Okla. Tpk. Auth. v. Siegfried Cos.

Citation2015 OK CIV APP 78,359 P.3d 209
Decision Date03 April 2015
Docket Number111,585., Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.
PartiesOKLAHOMA TURNPIKE AUTHORITY, a Body Corporate and Politic, Plaintiff/Appellant, v. SIEGFRIED COMPANIES, INC., Defendant/Appellee, and Glenn F. Anderson, Jr.; Lynn Mensch Anderson; Glenn F. Anderson, Jr. as Trustee of the Glenn F. Anderson Trust; the Board of County Commissioners of the County of Tulsa; the Treasurer of Tulsa County, Oklahoma; the Heirs, Devisees, Administrators, Executors, Personal Representatives, Successors and Assigns of Glenelle M. Anderson, Deceased, and their Successors, Other Defendants.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Jot Hartley, Bryce P. Harp, Daniel Giraldi, The Hartley Law Firm, P.L.L.C., Tulsa, Oklahoma, for Plaintiff/Appellant.

Timothy T. Trump, Julia L. Forrester–Sellers, Conner & Winters, L.L.P., Tulsa, Oklahoma, for Defendant/Appellee.

Opinion

WM. C. HETHERINGTON, JR., Chief Judge.

¶ 1 Appellant Oklahoma Turnpike Authority (OTA) filed this condemnation proceeding in 1999 in Tulsa County District Court against numerous defendants to acquire several tracts of land for constructing the Creek Turnpike in the same county. After the Commissioners' report was filed, OTA timely filed a demand for jury trial and paid the award amount that the court disbursed in July of 2000 to Appellee Siegfried Companies, Inc. (Siegfried). OTA now appeals the trial court's finding OTA “failed to prosecute its objection to the amount of the Commissioners' award,” upon which a judgment was entered dismissing OTA's demand for jury trial, vesting it with title to the condemned real property, and awarding Siegfried the full Commissioners' award. Based on the applicable law and undisputed facts, we REVERSE the order and REMAND the case for further proceedings.

FACTS

¶ 2 It is undisputed OTA took possession of the subject property after the court-approved disbursement of the Commissioners' award to Siegfried in July 2000.1 According to the record, as confirmed by the certified court appearance docket, there was no activity until March 2003, when OTA's first motion for scheduling conference and a scheduling order were both filed. After four years of inactivity, OTA again moved for a scheduling conference and in July 2007 another scheduling order was filed. In January 2008, Siegfried filed an application for pretrial conference and for discovery extension. By April 2008 another scheduling order and two amendments had been filed, and in June 2008, the trial court granted Siegfried's unopposed motion for leave to conduct remaining discovery.

¶ 3 Four more years passed with no activity, and in September 2012, OTA filed its third motion for scheduling conference. The trial court responded with a sua sponte order, striking a scheduling conference and ordering OTA to show cause within 15 days “why the matter should not be dismissed pursuant to Rule 9, failure to prosecute.” In its response, OTA explained this specific condemnation action was one of sixty it had filed on or about the same time for the same Creek Turnpike project, its counsel had participated in active litigation in at least 50 of the cases since the filings, with mediation in over 30 cases, 15 jury trials to date, and the subject case was the last unresolved case out of the initial filings. OTA claimed the case's last place order was intended to avoid any appearance of special treatment for Siegfried's owner who was also an OTA board member. In addition, OTA claimed counsel had performed significant work in the case, there is a $513,000.00 disparity between the Commissioners' award and OTA's expert appraiser, the 15 jury verdicts “have totaled an amount that is one-half of the total commissioners' awards in those [15] cases,” and the court's refusal to allow a trial in this case “could cost [OTA], its bondholders, and toll paying users from [$400,000] to over [$500,000].”

¶ 4 The next month Siegfried replied, claiming “no owners have been on the board of the OTA since the early 1990's,” OTA had not conducted substantial discovery, and [Siegfried] was pursuing [OTA's expert appraiser's] deposition when the case dropped into another period of stagnation.”2 Siegfried also cited Oklahoma District Court Rule 9(b) and “12 O.S. § 1083 to support the action's “dismissal without prejudice” if the plaintiff fails to show good cause and argued it would be prejudiced due to the difficulty “to resurrect information, find files and tap memories about comparable sales transactions that occurred over 13 years ago.”

¶ 5 In January 2013, the trial court filed an order allowing Siegfried 20 days to brief and “state their case on” OTA's authority, State ex rel. Department of Highways v. O'Dea, 1976 OK 133, 555 P.2d 587, cited “for the proposition that condemnation proceedings cannot ordinarily be dismissed under Rule 9.”3 A week later, OTA filed a supplement to its show cause response.

