Bowlin v. Alley

• Decision Date: 02 May 1989
• Docket Number: No. 61099,61099
• Citation: 1989 OK 66,773 P.2d 365
• Parties: Eugene A. BOWLIN and Ernie Ann Bowlin, Appellants, v. Tom ALLEY and Mac McDonald, Appellees.
• Court: Oklahoma Supreme Court

Page 365

773 P.2d 365

1989 OK 66

Eugene A. BOWLIN and Ernie Ann Bowlin, Appellants, v. Tom ALLEY and Mac McDonald, Appellees.

No. 61099.

Supreme Court of Oklahoma.

May 2, 1989.

William O. Fields, Tulsa, for appellants,

Matthew D. Henry, Pawnee, for appellees.

PER CURIAM:

This is an action brought by Eugene and Ernie Ann Bowlin, husband and wife, (appellants) against Tom Alley and Mac McDonald (appellees) to restrain them from interfering with appellants' right of ingress and egress across a certain access road leading to appellants' driveway and home. While appellants initially alleged in their petition the roadway in question was located on appellees' property, they amended their petition to conform to the proof that such property was purportedly owned by Dale and Dorothy Watt, appellees' predecessors in title. Appellees argued they acquired title to the property on which the access road was constructed at the time the Watts conveyed certain property which adjoins the access road on the east. Appellants' theories for relief asserted at trial were an easement by way of necessity and an irrevocable license. The trial court issued a temporary injunction against appellees; however, at the hearing it vacated the temporary injunction, denied appellants' request for permanent injunction and quieted appellees' title against all claims by appellants. At a subsequent hearing set by the court evidence was received concerning damages to appellees as a result of the issuance of the temporary injunction. The trial court entered a judgment against appellants in the amount of $5,809.75 as reasonable attorney's fees which had been initially requested by appellees in their answer to appellants' petition.

Appellants appealed urging the trial court's judgment is based upon insufficient evidence to support its findings of fact and resulting judgment. Appellants further contended the trial court erred in awarding appellees' attorney's fees contrary to 12 O.S. § 1392 and based upon insufficient evidence. Also argued was the trial court erred in relying upon § 1392 in that it is unconstitutional as violative of appellants' right to equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution and by Article 2, §§ 2 and 6 of the Oklahoma Constitution. On review by the Court of Appeals, Division 4, the trial court was affirmed. Appellants sought certiorari with this Court which was previously granted. On certiorari appellants now contend they were deprived of their due process rights because both the trial and appellate courts relied upon evidence submitted after trial. In addition, they assert the Court of Appeals erred in concluding they had no standing to attack the constitutionality of § 1392. It is further urged such statute unconstitutionally violates their rights of equal protection.

The evidence discloses that in 1967, the Watts constructed a private access road over the eastern half of a formerly unimproved, dedicated street (Avenue C) that separates property now owned by appellees and appellants. In 1974, the Watts conveyed a portion of their property west of Avenue C to appellants. Appellants utilized the access road to haul materials to build their home and subsequently as the only route to their driveway and garage. In 1980, appellants, real estate agents, in the process of selling other property in the area and pursuant to a title requirement, sought and obtained the Watts' cooperation to obtain vacation of Avenue C. After the vacation of Avenue C, appellants continued their use of the access road. In August of 1982, the Watts, by quit claim deed, conveyed a portion of their property east of Avenue C to appellees. The deed specifically made reference to various alleyways and a right-of-way but was silent with respect to the eastern half of vacated Avenue C. Mr. Watts testified that subsequent to the conveyance he built a fence and gate down the center line of Avenue C. After the time of trial, appellees' counsel attached a correction quit claim deed dated June 30, 1983, to their response brief which specifically made reference to the eastern half of Avenue C.

This action arose after appellees provided appellants with a key to the lock on the gate to the access road along with a letter advising appellants that at the end of a sixty-day period the locks would be changed and they would have to have an alternative means of entry to their land.

