[00:00:00] Speaker 04:
First here, Rodney v. City of Catoosa, number 255039.

[00:00:07] Speaker 04:
Counsel, you may proceed.

[00:00:09] Speaker 02:
May it please the court, Will Wright, on behalf of Mr. Rodney.

[00:00:14] Speaker 02:
And we're here today because Mr. Rodney has not been given his constitutional right to just compensation, either under the Oklahoma Constitution takings provision, which is Article 2, Section 24,

[00:00:30] Speaker 02:
or the U.S.

[00:00:31] Speaker 02:
Constitution, Fifth Amendment takings provision.

[00:00:37] Speaker 02:
In 2011, the city came on to Mr. Rogney's property in the city of Catoosa and with six foot rebar and an orange fence took control and dominion over his property because they believed he needed a permit.

[00:00:56] Speaker 02:
The problem for Mr. Rogney was,

[00:00:59] Speaker 02:
He had already gone to an administrative hearing, and the city had already made a decision no permit was required.

[00:01:08] Speaker 02:
In the 2011 cease and desist order that was served on Mr. Rodney, along with the fence that was placed on his property, Mr. Rodney attempted to work out a resolution to no avail.

[00:01:26] Speaker 02:
In 2014,

[00:01:28] Speaker 02:
Mr. Rodney filed suit in Rogers County District Court.

[00:01:33] Speaker 02:
And I'll read to you just the statement, one statement he made.

[00:01:37] Speaker 02:
City of Catoosa has caused damages by way of inverse condemnation in excess of $10,000.

[00:01:46] Speaker 02:
The City of Catoosa has taken away the plaintiff's rights without compensation by prohibiting the plaintiff from entering onto plaintiff's own property without plaintiff's consent.

[00:02:00] Speaker 02:
The Oklahoma Constitution guarantees a jury trial.

[00:02:06] Speaker 02:
That is Article 2, Section 19.

[00:02:08] Speaker 02:
When you're asking for money damages, you are guaranteed a right to trial by jury under the Oklahoma Constitution.

[00:02:17] Speaker 03:
What about statute of limitations?

[00:02:20] Speaker 02:
Statute of limitations can be told under Oklahoma Title 12, Section 100.

[00:02:27] Speaker 03:
And if not told here, then you would lose?

[00:02:31] Speaker 02:
That's correct.

[00:02:33] Speaker 02:
OK, so Title XII, Section 100, has been interpreted by this court to apply to a Section 1983 claim.

[00:02:45] Speaker 02:
So regardless of whether it's a constitutional claim, a liberty claim, if it's a Section 1983 claim, Section 100 in Title XII is a savings provision.

[00:02:57] Speaker 02:
And the savings provision tolls the statute of limitations

[00:03:01] Speaker 02:
The case that was pending in the state court did not complete until 2024 when final mandate came out.

[00:03:13] Speaker 02:
The tolling statute, and this is an important point.

[00:03:18] Speaker 04:
What happened in 2024?

[00:03:19] Speaker 04:
That was the completion of the entire state action.

[00:03:27] Speaker 02:
So the state action went to state trial court.

[00:03:32] Speaker 02:
Then the state action went to the state court of appeals.

[00:03:36] Speaker 02:
And then there was a petition for cert to the state Supreme Court.

[00:03:42] Speaker 02:
The cert was denied.

[00:03:45] Speaker 02:
So interpreting the tolling provision of section 100, you commence your second action if you have the right to refile your action.

[00:03:55] Speaker 02:
And the commencement date begins

[00:03:58] Speaker 02:
on the date that cert was denied.

[00:03:59] Speaker 01:
And what is your argument for why you had the right to refile your action?

[00:04:05] Speaker 02:
The tolling provision specifically does not address judgment, summary judgment, dismissal, dismissal with or without prejudice.

[00:04:15] Speaker 02:
What the tolling statute, the text of the tolling statute says is if the action fails, other than on the merits.

[00:04:25] Speaker 02:
And in our briefing, Mr. Rodney argues that the state action failed other than on the merits.

