Goodwin, Application of
| Decision Date | 12 July 1979 |
| Docket Number | No. 53417,53417 |
| Citation | 1979 OK 106,597 P.2d 762 |
| Parties | Application of H. L. GOODWIN, Sr., Charles Hathaway and Pat Ballew, as Trustees of the Cherokee County Home Finance Authority and Board of County Commissioners of Cherokee County, Oklahoma, as Governing Board of the Beneficiary of the Cherokee County Home Finance Authority, Petitioners. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Cherokee County; William H. Bliss, Judge.
In a suit under 60 O.S.1971 § 175.23 the Cherokee County Home Finance Authority sought judgment construing a trust created for the purpose of providing financing of owner-occupied residential housing for the benefit of low-to-moderate income class. Trial court declared trust valid but restricted its activities to the geographical boundaries of its beneficiary and creator, Cherokee County. Authority appeals.
AFFIRMED.
William P. Willis, Jr., Tahlequah, Okl., for Cherokee County Home Finance Authority, appellant.
Nathan H. Young, III, Asst. Dist. Atty., Tahlequah, Okl., for Bd. of County Com'rs of Cherokee County, appellee.
Robert L. Bailey, Norman, Okl., for Cleveland County Home Loan Authority.
Robert S. Gee of Wallace & Owens, Miami, Okl., for Ottawa County Home Finance Authority.
Richard W. Lock, Jay, Okl., for Delaware County Home Finance Authority.
Gary E. Payne, Atoka, Okl., for Coal County Home Finance Authority and Atoka County Home Finance Authority.
Michael P. Sullivan, Leach, Sullivan, Sullivan & Green, Duncan, Okl., for Stephens County Home Finance Authority.
Georgina B. Landman, Williams, Landman & Savage, Tulsa, Okl., for Builders Ass'n of Metropolitan Tulsa.
Darven L. Brown, Smith, Brown, Martin & Adkisson, Tulsa, Okl., Thomas G. Hilborne, Jr. of Jones, Givens, Brett, Gotcher, Doyle & Bogan, Inc., Tulsa, Okl., for Tulsa County Home Finance Authority.
Farrell M. Hatch, Spears, Hatch, Mickle & Wilhite, Durant, Okl., for Bryan County Home Finance Authority.
Duke J. Logan, Logan, Lowry & Johnston, Vinita, Okl., for Craig County Home Finance Authority.
Michael T. Norman, Norman & Watkins, Muskogee, Okl., for Muskogee County Housing Authority.
John R. Carle, Carle & Tanner, Claremore, Okl., for Rogers County Home Finance Authority.
James W. Rodgers, Jr., Rodgers & Allen, Holdenville, Okl., for Hughes County Housing Finance Authority.
John T. Spradling, Stephen P. Friot, Spradling, Stagner, Alpern, Friot & Jones, Oklahoma City, Okl., C. D. Northcutt, Northcutt, Northcutt, Raley, Clark, Gardner, Hron & Northcutt, Ponca City, Okl., Edward L. Jacoby, Houston & Klein, Tulsa, Okl., for Continental Federal Sav. and Loan Ass'n, Frontier Federal Sav. and Loan Ass'n and Sooner Federal Sav. and Loan Ass'n.
This is an appeal from judgment rendered in a proceeding instituted under 60 O.S.1971 § 175.23 1 to construe the trust instrument that created a public housing authority presumably under the provisions of 63 O.S.1971 § 1051 et seq. 2 The sole question presented is whether the trial court's conclusion that the Cherokee County Home Finance Authority (Authority) must be restricted in its activities to the geographical boundaries of Cherokee County (the entity which is the beneficiary of the trust) is correct as a matter of law.
If the matter sought to be presented by this appeal could be decided by answering the narrow question posed in total isolation from the very bedrock of the judgment, 3 there would be little, if any, opposition from amici curiae (Continental, Frontier and Sooner Federal Savings and Loan Associations) who contend that the appeal does not come in a sufficiently adversary posture because there was but a friendly suit below and no briefs in opposition were filed by appellee here. We are urged either to dismiss the appeal or confine our review to the narrow issue by the resolution of which Authority claims to be aggrieved. Amici rely, inter alia, on our opinion in Application of Fun Country Development Authority 4 for their attempt to secure dismissal of this appeal or, in the alternative, to strictly circumscribe the litigable issues to the narrow question presented. Amici's efforts stand on fragile underpinnings. Since they were not parties below, they lack standing to alter the posture of appellate litigation 5 by injecting non-jurisdictional issues of their own. 6 Whenever widespread interest may demand an immediate resolution of some vital public law issue, No impediment arising from infirmity in the procedural posture of the case however well recognized in purely private litigation will bar our exercise of reviewing powers. 7
Were we to accede to amici's argument and refuse to pass Expressly on any aspect of the loan-delivery plan before us, our affirmance of the judgment under consideration, though in effect an Implicit approval of that plan, would more than likely leave the marketplace in uncertainty and with lingering doubts. The unanswered questions inevitably would be pressed on us for settlement in litigation yet to follow. An early decision is clearly in the best interest not only of the general public but of the lending institutions and the financial community as well. The same course is also indicated by judicial economy and by a sense of concern for the prompt resolution of important public rights.
