State ex rel. Dept. of Transp. v. Mehta

• Decision Date: 11 February 2008
• Docket Number: No. 101,226.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,101,226.
• Citation: 2008 OK CIV APP 25,180 P.3d 1214
• Parties: STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellant, v. Kishor and Jyotsna MEHTA, husband and wife; and Magic Circle Properties, LLC, Defendants/Appellees, and Eller Media Company and The Tulsa County Treasurer, Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

180 P.3d 1214

2008 OK CIV APP 25

STATE of Oklahoma, ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/Appellant, v. Kishor and Jyotsna MEHTA, husband and wife; and Magic Circle Properties, LLC, Defendants/Appellees, and Eller Media Company and The Tulsa County Treasurer, Defendants.

No. 101,226.

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.

February 11, 2008.

Appeal from the District Court of Tulsa County, Oklahoma; Honorable David L. Peterson, Trial Judge.

REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION

Kelly F. Monaghan, John M. Folks, Holloway & Monaghan, Tulsa, OK, for Plaintiff/Appellant.

Randall S. Pickard, Tulsa, OK, for Defendants/Appellees.

JERRY L. GOODMAN, Presiding Judge.

¶ 1 The State of Oklahoma, ex rel. Department of Transportation (ODOT or Department) appeals the trial court's August 25, 2004, order denying its exceptions to the Commissioners' Second & Corrected Report. Based on our review of the record on appeal and applicable law, we reverse in part and remand for further proceedings consistent with this opinion.

FACTS

¶ 2 On September 28, 2001, ODOT filed a petition pursuant to 69 O.S.2001, § 1203 seeking to acquire real property in Tulsa County, Oklahoma, for the purpose of constructing and maintaining the state transportation system. The petition alleged ODOT and the Defendants Kishor and Jyotsna Mehta (the Mehtas) and Eller Media Company (Eller) had failed to reach an agreement regarding the Department's acquisition of the property. ODOT's petition identified two (2) tracts of land to be condemned, a taking of 3.69 acres in fee simple with an additional .31 acres for a temporary easement. The petition further identified a billboard located on the property. The petition asserted the Defendants owned or claimed some interest in the property.¹

¶ 3 On October 23, 2001, the trial court entered an order appointing three (3) commissioners instructing them to inspect the property and determine just compensation for the legally described property set forth in ODOT's petition. On February 6, 2002, the Commissioners filed their Report finding just compensation for the taken property to be $710,000.00.

¶ 4 On February 15, 2002, the Mehtas filed an exception to the Report asserting the Commissioners had failed to separately identify the amount of compensation awarded to each Defendant for their property interest. The Mehtas' requested the court order the Commissioners to file an amended report separately identifying the sums awarded. Eller filed an exception on March 6, 2002, also requesting the court order the Commissioners to separately identify the compensation awarded.

¶ 5 On April 23, 2002, ODOT filed a motion for partial summary judgment against the Mehtas and Eller, asserting that in 1962 the State of Oklahoma had been granted a perpetual highway easement on the property the billboard was located on. ODOT stated it named Eller as a defendant in the condemnation action because it mistakenly believed the billboard was located on the Mehtas' property and that the billboard would have some value in the condemnation proceeding. Having realized its mistake, ODOT asserted Eller was not entitled to compensation for the unlawfully placed sign. In response, Eller asserted, inter alia, that a motion for summary judgment was not authorized in condemnation proceedings, issues of fact existed regarding whether ODOT had abandoned the property, and ODOT should have filed an exception to the Commissioners' Report.

¶ 6 The Mehtas also objected to the motion, as well as filing their own cross-motion for partial summary judgment. Although the Mehtas acknowledged ODOT was granted the easement in 1962, they asserted ODOT had abandoned the easement or, in the alternative, that they owned the land through adverse possession. The Mehtas further alleged ODOT waived its right to object by failing to timely file an exception to the Commissioners' Report. The trial court denied the motions. ODOT and Eller subsequently settled and filed a joint dismissal with prejudice and release of claims on February 26, 2003.

¶ 7 Thereafter, the trial court granted the Mehtas' exception, and issued new instructions to the Commissioners over ODOT's objections. The new instructions directed the Commissioners to value four (4) properties described, in part as: 1) Property A: 3.69 acres, "... all as stated in the condemnation petition filed herein."; 2) Property B: .31 acres for a temporary easement, "... all as stated in the condemnation petition filed herein."; 3) Property C: a triangular-shaped parcel of land adjacent to Property A; and 4) Property D: a billboard located on Property C. Neither Property C nor Property D referenced the condemnation petition. ODOT objected to the inclusion of Property C and Property D in the instructions, again asserting the Department owned Property C, upon which the billboard was located.

