Tinker Inv. & Mortg. Corp. v. City of Midwest City

• Decision Date: 19 April 1994
• Docket Number: Nos. 78844,80396,s. 78844
• Parties: TINKER INVESTMENT & MORTGAGE CORPORATION, Plaintiff-Appellant, v. CITY OF MIDWEST CITY, Defendant-Appellee. WILLOW WIND, INC., Plaintiff-Appellee, v. TINKER INVESTMENT & MORTGAGE CORPORATION, Defendant-Appellant, City of Midwest City, Defendant-Appellee.
• Court: Oklahoma Supreme Court

Page 1029

873 P.2d 1029

1994 OK 41

TINKER INVESTMENT & MORTGAGE CORPORATION, Plaintiff-Appellant, v. CITY OF MIDWEST CITY, Defendant-Appellee.

WILLOW WIND, INC., Plaintiff-Appellee, v. TINKER INVESTMENT & MORTGAGE CORPORATION, Defendant-Appellant, City of Midwest City, Defendant-Appellee.

Nos. 78844, 80396.

Supreme Court of Oklahoma.

April 19, 1994.

On Appeal from the District Court, Oklahoma County; Bryan Dixon, Judge.

Willow Wind/Beaver and Tinker Investment & Mortgage Corporation [Timcorp] challenged in separate actions Midwest City's enforcement of municipal ordinances regulating the private construction of trunk sewer lines. The district court consolidated the cases and gave summary judgment to Midwest City on Timcorp-advanced issues of unjust enrichment and inverse condemnation. After trial on the remaining issues, the court ordered Midwest City to collect assessments from all parties [including Timcorp] who had connected their subdivisions to Willow Wind/Beaver's trunk sewer line. Timcorp brings two appeals--one from the earlier summary judgment to Midwest City and the other from the later judgment assessing it for tieing into Willow Wind/Beaver's trunk line. Both appeals are consolidated for disposition by a single opinion.

THE APPEAL IN CAUSE NO. 78,844 IS DISMISSED BECAUSE THAT APPEAL IS PROSECUTED FROM AN UNAPPEALABLE SUMMARY JUDGMENT; THE MOTION TO AMEND THE PETITION IN ERROR IN CAUSE NO. 80,396 IS DENIED; AND THE JUDGMENT OF THE TRIAL COURT IS AFFIRMED.

Robert N. Sheets, Phillips McFall McCaffrey McVay & Murrah, Oklahoma City, for appellant Tinker Inv. & Mortg. Corp.

David A. Davis, Oklahoma City, for appellee City of Midwest City.

Byrne A. Bowman, Oklahoma City, for appellee Willow Wind, Inc.

OPALA, Justice.

The case presents the following questions: (1) Should Tinker Investment & Mortgage Corporation's [Timcorp] appeal in Cause No. 78,844 be dismissed because it is prosecuted from an unappealable summary judgment? (2) Can Timcorp secure in its second appeal [Cause No. 80,396] the relief sought by its first appeal [Cause No. 78,844] against Midwest City [the City], even though its attempt to secure this relief comes here more than 30 days after the date of the judgment from which the second appeal is prosecuted? and (3) Did the district court err in rejecting Timcorp's objection to Willow Wind/Beaver's ¹ suit, based on the latter party's failure

                to exhaust the City's administrative remedies?   We answer the first question in the affirmative and the second two in the negative.  Timcorp's quest for corrective relief from the trial court's summary judgment to the City is dismissed.  Timcorp's attempt to transform a nominal party [Midwest City] into a targeted party appellee 2 in its second appeal offends the provisions of 12 O.S.1991 § 990A.  Timcorp's quest to enlarge its assignment of errors in the second appeal is unauthorized by Rule 1.17, Rules of Appellate Procedure in Civil Cases.  Although allowing amendment of the petition in error before the brief in chief is filed, the cited rule does not sanction the substitution or addition of parties appellee or appellant more than thirty days after the date of the judgment from which the appeal is prosecuted. 3  Because the City's administrative procedure for enforcement of its municipal ordinances was concededly ineffective, the trial court correctly ruled that the exhaustion-of-remedy doctrine did not bar it from reaching the claims of Willow Wind/Beaver or from construing the pay-back ordinances
                

I

ANATOMY OF LITIGATION

The City's ordinances required subdivision developers to install water and sewer lines and to dedicate them to the City as a condition for municipal plat approval. ⁴ In 1982 new ordinances ⁵ were passed to encourage The City's efforts to enforce the ordinances were not fully effective. Willow Wind/Beaver, a developer who had installed a sanitary sewer trunk line, sued for a declaration of its rights under the ordinances and, alternatively, for a writ of mandamus to compel their enforcement. Shortly after this suit was filed in 1986, the City repealed the pay-back ordinances, ⁶ deeming them unconstitutional.

                private parties to build trunk sewer lines to service previously undeveloped lands.  This local legislation, commonly referred to as pay-back ordinances, called for (1) a developer to pay the initial construction costs for the trunk sewer lines and (2) the City to charge later developers a one-time fee to connect their subdivisions to these lines.  Ninety percent of the collected "tie-on" fee was to be paid to the developer who had constructed the original trunk line and ten percent was to be retained by the City to cover the costs of administering the pay-back plan.   The pay-back period was limited to "no more than fifteen years"
                

Another developer, Timcorp, brought a separate action against the City to compel enforcement of the pay-back ordinances. Its claim was rested upon theories of inverse condemnation and unjust enrichment. Timcorp sought a declaration that a line it had built was a trunk line within the meaning of the ordinances and that reimbursement from the City for the line's construction costs was hence its due. According to Timcorp, had it not been for the pay-back ordinances, it would not have planned a subdivision which called for water and sewer connections. Rather, it would have opted for a development in which septic tanks and water wells would have been used.