[00:04:32] Speaker 03:
Isn't that contrary to what the intermediate Court of Appeals said?

[00:04:36] Speaker 02:
No.

[00:04:37] Speaker 02:
I disagree.

[00:04:38] Speaker 02:
The Court of Appeals said, Rodney cannot maintain an inverse condemnation claim under any set of facts because he failed to exhaust his administrative remedies

[00:04:54] Speaker 02:
prior to filing the instant action.

[00:04:57] Speaker 01:
But didn't the court also say, as a matter of law, there was no taking?

[00:05:02] Speaker 02:
It did.

[00:05:02] Speaker 02:
It dropped a footnote.

[00:05:04] Speaker 01:
But how should we be thinking about that?

[00:05:09] Speaker 02:
What was the basis?

[00:05:10] Speaker 02:
The basis was rescission.

[00:05:13] Speaker 02:
So you have no takings because you got the relief of rescission.

[00:05:20] Speaker 02:
That isn't what the US Supreme Court interprets the Fifth Amendment.

[00:05:24] Speaker 02:
Just compensation is the remedy, not rescission.

[00:05:27] Speaker 04:
But wasn't this an interpretation of Oklahoma takings law?

[00:05:35] Speaker 04:
That is correct.

[00:05:36] Speaker 04:
And Oklahoma taking.

[00:05:37] Speaker 04:
And you think maybe that was wrong for them to say there was no taking?

[00:05:45] Speaker 02:
Yes.

[00:05:45] Speaker 02:
Right or wrong, it's still not a decision on the merits.

[00:05:48] Speaker 02:
Well, why not?

[00:05:51] Speaker 02:
Because the decision was based

[00:05:54] Speaker 02:
on rescission.

[00:05:55] Speaker 02:
That was the underlying basis for the Court of Appeals decision.

[00:06:00] Speaker 04:
You got your relief.

[00:06:03] Speaker 04:
When you say rescission, is it because the court said that there was no exhaustion of administrative remedy?

[00:06:13] Speaker 04:
In other words, that they hadn't got an administrative decision.

[00:06:16] Speaker 02:
Well, it's confusing, because on the one hand, the court says you failed to exhaust.

[00:06:21] Speaker 02:
And on the other hand,

[00:06:23] Speaker 02:
The court says, you are granted relief because you did your administrative remedy.

[00:06:29] Speaker 02:
So on the one hand, we've got failure to exhaust, which is jurisdictional under Oklahoma law.

[00:06:36] Speaker 02:
And it's a lack of jurisdiction.

[00:06:39] Speaker 02:
If you fail to exhaust, it's lack of jurisdiction.

[00:06:42] Speaker 02:
Lack of jurisdiction is not on the merits.

[00:06:44] Speaker 01:
What was the basis for your cert petition then?

[00:06:47] Speaker 01:
The mootness.

[00:06:49] Speaker 02:
We were saying, you have jurisdiction.

[00:06:54] Speaker 02:
At some point, Mr. Rodney has to get relief for just compensation under whether it's the Oklahoma Constitution or the US Constitution.

[00:07:03] Speaker 02:
Just compensation is the remedy.

[00:07:06] Speaker 02:
He was not provided a remedy for his constitutional guaranteed fundamental right of just compensation.

[00:07:18] Speaker 02:
What the city argued in the state court

[00:07:23] Speaker 02:
The plaintiff exhausted his administrative remedies and prevailed.

[00:07:29] Speaker 02:
Because he was successful in obtaining a rescission of the CDO, that's the cease and desist order, the plaintiff's sole remaining claim is not judiciable.

[00:07:40] Speaker 02:
That's Article 3, no case in controversy.

[00:07:45] Speaker 02:
So the city in the state action was arguing there is no case or controversy.

[00:07:51] Speaker 02:
Your claim is moot.

[00:07:55] Speaker 02:
And under case law, both in Oklahoma and US Supreme Court precedent and this court, a moot case is not a case on its merits.

[00:08:06] Speaker 02:
The city argued in the state court agreed with the city and terminated the action.

[00:08:12] Speaker 02:
The action was terminated because plaintiffs inverse condemnation claim is moot.

