URBAN RENEWAL AUTHORITY v. Oklahoma City

110 P.3d 550

OKLAHOMA CITY URBAN RENEWAL AUTHORITY, a public body corporate, Plaintiff/Appellee/Appellant, v. The CITY OF OKLAHOMA CITY, OK, a municipal corporation, Defendant and Third-Party Plaintiff/Appellee/Appellant, v. Moshe Tal, a resident taxpayer of The City of Oklahoma City, OK, and Taxpayers for Honest Government, an unincorporated association of resident taxpayers of the City of Oklahoma City, OK, Third-Party Defendants/Appellants/Appellees and Qui Tam Counterclaim Plaintiffs, v. Oklahoma City Urban Renewal Authority, a public body corporate, Qui Tam Counterclaim Defendant, and The State of Oklahoma ex rel. Moshe Tal and Taxpayers for Honest Government, Qui Tam Third-Party Plaintiffs/Appellants/Counter-Appellees, v. Kirk D. Humphreys, in his personal and official capacity as the Mayor of the City, James D. Couch, in his personal capacity as the City Manager & MAPS Director, James E. Thompson, in his personal and official capacity as Assistant City Manager; William R. Burkett, in his personal and official capacity as City Municipal Counselor; William O. West, in his personal and official capacity as former City Municipal Counselor; Daniel T. Brummitt, Kenneth D. Jordan, Richard C. Smith, and Diane Lewis, in their personal and official capacities as Assistants and/or deputies to Municipal Counselor; Mick Cornett, Lawrence F. McAtee, Jr., Ann Simank, Willa Johnson, and Guy Liebmann, in their personal and official capacities as Councilpersons of the City; Amy U. Brooks, in her personal and official capacity as former City Councilwoman, Tiana P. Douglas, in her personal and official capacity as the Executive Director of Urban Renewal; James R. Tolbert III, Fred Jones Hall, J. Larry Nichols, Stanton L. Young, and Warren Gardner, in their personal and official capacities as Commissioners of Urban Renewal; James (Dan) Batchelor, and Leslie V. Batchelor, in their personal and official capacities as legal counselor of Urban Renewal; Bass Pro, Inc.; Bass Pro Outdoor World, L.L.C.; Gaylord Entertainment Company; The Estate of Edward L. Gaylord (deceased); Dan Randolph Hogan; Mark D. Elgin; TMK/Hogan Joint Venture and/or commercial Real Estate Services Joint Venture; Bricktown TMK/Hogan Entertainment, L.L.C. (a.k.a. Bricktown Entertainment, L.L.C.), Hogan Property Management, L.L.C.; Bricktown Parking Investors, L.L.C., Bricktown-TMK/Hogan Parking, L.L.C. (a.k.a. Bricktown SMC/Hogan, L.L.C.); BAP-Bricktown, L.L.C.; Stonegate Management Company, L.L.C.; Elgin Development Company, L.L.C.; TDC Company, L.L.C.; Oklahoma City Athletic Club, Inc.; OKC Athletic Club L.P.; Clayton Bennett; Tim O'Toole; The City of Oklahoma City; and John Does No. 1-50, Qui Tam Third-Party Defendants, with Qui Tam Third Party Defendants Burkett, Brummitt, Jordan, Smith, Lewis, James (Dan) Batchelor and Leslie V. Batchelor Qui Tam Third-Party Defendants/Appellees/Counter-Appellants and Qui Tam Third-Party Defendant William O. West Qui Tam Third-Party Defendant/Appellee.

Nos. 100,413, 100,538.

Supreme Court of Oklahoma.

January 11, 2005.

As Corrected on Denial of Rehearing March 28, 2005.

Leslie V. Batchelor, James Dan Batchelor, Oklahoma City, OK, for Qui Tam Third-PartyDefendants/Appellees/Counter-Appellants, James Dan Batchelor and Leslie V. Batchelor and Plaintiff/Appellant Oklahoma City Urban Renewal Authority.

Moshe Tal, pro se.

James E. Dunn, Oklahoma City, OK, For Third-Party Defendants/Appellants/Appellees and Qui Tam Counterclaim Plaintiffs, Qui Tam Third-Party Plaintiffs/Counter-Appellees, Taxpayers for Honest Government.

Kenneth D. Jordon, Richard C. Smith, Oklahoma City, OK, for Defendant/Third-Party Plaintiff/Appellant/The City of Oklahoma City and Qui Tam Third-Party Defendants/Appellees/Counter-Appellants William R. Burkett, Daniel T. Brummitt, Kenneth D. Jordan, Richard C. Smith and Diane Lewis and Qui Tam Third-Party Defendant/Appellee William O. West.

KAUGER, J.

