EDMONDSON, J.
¶ 1 Two issues are presented in this appeal. The first is whether a taxpayer should have been allowed to intervene in a District Court proceeding that was brought to obtain a declaratory judgment stating that certain public expenditures and financing were lawful. A portion of this first issue involves whether a qui tam action may be brought on behalf of a public trust and against its officers. The second is whether this appeal is moot because the parties proceeded to obtain a declaratory judgment in the District Court after Taxpayer was not allowed to intervene. We address the second issue first because Appellees' claim for mootness would make unnecessary a decision on the first issue if they are correct, and because the mootness issue involves the same issue for both a mootness analysis and a determination whether a qui tam plaintiff should be allowed to intervene in a qui tam proceeding.
¶ 2 Tulsa Hills, L.L.C., (THL) sought to create a shopping center in Tulsa, Oklahoma. The City of Tulsa (or City) established a Tax Increment District, 62 O.S.2001 § 861, and accompanying project plan pursuant to the Local Development Act, 62 O.S.2001 §§ 850-869. This plan included the site for the Tulsa Hills Shopping Center created by THL. THL sought the City's assistance to finance "infrastructure improvements" at the Tulsa Hills Shopping Center. The improvements included drainage for rain, a public road, a sanitary sewer mainline, a water line, and road improvements in and adjacent to the property. The City Council for Tulsa authorized the Tulsa Industrial Authority (or TIA) to issue and sell tax apportionment bonds totaling 18.5 million dollars, 13.5 million of the proceeds to be transferred to THL.
¶ 3 Taxpayer argued that ad valorem and sales taxes attributed to a tax increment district would be used to pay for bonds which had been issued by a public trust to provide money to a developer building a retail outlet. Taxpayer alleged that from the $18,500,000.00 obtained from the bonds, $13,500,000.00 would be given to the developer. The developer would use those funds for: (1) on the developer's property, site leveling,
¶ 4 Several taxpayers served a written demand on the TIA and the City of Tulsa pursuant to 62 O.S.2001 §§ 372, 373, and alleged that the money transferred to THL violated the Oklahoma Public Trust Act, 60 O.S.Supp.2007 § 178.4 and Art. 10 § 19 of the Oklahoma Constitution. Taxpayers claimed that § 178.4 prohibited a public trust from participating in a retail outlet, and that Art. 10 § 19 prohibited tax proceeds for a purpose other than that authorized by the voters. Taxpayers demanded that TIA and the City of Tulsa bring suit to recover the money transferred to THL.
¶ 5 TIA responded to Taxpayers' demand by filing an action in the District Court for Tulsa County against the City of Tulsa and THL, requesting a declaratory judgment affirming the legality and constitutionality of the project plan. THL and City filed answers supporting TIA's claims and request for a declaratory judgment. TIA filed a motion for summary judgment seeking "a declaratory judgment confirming the validity of the creation and financing of the Tulsa Hills Increment District in all respects."
¶ 6 Bundren, a taxpayer (Taxpayer), sought to intervene in the declaratory judgment action. TIA, THL, and City filed objections to the request to Intervene. The trial court denied Taxpayer's motion to intervene, and a few days later the court granted and memorialized TIA's request for summary judgment. A few days after granting summary judgment the trial court memorialized its denial of Taxpayer's motion to intervene. Taxpayer filed in the District Court two petitions to vacate the judgment. Taxpayer appealed. The Court of Civil Appeals, with one judge dissenting, dismissed the appeal because Taxpayer did not seek to stay the trial court proceedings during Taxpayer's appeal. Taxpayer sought certiorari for review of the appellate court's decision and the issues in the appeal left unaddressed.
