.3d 1244 (10th Cir. 2006), 03-6293, Tal v. Hogan

Docket Nº:03-6293.
Citation:453 F.3d 1244
Party Name:Moshe TAL; Bricktown 2000, Inc.; Tal Technologies, Inc., Plaintiffs-Appellants, v. Dan Randolph HOGAN; TMK/Hogan Joint Venture, also known as Commercial Real Estate Services; Hogan Property Management, LLC; Bricktown-TMK/Hogan Parking, LLC., also known as Bricktown-SMC/Hogan, LLC; Bricktown-TMK/Hogan Entertainment, LLC, also known as Bricktown Ente
Case Date:June 29, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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453 F.3d 1244 (10th Cir. 2006)

Moshe TAL; Bricktown 2000, Inc.; Tal Technologies, Inc., Plaintiffs-Appellants,

v.

Dan Randolph HOGAN; TMK/Hogan Joint Venture, also known as Commercial Real Estate Services; Hogan Property Management, LLC; Bricktown-TMK/Hogan Parking, LLC., also known as Bricktown-SMC/Hogan, LLC; Bricktown-TMK/Hogan Entertainment, LLC, also known as Bricktown Entertainment, LLC; Mark D. Elgin; Stonegate Management Company, LLC; Elgin Development Company, LLC; TDC Company, LLC; Tiana P. Douglas, Defendants-Appellees.

The City of Oklahoma City; Oklahoma City Urban Renewal Authority, Amici-Curie.

No. 03-6293.

United States Court of Appeals, Tenth Circuit.

June 29, 2006

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Submitted on the Briefs: [*] Moshe Tal, pro se, Plaintiff-Appellant.

James E. Dunn, James E. Dunn & Associates, P.C., of Oklahoma City, OK, for Plaintiffs-Appellants Bricktown 2000, Inc. and Tal Technologies, Inc.

Melvin R. McVay, Jr., Robert N. Sheets, Lloyd T. Hardin, Jr., Heather L. Hintz, Phillips, McFall, McCaffrey, McVay & Murrah, P.C., Oklahoma City, OK, for Defendants-Appellees Hogan, TMK/Hogan Joint Venture; Hogan Property Management, LLC; Bricktown-TMK/Hogan Parking, LLC; Bricktown-TMK/Hogan Entertainment, LLC; Mark D. Elgin; Stonegate Management Company, LLC; Elgin Development Company, LLC, and TDC Company, LLC.

Gerard F. Pignato, Tom Cooper and Brad L. Roberson, Pignato & Cooper, P.C., Oklahoma City, OK, for Defendant-Appellee Tiana P. Douglas.

William R. Burkett, Daniel T. Brummitt, Office of Municipal Counselor, Oklahoma City, OK, for Amicus Curiae, The City of Oklahoma City.

Leslie V. Batchelor, Dan Batchelor, Center for Economic Development Law, Oklahoma City, OK, for Amicus Curiae Oklahoma City Urban Renewal Authority.

Before BRISCOE, MURPHY and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

This case is the latest in a long running dispute between Moshe Tal, the founder and president of both Tal Technologies, Inc., (Tal, Inc.) and Bricktown 2000, Inc. (Bricktown, Inc.), and Oklahoma City, the Oklahoma City Urban Renewal Authority (Renewal Authority) and various private Developers 1 over the condemnation of Tal, Inc.'s land and Bricktown, Inc.'s failure to acquire redevelopment rights for the area in downtown Oklahoma City known as Bricktown. On March 14, 2002, Tal, Tal, Inc. and Bricktown, Inc. filed suit in the United States District Court for the Western District of Oklahoma against the Developers and the executive director of the Renewal Authority, Tiana Douglas, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, and the Sherman Act, 15 U.S.C. § 2. They also asserted pendant state law claims for tortious interference with business and fraudulent condemnation of Tal, Inc.'s land. On September 30, 2003, the district court dismissed the

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claims and the plaintiffs appealed. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

BACKGROUND

Under the Oklahoma Urban Redevelopment Law, 11 OKLA. STAT. TIT. §§ 38-101 to 123, cities in Oklahoma may create urban renewal authorities, which can prepare urban renewal plans for specific urban renewal areas. 11 OKLA. STAT. TIT. §§ 38-101(11), 38-106(A). The powers of an urban renewal authority are exercised by commissioners. 11 OKLA. STAT. TIT. § 38-107(E). However, under 11 OKLA. STAT. TIT. § 38-107(F), urban renewal authorities "may employ an executive director ... and such other agents and employees, permanent and temporary, as it may require...." The urban renewal plans must meet the requirements of the statute and be approved by the municipal governing body. 11 OKLA. STAT. TIT. § 38-106. One statutory requirement is that the plan allow private developers the opportunity to obtain redevelopment contracts. 11 OKLA. STAT. TIT. § 38-104.

Pursuant to the Oklahoma Urban Redevelopment Law, Oklahoma City created the Renewal Authority, "a public body corporate." 11 OKLA. STAT. TIT. § 38-107(A). In 1976, the Renewal Authority proposed an Urban Renewal Plan covering an area in Oklahoma City known as Bricktown. In 1993, the residents of Oklahoma City approved a sales tax to be used to redevelop sections of the city under the guidance of the Oklahoma City Metropolitan Area projects program (MAPS). The Bricktown redevelopment plan was amended in 1997 as the MAPS Sports-Entertainment-Parking Support Redevelopment Plan. Tiana Douglas served as the executive director of the Renewal Authority during the period at issue.