¶ 6 Siegfried timely filed its response to the court's last order, pointing out the difference between dismissal of a case and dismissal of a claim and clarifying it was seeking “dismissal only of the OTA's objections to the amount of the Commissioners' award and its demand for jury trial on such matters, not dismissal of the entire condemnation proceeding.” (Italics in original.) After acknowledging the Supreme Court's explanation in O'Dea that “title vests in the condemnor (the OTA) when the just compensation awarded by the Commissioners has been paid to the landowner and the condemnor takes possession of the property,” Siegfried contends the Court's concern in that case was “it could not ‘un-ring’ the bell ... and render a nullity [of] what has already been done (transfer of title, possession and just compensation) by dismissing the entire action.” Siegfried argued O'Dea 1) was not binding on the trial court because the issue presented there was “dismissal of an entire case. It did not involve a request to dismiss a single claim within the case; and it 2) does not hold condemnation proceedings can never be dismissed.”

¶ 7 In its judgment, the trial court agreed with Siegfried, finding OTA has “failed to prosecute its objection to the amount of the Commissioners' award within the meaning of Rule 9 of the District Courts of Oklahoma and this Court's inherent powers to control its docket.” The trial court further found “the jury trial regarding the amount of the Commissioners' award has been effectively waived by [OTA's] inaction in prosecuting its exception” to that award. After finding 1) OTA “is entitled to condemn the real property ... and that title to such property now vests in [OTA]; and 2) Siegfried “is rightfully entitled to the full amount of the Commissioners' award, which payment has already been distributed to and received by [Siegfried],” the trial court ordered [OTA's] objections to the amount of the Commissioners' Award and demand for jury trial is HEREBY DISMISSED” and “final judgment be entered in this condemnation case, vesting [OTA] with title to the real property ... and entitling [Siegfried] to the full amount of the Commissioners' Award of $795,414.00.” OTA timely appealed the judgment.

APPELLATE ARGUMENTS/STANDARD OF REVIEW

¶ 8 OTA argues the “order of dismissal” should be reversed because: 1) the trial court's authority to dismiss for failure to prosecute, Rule 9 of the Rules of the District Court of Oklahoma, was stricken by the Supreme Court; 2) the mandatory rules for dismissal do not apply to condemnation cases; 3) dismissal under 12 O.S. § 1083 is precluded because the proceeding is “at issue”; and 4) the trial court abused its discretion when depriving OTA of its vested and absolute right to a jury trial.

¶ 9 Siegfried argues for affirmance of the judgment, contending 1) only OTA's “claim” or “objection to the amount of the Commissioners' award and demand for jury trial was dismissed, 2) the court's decision to dismiss preceded the Supreme Court's ruling to strike Rule 9 and was proper at the time, 3) independent of Rule 9, the trial court was authorized by its inherent power to dismiss for lack of prosecution, 4) the trial court did not grossly abuse its discretion, and 5) the right to a jury trial in this context is not absolute because it can be waived voluntarily, or by failing to timely request trial by jury.

¶ 10 Neither party provides the appropriate standard of review to be applied by this Court, but OTA's last argument suggests our review is abuse of discretion. However, in light of the significance of the parties' “right to jury trial” arguments, this Court concludes the dispositive issue in this appeal is whether, under the specific facts of this condemnation proceeding, the trial court's dismissal of OTA's “objection to the amount of the Commissioners' award and demand for jury trial for an alleged failure to prosecute pursuant to Rule 9(b) and its inherent power violated OTA's right to a jury trial as granted by Art. II, § 24 of the Oklahoma Constitution.

¶ 11 A violation of the right to jury trial not only implicates due process, but presents a fundamental constitutional issue that is reviewable de novo. In re H.M.W., 2013 OK 44, ¶ 13, 304 P.3d 738, 741 (father's conduct in refusing writ of habeas corpus to attend jury trial in parental rights termination case neither constituted a waiver of jury trial nor an objection to a jury trial in absentia). De novo review is plenary, independent and non-deferential. M.J. Lee Construction Co. v. Oklahoma Transportation Authority, 2005 OK 87, ¶ 11, 125 P.3d 1205, 1210. “It is well settled that Courts have a duty to enforce strict observance of the constitutional and statutory provisions designed to preserve inviolate [the] right to, and purity of jury trial.’ Fields v. Saunders, 2012 OK 17, ¶ 10, 278 P.3d 577, 581.

ANALYSIS

¶ 12 Art.II, § 24 of the Oklahoma Constitution states, in pertinent part:

... Any party aggrieved shall have the right of
...

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