¶ 7 THL, City of Tulsa, and TIA filed motions to dismiss Taxpayer's appeal. They argued that the summary judgment granted to the parties decided the legality of the conduct of the City of Tulsa, and that this decision made Taxpayer's claims moot. They argued that: (1) Taxpayer did not seek a stay of the trial court proceeding during the appeal; (2) The claims presented in the declaratory judgment proceeding were merged into a judgment during the appeal; and (3) Due to the judgment on all claims (or causes of action), no claim remains pending in the trial court for the Taxpayer to intervene as a party and present the Taxpayer's interest in the litigation.
¶ 8 Taxpayer asserted that the appeal is not moot because his status as a non-party to the summary judgment process denied to him the authority to appeal the order granting summary judgment, and that as a non-party the judgment is not binding on him. He also argued that if allowed to intervene he will seek vacation of the judgment, and that he has already filed a petition to vacate in the District Court.
¶ 9 Appellees' analysis focused on whether Taxpayer was a party in the trial court proceeding and could thus obtain a stay of the trial court proceeding pursuant to 12 O.S.Supp.2008 § 990.4. That section states that ". . . a party may obtain a stay of the enforcement of a judgment, decree or final order: . . . 3. While an appeal is pending in any court in or outside of this state." Id. at 990.4(A). Appellees also argued that a stay of the trial court proceeding pending an appeal is within this Court's supervisory writ
¶ 10 The statutory authorization for taxpayers to seek a qui tam remedy occurs after they make their qui tam demand to the public body and the public body fails to seek recovery of the money or property unlawfully paid. 62 O.S.2001 § 373.
¶ 11 When is a public body's request for declaratory judgment a justiciable controversy? We indicated that justiciability was shown by the antagonistic claims (fact and law) presented by the public body, and this justiciability also demonstrated that the qui tam taxpayer did not possess a right to intervene in a proceeding and seek § 373 relief.
¶ 12 In the context of qui tam declaratory judgment proceedings we have explained that the declaratory judgment proceeding brought by the officials was "a justiciable case" where the issues presented "were legitimate, not feigned or collusive."
¶ 13 The term "justiciable" refers to a lively case or controversy between antagonistic demands.
¶ 14 In summary, a qui tam taxpayer's § 373 right to intervene is based upon a public body's failure to seek recovery of the public funds at issue as specified in § 373. A public body's right to prevent intervention of the qui tam taxpayer in its declaratory judgment proceeding is based upon its diligent prosecution therein of the qui tam taxpayer's claim of illegality. Diligent prosecution of the qui tam taxpayer's claim of illegality requires the public body to plead and present for adjudication the merits of the taxpayer's claim when the public body also seeks to judicially validate its expenditure of public funds. When the public body seeks to judicially validate its expenditure of public funds, its simultaneous presentation of the qui tam taxpayer's claim makes the controversy justiciable and within the jurisdiction of the Declaratory Judgments Act. If the public body seeks to validate its contested expenditures and presents only non-antagonistic claims, then its forensic conduct possesses the quality of non-justiciability by presenting feigned or collusive issues for adjudication, and a qui tam intervenor is allowed to intervene and press for qui tam relief via antagonistic claims that make the controversy justiciable.
¶ 15 Appellees filed motions to dismiss Taxpayer's appeal for mootness. The concept of mootness is most often linked to circumstances that result in a court's inability to grant effective relief by its appellate opinion in the controversy because it would possess characteristics of a hypothetical or advisory opinion.
¶ 16 Clearly, if a public body's declaratory judgment controversy is justiciable, a qui tam taxpayer is not entitled to intervene, has no right of action pursuant to § 373,
¶ 17 No citation to authority should be needed for the principle that it is against public policy for courts of this State to be used to create a collusive or fraudulent judgment authorizing the expenditure of public funds. In 1931, this Court declined to approve a collusive legal proceeding for an expenditure from the public purse.
¶ 18 The usual dispositive issue on appeal of a trial court's order denying intervention to a qui tam taxpayer is not the merits of whether the public expenditures were lawful, but whether the public body fairly presented the qui tam taxpayer's claims to the trial court as part of a justiciable controversy.