On March 25, 1997, the City brought a condemnation action against Tal, Inc. seeking to condemn two parcels of Tal, Inc.'s land, totaling 1.4 acres, that fronted a canal running into Bricktown. The City's intended use was public parking, public recreation and parks. Tal, Inc. objected to the condemnation, challenging the public necessity of the taking. The trial court overruled Tal, Inc.'s objection and entered a condemnation order on August 28, 1997, which was modified on October 2, 1997. The City then transferred the land to the Renewal Authority "with the proviso that [the] City would receive the net proceeds from the sale of the property by [the Renewal Authority] and that the price paid to the Urban Renewal Authority for the property would be not less than the actual fair market value of [the] property." City of Okla. City v. Okla. City Urban Renewal Auth., 988 P.2d 901, 905 (Okla.1999) (Tal I) (internal quotations omitted).

Also in 1997, in an effort to encourage development of a new sports and entertainment district by private developers, the city council approved the Bricktown redevelopment plan. Tal I, 988 P.2d at 905. The Renewal Authority requested proposals from developers interested in obtaining the redevelopment contract for Bricktown. Tal, Inc. and Bricktown, Inc. applied for the contract but "the City Council, after widely publicized hearings and based on an extremely close vote, ultimately awarded the [redevelopment contract] to ... TMK/Hogan rather than to Tal's group. The final decision was made by the City Council only after two years of public meetings, public notices, public hearings, and citizen review." 2 Id.

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The Renewal Authority then "received fair market value for the [condemned] property" from the Developers in the amount of $3.3 million. Id.

Subsequently, Tal along with the organization Taxpayers Against Ripoffs (TAR), filed a state qui tam action against the Renewal Authority alleging Tal, Inc.'s land had been impermissibly taken for private use and the redevelopment contract was awarded amid "bid-rigging." They also demanded that the City file a lawsuit to recover the property and declare the contract void. Tal I, 988 P.2d at 903-04. On January 26, 1999, the City filed a declaratory action against the Renewal Authority to settle whether the condemnation and the transfer to the Renewal Authority had been valid. Id. at 904. Tal and TAR sought to intervene twice but were denied. See Tal I, 988 P.2d at 904-05; Okla. ex rel. Tal v. City of Okla. City, 19 P.3d 268 (Okla.2000), cert. denied, 534 U.S. 814, 122 S.Ct. 40, 151 L.Ed.2d 13 (2001) (Tal III). 3

On September 28 and November 2, 1999, almost two years after the entry of the condemnation order, Tal, Inc. filed two motions to reconsider the condemnation order based on newly discovered evidence. In both motions, Tal, Inc. claimed the City had fraudulently deceived the court and delivered the land to the Renewal Authority for sale to private developers, which it argued was a non-public use. Tal, Inc. also argued the Renewal Authority had exceeded the scope of its eminent domain power by condemning the land for use as parking, a usage for which Tal, Inc. had already intended the land, and then by changing the development of the land from parking to non-parking. The trial court denied both motions. Tal, Inc. appealed to the Oklahoma Court of Civil Appeals which construed the appeal as alleging that the City had obtained the condemnation order by fraud. City of Oklahoma City v. Tal Techs., Inc., Case No. 94,045, at 5 n. 3 (Okla.Civ.App. July 31, 2001). The Court of Civil Appeals affirmed, holding Tal, Inc. had waived its fraud claim by failing to exercise due diligence in discovering the fraud. It also concluded that the City had properly condemned Tal, Inc.'s land for a valid public purpose. Id. at 7. Tal, Inc.'s subsequent petitions for certiorari to the Oklahoma Supreme Court and the United States Supreme Court were denied. See Tal Techs., Inc. v. City of Okla. City, 535 U.S. 987, 122 S.Ct. 1539, 152 L.Ed.2d 465 (2002).

On March 14, 2002, Tal, Bricktown, Inc. and Tal, Inc. filed a complaint against the Developers and Douglas in the United States District Court for the Western District of Oklahoma. They alleged the Developers and Douglas conspired to fraudulently condemn Tal, Inc.'s land; plotted to monopolize under the Sherman Act, 15 U.S.C. § 2; participated in "bid-rigging" in violation of RICO, 18 U.S.C. § 1962, and engaged in tortious interference with business under Oklahoma law. On April 1,

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2002, Plaintiffs filed their First Amended Complaint. Both the Complaint and the First Amended Complaint were signed by Tal, appearing pro se for all three plaintiffs. On March 18, 2002, the district court, acting sua sponte, ordered Bricktown, Inc. and Tal, Inc. to retain counsel within thirty days. Tal filed a motion to reconsider, which was denied on July 2, 2002. Thereafter, Tal, Inc. and Bricktown, Inc. secured counsel.

On May 31, 2002, the Developers and Douglas filed motions to dismiss the First Amended Complaint. 4 The...

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