¶ 1 We retained this cause to address whether the trial court erred in advancing several orders for appeal pursuant 12 O.S. 2001 § 994¹ in a multi-claim/multi-party cause. We hold that because the orders appealed from either left issues pending on advanced claims or were so interrelated and intertwined with the pending claims, the trial court prematurely advanced the orders.²

PROCEDURAL HISTORY AND FACTS

¶ 2 This cause concerns another of the challenges to the development of an area in Oklahoma City, Oklahoma, known as Bricktown, brought by Moshe Tal (Tal)³ and a group of Oklahoma City citizens, Taxpayers for Honest Government (Taxpayers).⁴ On February 25, 2003, Taxpayers, pursuant to the qui tam statutes, 62 O.S.2001 §§ 372-373,⁵ sent a written demand to the Oklahoma City Urban Renewal Authority (Authority) and the City of Oklahoma City (City). It challenged the legality of a lease, a redevelopment agreement, and a use tax appropriation and it included various allegations including illegal sales of property, self dealing, conflicts of interest, conspiracy, racketeering, and fraud. On April 2, 2003, the Authority, in response to the written demand, filed a petition for declaratory judgment against the City in Oklahoma County.⁶ The Authority sought a determination concerning the validity of the challenged transactions.

¶ 3 On April, 3, 2003, the City filed a third-party petition for declaratory judgment against Tal and Taxpayers, alleging that the written demand was invalid because it was unverified.⁷ Tal and Taxpayers counterclaimed asserting a qui tam claim and reasserting all of the previous allegations. On May 27, 2003, Taxpayers also filed a third-party qui tam petition against numerous officials, attorneys, and other involved parties.

¶ 4 Subsequently, various motions to dismiss/strike the petitions and motions for summary judgment were filed by the parties. The trial court, in a September 9, 2003, journal entry granted summary judgment in favor of the City and the Authority. It determined that the transactions were lawful under the Oklahoma statutes and advanced its ruling for appeal pursuant to 12 O.S.2001 § 994.⁸

¶ 5 On January 29, 2004, the trial court issued several orders which: 1) declined to strike the third-party qui tam petition or to dismiss the qui tam counterclaims; 2) dismissed the qui tam action against the third-party defendant attorneys representing the parties involving the various disputed transactions; 3) determined that a good faith effort was made to verify the written demand; and 4) declined to dismiss the qui tam third-party petition against the City, or third-party defendant's Humphreys and Liebmann. In another order filed March 9, 2004, the trial court reaffirmed its September 9, 2003, order, upheld the lease and the use tax appropriation as constitutional, and advanced the ruling for appeal.

¶ 6 On March 10, 2004, the trial court denied the motion for a new trial concerning the lease and the use tax appropriation, but granted it regarding the redevelopment agreement based on newly discovered evidence. It also vacated its previous advancement of the September 9, 2003, order for appeal, and then advanced its denial of the new trial for appeal.

¶ 7 On March 1, 2004, Tal filed an appeal (No. 100,413), seeking review of the September 9, 2003, order, and a January 29, 2004, order which dismissed the third party defendant attorneys. On March 9, 2004, the qui tam third-party defendant attorneys filed a counter-petition in error also seeking review of a January 29, 2004, order.⁹ Tal filed a supplemental petition in error on March 22, 2004, seeking review of the orders filed March 9, 2004, and March 10, 2004, and dismissal of the qui tam third-party defendant's counter-appeal. On April 7, 2004, the City filed an appeal, (No. 100,538), also seeking review of the trial court's March 10, 2004 order. The next day, the Authority appealed the same order. On April 27, 2004, both causes were consolidated, and we granted a motion to retain. The briefing cycle was completed June 14, 2004.

¶ 8 BECAUSE THE ORDERS APPEALED EITHER LEFT ISSUES PENDING ON ADVANCED CLAIMS OR WERE SO INTERRELATED AND INTERTWINED WITH THE PENDING CLAIMS, THE TRIAL COURT PREMATURELY ADVANCED THE ORDERS.

¶ 9 The Authority and City contend that after the trial court advanced the September 9, 2003, order, pursuant to 12 O.S. 2001 § 994,¹⁰ Tal did not file a post-trial motion for new trial within 10 days of the September 9, 2003, order to extend its appeal time;¹¹ file a term-time motion to vacate within 30 days of the order;¹² or appeal the order.¹³ They insist that the order was a non-reviewable, final judgment, and that the trial court: 1) improperly extended the appeal time of the September 9, 2003, order by vacating its § 994 certification, reaffirming its rulings regarding the lease and use tax appropriation, and reinstating a new § 994 advancement;¹⁴ and 2) abused its discretion in partially granting a new trial. Tal insists that: 1) the trial court was acting within its authority when it modified the prior § 994 certification; 2) failure to appeal the September 9, 2003, order does not preclude its review; and 3) the trial court's grant of a partial new trial was proper.

¶ 10 Title 12 O.S.2001 § 994,¹⁵ governs the certification of decided claims which are sought to be reviewed in advance of a judgment that disposes of all the claims in the litigation, when there is no just reason for delay.¹⁶ In multi-claim/multi-party cases, when one complete claim (or more) has been fully decided, but other claims stand unresolved, the court may advance the decided claim(s) for immediate review.¹⁷ In the absence of such a certification for advancement, the order is subject to revision any time before all of the claims of all of the parties have been finally adjudicated,¹⁸ and it is not appealable prior to adjudication of all of the remaining claims for damages.¹⁹

¶ 11 A judgment is unsuitable for § 994 certification when the court disposes of but a portion of...