IN THE MATTER OF THE APPLICATION OF EATON ENTERPRISES

IN THE MATTER OF THE APPLICATION OF EATON ENTERPRISES
2003 OK 14
65 P.3d 277
Case Number: 96668
Decided: 02/18/2003

THE SUPREME COURT OF THE STATE OF OKLAHOMA

[65 P.3d 277]

IN THE MATTER OF THE APPLICATION OF EATON ENTERPRISES TO VACATE NORTHWEST 20TH STREET BETWEEN WESTERN AVENUE AND CLASSEN BOULEVARD IN OKLAHOMA CITY, OKLAHOMA COUNTY, OKLAHOMA,
THE CITY OF OKLAHOMA CITY, Defendant/Petitioner,
v.
EATON ENTERPRISES, Plaintiff/Respondent,
Consolidated with,
THE STATE OF OKLAHOMA, ex rel. GIL BURK, et al., Plaintiffs,
v.
THE CITY OF OKLAHOMA CITY; THE TWO THOUSAND CLASSEN BUILDING CORPORATION; AMERICAN FIDELITY ASSURANCE COMPANY; and C.W. CAMERON, Defendants.

ON WRIT OF CERTIORARI FROM CERTIFIED INTERLOCUTORY ORDER
OF THE DISTRICT COURT OF OKLAHOMA COUNTY

The Honorable Noma Gurich, Presiding

¶0 Pursuant to Okla. Stat. tit. 11, § 42-111 (1991), Plaintiff filed a petition to foreclose defendant city's right to reopen N.W. 20th Street. Defendant city objected arguing that a subsequent proceeding had decided the issues. The city changed the facts from the subsequent proceeding by granting plaintiff's request to have the street closed. Therefore, the settled-law-of-the-case doctrine was inapplicable. The district court granted plaintiff's petition. This Court recast the petition in error as a petition for writ of certiorari from a certified interlocutory order and grants the writ.

CERTIFIED INTERLOCUTORY ORDER AFFIRMED;
CAUSE REMANDED FOR FURTHER PROCEEDINGS.

Daniel T. Brummitt, Oklahoma City, Oklahoma, for the Petitioner.
Roland Tague, Oklahoma City, Oklahoma, for the Respondent.

Hodges, J.

¶1 The issue presented for this Court's review is whether the decision in the case of State ex rel. Burk v. Oklahoma City,

I. FACTS

¶2 On December 17, 1997, the respondent, Eaton Enterprises, acquired property and buildings located at Two Thousand North Classen Boulevard from American Fidelity Assurance Company by general warranty deed. One of the buildings, the Two Thou-[65 P.3d 278]sand Classen Building, is located on and across N.W. 20th Street between Classen Boulevard and Western Avenue in Oklahoma City, Oklahoma. However, because N.W. 20th Street is a public street belonging to the petitioner, Oklahoma City, title to the property is clouded.

¶3 In order to cure the defect in title, Eaton filed an application with the Oklahoma City Planning Commission to close N.W. 20th Street to the public. On August 9, 2000, the city council passed Ordinance No. 21,545 closing N.W. 20th Street but reserving the right to reopen it. Eaton then filed a petition in the District Court to foreclose Oklahoma City's right to reopen N.W. 20th Street. The petition was brought pursuant to title 11, section 42-111 of the Oklahoma Statutes.

¶4 The district court included the statement required for appeal pursuant to title 12, section 994. The order states: "That there is not just reason to delay the filing of this final judgment foreclosing the absolute right of The City of Oklahoma City to reopen N.W. 20th Street, while reserving the claim of The City of Oklahoma City for damages pursuant to

II. HISTORY

¶5 American Fidelity Assurance Company (American Fidelity), the previous owner of the Two Thousand Classen Building, acquired title to the property and several buildings surrounding N.W. 20th Street in 1968. In an effort to connect the buildings, American Fidelity decided to construct a building on N.W. 20th Street. At that time, however, N.W. 20th Street was a public street, paved and used for vehicular traffic.

¶6 To construct a building on N.W. 20th Street, American Fidelity needed to have the street vacated under the provisions of title 11, section 524 of the Oklahoma Statutes.