[00:08:18] Speaker 02:
Those are the words of the city.

[00:08:22] Speaker 02:
The city argued to the state trial court, the plaintiff's remaining claim is founded on the CDO, which is the cease and desist order.

[00:08:32] Speaker 02:
The cease and desist order is no longer in existence.

[00:08:37] Speaker 02:
Accordingly, there is no longer a case or controversy for this court to decide.

[00:08:43] Speaker 02:
The plaintiff's claim is moot.

[00:08:45] Speaker 01:
So the district court dismissed on mootness grounds, endorsing the city's argument, right?

[00:08:51] Speaker 01:
But then the Oklahoma Court of Appeals conducted a de novo review and concluded as a matter of law, under Oklahoma law, that there was no taking.

[00:09:05] Speaker 01:
And so it may be that the basis for that decision is something that you can test.

[00:09:12] Speaker 01:
But what we need to decide is whether that decision, not the mootness question, because that was

[00:09:18] Speaker 01:
not the basis of the Oklahoma Court of Appeals determination, whether the matter of law decision that there was no taking somehow gets you tolling because it wasn't a decision on the merits.

[00:09:31] Speaker 01:
And it seems to me that it is a decision on the merits with which you disagree.

[00:09:39] Speaker 02:
The administrative remedy was rescission in the eyes of the Court of Appeals.

[00:09:47] Speaker 02:
Recision is not on the merits of a just compensation.

[00:09:53] Speaker 02:
Mr. Rodney is here today because he has not been compensated to which he's entitled to.

[00:10:01] Speaker 02:
Every step of the way, which court has jurisdiction to hear his compensation claim?

[00:10:09] Speaker 02:
Which court?

[00:10:10] Speaker 02:
We're here today asking you.

[00:10:14] Speaker 04:
Well, counsel, what I think these questions are getting at is, what is the language in that footnote doing there then, if they say there was no taking?

[00:10:32] Speaker 04:
I mean, was it just a throwaway line?

[00:10:35] Speaker 04:
Is that what you're saying?

[00:10:36] Speaker 04:
I agree.

[00:10:37] Speaker 04:
Well, then what's it doing there?

[00:10:39] Speaker 02:
Dicta, advisory opinion.

[00:10:42] Speaker 02:
What did the Court of Appeals actually do?

[00:10:44] Speaker 02:
They affirmed.

[00:10:45] Speaker 02:
They didn't reverse, consistent with our findings.

[00:10:49] Speaker 02:
They didn't do a finding of fact as to what a taking is.

[00:10:53] Speaker 02:
Appellate courts are not findings of a fact.

[00:10:55] Speaker 02:
We don't make findings of fact in the appellate courts.

[00:10:58] Speaker 04:
Oklahoma is consistent with this court.

[00:11:01] Speaker 04:
Is the statement that no taking occurred a finding of fact?

[00:11:05] Speaker 04:
Isn't that a legal conclusion?

[00:11:08] Speaker 02:
It's a legal conclusion based on an administrative remedy that had failed.

[00:11:14] Speaker 02:
Under Oklahoma law, in order to determine what a taking is, there has to be a finding of fact by a jury or trial or a trier of fact as to substantial interference.

[00:11:26] Speaker 02:
Do we have a record in any of the court where there was a finding of fact of substantial or not substantial interference?

[00:11:35] Speaker 02:
So I do agree that that was dicta.

[00:11:37] Speaker 02:
I agree that it was an advisory opinion.

[00:11:40] Speaker 02:
Well, what do you mean agree?

[00:11:42] Speaker 02:
I don't know who you're agreeing with.

[00:11:43] Speaker 04:
You're arguing that.

[00:11:45] Speaker 04:
I'm sorry.

[00:11:48] Speaker 04:
Let me ask you this.

[00:11:49] Speaker 04:
I thought one of your arguments was that you actually did challenge the no takings occurred conclusion in the footnote because the court didn't consider

[00:12:00] Speaker 04:
whether there was substantial interference with the property or just compensation.

