House of Realty, Inc. v. City of Midwest City

• Decision Date: 21 December 2004
• Docket Number: No. 99422,99422
• Citation: 2004 OK 97,109 P.3d 314
• Parties: HOUSE OF REALTY, INC.; ROBERT J. BARTON, Individually and as Trustee of the Robert J. Barton Revocable Trust and successor Trustee of the of the Shirley A. "Goetsch" Barton Revocable Trust; and PAMELA BARTON-STOBER, for themselves and for all other citizens, residents and taxpayers of the City of Midwest City, Plaintiffs/Appellants, v. CITY OF MIDWEST CITY, a municipality of the State of Oklahoma; MIDWEST CITY MEMORIAL HOSPITAL AUTHORITY, a public trust of the State of Oklahoma, Defendants/Appellees.
• Court: Oklahoma Supreme Court

2004 OK 97

109 P.3d 314

HOUSE OF REALTY, INC.; ROBERT J. BARTON, Individually and as Trustee of the Robert J. Barton Revocable Trust and successor Trustee of the of the Shirley A. "Goetsch" Barton Revocable Trust; and PAMELA BARTON-STOBER, for themselves and for all other citizens, residents and taxpayers of the City of Midwest City, Plaintiffs/Appellants, v. CITY OF MIDWEST CITY, a municipality of the State of Oklahoma; MIDWEST CITY MEMORIAL HOSPITAL AUTHORITY, a public trust of the State of Oklahoma, Defendants/Appellees.

No. 99422

Supreme Court of Oklahoma

Decided: December 21, 2004

Terry Guy Shipley, Norman, Oklahoma, for Plaintiffs/Appellants.

Joseph H. Bocock, Stephanie L. Reaugh, Mary Ellen Ternes, McAfee & Taft, Oklahoma City, Oklahoma for Defendants/Appellees.

EDMONDSON, J.

¶1 The City of Midwest City has an economic development project and it wants to include the Landowners' property as part of the project. The City brought eminent domain proceedings in the District Court resulting in two appeals that were decided by our recent opinion in City of Midwest City v. House of Realty, Inc., 2004 OK 56, 100 P.3d 678.¹ The eminent domain proceedings are not part of the appeal before us.

¶2 This appeal is from a judgment in a proceeding brought by the Landowners where they sought injunctive and declaratory relief against the City and the Midwest City Hospital Authority (Hospital Authority). Landowners sought an injunction to stop the eminent domain proceedings and declaratory relief on issues involving the Hospital Authority. The Hospital Authority, a public trust, is the source of funds for the economic development project.

¶3 Both sides to this dispute sought a summary judgment based upon the same three issues. The trial court determined that two of the three could be decided on summary judgment, and left the third for adjudication by a non-jury trial. The trial court's order states the following:

The City has the right to condemn Plaintiffs' property to carry out the project plan adopted and authorized pursuant to Okla. Stat. tit. 11, § 22-104(3), (8) and Okla. Stat. tit. 62, §§ 854, 869. The Authority is not prohibited by Okla. Stat. tit. 60, § 178.4 from leasing the land to private developers as authorized by Okla. Stat. tit. 62, § 854(14) for redevelopment as provided in the project plan.

The third issue was Landowners' assertion that without a vote of the people the Authority was not authorized to disburse a portion of the Trust's compounded principal to implement a redevelopment project. The trial court ruled against Landowners on this claim as well.

¶4 Landowners appealed and argued that the trial court was incorrect on each of the three issues. After this Court issued its opinion in City of Midwest City v. House of Realty, Inc., 2004 OK 56, both sides to this dispute filed supplemental materials and agreed that the trial court was incorrect, and that the City does not posses the authority to take Landowners' property to carry out the project plan pursuant to 11 O.S. 2001 § 22-104(3), (8) and 62 O.S.2001 §§ 854, 869. However, they disagree on the application of that holding to this appeal.

¶5 The City and Hospital Authority argue two of three issues on appeal are moot, and Landowners disagree.² The City argues for mootness because 1. the former opinion decided one of the issues herein and 2. an urban renewal authority, instead of the City, is the entity now seeking to condemn Landowners' property. Landowners object on both procedural and substantive grounds to the City's suggestion of mootness.

¶6 Generally, this Court's appellate review is limited to those facts appearing of record certified by the clerk of the tribunal below. S.W. v. Duncan, 2001 OK 39, n. 14, 24 P.3d 846, 855. Exceptions to this rule include an admission of fact made in a brief and facts occurring during the pendency of an appeal that adversely affect a court's capacity to administer effective relief, such as when a controversy has become moot during an appeal. Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, n. 14, 981 P.2d 1244 (supplement to appellate record by admission of fact); Lawrence v. Cleveland County Home Loan Authority, 1981 OK 28, 626 P.2d 314, 315 (affidavit may be used to show mootness); Okla.Sup.Ct.R. 1.6(a) (facts not of record in support of a motion are shown by affidavit).

