State of Oklahoma v. Small Business Administration et al
Filing
193
OPINION AND ORDER by Magistrate Judge T Lane Wilson (Nunc Pro Tunc) (Re: 152 MOTION for Order Directing Defendants to Return Excess Commissioners' Award (submitted as part of Doc # 151 ), 183 Opinion and Order, Ruling on Motion for Miscellaneous Relief ) (crp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
STATE OF OKLAHOMA, ex rel.
DEPARTMENT OF TRANSPORTATION
Plaintiff,
vs.
UNITED STATES OF AMERICA,
SMALL BUSINESS ADMINISTRATION;
CROW REAL ESTATE INVESTMENTS,
LLC, a terminated Oklahoma Limited Liability
Company; CROW ENTERPRISES, LLC, an
Oklahoma Limited Liability Company, d/b/a
Turnpike Chrysler Jeep Dodge;
ARVEST BANK, a Foreign Corporation; and
COUNTY TREASURER OF OTTAWA
COUNTY, OKLAHOMA;
Defendants.
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Case No. 09-CV-452-TCK-TLW
OPINION AND ORDER NUNC PRO TUNC
Before the Court is plaintiff’s Motion for Order Directing Defendants to Return Excess
Commissioners’ Award. (Dkt. # 152). Plaintiff’s motion seeks the return of $1,263,740.42,
which was deposited with the Northern District Court Clerk and disbursed to defendants as part
of this condemnation proceeding. Defendants, Small Business Administration (“the SBA”) and
Arvest Bank (“Arvest”), filed responses. (Dkt. ## 154, 156). Defendants Crow Real Estate
Investments, LLC (“Crow Real Estate”) and Crow Enterprises, LLC (“Crow Enterprises”)
(collectively known as “the Crow defendants”) also filed a joint response to plaintiff’s motion.
(Dkt. # 157). Plaintiff filed a reply. (Dkt. # 162).
BACKGROUND
On July 16, 2009, plaintiff filed a condemnation proceeding in this Court against the
Crow defendants seeking to take 1.88 acres of a parcel in Ottawa County, Oklahoma.1 (Dkt. # 2).
See Okla. Stat. tit. 69, § 1203 (2009). Crow Real Estate owned the property, and Crow
Enterprises operated a Chrysler car dealership on the property. (Dkt. # 2). The SBA held a
mortgage on the property, as did Arvest. Id.
Pursuant to the Oklahoma statute, the Court appointed three commissioners to appraise
the value of the 1.88 acre parcel. (Dkt. # 29). Before the commissioners could appraise the
property; however, plaintiff filed its First Amended Complaint on October 20, 2009. (Dkt. # 37).
In the First Amended Complaint, plaintiff sought to condemn 5.16 acres, the entire parcel owned
and leased by the Crow defendants. (Dkt. ## 37, 101). The Court entered an amended order
setting forth the revised property description, and the commissioners appraised the entire parcel.
(Dkt. ## 40, 42).
The commissioner’s report, filed December 8, 2009, appraised the 5.16 acre parcel at
$1,856,506.42. (Dkt. # 42). Plaintiff deposited that sum with the Court Clerk, and defendants
sought disbursement of those funds without objection from plaintiff. (Dkt. ## 67, 71, 72, 73).
The Court then ordered disbursement of the entire amount in four separate sums: the Crow
defendants received $1,259,443.70; Arvest received two payments, one for $40,000.00 and one
for $428,040.27; and the SBA received $129,022.45.2 (Dkt. # 74). All parties made timely
demands for a jury trial on the amount of just compensation owed to defendants. (Dkt. ## 48, 50,
52, 61).
1
The Court has jurisdiction over the condemnation proceeding under 28 U.S.C. § 2410(a)(4),
because the SBA held a mortgage on the property. (Dkt. # 2).
2
These payments satisfied the liens held by Arvest and the SBA, but neither released its lien, and
both remain parties to the action. (Dkt. # 163, Recording of Hearing Conducted on October 27,
2011).
2
A year later, after receiving discovery from the Crow defendants, plaintiff filed a Motion
to Amend its First Amended Complaint. (Dkt. # 101). In that motion, plaintiff alleged that it had
filed its First Amended Complaint seeking condemnation of the entire parcel only upon the
representations of the Crow defendants that the remainder of the parcel, after the taking, would
be an uneconomic remnant, because Crow Enterprises would be unable to fulfill its dealership
agreement with Chrysler on the remainder. Id. After receiving discovery related to the Crow
defendants’ car dealership, plaintiff learned that the remainder provided sufficient space to
satisfy the Crow defendants’ agreement with Chrysler. Id. Accordingly, plaintiff argued, it did
not need to acquire the entire parcel. Id. Plaintiff sought to amend its First Amended Complaint
to identify only the original 1.88 acres as the property to be taken. Id.
Defendants initially opposed the amendment but ultimately consented to plaintiff’s
motion. (Dkt. # 118). The Court entered an order granting plaintiff’s Motion to Amend, and
plaintiff filed a Second Amended Complaint, which sought condemnation of the original 1.88
acre parcel. (Dkt. ## 118, 119). The Crow defendants then filed a motion seeking an order
directing the commissioners to file a second report appraising the smaller parcel. (Dkt. ## 125,
126). The Court entered an order directing the commissioners to file a second report on April 15,
2011. (Dkt. # 134).
On August 17, 2011, the commissioners filed their second report. (Dkt. # 142). The
commissioners’ second report estimated the just compensation for the 1.88 acre parcel at Five
Hundred Ninety-Two Thousand, Seven Hundred Sixty-Six and 00/100 Dollars ($592,766.00). Id.
Plaintiff then filed a motion seeking return of the difference between the estimate of just
compensation for the 5.16 acre parcel, which previously had been taken, and the 1.88 acre parcel.
(Dkt. # 152). All of the defendants objected to plaintiff’s motion, and the Court held a hearing.
(Dkt. ## 156, 157, 163).
3
At the hearing, defendants argued that returning the excess amount of $1,263,740.42 was
premature in light of the pending jury trial, which would fix the actual value of just
compensation for the 1.88 acre parcel. (Dkt. # 163, Recording of Hearing Conducted on October
27, 2011). Defendants stated that to grant the motion would have the effect of granting a motion
for partial summary judgment or, alternatively, that granting the motion would qualify as a
judgment. Id. Under either theory, defendants argued that plaintiff was seeking extraordinary
relief not permitted by the statutory procedure. Defendants also argued, however, that in the
event the jury returned a verdict of more than ten percent above the estimate of just
compensation in the second commissioners’ report, they would seek attorney’s fees and costs
under the applicable Oklahoma statute.3 Id.
Plaintiff argued that defendants were only entitled to just compensation for the 1.88 acre
parcel and that defendants have no claim on the full amount from the appraisal of the 5.16 acre
parcel. Id. Plaintiff stated that defendants simply were not entitled to retain the difference
between the first and second commissioners’ reports. Id.
ANALYSIS
The Oklahoma Constitution provides that “[p]rivate property shall not be taken for public
use without just compensation” and sets forth the procedure for condemnation of private
property for a public use. OKLA. CONST., art. 2, § 24. The Oklahoma Constitution further defines
“just compensation” as “the value of the property taken, and in addition, any injury to any part of
the property not taken.” Id. Although the Oklahoma Constitution describes the procedure to be
followed, Oklahoma’s statutes also specifically discuss the steps to be taken when plaintiff, the
3
Title 27, Section 11 of the Oklahoma Statutes provides, in pertinent part, that “[i]f the award of
the jury exceeds the award of the court-appointed commissioners by at least ten percent (10%),
the owner of any right, title or interest in such real property may be paid such sum as in the
opinion of the court will reimburse such owner for his reasonable attorney, appraisal and
engineering fees, actually incurred because of the condemnation proceedings.” OKLA. STAT. tit.
27, § 11.
4
Oklahoma Department of Transportation, initiates a condemnation proceeding. See OKLA. STAT.
tit. 69, § 1203. Relevant to the pending motion is the fact that while the condemnation
proceeding is initiated by petition (in this federal court case, by the Complaint), the taking of a
landowner’s property does not actually occur until plaintiff deposits an amount equal to the
commissioners’ award with the landowner or with the Court Clerk. See id. at § 1203(d). See also
State ex rel. Dept. of Transp. v. Minor, 2009 OK CIV APP 83, 221 P.3d 141 (citing State ex rel.
Dept. of Transp. v. Perdue, 2008 OK 103, 204 P.3d 1279).
In this case, plaintiff asserted its intention to take 5.16 acres of private property for public
use when it filed the First Amended Complaint. The taking of the 5.16 acre parcel was effective
on the date that plaintiff deposited the $1,856,506.42 with the Court Clerk.4 However, plaintiff
subsequently abandoned that taking, and the property reverted back to the Crow defendants on
December 9, 2010, when all of the parties consented to the filing of the Second Amended
Complaint, which identified the property to be taken as a 1.88 acre parcel. (Dkt. # 118). The
amount of just compensation, absent an objection, for the 1.88 acre parcel was determined on
August 17, 2011, when the commissioners filed their second report. (Dkt. # 142). The second
report determined just compensation to be $592,766.00, an amount significantly lower than the
amount plaintiff paid for the initial taking of 5.16 acres.
In issuing a decision on this motion, the Court is faced with a single question: Is plaintiff
entitled to a return of the excess it paid to the Clerk of Court when it took the 5.16 acre parcel
now that the parties have consented to a taking of a 1.88 acre parcel, which has been appraised at
a far smaller value? Based upon the constitutional and statutory procedures and the general
4
None of the documents in the record indicate the date of deposit, but the docket indicates that
the deposit was made sometime between the entry of the commissioners’ report on December 8,
2009, and the Crow defendants’ Motion for Disbursement of Commissioners’ Funds on March
16, 2010.
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principles that apply to the taking of private property for public use, the Court answers this
question in the affirmative.
In this case, although there is only one proceeding, there were two distinct takings.
Plaintiff took the entire 5.16 acre parcel in 2009 but returned it in 2010 when it (1) filed the
Second Amended Complaint with the consent of all defendants, and (2) sought to acquire only
1.88 acres of the original 5.16 acre parcel. The second taking became effective when the
commissioners’ second report was filed with the Court, estimating the amount of just
compensation at $592,766.00, because plaintiff had already deposited in excess of this sum with
the Court Clerk. See Minor, 221 P.3d at 145.
To continue to allow defendants the use of plaintiff’s money would violate the Oklahoma
Constitution and the Oklahoma Statutes. Although plaintiff did, at one point in the proceeding,
acquire 5.16 acres, it abandoned that taking when it filed the Second Amended Complaint.
Defendants consented to the filing of the Second Amended Complaint, thereby agreeing that
defendant Crow Real Estate would retain ownership of approximately three acres of the 5.16
acre parcel. In fact, at the hearing, all parties agreed that plaintiff was only seeking to condemn
the 1.88 acre parcel and that the sole issue at trial would be the value of just compensation for the
taking of the 1.88 acre parcel. Both the constitutional and statutory procedures provide that
plaintiff is only required to deposit the amount set by the commissioners in order to exercise its
right to defendants’ property. See OKLA. CONST., art. 2, § 24; OKLA. STAT. tit. 69, § 1203(d).
Defendants cite no authority for the proposition that plaintiff is required to pay more than the
amount of the commissioners’ award, and defendants are not entitled to additional funds unless
and until a jury issues an award that exceeds the amount set by the commissioners. To hold
otherwise would require plaintiff to pay more than is required by the Oklahoma Constitution and
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statutes or, alternatively, to compensate a landowner for property that the landowner still owns.
Accordingly, plaintiff is entitled to a return of the excess disbursement from all defendants.5
In accordance with the first commissioners’ report, plaintiff deposited $1,856,506.42, and
that entire sum was disbursed to defendants in four separate transactions. The Crow defendants
received $1,259,443.70, which represented 67.84% of the deposit. Arvest received two
disbursements: the first, for $428,040.27, represented 23.06% of the deposit; the second, for
$40,000.00, represented 2.15% of the deposit. The SBA received $129,022.45, which
represented 6.95% of the deposit. Accordingly, defendants should reimburse plaintiff in an
amount equal to the initial disbursement minus the applicable percentage of the second award.
Based on the foregoing, the reimbursements are calculated as follows:
1) The Crow defendants will reimburse plaintiff in the amount of $857,314.52.
2) Arvest will reimburse plaintiff in the amounts of $291,370.82 and $27,228.36.
3) The SBA will reimburse plaintiff in the amount of $87,826.73.
These reimbursements should be made to plaintiff within thirty (30) days of the date of this
Order.6
While the parties raised a number of collateral issues at the hearing, the Court finds that
those collateral issues do not affect the central question. The Court does find, however, that one
5
As previously noted, at the time of the hearing, neither the SBA nor Arvest had released their
liens on the property, despite having received full satisfaction of their respective mortgages
through the initial disbursement. Because these defendants retained their mortgages, they also
retained the protection provided by those mortgages; therefore, reimbursing plaintiff the
percentage of the excess award will not place the SBA or Arvest at risk.
6
Defendants argued that any order requiring them to return money to plaintiff would constitute a
judgment or partial judgment, which would be dispositive on the issue of just compensation. The
Court disagrees. Plaintiff’s motion does not qualify as a dispositive motion, either in form or
substance. The Court is simply applying the procedural law that governs the pre-trial stages of a
condemnation proceeding. Nothing in this Opinion and Order has any impact on the issue
remaining for trial, the amount of just compensation for the 1.88 acre parcel.
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of those collateral issues should be addressed as part of this motion. Both the SBA and Arvest
argued at the hearing that the excess amount should not be returned, in part, because their
mortgages would not be fully satisfied by the commissioners’ award on the 1.88 acre parcel.
Both the SBA and Arvest also made representations that their mortgages contained acceleration
clauses that were triggered by the condemnation proceeding. Because the amount of the second
commissioners’ award is insufficient to fully satisfy all of the liens on the property, the issue of
priority of the mortgage liens and the right of the mortgagors to be paid before the landowner
receives any compensation is well-taken.7 Accordingly, defendants shall return to the Court
Clerk the remainder of the money held by them after subtracting the repayments identified
above.8 Following the return of this amount to the Court Clerk, defendants are free to seek an
agreed disbursement or file separate motions setting forth the basis for any disbursement that is
not agreed to by all parties.
CONCLUSION
Plaintiff’s Motion for Order Directing Defendants to Return Excess Commissioners’
Award (Dkt. # 152) is GRANTED as follows:
1. The Crow defendants shall pay to plaintiff as reimbursement $857,314.52 and
shall deposit with the Court Clerk $402,129.18;
2. Arvest shall pay to plaintiff as reimbursement $318,599.18 ($291,370.82 plus
$27,228.36) and shall deposit with the Court Clerk $149,441.09 ($136,669.45
plus $12,771.64); and9
7
At the hearing, both Arvest and the SBA acknowledged that Arvest’s lien takes priority over
the SBA’s lien.
8
For the Crow defendants, that amount will equal $402,129.18. Arvest will make two deposits,
in the amounts of $136,669.45 and $12,771.64. The SBA will deposit $41,195.72. As with the
reimbursements, these funds should be deposited with the Court Clerk within thirty (30) days of
the date of this Order.
9
This Opinion and Order Nunc Pro Tunc corrects the Court’s April 26, 2012 Opinion and Order
(dkt. # 183), which failed to account properly for $0.01 of the original commissioners’ award.
The amounts shown in ¶ 2 above reflect the corrected amounts.
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3. The SBA shall pay to plaintiff as reimbursement $87,826.73 and shall deposit
with the Court Clerk $41,195.72.
Defendants shall comply with this Opinion and Order within thirty (30) days of the date set forth
below.
SO ORDERED this 21st day of June, 2012, nunc pro tunc to the 26th day of April, 2012.
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