State Ex Rel. Tal v. City of Oklahoma City

OPINION

PER CURIAM,

T1 On March 15, 2000, Plaintiffs, Moshe Tal and a group of Oklahoma City citizens he organized called Taxpayers Against Ripoffs (TAR.), filed suit against the City of Oklahoma City and many other defendants under the Qui Tam 'statutes, 62 O.8.1991 §§ 372 and 373.1 Tal's and T.A.R.'s suit was based on a notice, denominated a "Written Demand," which they had filed with the City Clerk on January 12, 1999. Defendants moved to dismiss on the ground that this Court had held in City of Oklahoma City v. Oklahoma City Urban Renewal Authority, 1999 OK 71, 988 P.2d 901, Tal I, that Tal and TAR. lacked standing to prosecute a Qui Tam action. Prior to filing his Written Demand Tal had led a group that had made an unsuccessful bid to develop a part of the Bricktown project. The nature of the project and Tal's claims are spelled out in some detail in Tal I.

12 In Tal LI, Tal and TAR. based their claims on the same Written Demand, dated January 12, 1999, that they rely on here. The issue in Tol I was whether Tal and TAR. had standing to intervene in a declaratory judgment action, which the City of Oklahoma City had filed in response to Tal *271and T.A.R.'s Written Demand. We held that Tal and TAR. had no such right because,

... there is nothing in the record to reflect that Oklahoma City acted in bad faith. Its actions were taken under the glare of pub-lie scrutiny and were resisted by a significant minority of the City Council. That the disagreements among Council members were resolved in a way that Tal and the other T.A.R. members do not like does not support in any way T.A.R.'s claim that the Development Agreements were either fraudulent, unlawful, or otherwise inadequate.

Tal I, 1999 OK 71 at 120, 988 P.2d 901. Appellee's contended in their brief in support of their motions to dismiss that our opinion in Tal I precluded the re-litigation of Tal and TAR.'s claims because it determined that Tal and TAR. lacked standing to prosecute a Qui Tam action under their Written Demand of January 12, 1999 against the City and the other appellees. We agree.

13 In their brief in opposition to appellants' motions to dismiss, Tal and TAR. reargued the claims that they had unsuceess-fully asserted in Tal I. They claimed that the City could not adequately represent Tal and T.A.R.'s interests and that the allegations in their Written Demand showed that they had a right to prosecute a Qui Tam action. Nowhere in their brief did Tal and TAR. attempt to explain why they had standing to prosecute a Qui Tam action under their Written Demand, although we had held in Tal I that they lacked standing to do so.

{4 Tal and T.A.R. filed a second action that resulted in a second appeal in Tal v. Norick, 1999 OK 85, 991 P.2d 999, Tal II. There, Tal and TAR. brought another Qui Tam suit against the City and others that involved the Bricktown Ballpark project. In Tal II we affirmed the trial court, who had granted the defendants' motions to dismiss saying,

The arguments Tal and TAR. 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 reason to restate here our reasoning in Tal I. We therefore hold that the trial court did not err in concluding that the gui tam action was prematurely brought.

Tal II, 1999 OK 85 at ¶9, 991 P.2d 999. We so held because we had previously held in Tal I that the City of Oklahoma City had adequately represented the interests of all its taxpayers, including the members of T.A.R., and was entitled to the presumption that it was doing so in good faith. In their brief Tal and TAR. disingenuously claimed that because the trial court in Tal ZZ had dismissed their suit there because it was "premature," they had a right to bring this suit. But Tol II involved a different written demand and a different project. Further, we expressly held in Tal II that the issues in Tol I and Tal II were "substantially similar." Tol II, at 8. Nothing in Tal II, therefore, supports Tal and T.AR.'s claim that they had a right to reassert here the claims they had made in Tal I.

T5 Although, a central issue in this appeal is whether the appeal is a collateral attack on the judgment entered in Tol I, Tal and TAR. failed to fulfill the requirements of Part III of our petition in error form, which calls for information concerning "Related or Prior Appeals."2 All prior appeals involving the same parties or involving the same issue must be divulged and if there are mone the appellant must so state. Nevertheless, Tal and TAR. left blank this section of their petition in error.