¶ 19 TIA argued that: (1) 62 O.S. 373 authorizes a qui tam remedy brought to maintain an action that "officers of the State, county, township, city, town, or school district" might maintain to recover public property; (2) Because § 373 is penal in nature and must be strictly construed, a qui tam remedy may be sought only on behalf of those entities expressly designated by § 373; (3) TIA is a public trust, and a public trust and its trustees are not listed in § 373; (4) Consequently, a qui tam remedy may not be sought on behalf of a public trust; and (5) The trial court correctly denied Taxpayer's motion to intervene.
¶ 20 The § 373 qui tam action is not a "cause of action," but a statutory remedy for recovery of a penalty for the commission or omission by a public official of a certain act based upon particular transactions or occurrences.
¶ 21 Title 60 § 176.1 states that a public trust "created in accordance with the provisions of Section 176 et seq. of this title shall be presumed for all purposes of Oklahoma Law to: ... 2. Exist as a legal entity separate and distinct from the settlor and from the governmental entity that is its beneficiary." 60 O.S.Supp.2003 § 176.1. In some circumstances a public trust may be deemed to be an alter ego of the public body for which it seeks to benefit, and equity may be used to disregard the trust's legal status as a distinct legal entity.
¶ 22 While we agree with TIA that no qui tam remedy may be sought on its behalf, Taxpayer also sought intervention based upon the rule that a taxpayer may intervene in a legal proceeding brought by a public body or private individual to enforce an allegedly unlawful agreement or expenditure made by the public body. In the trial court, Taxpayer argued that he should be allowed to intervene and obtain equitable relief against the TIA. He relied upon Threadgill v. Peterson, 1923 OK 662, 219 P. 389 and Kellogg v. School Dist. No. 10 of Comanche County, 1903 OK 81, 74 P. 110, 116. In Kellogg v. School Dist. No. 10 of Comanche County, supra, we noted the following:
Kellogg, 74 P. at 113-114.
Shortly after our pronouncement in Kellogg, we relied upon its holding and concluded that a taxpayer could use an injunction as a proper remedy to prevent the officers of a school district from issuing bonds in excess of the debt limit provided by the Oklahoma Constitution.
¶ 23 In Threadgill v. Peterson, supra, an action was brought against a school district after labor and material had been furnished for the repair of a school building pursuant to a written contract, and the school district declined to pay the contractually specified amount due to a lack of funds. The school district answered and stated that the sum sued upon was due and unpaid, and judgment was rendered against the school district. Taxpayers claimed that the judgment was based upon a void contract and requested
Threadgill, 219 P. at 390.
The Court then stated that this right to seek equitable relief was found in § 4881, R.L. 1910, now codified at 12 O.S.2001 § 1397.
¶ 24 More recently, in Oklahoma Public Employees Association v. Oklahoma Department of Central Services, 2002 OK 71, ¶ 10, 55 P.3d 1072, 1078, we relied upon Kellogg and five of our opinions dating from 1909, 1931, 1944, 1989, and 1999,
¶ 25 More than a century ago we explained that the version of § 1397 then effect "did not substantially enlarge the general powers of a court of equity, and did not create any new remedy,"
¶ 26 In Kellogg v. School Dist. No. 10 of Comanche County, supra, we noted the objection to a taxpayer seeking equitable relief because he did not possess any interest in the controversy other than a general interest shared in common with all taxpayers. We noted that some courts did not allow a taxpayer to have a legal remedy for an injury the taxpayer suffered in common with other taxpayers, and allowed an equitable remedy only if the injury was one that peculiarly affected that taxpayer. Id. 74 P. at 112-113. We then noted the courts holding that a taxpayer could, as a mere taxpayer, obtain injunctive relief from an illegal or unauthorized tax. Id. 74 P. at 115-116. In Kellogg we did not recognize a general class of non-Hohfeldian plaintiffs
¶ 27 An analysis of the motions to dismiss based upon allegations of mootness due to Taxpayer's failure to seek a stay must be addressed in the context of Taxpayer seeking equitable relief and 12 O.S. § 1397. Equity does not require a useless act;
¶ 28 Will an appellate opinion herein be advisory in nature with respect to any equitable relief sought by Taxpayer? Taxpayer's Answer filed in the District Court as Intervenor stated that the bonds had already been issued at that time, and he did not seek to use equity for preventing the bonds to be issued. Taxpayer sought an order canceling the contractual obligations of the City and TIA, and stated that appropriate relief could be a money judgment to retire the bonds. Taxpayer thus raised several issues, including, but not limited to, the propriety of equity for canceling the issued bonds in these circumstances, and granting relief in the form of an order compelling payment of money. Whether this requested relief is proper in equity was not addressed by appellees in the trial court or by the motions to dismiss herein. We decline to address those issues prior to their consideration and adjudication in the trial court.