[00:12:05] Speaker 04:
What happened to that argument?

[00:12:09] Speaker 02:
Noteness was the issue that was appealed.

[00:12:11] Speaker 04:
That's not what I asked you.

[00:12:13] Speaker 04:
You made that argument in your brief.

[00:12:15] Speaker 04:
You haven't said anything about it this morning.

[00:12:17] Speaker 04:
Are you waiving it?

[00:12:18] Speaker 04:
Have you abandoned it?

[00:12:19] Speaker 02:
Which argument is that?

[00:12:20] Speaker 02:
I'm sorry.

[00:12:20] Speaker 04:
The argument that the court didn't consider

[00:12:25] Speaker 04:
whether there was a substantial interference with the property.

[00:12:29] Speaker 04:
In other words, a temporary taking between 2011 and 2017.

[00:12:32] Speaker 04:
Correct.

[00:12:32] Speaker 04:
They did not.

[00:12:33] Speaker 04:
All right.

[00:12:34] Speaker 04:
So is that what your argument is about that no taking occurred?

[00:12:39] Speaker 04:
Are you saying that that was wrong because the court didn't consider that?

[00:12:45] Speaker 04:
I'm just asking you what you put in your brief.

[00:12:48] Speaker 04:
I understand.

[00:12:49] Speaker 04:
Well, do you want to explain it then?

[00:12:51] Speaker 04:
How do you connect it to the no taking occurred?

[00:12:53] Speaker 04:
I thought you were challenging the no taking occurred because the court didn't do the analysis to get to that conclusion.

[00:13:02] Speaker 04:
Is that a misreading of your brief?

[00:13:03] Speaker 04:
No, Your Honor.

[00:13:06] Speaker 04:
OK.

[00:13:07] Speaker 04:
And is that the argument you're still making?

[00:13:10] Speaker 02:
There was a taking.

[00:13:12] Speaker 02:
That's the argument.

[00:13:14] Speaker 02:
That the footnote that was dropped was

[00:13:17] Speaker 02:
Oh, by the way, footnote, because what it is footnoting is he failed to exhaust his administrative remedies prior to filing the instant action.

[00:13:27] Speaker 02:
That was the holding.

[00:13:28] Speaker 02:
And it affirmed the judgment.

[00:13:31] Speaker 02:
And what was the judgment?

[00:13:33] Speaker 02:
The underlying judgment was not judiciable.

[00:13:38] Speaker 02:
No case or controversy.

[00:13:40] Speaker 02:
So if you're affirming mootness,

[00:13:44] Speaker 02:
You don't have jurisdiction or power, as Article 3 would say.

[00:13:47] Speaker 02:
You don't have power to make any other rulings under US Supreme Court precedent under... Are you saying mootness in state court?

[00:14:02] Speaker 02:
Church of Scientology.

[00:14:04] Speaker 02:
No jurisdiction to give opinions other than on any other questions.

[00:14:08] Speaker 02:
So if we're deciding that it's moot, then it's moot.

[00:14:12] Speaker 04:
Well, who decided it was moved?

[00:14:15] Speaker 04:
The district court?

[00:14:16] Speaker 04:
Wait, wait.

[00:14:17] Speaker 04:
The federal district court?

[00:14:18] Speaker 02:
No, no, no.

[00:14:19] Speaker 02:
The state district court decided it was moved.

[00:14:21] Speaker 04:
Article 3 applies to federal court.

[00:14:22] Speaker 04:
So what's the mootness doctrine in Oklahoma?

[00:14:26] Speaker 02:
The city argued the mootness doctrine under Article 3.

[00:14:30] Speaker 02:
They argued federal application to the constitutional claim in the state court.

[00:14:38] Speaker 03:
Well, whether it was right or wrong, my understanding of what the Intermediate Court of Appeals said is there's no taking because Mr. Rogney was granted relief as soon as he sought an administrative remedy and the city rescinded the cease and desist order.

[00:14:54] Speaker 03:
That's why no taking.

