City of Tulsa v. Crain, 49186

Decision Date10 January 1978
Docket NumberNo. 49186,49186
Citation573 P.2d 707
PartiesCITY OF TULSA, Oklahoma, a Municipal Corporation, Appellees, v. Edgar B. CRAIN and L. C. Crain, Appellants.
CourtOklahoma Supreme Court

Appeal from District Court of Tulsa County; Margaret Lamm, Judge.

An appeal from the issuance of a mandatory injunction requiring appellants to remove a building on their property which was erected in violation of the ordinances of the City of Tulsa.

AFFIRMED.

Waldo F. Bales, City Atty. by David L. Pauling, Asst. City Atty., Tulsa, for appellees.

Berringer, Briggs, Patterson & Eaton by A. A. Berringer, Tulsa, for appellants.

DOOLIN, Justice:

City of Tulsa (Tulsa) filed the present proceeding seeking a permanent mandatory injunction. Tulsa sought to require defendants to comply with certain requirements set forth by the Tulsa Board of Adjustment (Board) in two earlier orders granting defendants zoning exceptions to erect two buildings on their property. In the alternative Tulsa sought removal of a building constructed by defendants as an expansion of their already non-conforming use, in violation of Tulsa's zoning ordinances.

Defendants operated an automobile salvage business on certain property on the north edge of Tulsa. This use pre-dated zoning ordinances passed in 1957 limiting the use of the property in the area to residential. These regulations did not permit the creation of a new salvage business, but would allow the continued existence of the salvage business as a legal non-conforming use. This use could not be expanded without the approval of Board.

In 1962, defendants applied to Board to extend their non-conforming use to erect a garage and body shop. The application was approved, conditioned upon the removal of old car bodies and other "junk" on the premises. In 1966, defendants filed another application to erect a storage building on the property. This application was also granted subject to the removal of the salvage automobiles. The Board's ruling stated the building was not to be erected until the lot was cleaned. These rulings by the Board were not appealed.

In 1974, Tulsa filed a petition alleging defendants to be in violation of the Tulsa ordinances, in that a building had been erected on the property in 1966, in violation of the conditions set forth by the Board. Tulsa requested a permanent mandatory injunction ordering defendants to comply with the requirements of the Board or in the alternative to order removal of all non-conforming structures.

Testimony at trial indicated the property had not been cleaned up. In fact, apparently the situation had worsened. Without complying with Board's ruling, defendants had expanded their non-conforming use by moving in an old carwash building to use for storage.

After hearing, the trial court found erection of the additional building directly violated Tulsa's ordinance, and ordered its removal.

Defendants appeal, claiming this judgment is in error in that it is not supported and is inconsistent with the pleadings and the evidence. They further claim because the Tulsa ordinances provide for a fine 1 for ordinance violations, Tulsa has no right to the equitable remedy of injunction. Their third claim of error is that suit was barred by laches. This last claim, however, was first espoused in defendants' brief on appeal so it will not be considered by this court. 2

The Tulsa ordinance providing for a penalty for violation also states "(N) othing herein contained shall prevent City of Tulsa or its authorized officials from taking other action, authorized by law, to remedy violation." Further 11 O.S. 1971 § 409 provides:

"In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained; or any building, structure or land is used in violation of this Act or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of the municipality, or any other person affected thereby, in addition to other remedies, may institute any appropriate action or proceedings to prevent...

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6 cases
  • Osage Nation v. Bd. of Comm'rs of Osage Cnty.
    • United States
    • Oklahoma Supreme Court
    • May 2, 2017
    ...the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding.74 City of Tulsa v. Crain, 1978 OK 2, 573 P.2d 707, 709.75 Murray County v. Homesales, Inc., 2014 OK 52, ¶¶ 19–20, 330 P.3d 519, 528–529 (declaratory judgment cause of action ......
  • Robinson v. Sunshine Homes, Inc.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • September 10, 2012
    ...court's award of costs under the Act. An issue first raised in an appellate brief will not be considered on appeal. City of Tulsa v. Crain, 1978 OK 2, 573 P.2d 707.PLAINTIFF'S COUNTER–APPEALA. Punitive Damages ¶ 52 Plaintiff contends the trial court erred in failing to submit the issue of p......
  • Robinson v. Sunshine Homes, Inc.
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • October 29, 2010
    ...court's award of costs under the Act. An issue first raised in an appellate brief will not be considered on appeal. City of Tulsa v. Crain, 1978 OK 2, 573 P.2d 707. PLAINTIFF'S COUNTER-APPEALA. Punitive Damages ¶52 Plaintiff contends the trial court erred in failing to submit the issue of p......
  • Brigance v. Velvet Dove Restaurant
    • United States
    • Oklahoma Supreme Court
    • June 14, 1988
    ...for rehearing. But a defendant may not effectively raise a defense for the first time in an appeal to this Court, City of Tulsa v. Crain, 573 P.2d 707, 709 (Okl.1978), let alone in a petition for rehearing. Brown v. State Election Board, 369 P.2d 140 (Okl.1962). Raising in this Court the de......
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