State Ex Rel. Moshe v. Norick
991 P.2d 999
Okla.
1999
Check Treatment

OPINION

WATT, Justice,

¶ 1 Aрpellants, Tal and the association calling itself “T.A.R.,” dismissed most of the defendants named in the style of this appeal. The only remaining defendants, appellees here, are the former Mayor of Oklahoma City, Ron Norick, in his official capacity, The City of Oklahoma City, the Oklahoma City Public Property Authority, and the Oklahoma City Athletic Club. The trial court granted the motions tо dismiss of the remaining defendants, the City and its former May- or, the Public Property Authority, and the Athletic Club. Tal and T.A.R. appeal. Appel-lees moved that this Court retain this appeal on July 19, 1999 and we granted the motion on August 9,1999.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 1993 the people of The City of Oklahоma City approved a special purpose sales tax to be used to construct improvements under the Oklahoma City Metropolitan Area Projects program, known as MAPS. Among those improvements was the Brick-town Ballpark. In 1996 Oklahoma City contracted with Boldt Construction Co. to build the Bricktown Ballpark. Oklahoma City leased the Bricktown Ballpark to the Oklahоma City Public Property Authority in 1997, which then subleased it to the Oklahoma City Athletic Club Limited Partnership. Under the sublease, the Athletic Club was to operate the Bricktown Ballpark for a period of ten years to be followed by three automatic five yeаr renewals. The Public Property Authority and the Athletic Club amended the sublease in 1998 so that the Athletic Club could operate thе Bricktown Ballpark for the 1998 season as a home for its AAA Minor League baseball team, the RedHawks, because certain conditions precedent to the original sublease becoming effective had not been satisfied but the partiеs wanted the team to use the park during the 1998 season despite the failure to satisfy these conditions precedent.

¶ 3 A group headed by Tal “submitted numerous proposals to the City, Authority and them Officers to develop Bricktown property ...” Plaintiffs’ Sеcond Amended Petition. These proposals were rejected in favor of proposals by competing bidders.

¶4 On Sеptember 9, 1998, following the City Counsel’s rejection of the Tal group’s proposals, Tal and T.A.R. filed a written demand under 62 O.S.1991 §§ 372 and 373, the qui tam statutes, demanding that Oklahoma City and the Public Property Authority rescind its contracts concerning the Brick-town Ballpark. T.A.R. ‍‌​​‌​‌​​‌​‌‌​‌​‌‌​‌‌​​​‌​​‌​‌‌​​‌‌‌​‌​‌‌​​‌​​​​‌‍clаimed that the entire Bricktown Ballpark transaction was void because of inadequate consideration. Tal and T.A.R. filеd a qui tam action against Oklahoma City and the Public Property Authority in which they claimed that the Ballpark transaction was invalid and claimed a right to money damages from the City.

¶ 5 In response to Tal’s and T.AR.’s written demand Oklahoma City and the Public Property Authority brought a declaratory judgment action against the Athletic Club on October 16, 1998. They sought a judgment declaring that the Bricktown Ballpark transaction was valid or, in the alternative, sought the return of the property if the transaction were found not to bе valid. The Athletic Club filed its answer on November 10, 1998 in which it also alleged that the transaction was valid. Tal and T.A.R. twice amended their petition after Oklahoma City and the Public Property Authority had filed their action against the Athletic Club.

¶ 6 Oklahoma City and the Public Property Authority moved to dismiss Tal’s and T.A.R.’s second amended petition because Oklahoma City and the Public Property Authority had filеd suit for declaratory judgment against the Athletic Club in response to Tal’s and T.AR.’s written demand. Tal and T.A.R. resisted the motion to dismiss on the ground that Oklahoma City’s and the *1001 Public Property Authority’s action against the Athletic Club did not present a justiciable controversy beсause all parties to that action agreed that the transaction was valid. Tal and T.A.R. argued that the declaratоry judgment action did not, therefore, serve to satisfy their written demand. Tal and T.A.R. also argued that the City’s, and the Public Property Authority’s contention that the transaction was valid showed that the City and the Public Property Authority could not be relied upon to prosecute the matter fairly and that Tal and T.A.R. should, therefore, be allowed to do so in their qui tam action. The trial court dismissеd Tal and T.A.R.’s action on the ground that the issues raised by Tal and T.A.R. were under consideration by the court in the City’s and the Public Propеrty Authority’s declaratory judgment action. A defendant may by motion interpose the pendency of other litigation as an imрediment to going forward with the action then sought to be prosecuted. See 12 O.S.1991 § 2012(B)8; Burks v. American Nat. Bank of Tulsa, 89 Okl. 62, 213 P. 301 (1923).

ISSUE

¶ 7 Did the trial court correctly dismiss Tal’s and T.A.R.’s ‍‌​​‌​‌​​‌​‌‌​‌​‌‌​‌‌​​​‌​​‌​‌‌​​‌‌‌​‌​‌‌​​‌​​​​‌‍qui tam action as having been prematurely brought?

We answer the question “yes.”

DISCUSSION

¶8 We addressed and disposed of issues substantially similar to those presented herе in an earlier appeal involving Tal and another Bricktown project, City of Oklahoma City v. Oklahoma City Urban Renewal Authority, 1999 OK 71, 988 P.2d 901 (reh. den. September 30, 1999), Tal I. In Tal I, Tal and T.A.R. filed a written demand against the City, claiming that certain development agreements, other than those at issue hеre, were unlawful. The City then filed a declaratory judgment action against the other parties to the agreement in resрonse to Tal’s and T.A.R.’s demand. Both the City and the other parties to the agreements agreed in Tal I that those agreements were lawful. Although Tal and ‍‌​​‌​‌​​‌​‌‌​‌​‌‌​‌‌​​​‌​​‌​‌‌​​‌‌‌​‌​‌‌​​‌​​​​‌‍T.A.R. sought to intervene in the City’s action in Tal I and did not prosecute an independent qui tam action, as they have done here, the plaintiffs’ theories in support of intervention in Tal I were substantially similar to those presented by plaintiffs hеre in support of their claimed right to prosecute a qui tam action.

¶ 9 In Tal I we held:

T.A.R. was not entitled to intervene in Oklahoma City’s declaratory judgment action because Oklahoma City was representing the rights of all its taxpayers and was entitled to the presumption that it would do so in good faith. T.A.R. failed to overcome this presumption. Further, T.A.R. made no claim and the record would not support that Oklahoma City’s suit was collusive or fictitious.

Tal I, 1999 OK 71 at ¶ 31. The arguments Tal and T.A.R. make here ‍‌​​‌​‌​​‌​‌‌​‌​‌‌​‌‌​​​‌​​‌​‌‌​​‌‌‌​‌​‌‌​​‌​​​​‌‍were fully discussed and disposed of in Tal I. The similarity between the record presented here and the record we considered in Tal I convinces us that there is no reаson to restate here our reasoning in Tal I. We therefore hold that the trial court did not err in concluding that the qui tam action was prematurely brought.

TRIAL COURT’S ORDER OF DISMISSAL AFFIRMED

HARGRAVE, V.C.J., HODGES, LAVENDER, ‍‌​​‌​‌​​‌​‌‌​‌​‌‌​‌‌​​​‌​​‌​‌‌​​‌‌‌​‌​‌‌​​‌​​​​‌‍OPALA, and KAUGER, JJ.— concur. SUMMERS, C.J. — concurs in result.