[00:14:57] Speaker 02:
Did the Court of Appeals affirm mootness if the Court of Appeals affirmed the judgment, the lower judgment that was decided

[00:15:08] Speaker 02:
that it had no jurisdiction, then there is no jurisdiction to make that decision.

[00:15:15] Speaker 03:
What I just read to you, though, it says there's no taking because once you came to us with the administrative remedies, you got relief.

[00:15:26] Speaker 02:
Recision, not just compensation.

[00:15:28] Speaker 02:
They rescinded the bad act under Nick, the US Supreme Court, rescinding of the illegal conduct.

[00:15:37] Speaker 02:
is not a bar to a takings claim.

[00:15:42] Speaker 02:
That would be First English.

[00:15:43] Speaker 02:
They cited First English in the most recent U.S.

[00:15:46] Speaker 02:
Supreme Court case, and Delvalier cited both Nick and cited First English, that rescission is not a bar.

[00:16:00] Speaker 02:
And so the basis for the state action was rescission.

[00:16:11] Speaker 02:
I'd like to reserve the rest of my time.

[00:16:15] Speaker 04:
I don't think you've got more time.

[00:16:18] Speaker 04:
Are we over time?

[00:16:20] Speaker 04:
You've gone over your time.

[00:16:22] Speaker 04:
Oh, I've gone over my time.

[00:16:23] Speaker 04:
I'm sorry.

[00:16:23] Speaker 04:
That's all right.

[00:16:31] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:16:33] Speaker 00:
Allison Parker here on behalf of the City of Catoosa.

[00:16:37] Speaker 00:
I want to take a moment and go back through some of the history of the state court litigation because I think our timeline is confusing and that there are a few things that counsel didn't mention that might be helpful to your analysis.

[00:16:50] Speaker 00:
There were two cease and desist orders.

[00:16:51] Speaker 00:
One was in 2009.

[00:16:52] Speaker 00:
Mr. Rodney saw administrative remedy and got that rescinded.

[00:16:58] Speaker 00:
In 2011, another cease and desist order was issued by the city of Catoosa.

[00:17:02] Speaker 00:
Rather than seek his administrative remedy at that time, Mr. Rodney chose to file a lawsuit in state court.

[00:17:10] Speaker 00:
It wasn't until 2016 after the city filed a motion for summary judgment arguing failure to exhaust administrative remedies amongst other things that Mr. Rodney asked for a stay of that case and he sought his administrative remedy, at which point he gained rescission.

[00:17:30] Speaker 00:
But now we're talking

[00:17:31] Speaker 00:
six years after the CDO was issued.

[00:17:35] Speaker 00:
So there is this delay between the CDO being issued and him actually deciding to seek his administrative remedy.

[00:17:42] Speaker 00:
And I think that delay informs the Court of Civil Appeals decision that there was no taking.

[00:17:48] Speaker 00:
I mean, can he self-create a temporary taking by failing to exhaust his administrative remedies?

[00:17:55] Speaker 00:
So that is important.

[00:17:57] Speaker 00:
Also, in the district court,

[00:17:59] Speaker 00:
The final order is based upon not only the city's motion to dismiss for a lack of a justiciable claim after the rescission, it was also based on granting a summary judgment that the city had previously filed in 2016.

[00:18:15] Speaker 00:
Mr. Vagney did not respond to that motion for summary judgment, and months had gone by since the state had been lifted.

[00:18:22] Speaker 00:
So there were other issues that the Court of Civil Appeals

[00:18:26] Speaker 00:
could look at in their de novo review of the file in their decision.

[00:18:31] Speaker 00:
I disagree that the footnote is dicta.

[00:18:34] Speaker 00:
I think it is very responsive to one of Mr. Rodney's issues on appeal.

[00:18:41] Speaker 03:
How is it necessary to the ruling, to the holding?

[00:18:46] Speaker 00:
I think it was necessary to that appeal because one of the issues that Mr. Rodney raised on appeal is the same issue that he's raising today.

[00:18:56] Speaker 00:
that he was deprived of his constitutional right to get compensation for that temporary taking.

[00:19:04] Speaker 00:
And I think that prompted the court to say, well, we don't see a taking.