¶ 29 Appellees' sole reason for mootness is the summary judgment granted by the trial court. Generally, there are four methods for attacking a judgment.
¶ 30 In the Tal cases we explained, and relied upon, the concept that the public body was representing all of its citizens by its conduct in presenting for adjudication a justiciable controversy to the trial court. The presentation of a justiciable controversy
¶ 31 Taxpayer's motion relied upon 12 O.S.Supp.2003 § 2024, which provides for intervention by right, permissive intervention, and intervention by the State of Oklahoma. Taxpayer sought both intervention by right and permissive intervention.
¶ 32 TIA filed its petition for declaratory judgment on August 17th and its motion for summary judgment two months later on October 16th. The responses thereto were filed October 29th and November 2nd, and four days after the last response Taxpayer filed his motion to intervene on November 6, 2007. TIA's petition for declaratory judgment included an attached photocopy of the qui tam demand incorporated by reference in the pleading. Taxpayer's motion to intervene included a qui tam claim based upon allegations that TIA, the City, and THL were not presenting a justiciable controversy to the trial court for adjudication. In addition to the pleadings, the motion to intervene
¶ 33 The objection to the intervention filed in the District Court by TIA did not address either Threadgill v. Peterson, supra, or Kellogg v. School Dist. No. 10 of Comanche County, supra, and it did not address, and therefore did not object to, the propriety of intervention based upon those opinions and the right of a taxpayer to seek equitable relief pursuant to 12 O.S. § 1397. TIA does not address this issue in its appellate brief or answer on certiorari. THL argued on appeal that Threadgill does not apply because the acts of the officials therein were unlawful, Threadgill "was based upon facts materially different than those before this court," and that in any event, Threadgill was "effectively overruled" by Tal I.
¶ 34 While on rare occasions an intervenor may be required to satisfy an evidentiary burden for intervention,
¶ 35 Taxpayer's claim in the District Court is based upon allegations of unlawful public expenditures. Threadgill determined that taxpayers have an interest in litigation that seeks to create funding obligations on public bodies that are unlawful. Taxpayer's claim of interest herein pursuant to Threadgill and similar opinions is, generally, "an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest." 12 O.S.2001 § 2024(A)(2). Thus THL's and the City's objections using a merits-based argument were incorrect, and they should have been rejected by the District Court.
¶ 36 TIA's request for declaratory relief required it to present the merits of Taxpayer's claims that Taxpayer was seeking to present himself in the context of obtaining equitable relief. This is not merely an intervenor seeking to intervene in the same cause of action as defined by the transaction or occurrence,
¶ 37 In summary, we conclude that no qui tam claim relief could be sought on behalf of the TIA, that Taxpayer pled a claim seeking relief in equity that has been recognized by Oklahoma courts since before statehood, that the claim for equitable relief is not moot, and that the District Court erroneously denied the motion to intervene on the claim seeking equitable relief.
¶ 38 Whether qui tam intervention is proper requires a judicial determination that the public body has presented a justiciable controversy for the trial court to adjudicate.
