Sullivant v. City of Oklahoma City

• Decision Date: 20 May 1997
• Docket Number: No. 86486,86486
• Citation: 940 P.2d 220
• Parties: , 1997 OK 68 Howard R. SULLIVANT, Appellant, v. The CITY OF OKLAHOMA CITY, Appellee, and The City of the Village, Defendant.
• Court: Oklahoma Supreme Court

Page 220

940 P.2d 220

65 USLW 2805, 1997 OK 68

Howard R. SULLIVANT, Appellant, v. The CITY OF OKLAHOMA CITY, Appellee, and The City of the Village, Defendant.

No. 86486.

Supreme Court of Oklahoma.

May 20, 1997.

Joseph C. Schubert, Oklahoma City, for appellant.

William O. West and Cindy L. Richard, Oklahoma City, for appellee.

SIMMS, Justice.

¶1 A first impression question presented by this cause is whether damage done to an apartment by police in the execution of a valid search warrant is a "taking" which requires compensation pursuant to Oklahoma Constitution Art. 2 § 24. We hold that such damage does not constitute a compensable taking within the meaning of Art. 2 § 24. We also hold that due to a disputed question of material fact on appellant's theory of recovery based upon the Governmental Tort Claims Act, this case must be remanded for further proceedings on that theory. We do not address other theories which may or may not be available as defenses for the cities.

¶2 In the execution of a valid search warrant, police officers from Oklahoma City and the Village damaged the outer door, and two interior doors, of an apartment unit in an apartment complex owned by appellant, hereafter referred to as landlord. The search yielded evidence of drug activity and drug selling by the tenants. Damage to the doors amounted to $718.00. Landlord timely filed a tort claim with both Oklahoma City and The Village. The claims were denied by both cities and landlord timely filed the present action against the cities.

¶3 Landlord asserted two alternate theories of recovery. Landlord alleged that the cities were liable for the damage under either (1) the Governmental Tort Claims Act ("GTCA"), 51 O.S. § 151 et. seq., or (2) Oklahoma Constitution Art. 2 § 24, which states in part that "[p]rivate property shall not be taken or damaged for public use without just compensation." The cities filed motions for summary judgment on both theories, and the landlord filed a motion for summary judgment on his "taking" theory.

¶4 The trial court granted the cities' motions for summary judgment and landlord appealed. The Court of Civil Appeals affirmed the trial court's judgment. We previously granted certiorari. We vacate the opinion of the Court of Civil Appeals and affirm in part, and reverse and remand in part, the judgment of the trial court.

¶5 Landlord first contends that the trial court erred in granting summary judgment in favor of the cities on the GTCA theory because (1) there were disputed issues of fact concerning whether the police properly executed the search warrant and (2) under the facts and circumstances of this case, the police were estopped from entering the apartment without first notifying the apartment manager, who had agreed to let them in with a key. Landlord also argues that he was entitled to summary judgment on his taking theory, explaining that several states, when faced with similar facts, have found property owners' claims to be compensable, and urging this Court to adopt the reasoning contained in those cases.

I. The GTCA Theory

¶6 In the GTCA, the state waives its sovereign immunity only to the extent and in the manner provided in the act. 51 O.S. 1991 § 152.1. A city shall be liable only for loss resulting from torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in the act. 51 O.S. 1991 § 153. Cities alleged that they are not liable for landlord's loss due to the exemptions listed at 51 O.S. § 155. The relevant § 155 exemptions provide that the city "shall not be liable if a loss or claim results from: ... (3) [e]xecution or enforcement of the lawful orders of any court; ... and (9) [e]ntry upon any property where that entry is expressly or impliedly authorized by law."

¶7 Landlord claimed, in his response to the motions for summary judgment, that there is a disputed issue of fact concerning whether the police properly executed the search warrant, attaching an affidavit from a neighbor, who claims that the police did not "knock and announce" themselves, as required by 22 O.S. 1991 § 1228 ¹, prior to breaking down the outer door to the apartment. Landlord concludes that if the police improperly executed the warrant, then they cannot claim the exemptions under § 155 of the GTCA, relying on Roberts v. City of Stillwater, 646 P.2d 6 (Okl.Civ.App.1982). In Roberts, the Court of Civil Appeals held that if an arrest was invalid, the city could not rely on the exemptions in the GTCA. See also 22 O.S. § 1240, which provides that a peace officer who willfully exceeds his authority in executing a search warrant, or executes it with unnecessary severity, is guilty of a misdemeanor.

¶8 Therefore, the cities may not rely upon the exemptions in the GTCA if the police failed to give notice of their authority and purpose, as is required by 22 O.S. 1991 § 1228(1) because their entry would not have been authorized by law and the execution of the search warrant would not have been lawful. The record reflects that the search warrant did not contain the instruction that no notice was necessary, and thus, the police were not excused from the "knock and announce" requirement. 22 O.S. 1991 § 1228(2).

¶9 Accordingly, there is a disputed issue of material fact concerning whether the police complied with 22 O.S. 1991 § 1228, which precluded the grant of summary judgment on landlord's GTCA claim. Ross v. City of Shawnee, 683 P.2d 535 (Okl.1984). The judgment of the trial court is reversed on this issue and this cause is remanded for further proceedings on landlord's GTCA theory.

¶10 Landlord also contends the police are estopped from escaping liability for the damage in this case because they misled the apartment manager by promising him that they would give him prior notice before arriving at the apartment so the manager could open it for them. An examination of the affidavits attached to the motions for summary judgment does not prove a promise on the part of police to notify the manager prior to entry, but rather shows that the manager was eager to be there when police arrived and called to ascertain when the police might be coming.

¶11 Equitable estoppel is generally understood to prevent one party from taking a position which is inconsistent with an earlier action that places the other party at a disadvantage, where that party has, in good faith, relied on the representation or position. First State Bank v. Diamond Plastics, 891 P.2d 1262 (Okl.1995). Estoppel does not apply to the present situation. Even if the police promised the manager that they would give advance notice, we are not going to impose a requirement upon the police to notify a landlord before the execution of a valid search warrant on premises occupied by a tenant. The imposition of a prior notice to a landlord requirement might only serve to alert the suspects to the intentions of the authorities, and thereby defeat legitimate governmental efforts to catch criminals and find incriminating evidence. See, Looney v. City of Wilmington, 723 F.Supp. 1025, 1030 (D.Del.1989).

II. The Taking Theory

¶12 Landlord also argues that the trial court erred in granting summary judgment for the cities on his taking theory of recovery. Landlord claims that his property was damaged by the police for public use, and thus, according to Oklahoma Constitution Art. 2, § 24, and 27 O.S. 1991 § 16 ², he is entitled to just compensation. We determine that landlord does not have a taking claim pursuant to Art. 2 § 24 because (1) a reasonable construction of Art. 2 § 24 does not support a taking claim under these circumstances, (2) Art. 2, § 24 may not be used to permit recovery for the tortious actions of government employees and (3) the proper exercise of police power in the present case did not amount to a "taking" within the meaning of Art. 2, § 24.

¶13 Art. 2, § 24, provides in full as follows:

Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. Such compensation shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. Provided however, in no case shall the owner be required to make any payments should the benefits be judged to exceed damages. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into the court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested. When possession is taken of the property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for judicial determination of the sufficiency or insufficiency of such compensation. The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. In all cases of condemnation of private property for private or public use, the determination of the character of the use shall be a judicial question.

¶14 The reason for setting out Art. 2, § 24 in full is to show that the provision, taken in its full context, clearly relates to condemnation proceedings, where real property is actually taken and used for a public project. In construing a...