The issues presented on certiorari are: (1) Whether appellants' due process rights were violated, (2) Whether appellants have standing to challenge the constitutionality of 12 O.S.1981 § 1392 and (3) Whether the attorney's fees provision in § 1392 violates the equal protection clause of the United States Constitution, Amendment XIV, and Oklahoma Constitution, Article 2, §§ 2 and 6. We answer the first and third question in the negative and question two in the affirmative for the reasons stated below.

I

We first address appellants' argument concerning the denial of their due process rights. They urge the trial court erroneously relied on the correction deed which was improperly placed into evidence after trial. It is contended they were deprived of their Fourteenth Amendment right to cross-examine the details surrounding the correction deed. Appellants' position is appellees had no greater legal right to the use of the access road than appellants prior to or during the trial because ownership was in the Watts as reflected by the first quit claim deed. An examination of the transcript clearly reveals that before the close of the trial the trial court ruled the original quit claim deed included the strip of land on which the access road is situated, even though not specifically described therein. Consequently, we cannot find the trial court relied on the correction deed in ruling on the title issue. We conclude the trial court did not utilize evidence improperly submitted, if any; thus, the trial court did not deny appellants' right to cross-examine thereon. Furthermore, there was sufficient evidence to show the omission of Avenue C in the deed was inadvertent.

In any event, under 11 O.S.1981 § 42-113(C) (amended 1984), ¹ the eastern half of vacated Avenue C reverted to the Watts as a result of the vacation proceeding. Accordingly, the Court of Appeals correctly found appellants have no claim or right to such property to entitle them to injunctive relief.

II

The appellate court found appellants lacked standing to attack the constitutionality of 12 O.S.1981 § 1392. Its determination is based on the erroneous assumption that appellants' challenge was brought on the ground the statute "may conceivably be applied unconstitutionally to deprive others of attorney's fees, in situations not before the Court." To the contrary, the subject of appellants' challenge is the statute unfairly requires them to pay the prevailing defendant attorney's fees; whereas, if they had prevailed, they would be denied attorney's fees. Therefore, they are challenging the statute in their own behalf and not on behalf of third parties. Appellants have a personal stake in the outcome of the tendered controversy and hence have standing to challenge the statute. State ex rel. Cartwright v. Okl. Tax Com'n, 653 P.2d 1230 (Okla.1982); Independent School Dist. No. 9 v. Glass, 639 P.2d 1233 1237 (Okla.1982). Accordingly, we find the Court of Appeals erred in concluding appellants have no standing to challenge the constitutionality of § 1392.

III

We next consider the constitutionality of 12 O.S.1981 § 1392. The challenged provision reads:

"Unless otherwise provided by special statute, no injunction shall operate until the party obtaining the same shall give an undertaking, with sufficient surety, to be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure the party injured the damages he may sustain, including reasonable attorney's fees, if it be finally decided that the injunction ought not to have been granted."

Appellants contend the statute is unconstitutional because it does not provide for the reciprocal awarding of damages and attorney's fees for prevailing parties in injunction actions where the trial court refuses to grant a temporary injunction and later determines that it should have issued a temporary injunction pending the litigation. They assert the statute violates the equal protection clause of the Fourteenth Amendment of the United States Constitution, and the Okla. Const. art. 2, §§ 2 and 6, which provides for ready access to the courts and administration of justice without prejudice. The equal protection clause guarantees that those who are similarly situated be similarly treated. The Constitutional safeguard of equal protection does not require things which are different in fact to be treated in law as though they were the same. Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124, 1128 (1940). ² Yet, this Court notes the caveat that when the legislature does distinguish persons as dissimilar, or dissimilarly situated, it must be upon some permissible basis in order to withstand constitutional challenge. ³ Here, it is clear that the litigants in a temporary injunction suit are not similarly situated. The temporarily enjoined party has been deprived of a legal right prior to final determination on the merits. The statute would compensate the enjoined party for his damages occasioned by that temporary deprivation if the deprivation proved to be erroneous. On the other hand the party seeking injunction, even if he ultimately prevails, has not at any time suffered a pre-judgment deprivation of any right that was legally his. That party cannot incur any injury requiring compensation in damages prior to his establishing a right to the injunction, a right that is recognized in law only upon merits adjudication. He cannot successfully complain that the statute...