Tulsa Indus. Auth. v. City of Tulsa, Okla., Corp.
| Decision Date | 30 September 2014 |
| Docket Number | No. 111804.,111804. |
| Citation | 336 P.3d 1016 |
| Parties | TULSA INDUSTRIAL AUTHORITY, an Oklahoma Public Trust, Plaintiff/Appellee, v. CITY OF TULSA, OKLAHOMA, a municipal corporation, and Tulsa Hills, LLC, an Oklahoma limited liability company, Defendants/Appellees, and State of Oklahoma, ex rel. J. Clark Bundren, M.D., a resident Taxpayer of the City of Tulsa, State of Oklahoma, Intervenor, Defendant, Counterclaimant, and Cross–Petitioner/Appellant, and Tulsa Industrial Authority, City of Tulsa, Oklahoma and Tulsa Hills, LLC, Third–Party Defendants, and Mary Fitzgerald, District Judge, Tulsa County, Oklahoma, Appellee. |
| Court | Oklahoma Supreme Court |
APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA, MARY F. FITZGERALD, DISTRICT JUDGE.
¶ 0 In this second appeal, the Taxpayer/appellant, J. Clark Bundren, M.D., asks this Court to review a dismissal with prejudice by the trial court for refusal to amend Taxpayer's second amended petition, which the trial court ordered be amended to join bondholders as necessary parties to this lawsuit. Subsequently, trial court dismissed the lawsuit with prejudice. This Court retained the matter for decision.
AFFIRMED.
Mary R. Bundren, Bundren Law Firm, P.C., Tulsa, Oklahoma, and Kenneth L. Brune, Brune Law Firm, Tulsa, Oklahoma, for appellant.
J. Douglas Mann, and Jerry A. Richardson, Rosenstein, Fist & Ringold, Tulsa, Oklahoma, for appellee Tulsa Industrial Authority.
Lewis N. Carter, and Kevin C. Coutant, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma, for appellee Tulsa Hills, L.L.C.
Gerald M. Bender, Litigation Division Manger, Brandon J. Burris, Senior Assistant City Attorney, Tulsa, Oklahoma, for appellee City of Tulsa.
¶ 1 The dispositive issue in this appeal is whether or not Taxpayer/appellant, J. Clark Bundren, M.D., (Taxpayer), must include bondholders as necessary parties to this lawsuit. We affirm the order of the trial court.
¶ 2 This appeal is the second appeal in this dispute between Taxpayer and the appellees. The opinion in the first appeal was handed down on June 21, 2011, with rehearing denied on February 6, 2012. Tulsa Industrial Authority v. City of Tulsa, 2011 OK 57, 270 P.3d 113. The two issues in that case were (1) whether Taxpayer should have been allowed to intervene in a declaratory judgment proceeding to determine the legality of certain public expenditures and financing; and (2) whether the appeal was moot because the appellees, Tulsa Industrial Authority, City of Tulsa Oklahoma, and Tulsa Hills, L.L.C. (TIA, City, and TH, respectively), obtained a declaratory judgment after Taxpayer was prohibited by the trial court from intervening. This Court denied the motion to dismiss the appeal for mootness and held that Taxpayer's claim for equitable relief presented by a motion to intervene was not made moot by the judgment rendered during the appeal. Tulsa Industrial Authority, 2011 OK 57 at ¶¶ 17, 30, 270 P.3d at 122, 128.
¶ 3 This Court affirmed the trial court's order that denied Taxpayer's motion to intervene as a qui tam plaintiff, but reversed the trial court's order denying a motion to intervene in which Taxpayer sought equitable relief. The cause was remanded to the district court for further proceedings consistent with the opinion. Tulsa Industrial Authority, 2011 OK 57 at ¶ 45, 270 P.3d at 133.
¶ 4 On July 9, 2012, the trial court ordered Taxpayer to file his “Petition in Intervention” on or before August 16, 2012. On August 15, 2012, Taxpayer complied with the order by filing the petition. On September 14, 2012, the appellees each filed separate motions to dismiss, and asserted that the bondholders were necessary parties.
¶ 5 On November 3, 2012, the trial court granted the motions to dismiss and allowed Taxpayer twenty days to file an amended petition. The court included the requirement that if Taxpayer filed an amended petition seeking to enjoin the City from making payments to the bondholders who purchased the bonds used to finance the underlying transaction, then the Taxpayer must provide notice of the amended petition to the bondholders and file proof of such notice with the court.