The appeal was timely brought here. Want of answer brief from the appellee or the existence of other reasons which cause the adversary process on appeal to fail cannot afford a basis for dismissal unless it be shown that the action was collusive or fictitious. Neither fictitiousness nor collusion may be inferred from the mere fact that the suit was a friendly one and was pursued without rancor. The power of the court to dismiss a case as fictitious should not be exercised unless the fictitious character appears either from the pleadings or from satisfactory evidence. This is especially true where as here, persons who intimate that the suit is fictitious failed to appear, make their objection and avail themselves of the point in the trial court. 8 Neither by affidavit nor by other proof did amici show us facts sufficient to establish the fictitious or collusive character of the instant action.
This case is clearly distinguishable from Fun Country. It is an appeal in which review is affordable by right, whereas Fun Country was an original proceeding in which this court may exercise broad discretion in deciding whether to assume, or decline to accept, jurisdiction. Although the issues before us are not sharply drawn and there is an absence of that high level of adverseness which would provide an ideal forensic climate for adjudication, the appeal is properly here and our review cannot be avoided. 9
We hold that this appeal is properly before us and that our task here is to review the record to determine if appellant is entitled to a complete and meaningful relief under its petition in error. 10 Amici's motion to dismiss is accordingly denied.
This litigation was no doubt precipitated by our decision in Shotts v. Hugh 11 where we reaffirmed our commitment to the view that providing safe, decent and adequate housing for the people in this state constitutes a proper public function. We found in Shotts a fatal (vitiating) defect in the virtually unrestricted loan-to-lenders delivery system. The trust indenture was devoid of any limitation on who could borrow funds from proceeds of mortgage revenue bond sale. Shortly after our decision in Shotts the legislature amended the Public Trust Act 12 by expressly authorizing trusts to be created for the purpose of providing financing of public housing projects. The vices which led to our invalidation of the loan-to-lenders vehicle seem to have been conspicuously excised from the Authority's program under consideration. The new features included are: (a) an ascertainment of the low-to-moderate income class within the county based upon an analysis of a demographic study and on other available data 13 (b) establishment of guidelines for its loan-delivery system and (c) extending an opportunity to all mortgage lenders in the county to participate in the program. After making specific findings as to a critical shortage of housing and mortgage credit for the low-to-moderate income class, the Authority authorized the issuance of tax-exempt revenue bonds to finance the residential mortgage loan program. The loan-delivery system set up would begin with the sale of mortgage revenue bonds, the proceeds of which would provide funds for home loans to county families of low-to-moderate income. The loans would be secured by a first mortgage (on owner-occupied residential units) in favor of the Authority with mortgage loan payments to be collected by a bank acting as trustee for the bondholders. The bonds would be further secured by capitalized reserves and mortgage loan insurance. Loans could be originated and serviced by any mortgage lending institution willing to participate in the program. Its sole compensation would consist of a fee for originating and servicing the loans. The bonds, as limited obligations of the Authority, would not constitute a debt of the county.
Amici contend that the restrictions are still so inadequate that we should again find, as we did in Shotts, that the present system is as impermissible as that found in "Loans-to-Lenders Bond 1976 Series". Among the vices called to our attention are the following "unanswerable questions": (1) What proportion of the residential housing market would be eligible for loans under the maximum income criterion ($21,500 for a family of four)? (2) To what extent is the eligible market already being served by existing home financing sources? (3) What is the maximum value of property which may be financed? (4) Can duplexes or other income property qualify? (5) Can bond proceeds be borrowed to refinance existing loans? (6) Can any one borrower make more than one loan from the proceeds of a bond issue?
These "unanswered...
To continue reading
Request your trial
-
Jackson v. Oklahoma Memorial Hosp.
...School Dist., Okl., 702 P.2d 48, 54 n. 10 (1985); McCracken v. City of Lawton, Okl., 648 P.2d 18, 21 n. 11 (1982); Application of Goodwin, Okl., 597 P.2d 762, 764 (1979); Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841, 842 (1948).10 Goodwin, supra note 9 at 764; Barks v. You......
-
City of Oklahoma City v. Oklahoma Tax Com'n
...Dam Auth., Okl., 720 P.2d 713, 720 [1986]; Lawrence v. Cleveland County Home Loan Auth., supra note 5 at 315-316; Application of Goodwin, Okl., 597 P.2d 762, 764 [1979]; Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841, 842 [1948]; Peppers Refining Co. v. Corporation Commissio......
-
Russell v. Board of County Com'rs, Carter County
...Oklahoma County, 1985 OK 49, 702 P.2d 48, 54 n. 10; McCracken v. City of Lawton, 1982 OK 63, 648 P.2d 18, 21 n. 11; Application of Goodwin, 1979 OK 106, 597 P.2d 762, 764; Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841, 842 (1948).10 On remand following a reversal the partie......
-
State ex rel. Tal v. City of Oklahoma City
...to invoke a court's authority to hear a dispute. Tal I, supra, 1999 OK 71, at ¶¶ 25-30, 988 P.2d at 907-908; see Application of Goodwin, 1979 OK 106, 597 P.2d 762. There also seems to be no question that City did not raise in the declaratory suit all the claims made in the written demand to......