¶7 Construction of the Two Thousand Classen Building began in September of 1968. In July of 1969, a taxpayer's action was commenced to set aside the 1968 judgment vacating N.W. 20th Street. The trial court declined to set aside the judgment, but on appeal this Court found that because a fraud had been perpetrated upon the trial court, the judgment vacating N.W. 20th Street should be set aside.[65 P.3d 279]

¶8 With the Two Thousand Classen Building already constructed on N.W. 20th Street, this Court determined that a return of the parties to status quo might not be feasible. The Court gave American Fidelity two options: (1) to remove the building and restore N.W. 20th Street to its original condition or (2) to make annual lease payments to Oklahoma City for as long as the building encroached on N.W. 20th Street.

¶9 Since the decision of the Court in Burk I and until the sale of the property to Eaton, American Fidelity has made annual payments to Oklahoma City. Since the purchase, Eaton has made the payments. This case was commenced to quiet title to N.W. 20th Street in Eaton so that it will no longer be required to make lease payments.

III. ANALYSIS

¶10 Oklahoma City argues that Eaton's petition to vacate N.W. 20th Street is barred by the settled-law-of-the-case doctrine. In their view, all issues relating to the Two Thousand Classen Building were settled in Burk I. Oklahoma City asserts that the law of the case in Burk I is controlling in this subsequent proceeding.

¶11 As a general rule, where an appellate court rules upon an issue, that ruling becomes the law of the case and is controlling upon all subsequent proceedings. Wilson v. Harlow,

¶12 At the time of Burk I, section 659 of title 11

¶13 Then, American Fidelity proceeded under the provisions of title 11, section 524 of the 1961 Oklahoma Statutes to have N.W. 20th Street vacated in the district court. Id. at ¶ 7,

¶14 In contrast, it is uncontested that the city council has now properly vacated N.W. 20th Street under the provisions of section 42-111 of title 11 of the 1991 Oklahoma Statutes. Once Oklahoma City vacated N.W. 20th Street, Eaton had the right to immediately proceed with its petition to foreclose the right to reopen N.W. 20th Street. Okla. Stat. tit. 11, § 42-111 (1991).[65 P.3d 280]

¶15 Although Burk I would have been the settled law of the case and would have limited Eaton's options regarding N.W. 20th Street, Oklahoma City changed the facts and issues by allowing Eaton a third option when it granted Eaton's request to have N.W. 20th Street closed. In so doing, Oklahoma City knowingly allowed Eaton to exercise its right to petition the Court to foreclose Oklahoma City's right to reopen N.W. 20th Street. Thus, Burk I does not control our decision.

IV. CONCLUSION

¶16 The settled-law-of-the-case doctrine did not preclude the district court from foreclosing Oklahoma City's right to reopen N.W. 20th Street. Thus, the district court's interlocutory is affirmed and the cause remanded for further proceedings.

CERTIFIED INTERLOCUTORY ORDER AFFIRMED; CAUSE REMANDED FOR FURTHER PROCEEDINGS.

¶17 Watt, C.J., Hodges, Lavender, Hargrave, Kauger, Summers, Boudreau, Winchester, JJ., concur.

¶18 Opala, V.C.J., dissents from that part of the opinion which recasts the appeal into a certiorari proceeding without affording the parties full opportunity to brief the issue in advance of the court's ruling.[65 P.3d 281]

FOOTNOTES

1 Okla. Stat. tit. 11, § 42-111 (1991), provides:

Any owner of any real estate to which any public way or easement, or any part thereof, has heretofore reverted or may hereafter revert by closing, within the corporate limits of any municipality, may commence an action in the district court in the county in which the real estate is situated, upon filing a verified petition. The petition shall show the passage of an ordinance closing the public way or easement and ask for the foreclosure of the absolute right to reopen the public way or easement or ask for the reopening of the public way or easement. Attached to the verified petition shall be the certificate of a bonded abstractor listing the names and mailing addresses of all persons required to be notified as set forth in Section 11-42-112 of this title.

2 Okla. Stat. tit. 11, § 524 (1961), provided in pertinent part:

If . . . it shall appear . . . that the platted streets and alleys on or across such portion have never been used by the public, or that the public has for more than five years abandoned such by non-user, or that the same has been enclosed and occupied adverserly to the public for more than five years, then the court may vacate such portion of said plat.

3 Okla. Stat. tit. 11, § 659 (1961), provided: