Tulsa Industrial Authority v. City of Tulsa , 336 P.3d 1016 ( 2014 )

WINCHESTER, J.

T1 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.

PROCEDURE

1 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, LL.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.

13 This Court affirmed the trial court's order that denied Taxpayer's motion to intervene as a gui 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 1 45, 270 P.8d at 133.

1 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.

15 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.

16 On December 17, 2012, Taxpayer filed an amended petition, and the appellees responded on January 3, 2018, with separate motions to dismiss. On April 5, 2018, 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.

T7 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 ineur-ring 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.

T8 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, 2018, 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.

DISCUSSION

19 Title 12 0.8.2011, $ 2019, provides in pertinent part:

"A. PERSONS TO BE JOINED IF FEASIBLE. A person who is subject to service of process shall be joined as a party in the action if ...

"2. He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may:

"a. as a practical matter, impair or impede his ability to protect that interest, or

"b. leave any of the persons already parties subject to a substantial risk of ineur-ring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant or, in a proper case, an involuntary plaintiff."

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, "[Ilf 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 dou-bie, multiple, or otherwise inconsistent obligations by reason of his claimed interest, and is the purpose of the protection afforded under 12 0.8.2011, § 2019(A)(2)(b), which requires potential plaintiffs to be joined to a lawsuit.

113 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, 144, 270 P.B8d at 183. 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, 2008 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.

114 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.

115 He also claims that the Tulsa Industrial Authority was required by federal law to disclose the lawsuit to bondholders within ten business days and that compliance with such a requirement should serve as notice. When the trial court ordered the first amended petition, it ordered that the bondholders be notified and that Taxpayer provide proof of such notice. The Taxpayer did not comply with this order. After the trial court dismissed the amended petition, it then found that the bondholders were necessary parties and must be joined to the lawsuit. An order to join a person to a lawsuit is not the same as ordering notice. Section 2019 of title 12 provides in subsection A that "A person who is subject to service of process shall be joined as a party to the action if... .." That sentence requires service of process, not merely notice. Taxpayer does not argue that he served any bondholder with process, so this defense also fails.

SUMMARY

116 The trial court dismissed this case because Taxpayer first refused to give notice to the bondholders, and then refused to serve notice to join the bondholders to the lawsuit. In both instances, the trial court allowed more time for Taxpayer to comply with the orders. Taxpayer has refused to join the bondholders to the lawsuit, and that without a valid defense. A repeated failure to cure deficiencies by amendments previously allowed by the trial court is cause for dismissal with prejudice. See Prough v. Edinger, 1993 OK 130, ¶9, 862 P.2d 71, 76. Taxpayer's motion for oral argument is denied. We affirm the trial court's dismissal with prejudice of this matter.

AFFIRMED.

CONCUR: REIF, V.C.J., WATT (JOINS EDMONDSON, J.), WINCHESTER, EDMONDSON, COMBS, GURICH (JOINS EDMONDSON, J.), JJ. CONCUR IN RESULT: KAUGER, TAYLOR, JJ. CONCURS IN PART; DISSENTS IN PART: COLBERT, C.J.