DEBORAH B. BARNES, Judge.

¶ 1 This accelerated1 appeal is brought by the State of Oklahoma (State) and the City of Oklahoma City (City) to challenge the trial court's ruling that 11 O.S. Supp.2008 § 22-115.1,2 a statute enacted in 2008, restricting the location of dog kennels near schools or licensed day care facilities, is unconstitutional as applied to appellee Kenneth Richard Gonzales (Gonzales). Gonzales owns an unlicensed dog kennel that is located within 2,500 feet of Villa Teresa Moore School, a school and day care facility operated by the Carmelite Sisters of St. Teresa.3

¶ 2 On June 11, 2008, Gonzales filed his "Petition for Injunction, Temporary Injunction, Temporary Restraining Order, and Declaratory Relief." Gonzales noted that five days earlier, the Governor of the State of Oklahoma signed into law SB-1754, codified as 11 O.S. Supp.2008 § 22-115.1, the enforcement of which would prohibit Gonzales from operating his unlicensed dog kennel in its current location. Gonzales alleged that he had "sought" all required zoning and permits necessary to operate his kennel. As evidence of his efforts to obtain a license, Gonzales refers in his Petition to a court order, entered on August 17, 2007, in Oklahoma County District Court (Case No. CJ-2006-9144),4 which granted him a special exception and some zoning variances under the Oklahoma City zoning code. Contrary to his assertions, however, nothing in the language of this order grants him a kennel license or even refers to kennel licensing.5 It is undisputed that Gonzales still lacked a building permit and thus had not been successful in obtaining a kennel license prior to the passage of this new statute.6

¶ 3 After a hearing on the matter, the trial court denied in part and granted in part Gonzales's request for a temporary restraining order, by order filed on July 1, 2008, which stated, in pertinent part:

¶ 4 The parties filed their respective motions for summary judgment as to Gonzales's request for a declaratory judgment and for permanent injunctive relief. On October 2, 2008, the trial court ruled8 in favor of Gonzales, finding that because Gonzales had taken "legal actions" in pursuit of his acquisition of a kennel license, the new statute was unconstitutional as applied to him under the Oklahoma Constitution, Art. 5, § 52.9 The trial court ordered a permanent injunction that prohibited State and City from enforcing § 22-115.1 against Gonzales. In all other respects, the trial court found the statute constitutional.

¶ 5 On October 10, 2008, City filed its "Motion to Vacate Judgment," asking that the trial court's October 2, 2008, ruling be vacated, and in the alternative, requesting a new trial. On October 17, 2008, State filed its "Motion to Vacate Judgment/Motion for New Trial." Each motion challenged the trial court's finding that 11 O.S. Supp.2008 § 22-115.1 was unconstitutional as applied to Gonzales. The trial court denied those post-trial motions in an order10 filed on January 22, 2009, finding that the August 17, 2007, order11 (filed in Oklahoma County District Court Case No. CJ-2006-9144), which granted certain zoning variances "gave [Gonzales] rights that are protected under the Oklahoma Constitution" and that application of the subsequently-enacted statute at issue to Gonzales would "violate Art. 5, § 52 of the Oklahoma Constitution." From the October 30, 2008, judgment in favor of Gonzales and the January 22, 2009, order, overruling the motions to vacate and/or grant a new trial, State and City appeal.

¶ 6 Based on our review of the uncontroverted material facts and the applicable law, we find the trial court's January 22, 2009, order, denying City's and State's motions to vacate/motions for new trial should be reversed, and we vacate the trial court's grant of summary judgment to Gonzales as contrary to law. We remand this case to the trial court with instructions to dismiss.

MATERIAL FACTS AS TO WHICH NO GENUINE ISSUE EXISTS

¶ 7 1. Gonzales operates a dog12 kennel within the city limits of Oklahoma City, Oklahoma, within Cleveland County, Oklahoma.13

2. Oklahoma City is a municipality with a population of more than three hundred thousand (300,000).14

3. Gonzales has 25 dogs in his dog kennel.15

4. Gonzales's dog kennel is located within 2,500 feet of Villa Teresa Moore School, a school and day care operated by Representative.16

5. For the purpose of qualifying for a kennel license, Gonzales initiated his building permit application process in April, 2006 and his zoning variance application process in 2005,17 but had not received a building permit, and thus had no kennel license, prior to the enactment of 11 O.S. Supp.2008 § 22-115.1.18

STANDARD OF REVIEW

¶ 8 Our standard of review for this appeal is as follows:

Reeds v. Walker, 2006 OK 43, ¶¶ 8-9, 157 P.3d 100, 106. (Footnotes omitted.) See also Rule 13, Rules for District Courts of Oklahoma, 12 O.S. Supp.2002, ch. 2, app.

