Public Service Co. of Oklahoma v. B. Willis, C.P.A., Inc., 83358

• Decision Date: 24 June 1997
• Docket Number: No. 83358,83358
• Citation: 941 P.2d 995,1997 OK 78
• Parties: PUBLIC SERVICE COMPANY OF OKLAHOMA, an Oklahoma corporation, Appellee, v. B. WILLIS, C.P.A., INC., Appellant.
• Court: Oklahoma Supreme Court

Page 995

941 P.2d 995

1997 OK 78

PUBLIC SERVICE COMPANY OF OKLAHOMA, an Oklahoma corporation, Appellee, v. B. WILLIS, C.P.A., INC., Appellant.

No. 83358.

Supreme Court of Oklahoma.

June 24, 1997.

Stratton Taylor, Daphne A. Burns, Carle, Higgins, Mosier & Taylor, Claremore, Kevin Coutant, Doerner, Stuart, Saunders, Daniel, Anderson & Biolchini, Tulsa, for Appellee.

William T. Dickson Tulsa, for Appellant.

SIMMS, Justice:

¶1 Certiorari was granted in this eminent domain proceeding to consider a landowner's contention that his constitutional and statutory rights were violated as he was denied any meaningful opportunity for a hearing before Public Service Company was allowed to exercise its asserted right to condemn and take possession of his land. We agree. We vacate the decision of the Court of Civil Appeals, reverse the trial court and remand for further proceedings.

¶2 Public Service Company (PSO) commenced this condemnation proceeding to acquire an easement across property owned by Willis (or landowner), for the purpose of building a thirteen mile railroad spur to transport coal to its Oologah power plant. In its petition, PSO alleged that it is a public service corporation duly authorized under 66 O.S.1991 §§ 51-60 and 27 O.S.1991 § 7, to exercise the power of eminent domain, that its acquisition of Willis' property is necessary for a proper purpose and that its efforts to secure the right-of-way by private purchase had been unsuccessful.

¶3 Commissioners were appointed and filed their report pursuant to 66 O.S.1991, § 53. Willis filed exceptions to the commissioners' report under 66 O.S.1991, § 55, and alleged that the proposed taking of his property was not for a public use or reasonably necessary therefor and demanded a jury trial. Additionally, Willis served PSO with requests for discovery to gather evidence in support of his assertions in an effort to defeat the proposed taking. Among those discovery requests was a request for production of documents which encompassed any resolution of necessity adopted by the Board of Directors of PSO declaring the necessity for acquiring Willis' land for a public use, and a request for all information regarding economic studies, contracts, analyses, and negotiations regarding the project. PSO refused to produce most of the documents including those specified, and Willis subsequently filed a motion to compel discovery.

¶4 At a pretrial hearing, the trial court announced that it would grant PSO's request to hear all pending motions and objections including both the landowner's motion to compel discovery and his exceptions to the commissioner's report. Willis objected that the matter was premature for the trial court's determination at that time. He argued that his reason for filing the motion to compel was to obtain relevant evidence to present at a proper trial on his exceptions to the report so that he could support his defense that the proposed taking was neither for public use nor necessary therefor. He argued that PSO had failed to carry its initial burden of proof as to its right to condemn his property because it had not presented any evidence in support of the allegations of its petition. Willis submitted that in the absence of introducing a resolution by its Board of Directors declaring the necessity of taking his property for a public use, the utility did not present a prima facie case and was not entitled to prevail on its petition.

¶5 PSO contended that discovery for the landowner was irrelevant. It argued that because it had a legislative grant to condemn property pursuant to 27 O.S.1991 § 7, Willis had no right to contest its taking of his land. The trial court held in favor of PSO and overruled both Willis' motion to compel discovery and his exceptions to the commissioners' report. The court ruled that PSO was not required to file a resolution of necessity with its petition and held further that a simple allegation of necessity in the petition was sufficient to sustain PSO's case. For this determination, the court relied on its interpretation of the holding in McCrady v. Western Farmers Elec. Cooperative, 323 P.2d 356 (Okl.1958). The trial court also found that in the event a resolution of necessity were required, the issue had become moot because subsequent to the pretrial hearing, PSO had submitted a supplemental brief and attached thereto a certified copy of a resolution of necessity asserted to have been adopted by its Board of Directors.

¶6 Willis appealed. He argued that by allowing PSO to seize his property for a purported but disputed necessary public use without granting him an adversary hearing on his challenge to the taking, the district court had ignored his constitutional and statutory rights as well as those protected by clear and well-developed Oklahoma case law. Willis contended that the trial court committed error by denying him the right to conduct relevant discovery and holding that a mere unsubstantiated allegation in a petition, unsupported by any evidence whatsoever, was sufficient to entitle PSO, acting under the sovereign power of eminent domain, to take his property.

¶7 The Court of Civil Appeals affirmed the trial court in part and reversed in part. That Court did agree with Willis that the trial judge abused his discretion in denying Willis his right to conduct relevant discovery and, to that extent, it reversed the trial court and remanded the matter for a hearing on the issue of whether the intended taking was for public use. The Court of Civil Appeals agreed with the trial court that PSO was not required to file a copy of a resolution of necessity with its petition, and it also followed the trial court's interpretation of McCrady v. Western Farmers Elec. Cooperative, supra, and held that a resolution declaring the necessity of the taking was unnecessary because the mere act of filing a petition which alleges the necessity of the taking, "raises a rebuttable presumption that the condemnation is necessary for public good." The Appeals Court held that at the hearing before the trial court on remand, Willis would accordingly bear the burden of proof to rebut a presumption in favor of PSO that the taking is necessary for a public purpose.

¶8 On certiorari, Willis points out that the combined result of the actions of the trial court and the Court of Civil Appeals has been to deny him all opportunity to present any defense to PSO's action to take his property over his protests. PSO has put on no proof whatsoever in support of its petition and none will be required at the hearing on remand before the trial court, as the Court of Civil Appeals has placed the burden of proof on him rather than the condemning authority where it should be, all in violation of Okla. Const. 2 §§ 23, 24 and 66 O.S.1991 §§ 53, et seq.

¶9 PSO also sought certiorari, contending that the portions of the Court of Civil Appeals' decision allowing Willis' discovery requests and holding that the adversarial hearing before the trial court had not been adequate in all respects were erroneous. Certiorari was previously granted to both parties, however, we do not find PSO's arguments persuasive and deny the utility all requested relief.

¶10 Landowner Willis is correct that both the trial court and the Court of Civil Appeals erred in holding that by merely filing a petition for condemnation, PSO established a prima facie case and is thereby entitled to a rebuttable presumption of the necessity of acquiring Willis' property for public use. The trial court and the Court of Civil Appeals misunderstood the holding of McCrady v. Western Farmers Electric Cooperative, supra, for that decision does not support the rulings in this case.

¶11 In McCrady, one of the specific propositions of error raised by defendant landowners was that plaintiff's petitions were insufficient to invoke the court's jurisdiction because they did not allege that a resolution of necessity for condemnation had been adopted by the appropriate body. In answer to that proposition, the Court found that the petitions before it were sufficient to initiate the actions without such allegations. Because the applicable statutes governing the exercise of the power of eminent domain do not explicitly set forth any particular requirements for a pleading invoking the court's jurisdiction, the Court found certain requirements were implicit. Namely, that the petition...