[00:19:11] Speaker 01:
Could Mr. Rodney's complaint be read to assert a takings clause claim independent of the 1983 claim?

[00:19:21] Speaker 00:
I don't think so.

[00:19:22] Speaker 00:
And this brings us to,

[00:19:25] Speaker 00:
what happened with the NIC filing.

[00:19:27] Speaker 00:
While the state court case was proceeding, and during the course of it, the Supreme Court issued the NIC decision.

[00:19:33] Speaker 00:
And that decision did away with the requirement that you exhaust your state court remedies before you can bring a federal takings claim.

[00:19:42] Speaker 00:
That was in 2019.

[00:19:44] Speaker 00:
So at that point, Mr. Rodney could have filed a federal takings claim in federal court or otherwise amended his pleadings in the state court action.

[00:19:52] Speaker 00:
That didn't happen.

[00:19:54] Speaker 00:
So now he wants to argue that it's going to toll from the conclusion of a state court case where he didn't have a federal takings claim alleged.

[00:20:06] Speaker 00:
So he just, it's too late for the claim.

[00:20:10] Speaker 00:
He could have brought it in 2019 in Enderton Circuit law, a 1983 claim does accrue at that point when you are able to bring the cause of action.

[00:20:21] Speaker 00:
There is an issue raised on

[00:20:24] Speaker 00:
in Mr. Valkney's reply brief that I think you're getting at, Your Honor.

[00:20:29] Speaker 00:
And he cited for the first time on appeal a recently decided 11th Circuit case that states that you can bring independently from a 1983 action a federal takings claim without going through the vehicle of Section 1983.

[00:20:49] Speaker 00:
That case was decided between

[00:20:53] Speaker 00:
the city responding on appeal, and Mr. Rodney's reply brief.

[00:20:58] Speaker 00:
I don't think that case is at issue here.

[00:21:00] Speaker 00:
We have a pending motion to file a sub-reply.

[00:21:04] Speaker 00:
I don't think that Mr. Rodney pled a direct takings claim.

[00:21:10] Speaker 00:
All of his issues refer to Section 1983.

[00:21:13] Speaker 00:
And even if he were found to have that, I don't think the 11th Circuit case is

[00:21:24] Speaker 00:
presidential here because, A, it's the 11th Circuit, and in the NIC case, the Supreme Court refers throughout to the ability to bring a federal takings claim via 1983.

[00:21:43] Speaker 04:
Could we just focus in on the savings statute?

[00:21:49] Speaker 04:
and the reference in the statute to the words otherwise than upon the merits.

[00:21:58] Speaker 04:
So we've got that in the saving statute.

[00:22:00] Speaker 04:
Now let's go over to the Oklahoma State Court decisions.

[00:22:11] Speaker 04:
What was the merits question in state court?

[00:22:17] Speaker 00:
I believe the merits question in state court comes up on that Koka Denovo review from the Court of Civil Appeals in Oklahoma, where their decision is not only that he failed to exhaust his remedies, but also that as a matter of law, there was no taking.

[00:22:34] Speaker 04:
Well, let's break those two things up.

[00:22:37] Speaker 04:
Let's say that he didn't exhaust his administrative remedies.

[00:22:43] Speaker 04:
If that was the ground for the decision, is that a decision on the merits?

[00:22:50] Speaker 00:
I don't think so, Your Honor.

[00:22:51] Speaker 04:
So do you need the footnote to succeed in this appeal?

[00:22:59] Speaker 00:
In regard to statute of limitations?

[00:23:01] Speaker 04:
Yes.

[00:23:02] Speaker 00:
I do think that addresses the statute of limitations argument, yes.

[00:23:06] Speaker 04:
All right.

[00:23:07] Speaker 04:
Now isn't the merits question on that?

[00:23:12] Speaker 04:
whether the city substantially interfered with the property and failed to pay just compensation.

[00:23:20] Speaker 04:
They're saying, look, we couldn't use the property between 2011 and 2017.

[00:23:28] Speaker 04:
But did the courts really ever address that question?

[00:23:33] Speaker 04:
Isn't that the merits question?