¶ 9 Both State's "Motion to Vacate Judgment/Motion for New Trial" and City's "Motion to Vacate Judgment," asking, in the alternative, for a new trial, were filed before the filing of the judgment on October 30, 2008, and are thus deemed to be filed within 10 days of that judgment. Because the motions seek reconsideration of a prior ruling, we treat both of them as motions for new trial. "A motion seeking reconsideration, re-examination, rehearing or vacation of a judgment or final order, which is filed within 10 days of the day such decision was rendered, may be regarded as the functional equivalent of a new trial motion, no matter what its title." Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, ¶ 4, 681 P.2d 757, 758-759. (Footnote omitted.)

Reeds v. Walker at ¶ 9, 157 P.3d at 106-107. (Footnotes omitted.)

¶ 10 An appellate court "will not disturb an order which grants or refuses an injunction unless there is a showing the trial court abused its discretion or that the judgment is clearly against the weight of the evidence or contrary to law." House of Sight & Sound, Inc. v. Faulkner, 1995 OK CIV APP 112, ¶ 5, 912 P.2d 357, 360, citing Sharp v. 251st Street Landfill, Inc., 1991 OK 41,810 P.2d 1270. The trial court's judgment raises an issue of law and is thus reviewable "under a de novo standard." Cherokee Nation v. Nomura, 2007 OK 40, ¶ 11, 160 P.3d 967, 972.

ANALYSIS

¶ 11 The issues raised on appeal by State and City, are as follows:

I. Standing is Required to Bring a Constitutional Challenge

¶ 12 Standing, which refers to a person's legal right to seek relief in a judicial forum, "may be raised as an issue at any stage of the judicial process by any party or by the court sua sponte." Hendrick v. Walters, 1993 OK 162, ¶ 4, 865 P.2d 1232, 1236. (Footnote omitted.) An initial inquiry must reveal that: (1) an actual or threatened injury has occurred; (2) some relief for the harm can be given; and (3) the interest to be guarded is within a statutorily or constitutionally protected zone. State of Oklahoma ex rel. Board of Regents v. McCloskey Brothers, 2009 OK 90, 227 P.3d 133; Hendrick v. Walters, 1993 OK 162, 865 P.2d 1232; State of Oklahoma ex rel. Cartwright v. Oklahoma Tax Commission, 1982 OK 146, 653 P.2d 1230; Independent School District No. 9 of Tulsa County v. Glass, 1982 OK 2, 639 P.2d 1233. "When standing of a party is brought into issue, the focus is on the party seeking to get the complaint [here, the alleged unconstitutionality of 11 O.S. Supp.2008 § 22-115.1] before the court, and not on the issues the party wishes to have adjudicated." State of Oklahoma ex rel. Board of Regents v. McCloskey Brothers, 2009 OK 90 at ¶ 18, 227 P.3d 133. The question to be answered is whether the person bringing the constitutional challenge is a proper party to request adjudication of that issue and not whether the issue itself is justiciable.19 The "inquiry posed is whether the party ... has a legally cognizable interest...." Democratic Party of Oklahoma v. Estep, 1982 OK 106, ¶ 7, 652 P.2d 271, 274.

II. Gonzales Has No Legally Cognizable Interest

¶ 13 To invoke a constitutional analysis of an act of the Legislature—here, 11 O.S. Supp.2008 § 22-115.1—this Court must be presented with a proper case in which the person complaining about the statute has been, or is about to be "denied some right or privilege to which he was lawfully entitled ...." City of Shawnee v. Taylor, 1943 OK 11, ¶ 4, 191 Okla. 687, 132 P.2d 950, 952, quoting Shinn v. Oklahoma City, 1939 OK 29, 184 Okla. 236, 87 P.2d 136. (Emphasis added.) "In other words as a general rule the courts decide questions only when those urging them have an interest to protect...." Id. (Emphasis added.)

¶ 14 Gonzales has never operated his kennel in compliance with the kennel licensing laws. Although he applied for a license and took steps to satisfy licensing requirements prior to the enactment of § 22-115.1, the fact is he was never issued a kennel license.20 Having no license to operate his dog kennel, Gonzales cannot now successfully argue that § 22-115.1 operates to deny him a right or privilege cloaked with constitutional protection. Although Gonzales argues that the statute operates to deprive him of his property, all that he has lost is the ability to continue using his property, in a noncompliant, unlicensed manner. Gonzales cites no law, and indeed, we have not found any, that finds that type of loss to be a type that triggers a constitutional analysis.