¶ 8 On April 8, 2004, the Commissioners filed their Second Report, corrected on May 4, 2004, ("Second and Corrected Report") finding the total compensation due was $710,000.00, apportioned among the property as follows: Property A: 3.69 acres ($587,000.00); Property B: .31 acres taken for a temporary easement ($8,000.00); Property C: triangular lot adjacent to Property A ($80,000.00); Property D: billboard located on Property C ($35,000.00).

¶ 9 On May 10, 2004, ODOT filed exceptions to the Second and Corrected Report, asserting the instructions were unlawful because there was no authority for separate valuations. ODOT further asserted the Report was erroneous because it awarded compensation for property the Department owned and for property unlawfully located thereon.

¶ 10 On May 14, 2004, the Mehtas filed a demand for jury trial. ODOT filed a demand for jury trial on May 26, 2004. On August 25, 2004, the trial court denied ODOT's exceptions to the Commissioners' Second and Corrected Report. ODOT appeals.

STANDARD OF REVIEW

¶ 11 As there are no material facts in dispute, this appeal presents only a question of law.² See Baptist Bldg. Corp. v. Barnes, 1994 OK CIV APP 71, ¶ 5, 874 P.2d 68, 69-70. Contested issues of law are reviewable in all actions by a de novo standard. Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, ¶ 5, 895 P.2d 731, 733 (approved for publication by the Oklahoma Supreme Court). An appellate court claims for itself plenary, independent, and non-deferential authority to re-examine legal rulings. Id.

ANALYSIS

¶ 12 On appeal, ODOT contends the trial court erred in denying its exceptions to the Commissioners' Second and Corrected Report. First, ODOT asserts the trial court erroneously instructed the Commissioners to assess, value, and award compensation for Property C and Property D even though Property C was not included in the petition to condemn and is owned by the Department and Property D is unlawfully located thereon. For their second assertion of error, ODOT maintains the Commissioners' award was unlawful because there is no authority for separate valuations of various property interests.

¶ 13 Prior to addressing the merits of ODOT's appeal, we must initially determine whether the appeal is properly before this Court.³ ODOT filed this appeal upon the denial of its exceptions to the Commissioners' Second and Corrected Report, citing 69 O.S. 2001, § 1203(f) as authority. Section 1203(f) provides:

(f) Either party aggrieved may appeal to the Supreme Court from the decision of the district court on exceptions to the report of commissioners, or jury trial;

¶ 14 On October 31, 2006, this Court issued a show cause order directing the parties to address the appealability of the trial court's August 25, 2004, order denying ODOT's exceptions. The parties complied. The Mehtas assert ODOT's exceptions ask for summary adjudication of issues of fact that are the subject of ODOT's demand for jury trial and that once a demand for jury trial has been made, the issues are waived and the action must proceed to jury trial. Thus, the appeal is improper. ODOT disagrees and contends the statutory language of § 1203(f) is clear and unambiguous, and that the legislature intended for either party aggrieved by the decision on the exceptions to have the right of immediate appeal.

¶ 15 Despite the general statement of authority to appeal set out in § 1203(f), this Court has jurisdiction to decide only those appeals from the trial court's judgments, final orders, and certain interlocutory orders. See 12 O.S.2001, § 952.

¶ 16 In the present case, the order appealed is not an interlocutory order or a final judgment, but a determination of certain issues presented to the trial court. Because the parties have filed a demand for jury trial, the issue of just compensation for the property taken and damages to the remainder, if any, has been reserved for the jury's determination. Accordingly, the issue before this Court is whether the order denying ODOT's exceptions is a final order over which we have jurisdiction.

¶ 17 Condemnation, also known as eminent domain, is the power to take private property for the public good. Williams v. State ex rel. Dept. of Transp., 2000 OK CIV APP 19, ¶ 13, 998 P.2d 1245, 1248 (citing Harn v. State ex rel. Williamson, 1939 OK 40, 184 Okla. 306, 87 P.2d 127). The right of condemnation is a fundamental attribute of the sovereign state. City of Tahlequah v. Lake Region Elec, Co-op., Inc., 2002 OK 2, ¶ 7, 47 P.3d 467, 471. This right is restricted by the provisions of Oklahoma's Constitution, art. 2, § 24, which provides in part that "[p]rivate property shall not be taken or damaged for public use without just compensation."

¶ 18 A condemnation action brought to obtain private property for public use is a special proceeding strictly controlled by the Constitution and statutes prescribed by the Legislature. See Public Serv. Co. of Okla. v. B....