¶6 We hold that Tal and T.A.R.'s Qui Tam action here raises issues that were disposed of in Tal I. The trial court, therefore, correctly dismissed Tal and T.A.R.'s suit. In Tal I we held that Tal and TAR. lacked standing to prosecute a Qu Tam *272action because they failed to make a showing that the City was not adequately representing their interests. That holding should have ended Tal and T.A.R.'s attacks against the City and the other participants in the Brick-town development projects but it did not do so. We hold that Tal and T.AR.'s claims here were clearly and unequivocally disposed of in Tal I. Further, Tal and TAR. violated our rules in failing to divulge in their petition in error in this appeal the relationship between this appeal, Tal I, and Tal LI.

17 Finally, we address Tal and TA.R.'s August 28, 2000 motion to strike the supplement to the record filed by OG & E. Tal and TAR. claim that OG & E's supplement should be stricken because OG & E's motion to dismiss was not ruled on in the trial court order dismissing the actions against the other defendants. We disagree.

18 Clearly, our ruling in Tal I, which we have reaffirmed here, stands for the proposition that Tal and T.A.R. lacked standing to prosecute Qui Tam actions arising from the Bricktown project, regardless of whom the individual defendants might be. Tal and TAR. have no more standing to prosecute a Qui Tam action against OG & E than they had to prosecute one against the other defendants to this appeal. Although we think this fact should by now be clear to Tal and TAR., we are concerned that Tal and T.A.R.'s pending motion might have been designed to create a circumstance that they believed would allow them to prosecute yet another appeal in this case after this one. Tal and TA.R.'s motion to strike OG & E's supplement to the record is, therefore, denied. |

19 We affirm the trial court's order dismissing Tal and T.A.R.'s action because Tal and TAR. lack standing to prosecute this action concerning the Bricktown project.

TRIAL COURT'S ORDER OF DISMISSAL AFFIRMED

SUMMERS, C.J., HARGRAVE, V.C.J., HODGES, LAVENDER, KAUGER, BOUDREAU, and WINCHESTER, JJ.concur. WATT, J.-concurring in part, dissenting in part.

. Title 62 0.$.1991 § 372 provides:

Every officer of the state and of any county, township, city, town or school district, who shall hereafter order or direct the payment of any money or transfer of any property belonging to the state or to such county, city, town or school district, in settlement of any claim known to such officers to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made, for the state or any such county, city, town or school district, by any officer thereof, and every person, having notice of the facts, with whom such unauthorized, unlawful or fraudulent contract shall have been made, or to whom, or for whose benefit such money shall be paid or such transfer of property shall be made, shall be jointly and severally liable in damage to all innocent persons in any manner injured thereby, and shall be furthermore jointly and severally liable to the state, county, city, town or school district affected, for triple the amount of all such sums of money so paid, and triple the value of property so transferred, as a penalty, to be recovered at the suit of the proper officers of the state or such county, city, town or school district, or of any resident taxpayer thereof, as hereinafter provided.

Title 62 0.$.1991 § 372 provides:

Upon the refusal, failure, or neglect of the proper officers of the state or of any county, township, city, town, or school district, after written demand made upon them by ten resident taxpayers of the state or such county, township, city, town, or school district, to institute or diligently prosecute proper proceedings at law or in equity for the recovery of any money or property belonging to the state, or such county, township, city, town, or school district, paid out or transferred by any officer thereof in pursuance of any unauthorized, unlawful, fraudulent, or void contract made, or attempted to be made, by any of its officers for the state or any such county, township, city, town, or school district, or for the penalty provided in the preceding section, any resident taxpayer of the state or such county, township, city, town, or school district affected by such payment or transfer after serving the notice aforesaid and after giving security for cost, may in the name of the State of Oklahoma as plaintiff, institute and maintain any proper action which the proper officers of the State, county, township, city, town, or school district might institute and maintain for the recovery of such property, or for said penalty; and such municipality shall in such event be made defendant, and one-half (%) the amount of money and one-half (%) the value of the property recovered in any action maintained at the expense of a resident taxpayer under this section, shall be paid to such resident taxpayer as a reward.

. Part III of the petition in error form reads in its entirety as follows:

III. RELATED OR PRIOR APPEALS List all prior appeals involving same parties or same trial court proceeding:
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List all related appeals involving same issues:
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(Identify by Style, Appeal Number, Status, and citation, if any. If none, so state.)

Emphasis added.