¶ 15 Gonzales's circumstances differ from those in State of Oklahoma ex rel. Board of Examiners in Optometry v. Lawton, 1974 OK 69, 523 P.2d 1064. In that declaratory judgment lawsuit brought by Lawton, a licensed optometrist, Lawton had been practicing optometry in a leased shopping center office since 1965. That same year, a retail optical outlet leased space in the same building on the opposite side of the hall from Lawton. In 1971, the Legislature passed a bill (59 O.S.1971 § 594) which prohibited any optometrist from practicing "adjacent to or in such geographical proximity to a retail optical outlet." Lawton filed his declaratory judgment lawsuit, claiming the Board of Examiners in Optometry were about to take action against him for violation of the new law. The trial court and the Oklahoma Supreme Court rejected the Board's argument that the controversy was "hypothetical." A declaratory judgment action is meant to ascertain uncertain rights and can be used before any actual breach. "The fact that Lawton could be subjected to criminal prosecution and lose his license if he were found to be in violation of the statute certainly renders it a matter of justiciable controversy." Id. at ¶ 9, 523 P.2d at 1066.21 (Emphasis added.)

¶ 16 In this case, however, there is no uncertainty as to Gonzales's rights. He has none. He is not threatened with losing his license. He is not threatened with losing his ability to operate his kennel lawfully because he has never operated his kennel in compliance with the licensing laws. Gonzales has not suffered an injury to a legally protected interest as contemplated by constitutional provisions. "Standing to prosecute an appeal must be predicated on that interest in the trial court's decision which is direct, immediate and substantial. Conjecture or speculation ... will not suffice...." Creamer v. Bucy, 1985 OK CIV APP 19, ¶ 4, 700 P.2d 668, 670, quoting Underside v. Lathrop, 1982 OK 57, 645 P.2d 514. Because he had no license, Gonzales has not established that the legislation sought to be invalidated detrimentally affects his interest in a direct, immediate and substantial manner. He was operating a noncompliant kennel the day before the enactment of § 22-115.1, as well as the day after.

III. The August 17, 2007, Order Created No Vested Right in Operating a Kennel

¶ 17 Gonzales argues, and the trial court concluded, that the August 17, 2007, order, entered in the Oklahoma County District Court case, CJ-2006-914422 (the subject of Appeal No. 105,313), created in him a vested right—a right worthy of constitutional protection—in a kennel license. Gonzales asserts that § 22-115.1 is unconstitutional as applied to him because he has had to "seek court redress for all permit and licensing issues"23 and that these legal actions, taken in furtherance of his acquisition of a kennel license, appear to him like a series of "hoops" through which he must "jump." Despite this complaint, the fact is, as expressed by his counsel, that issuance of a kennel license depends upon satisfying the building code portion of the application, as well as the zoning ordinance compliance portion of the application.24 Gonzales argued in the district court:

¶ 18 In Gonzales's Supplemental Brief in Support of Motion for Summary Judgment,26 he acknowledges that the "process" of obtaining the permits and kennel license, is still "ongoing." He argues that because he has "taken all legal steps required to obtain the permits and license necessary for his private kennel,"27 he has "a vested interest/property right," to receive "the required permits and license."28

¶ 19 We reject the notion that the August 17, 2007, order created a vested right in a kennel license or any right of Gonzales to operate his kennel without a license. The August 17, 2007, order does not create a vested right or a basis for standing. The trial court erred as a matter of law in so finding.

¶ 20 The August 17, 2007, order,29 states, in pertinent part, as follows:

¶ 21 Contrary to the trial court's findings and Gonzales's assertions, the August 17, 2007, order, dealing simply with zoning ordinances and not kennel licensure, did not find that Gonzales is entitled to a license for his kennel nor grant such a license. The August 17, 2007, order granted Gonzales's application for variances and a special exception to City's Zoning and Planning Code ordinances in Chapter 59 of the Oklahoma City Municipal Code. It does not command City to issue a kennel license to Gonzales. All that the August 17, 2007, order does is establish Gonzales's right to have his dwelling, parking spaces, striping, curbs, handicap parking spaces, drive aisle and driveway radius be as they are and be consistent with, and allowed by, the zoning ordinances.

