MILLER v. GONZALES

• Decision Date: 17 May 2010
• Docket Number: 771. Released for Publication by Order of the Court of Civil Appeals of Oklahoma,Division No. 2.,No. 106,106
• Citation: 239 P.3d 163,2010 OK CIV APP 56
• Parties: Sister Patricia Ann MILLER, Representative of the Carmelite Sisters of St. Teresa, Plaintiff/Appellee, v. Kenneth Richard GONZALES, Defendant/Appellant, and The State of Oklahoma, Intervenor/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

239 P.3d 163

2010 OK CIV APP 56

Sister Patricia Ann MILLER, Representative of the Carmelite Sisters of St. Teresa, Plaintiff/Appellee, v. Kenneth Richard GONZALES, Defendant/Appellant, and The State of Oklahoma, Intervenor/Appellee.

No. 106,771. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma,Division No. 2.

March 8, 2010.

Certiorari Denied May 17, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Appeal from the District Court of Cleveland County, Oklahoma; Honorable Tom A. Lucas, Trial Judge.

AFFIRMED.

Michael S. “Mickey” Homsey, Terry R. McMillan, Homsey & Associates, Oklahoma City, OK, for Defendant/Appellant.

Kevin Calvey, Kevin J. Calvey, P.C., Oklahoma City, OK, for Plaintiff/Appellee.

Scott D. Boughton, Assistant Attorney General, Oklahoma Attorney General, Litigation Section, Oklahoma City, OK, for Intervenor/Appellee.

DEBORAH B. BARNES, Judge.

¶ 1 This accelerated ¹ appeal is brought to challenge the constitutionality of 11 O.S. Supp.2008 § 22-115.1, ² a statute enacted in 2008 that restricts the location of dog kennels in certain locations near schools or day care facilities. Appellant Kenneth Richard Gonzales (Gonzales) is the owner of an unlicensed dog kennel that is located within 2,500 feet of Villa Teresa Moore School, a school and day care facility operated by the Carmelite Sisters of St. Teresa, who are represented in this lawsuit by appellee Sister Patricia Ann Miller, as Representative of the Carmelite Sisters of St. Teresa (Representative). ³

¶ 2 On June 18, 2008, about two weeks after § 22-115.1 became effective, Representative⁴ filed a petition, requesting temporary and permanent injunctive relief to prohibit Gonzales from operating his kennel and from having more than four dogs on his property in contravention of § 22-115.1. In response, Gonzales filed a “Response and Objection to Plaintiff's Application for Temporary Injunction, and Defendant's Motion for Declaratory Judgment of Unconstitutionality of Title 11, Section 22-115.1.”

¶ 3 The trial court allowed the State of Oklahoma (State) to intervene ⁵ to respond to Gonzales's constitutional challenge. Gonzales, Representative and State each filed a motion for summary judgment. On November 12, 2008, the trial court entered its Order denying Gonzales's motion for summary judgment and granting the motions for summary judgment filed by Representative and State.

¶ 4 Gonzales filed a “Motion for New Trial and to Vacate Judgment” on November 21, 2008. By Order filed on January 23, 2009, the trial court denied Gonzales's “Motion for New Trial and to Vacate Judgment.” From the November 12, 2008, Order and from the Order denying a new trial or vacation of the judgment, Gonzales appeals. After reviewing the record and applicable law, we find the trial court did not err and thus, we affirm.

MATERIAL FACTS AS TO WHICH NO GENUINE ISSUE EXISTS

¶ 5 1. Gonzales operates a dog ⁶ kennel within the city limits of Oklahoma City, Oklahoma, within Cleveland County, Oklahoma. ⁷

2. Oklahoma City is a municipality with a population of more than three hundred thousand (300,000). ⁸

3. Gonzales has 25 dogs in his dog kennel. ⁹

4. Gonzales's dog kennel is located within 2,500 feet of Villa Teresa Moore School, a school and day care operated by Representative. ¹⁰

5. Gonzales has no license to operate the kennel ¹¹ and has been operating his kennel without a license since November 2005. ¹²

6. Gonzales had initiated the license application process, but had not received a license prior to the enactment of 11 O.S. Supp.2008 § 22-115.1. ¹³

STANDARD OF REVIEW

¶ 6 Our standard of review for this appeal is as follows:

Summary process-a special pretrial procedural track pursued with the aid of acceptable probative substitutes-is a search for undisputed material facts which, sans forensic combat, may be utilized in the judicial decision-making process. Summary relief is permissible where neither the material facts nor any inferences that may be drawn from uncontested facts are in dispute, and the law favors the movant's claim or liability-defeating defense. Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nisi prius resort to summary process for a claim's adjudication.