¶ 6 On December 17, 2012, Taxpayer filed an amended petition, and the appellees responded on January 3, 2013, with separate motions to dismiss. On April 5, 2013, the trial court again dismissed Taxpayer's petition on the basis that Taxpayer did not provide notice to bondholders as necessary parties to the lawsuit, and that Taxpayer did not state a claim on which relief could be granted.
¶ 7 The trial court found that the bondholders were necessary parties to the action and if not joined, the present parties to the action would face a substantial risk of incurring multiple and potentially inconsistent obligations. The court again dismissed without prejudice the causes of action for declaratory and injunctive relief for failure to comply with the court's prior order and for failure to join all parties necessary “to a just adjudication of this matter.” The court allowed Taxpayer twenty days to file an amended petition, and ordered that if Taxpayer did not amend the petition within that time, the action would be dismissed with prejudice to all the claims.
¶ 8 Instead of amending the petition, Taxpayer filed with this Court an Application to Assume Original Jurisdiction and Petition for Writ of Prohibition and Mandamus. On June 19, 2013, the trial court entered a final order of dismissal with an effective date of April 25, 2013, which was the date the twenty-day period for an amendment expired. On August 7, 2013, this Court retained the matter for decision.
¶ 9 Title 12 O.S.2011, § 2019, provides in pertinent part:
¶ 10 In summary of the pertinent events, Taxpayer filed his petition to intervene, and the appellees filed their motions to dismiss, and when the trial court granted the motions to dismiss the court alerted the Taxpayer that an amended petition to enjoin the City from making payments to the bondholders would require the Taxpayer to provide notice to the bondholders and file proof of such notice with the court. When Taxpayer filed the amended petition, Taxpayer did not provide notice to the bondholders.
¶ 11 Predictably, the appellees again moved to dismiss the petition, and the court for the second time granted Taxpayer time to amend his petition and join the bondholders. Taxpayer chose to petition this Court for Prohibition and Mandamus, thus bringing before this Court, for the first time, the issue of the necessity of joining the bondholders to this lawsuit. The trial court had stated its reason for adding the bondholders. Leaving the bondholders out of the lawsuit would cause the appellees to be subject to a substantial risk of incurring double, multiple, or inconsistent obligations in a separate suit or suits by bondholders.
¶ 12 On page 9 of the Appellant's [Taxpayer's] Reply Brief to the Answer Brief of Appellees, Tulsa Industrial Authority and City of Tulsa, the Taxpayer argues, “[I]f the bondholders wish to prosecute an action, they are free to do so regardless of the prosecution of this matter.” We take this statement as an admission of the obvious, that bondholders could choose to prosecute an action separately from the lawsuit now before this Court. This leaves the appellees subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest, and is the purpose of the protection afforded under 12 O.S.2011, § 2019(A)(2)(b), which requires potential plaintiffs to be joined to a lawsuit.
¶ 13 Taxpayer provides several defenses to his being required to join the bondholders to the lawsuit. He first argues that this Court, in its previous opinion, implied that the bondholders were not necessary parties to the lawsuit when this Court omitted any discussion of joining the bondholders. The issue regarding the bondholders was not addressed in the opinion, and Taxpayer should not infer such a holding. This Court typically does not address issues before the parties have presented them for the trial court to adjudicate. Tulsa Industrial Authority, 2011 OK 57, ¶ 44, 270 P.3d at 133. In that opinion we stated the limitations of the holding, which issues addressed intervention requesting equitable relief. Joining bondholders to the lawsuit was not an issue at that stage. We have held that “This Court, as an appellate tribunal, does not make first-instance rulings.” Boston v. Buchanan, 2003 OK 114, ¶ 41, 89 P.3d 1034, 1045. This appeal regarding joining bondholders to the lawsuit is now before this Court for the first time. Taxpayer's assumption that the previous appellate case regarding Taxpayer's intervention in the matter also included an inferential holding regarding the bondholders is in error.
¶ 14 Taxpayer claims he does not have access to the names and whereabouts of any of the bondholders and that discovery has not been allowed. Taxpayer does not make any showing that he attempted and the trial court subsequently denied discovery. Therefore, this argument fails.
¶ 15...
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