¶ 22 "A Vested right' is the power to do certain actions or possess certain things lawfully...." Wilkerson v. City of Pauls Valley, Oklahoma, 2001 OK CIV APP 66, ¶ 15, 24 P.3d 872, 876. (Emphasis added.) In Wilkerson, the plaintiff, who operated a mobile home park, appealed a zoning commission decision denying the plaintiff a variance from a new flood prevention ordinance. The plaintiff claimed the ordinance was unconstitutional because it deprived him of a vested right, which would be protected from legislative invasion, except by due process of law. The Oklahoma Court of Civil Appeals rejected that argument, noting that the plaintiff had no "vested right" of continual nonconformance. Gonzales, like the plaintiff in Wilkerson, simply has no vested right,31 nor any right at all, to continue operating his kennel without a license.32

¶ 23 In In re McDonald's Corporation, 146 Vt. 380, 505 A.2d 1202 (1985), McDonald's was interested in purchasing certain real property. Before buying it, McDonald's obtained a governmental environmental advisory opinion that a certain commercial permit was not required on the land McDonald's was seeking to purchase for construction of a restaurant. After McDonald's purchased the property, the neighbors filed a petition for a declaratory judgment, contending the permit was, indeed, necessary. While the litigation regarding the necessity of the permit went forward, McDonald's built its restaurant and operated it.

¶ 24 When the litigation completed, it was adjudged that McDonald's needed the permit. The Vermont Supreme Court rejected McDonald's estoppel argument because McDonald's knew the question of the permit was unsettled and in litigation when it decided to go forward and build the restaurant. The appellate court also rejected McDonald's vested rights argument, stating that McDonald's went forward at its own risk. Any "construction commenced by the developer prior to issuance of all the necessary permits and prior to a final judicial determination ... is commenced at his peril."33 The court further stated that "[l]ong ago Justice Holmes remarked: `Men must turn square corners when they deal with the Government' " Id. (quoting Rock Island, Arkansas & Louisiana R.R. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188 (1920)). "We find no departure from rectangular rectitude in this case."34

IV. Gonzales Had Not Satisfied All Kennel License Requirements

¶ 25 The August 17, 2007, order establishes Gonzales's compliance with the zoning requirements, which is just one area of compliance that is prerequisite to being qualified to receive a kennel license. The order does not grant a kennel license, order issuance of one, or state, contrary to Gonzales's assertions, that he "was eligible" for one.35 When § 22-115.1 was enacted, Gonzales was merely in the process of obtaining prerequisites for kennel licensure-zoning approval and building permits.36 That he obtained his zoning variances set forth in the August 17, 2007, order, is simply completion of one step toward kennel licensure.

¶ 26 City admits, and indeed the record shows, that by reason of the August 17, 2007, order, Gonzales obtained zoning approval37 of the kennel. However, that order did not grant a building permit or any exceptions to building permit requirements. Nor did the order make any findings or rulings regarding compliance with building permit requirements or address the issuance or entitlement to a kennel license. In fact, the Board of Adjustment has no power to exempt anyone from complying with City's building code38 or to grant a kennel license.39

¶ 27 No constitutionally-protected vested right arises from one's merely being in pursuit of a license and engaging in an effort to satisfy all applicable requirements for licensure. Because Gonzales had no vested right to operate his kennel without a license, he has failed to establish his standing to challenge the constitutionality of the statute. Therefore, we need not take the analysis any further to reach the issue of whether the enactment of the statute violated Art. 5, § 52 of the Oklahoma Constitution40 or any other provision of the Constitution.41

¶ 28 "This court will not pass upon the constitutionality of an act of the Legislature, nor of any of its provisions, until there is presented a proper case in which it is made to appear that the person complaining by reason thereof has been or is about to be denied some right or privilege to which he was lawfully entitled...." Rath v. Maness, 1970 OK 111, ¶ 19, 470 P.2d 1011, 1014. (Emphasis added.) We, therefore, decline to address whether the statute is, in fact, constitutional and further find that it was error for the trial court to make any findings as to the constitutionality of the statute at issue.

CONCLUSION

¶ 29 Based on our review of the uncontroverted material facts and the applicable law, we find Gonzales lacked standing to challenge the constitutionality of 11 O.S. Supp. 2008 § 22-115.1. The trial court's denial of City's and State's motions to vacate/motions for new trial was erroneous; therefore, we reverse the trial court's January 22, 2008, order and vacate the trial court's October 30, 2008, judgment. We remand with instructions to dismiss this case.

¶ 30 REVERSED, VACATED, AND REMANDED WITH INSTRUCTIONS TO DISMISS.

WISEMAN, C.J., and FISCHER, P.J., concur.