Summary relief issues stand before us for de novo review. All facts and inferences must be viewed in the light most favorable to the non-movant. Appellate tribunals bear the same affirmative duty as is borne by nisi prius courts to test for legal sufficiency all evidentiary material received in summary process in support of the relief sought by the movant. Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary relief in its favor. A trial court's denial of a motion for new trial is reviewed for abuse of discretion. Where as here, our assessment of the trial court's exercise of discretion in denying defendants a new trial rests on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication's correctness. Judicial discretion is abused when a trial court errs with respect to a pure, unmixed question of law.

Reeds v. Walker, 2006 OK 43, ¶¶ 8-9, 157 P.3d 100, 106-107. (Footnotes omitted.) See also Rule 13, Rules for District Courts of Oklahoma, 12 O.S. Supp.2002, ch. 2, app.

¶ 7 An appellate court “will not disturb an order which grants or refuses an injunction unless there is a showing the trial court abused its discretion or that the judgment is clearly against the weight of the evidence or contrary to law.” House of Sight & Sound, Inc. v. Faulkner, 1995 OK CIV APP 112, ¶ 5, 912 P.2d 357, 360, citing Sharp v. 251st Street Landfill, Inc., 1991 OK 41, 810 P.2d 1270. And, this Court's review of a judgment denying declaratory relief is reviewable in the same manner as other judgments. 12 O.S.2001 § 1654. The trial court's judgment raised an issue of law and is thus reviewable “under a de novo standard.” Cherokee Nation v. Nomura, 2007 OK 40, ¶ 11, 160 P.3d 967, 972.

ANALYSIS

¶ 8 In the trial court's November 12, 2008, Order, the trial court found, in pertinent part, after hearing oral argument, considering testimony, and receiving additional authorities and suggested findings of facts and conclusions of law, as well as the parties' stipulations and briefs:

1. This Court has jurisdiction and venue pursuant to 11 O.S. 22-115.1.

2. 11 O.S. 22-115.1 is not unconstitutional.

3. 11 O.S. 22-115.1 specifically grants persons operating a school within 2500 feet of a dog kennel in Oklahoma City or Tulsa standing to seek a permanent injunction against a kennel in violation of 11 O.S. 22-115.1.

4. [Representative] is such a person to whom 11 O.S. 22-115.1 specifically grants standing to seek a permanent injunction.

5. [Representative] has standing to seek a permanent injunction against [Gonzales].

6. [Representative] does not need to show harm in order to be granted an injunction.

7. [Representative] must [show] only that [Gonzales] is in violation of 11 O.S. 22-115.1 in order to obtain an injunction.

8. [Gonzales] operates a dog kennel within the city limits of Oklahoma City.

9. [Gonzales's] kennel is within 2500 fee[t] of Villa Teresa Moore School, aschool and day care operated by [Representative].

10. [Gonzales's] kennel does not have a final kennel license.

11. Despite the fact that [Gonzales's] kennel has received certain variances and special exemptions from zoning laws, [Gonzales's] kennel has not completed all requirements to receive a license.

12. Because [Gonzales's] kennel does not have a final license, [Gonzales's] kennel is not exempted from application of 11 O.S. 22-115.1.

13. [Gonzales'] kennel is thus in violation of 11 O.S. 22-115.1.

14. Because [Gonzales's] kennel is in violation of 11 O.S. 22-115.1, 11 O.S. 22-115.1 provides that a permanent injunction must issue against [Gonzales], to prevent [Gonzales] from operating a dog kennel within 2500 feet of [Representative's] school.

15. The issue of attorneys' fees and costs is reserved.

WHEREFORE, [Representative's] Motion for Summary Judgment is GRANTED. [State's] Motion for Partial Summary Judgment is GRANTED. Judgment for [Representative] and against [Gonzales]. [Gonzales's] Motion for Declaratory Judgment of Unconstitutionality is DENIED. [Gonzales] is hereby permanently ENJOINED from operating a dog kennel within 2500 feet of Villa Teresa Moore School....

¶ 9 The issues on appeal, as stated by Gonzales, are as follows:

1. Whether the Cleveland County trial court erred in exercising jurisdiction in violation of the priority principle.

2. Whether the Cleveland County trial court erred in finding 11 O.S. Supp.2008 § 22-115.1 constitutional.

3. Whether the Cleveland County trial court erred by not following a prior adjudicated finding of unconstitutionality by the Oklahoma County trial court. Errors include not finding res judicata (claim preclusion) or collateral estoppel (issue preclusion) based upon the Oklahoma County trial court's finding of vested rights and unconstitutionality of 11 O.S. Supp.2008 § 22-115.1.

4. Whether the Cleveland County trial court erred in not finding 11 O.S. Supp.2008 § 22-115.1 unconstitutional by reason of:

a. being a special law;

b. violating equal protection;

c. being a taking without just compensation;

d. being an ex post facto law;

e. being a bill of attainder; and,

f. being a violation of Okla. Const. Art. 5, § 52 (as found by the Oklahoma County district court).

5. Whether the Cleveland County trial court erred by nullifying the agreed court order of August 17, 2007, in Case No. CJ-2006-9144, Oklahoma County.

6. Whether the Cleveland County trial court erred by finding...