[00:23:35] Speaker 00:
That is the merits question.

[00:23:37] Speaker 00:
And as part of the city's motion for summary judgment below, it had argued that

[00:23:42] Speaker 00:
there was no taking because it was a lawful use of the city's police power in this city ordinance that affected Mr. Rodney's property.

[00:23:55] Speaker 00:
So in the sense that the Court of Civil Appeals reviewed the entire record on its de novo review, that issue was in the city's brief to which Mr. Rodney did not respond.

[00:24:06] Speaker 04:
All right.

[00:24:06] Speaker 04:
But your position hinges on the no takings language in the footnote.

[00:24:13] Speaker 00:
Yes.

[00:24:13] Speaker 04:
At least on the statute of limitations.

[00:24:15] Speaker 00:
As to that tolling statute, yes.

[00:24:18] Speaker 00:
Section 100.

[00:24:22] Speaker 00:
Another reason that we believe the district court engaged in the correct analysis is that Mr. Rockney's claim, taking his claim, is barred by issue preclusion as well due to the footnote by the Court of Civil Appeals.

[00:24:40] Speaker 00:
Mr. Rockney,

[00:24:43] Speaker 00:
addresses the factors required for issue preclusion in his briefing as requiring a decision on the merits.

[00:24:51] Speaker 00:
And that is incorrect under Oklahoma law because this case involves an issue that was decided in a state court.

[00:25:00] Speaker 00:
The proper rule of preclusion would be the state court's rule of preclusion under 10th Circuit authority.

[00:25:07] Speaker 00:
And those factors are that it was litigated and determined

[00:25:11] Speaker 00:
in a prior action between the same parties and resolution was essential to the decision in the prior action.

[00:25:21] Speaker 04:
Could you address Mr. Wright's mootness argument?

[00:25:29] Speaker 00:
The mootness argument that it does not constitute a failure otherwise than on the merits?

[00:25:36] Speaker 04:
Well, the argument, yes.

[00:25:40] Speaker 04:
Yes, I think that's what she asked you.

[00:25:44] Speaker 04:
But there was an argument about this really was decided on a justiciability ground, not a merits ground.

[00:25:52] Speaker 00:
Correct.

[00:25:53] Speaker 00:
The operative opinion, and this is where it gets confusing because counsel likes to go back to the trial court decision, but because it was a de novo review by the Oklahoma Court of Civil Appeals, that is the operative decision that we're working with.

[00:26:08] Speaker 00:
We're not looking at what the trial court did because we have the subsequent decision.

[00:26:12] Speaker 00:
And that was also what was reviewed by the district court in rendering its ruling in this case.

[00:26:21] Speaker 04:
So did the Court of Appeals address mootness?

[00:26:30] Speaker 00:
I don't recall, Your Honor.

[00:26:31] Speaker 00:
I'm sorry.

[00:26:34] Speaker 00:
I think their opinion was largely focused on his failure to exhaust remedies.

[00:26:38] Speaker 00:
I think as your honors indicated earlier, this is not a situation in which Mr. Rodney has been prevented from raising these claims.

[00:27:00] Speaker 00:
And in fact, he could have brought a federal takings case at the time that the NIC decision came out.

[00:27:08] Speaker 00:
He has raised this issue, by my count, this is the seventh time.

[00:27:12] Speaker 00:
He just doesn't like the outcome.

[00:27:15] Speaker 00:
He raised it in the trial court in response to the city's motion to dismiss.

[00:27:19] Speaker 00:
He did a motion for rehearing.

[00:27:21] Speaker 00:
There was a motion for new trial.

[00:27:23] Speaker 00:
Then there was the appeal to the Court of Civil Appeals.

[00:27:26] Speaker 00:
Then there was a writ.

[00:27:28] Speaker 00:
And then he won't and then he refiled this case Are there any other questions I can answer Unless you have something else I don't think we do I think we're okay.

[00:27:48] Speaker 00:
Thank you.

[00:27:49] Speaker 04:
Thank you Thank you counsel the case will be submitted counselor excused we appreciate your arguments