The two cases were consolidated below for disposition. The trial judge initially ruled the pay-back ordinances unconstitutional and gave summary judgment to the City. ⁷ The Court of Appeals reversed that decision. ⁸ This court vacated the appellate court's opinion and reached for resolution, inter alia, the question whether the pay-back ordinances were valid when tested against the provisions of Art. 10, §§ 14, 17, 26 and 27, Okl. Const. ⁹ Pronouncing the ordinances constitutional, this court reversed and remanded the case for trial. Following the remand, summary judgment went to the City against Timcorp. ¹⁰ When giving summary judgment to We hold today that (1) Timcorp's first appeal [Cause No. 78,844] is dismissible because it seeks review of an unappealable summary judgment; (2) Timcorp's quest for relief against Isaacs Construction Co., Inc. [Isaacs] is denied because Timcorp failed to serve Isaacs or its counsel of record either with a copy of the petition in error or with any other notice; (3) the terms of 12 O.S.1991 § 990A ¹⁵ and RULE 1.17, RULES OF APPELLATE PROCEDURE IN CIVIL CASES¹⁶, prohibit this court from granting Timcorp leave to change, after the maximum time for the second appeal has expired, the City's status in the later appeal from that of a nominal party appellee [against whom no relief was sought] to that of a targeted party appellee; and (4) because the administrative remedy made available by the municipal law does not afford Willow Wind/Beaver adequate relief, the exhaustion-of-remedies doctrine did not require this action's abatement by the district court.

the City, the trial court denied Timcorp's motion for summary resolution of other issues, noting the presence of unresolved claims. Timcorp appealed for review of the summary judgment [the first appeal]. ¹¹ The remaining issues were later reached for trial, and judgment [the latter resolving all the issues and claims in the consolidated action] was entered for Willow Wind/Beaver. ¹² Timcorp appealed ¹³ this terminal disposition by judgment on the October 9, 1992 [the second appeal] and amended its petition in error on November 12, 1992. ¹⁴

II

THE PROVISIONS OF 12 O.S.1991 § 1006

REQUIRE TIMCORP'S FIRST APPEAL TO BE DISMISSED

BECAUSE IT IS PROSECUTED FROM AN

UNAPPEALABLE SUMMARY JUDGMENT.

Although the district court gave to the City summary judgment against Timcorp, that nisi prius disposition did not then rise to an appealable event. This is so because the decision which Timcorp tendered for review [in its first appeal] was not advanced ¹⁷ for an immediate appeal under the The law views the earlier summary judgment, here under scrutiny, as unappealable sans certification. That disposition was not terminal in this multi-party, multi-claims case. ²⁰ It remained subject to change before the court's decision resolved all the other claims. ²¹ Because the summary judgment

terms of 12 O.S.1991 § 1006. ¹⁸ In a multi-party, multi-claim action a decision disposing of less than all the parties and all the claims is unappealable unless the § 1006 criteria ¹⁹ are met. The provisions of § 1006 [then in effect] required that a final decision on one but not on all claims can be advanced by the trial judge for immediate appeal only by an express determination, included in the journal entry, that there is no reason for delay, coupled with an express direction for the filing of "judgment ". Here the requisite expressions are absent was not advanced in conformity to 12 O.S.1991 § 1006, Cause No. 78,844 stands dismissed. ²²

III

THE TIMELY COMMENCEMENT OF AN APPEAL INVESTS THE APPELLATE

COURT WITH REVIEWING COGNIZANCE AND IDENTIFIES THE

PARTIES APPELLANT AND APPELLEE.

Appellate review is commenced by a petition in error filed within thirty days of the judgment or final order date. ²³ Timely commencement is jurisdictional. ²⁴ Failure to file an appeal within the statutory time is fatal. ²⁵ Timely filing serves the twofold purpose of apprising the appellate court and the parties appellant and appellee of the identity ²⁶ and posture of the parties in the appeal as well as identifying the errors assigned for review. RULE 1.14, RULES OF APPELLATE PROCEDURE IN CIVIL CASES²⁷, mandates that the party appellant mail to each party to the appeal or to his counsel a copy of the petition in error. ²⁸ The service of the petition in error is designed to ensure due process by affording timely notice to one who has been haled into court. ²⁹

A

BECAUSE ISAACS HAD ENTERED ITS APPEARANCE...