¶7 Landowners' response to the City's application includes an affidavit, but the facts raised by Landowners do not involve the three issues on appeal in this case. For example, Landowners argue that the proposed taking of their property by the Midwest City Urban Renewal Authority is improper. The propriety of acts taken by the Midwest City Urban Renewal Authority is not a part of this appeal. Although the City does not use an affidavit for its suggestion of mootness, Landowners do not challenge the truth of those facts raised by the City that relate to the issues on appeal, and those facts may be deemed to be admitted for the purpose of showing mootness. Our review of the post-appeal facts raised by the City leads us to conclude that one of three issues presented on appeal is moot. We conclude that the second issue is not moot in part, and that part of the issue should be addressed by the trial court on remand. We conclude that the third issue is not moot.

I. First Issue on Appeal

¶8 The first issue involves whether the City may use a general power of eminent domain combined with the Local Development Act, 62 O.S.2001 § 850, et seq. to take the Landowners' property. The parties agree that this issue was settled in City of Midwest City v. House of Realty, Inc., supra.

The City and Hospital Authority state that this opinion makes the issue moot.

¶9 An opinion in one appeal that settles an issue raised in a second pending appeal does not make the latter moot. The opinion in the first appeal is controlling as to the latter appeal. See, for example, Rogers v. Excise Bd. of Greer County, 1984 OK 95, 701 P.2d 754, 758-759, where the Court stated that Summey v. Tisdale, 1982 OK 133, 658 P.2d 464, an opinion decided while the Rogers was pending, was controlling on an issue in Rogers.³ We did not dismiss as moot the appeal in Rogers, but rather, we applied the controlling precedent and adjudicated the assigned error on appeal. The presence of controlling decisional precedent does not, by itself, make an issue moot.

¶10 What makes the first issue moot is the City's post-appeal conduct in response to our opinion in City of Midwest City v. House of Realty, Inc., supra.

The City admits that pursuant to City of Midwest City the trial court decided the first issue incorrectly. The City states that it has abandoned its efforts to take the property by eminent domain. The City states that the Midwest City Urban Renewal Authority, and not the City, is the entity now seeking to obtain Landowners' property. The Midwest City Urban Renewal Authority is not a party to this appeal.

¶11 Landowners sought both injunctive and declaratory relief relating to the City's exercise of eminent domain. In Sharp v. 251st Street Landfill, Inc., 1996 OK 109, 925 P.2d 546, we said that:

Entitlement to injunctive relief must be established in the trial court by clear and convincing evidence and the nature of the complained of injury must not be nominal, theoretical or speculative. . . There must be a reasonable probability that the injury sought to be prevented will be done if no injunction is issued—a mere fear or apprehension of injury will not be sufficient.

Sharp, 1996 OK 109, 925 P.2d at 549, (citations omitted).

The argument is made that no act of the City is involved in an eminent domain proceeding, valid or not, and thus whether the City would continue to take Landowners' property by eminent domain is merely speculative. Of course, a person's rights adversely affected by a threatened enforcement of invalid conduct by a public official will support a request for both declaratory and injunctive relief. Southwestern Bell Telephone Co. v. Oklahoma Corporation Commission, 1994 OK 142, n.2, 897 P.2d 1116, 1118. But, threatened enforcement of the City's eminent domain power is no longer occurring. Mootness may arise from a post-appeal development that adversely affects the court's capacity to administer effective relief. Lawrence v. Cleveland County Home Loan Authority, 1981 OK 28, 626 P.2d 314, 315. Plaintiffs requesting an injunction must show that the acts against which they ask protection are not only threatened, but will, in probability, be committed to their injury. Hodgins v. Hodgins, 1909 OK 101, 103 P. 711, 713.⁴ The City's decision for the City to no longer attempt to exercise its eminent domain power adversely affects the court's capacity to administer effective injunctive relief.⁵

¶12 We have stated that declaratory relief is based upon the existence of a justiciable controversy. City of Oklahoma City v. Oklahoma City Urban Renewal Authority, 1999 OK 71, ¶ 28, 988 P.2d 901, 907; Ethics Commission v. Cullison, 1993 OK 37, 850 P.2d 1069, 1073. The term "justiciable" refers to a lively case or controversy between antagonistic demands. Lawrence v. Cleveland County Home Loan Authority, 1981 OK 28, 626 P.2d 314, 315. When a party presents antagonistic demands that are merely speculative a prohibited advisory opinion is being requested. State ex rel. Oklahoma Capitol Imp. Authority v. E. A. Cowen Const. Co., 1974 OK 4, 518 P.2d 1264, 1266; Post Oak Oil Co. v. Stack & Barnes, P.C., 1996 OK 23, 913 P.2d 1311, 1314. The City's argument is that it is not seeking to use eminent domain, and it will not attempt to do so in the future with regard to similar circumstances. In other words, an allegation by Landowners that the City would attempt such acts prohibited by Midwest City v. House of Realty, Inc., supra, is merely speculative.

¶13 We said in City of Midwest City v. House of Realty, Inc., supra,

that the City could not use a general power of...