¶ 39 The City responded to TIA's motion and brief for summary judgment, and agreed with the legal issues briefed by TIA. TIA's motion and brief for summary judgment identified Taxpayer's claims that: (1) public trusts may not participate in retail outlets; (2) the incremental ad valorem and sales tax revenues from the Tulsa Hills Increment District could not be used to retire the bonds without violating Article 10 §§ 14, 17 and 19 of the Oklahoma Constitution; and (3) financial assistance to THL was not approved by the voters. Taxpayer alleged that the Local Development Act may not be used to create development in an area where investment, development, and economic growth would have occurred absent application of the Act, (62 O.S. § 852), and the use of that Act by the parties was improper.
¶ 40 Taxpayer objected to TIA, as a public trust, participating in a retail outlet. Taxpayer relied on House of Realty, Inc. v. City of Midwest City, 2004 OK 97, 109 P.3d 314, The Local Development Act, (62 O.S.2001 §§ 850-869), and 60 O.S.2001 § 178.4.
The City argued that if the funds provided to the developer were for the purpose of "project costs" as defined in the Local Development Act at § 853, then § 178.4 would have no effect; i.e., a public trust could violate § 178.4 and engage in retail activity if it were acting pursuant to the Local Development Act. The City pointed to the definition of "project costs" in § 853(14).
¶ 42 Taxpayer argued that the financing violated Okla. Const. Art. 10 §§ 14, 17, and 19, and that a vote of the people was necessary for public-funding of the project. He argued that the funds transferred to the developer for on-site infrastructure improvements were not for a public purpose. As in City of Broken Arrow: "The issue before us on the constitutional claims is whether the City presented the legal claims of the Taxpayer [as a qui tam intervenor] to the trial court."
¶ 43 Our conclusion that a justiciable controversy was presented for purposes of Taxpayer's
¶ 44 We are not called upon in this proceeding to correct any decision of the trial court on the exact nature of a taxpayer's equitable remedy in the circumstances before us, or to explain whether specific equitable relief is proper for the present circumstances according to principles of equity. The parties did not address these issues in the trial court and we decline to address them prior to the parties presenting them for trial court adjudication. Our decision on intervention requesting equitable relief concludes only that Taxpayer met his burden to plead a claim seeking equitable relief and that he satisfied 12 O.S. § 2024.
¶ 45 We affirm the trial court's order to the extent that it denied Taxpayer's motion to intervene as a qui tam plaintiff. We reverse the trial court's order to the extent that it denied Taxpayer's motion to intervene as a taxpayer seeking equitable relief. The opinion of the Court of Civil Appeals is vacated. The matter is remanded to the District Court for further proceedings consistent with this opinion.
¶ 46 ALL JUSTICES CONCUR.
2.
The 2001 version of § 373 was in effect at the time this controversy occurred. Section 373 was amended by 2011 Okla. Sess. Laws. Ch. 73 § 1 (eff. Nov. 1, 2011). The parties did not address the effect of the 2011 amendment, and we decline to engage in sua sponte analysis of the legal issues presented by the amendment.
"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."
The 2001 version of § 372 was in effect at the time this controversy occurred. Section 372 was amended by 2008 Okla. Sess. Laws Ch. 367, § 8 (eff. Nov. 1, 2008), and by 2011 Okla. Sess. Laws. Ch. 73 § 1 (eff. Nov. 1, 2011). The parties did not address the effect of the 2008 amendment, and we decline to engage in sua sponte analysis of the legal issues presented by the amendment.
The trustee, or trustees, under such an instrument or will shall be an agency of the state and the regularly constituted authority of the beneficiary for the performance of the functions for which the trust shall have been created. No trustee or beneficiary shall be charged personally with any liability whatsoever by reason of any act or omission committed or suffered in the performance of such trust or in the operation of the trust property; but any act, liability for any omission or obligation of a trustee or trustees, in the execution of such trust, or in the operation of the trust property, shall extend to the whole of the trust estate, or so much thereof as may be necessary to discharge such liability or obligation, and not otherwise.