JARED CLARK ERIN CLARK ARMANDO CARRO TAWNYA CARRO BRIAN BLACK GREG ROHDE JENNIFER ROHDE v. << (2026)

SUBSTITUTE OPINION AFTER REHEARING THE COURT'S PRIOR OPINION HAVING BEEN WITHDRAWN

Plaintiffs/Appellants are current or former homeowners of Lots 25-28 of Block One (1), Section One (1), Cottage Grove Addition in Edmond, Oklahoma.  ¹ They appeal from the district court's refusal to enter a mandatory injunction requiring Defendants/Appellees Cottage Grove, LLC (Developer) and McGregor Homes, LLC (Builder) to relocate certain sewer lines traversing the subsurface of their Lots. Because our review of the circumstances of this case leads us to conclude the district court's refusal to issue the mandatory injunction was not against the clear weight of the evidence, we affirm the December 11, 2023 judgment of the district court.

Homeowners also appeal the district court's award of attorney fees and costs to Developer and Builder through a separately filed Amended Petition in Error. Homeowners’ filing preserves one issue: the June 28, 2024 Journal Entry awarding fees and costs fails to comply with Fleig v. Landmark Construction Group, 2024 OK 25, 549 P.3d 1208. The Journal Entry's award is affirmed insofar as it establishes Developer and Builder's entitlement to fees and costs. Developer and Builder prevailed on their motion for summary judgment as to Homeowners’ trespass and nuisance claims, entitling Developer and Builder to attorney fees pursuant to 12 O.S.2021 § 940. Homeowners did not appeal that judgment. However, that part of the order determining the amount of fees is vacated, and this matter is remanded to the district court for entry of an order complying with the holding in Fleig.

Lastly, Developer and Builder request appeal-related attorney fees pursuant to Okla. Sup. Ct. R. 1.14(b).  ² Because Developer and Builder are entitled to attorney fees in the district court, that request is granted. Upon remand, the district court shall determine the amount of appeal-related attorney fees to be awarded.

BACKGROUND

In their Petition, Homeowners alleged that title to their Lots was provided free and clear of any sanitary sewer line easement, but that Developer and/or Builder placed sanitary sewer lines across the backyard of their Lots in violation of law.  ³ Homeowners pursued claims ⁴ for trespass, nuisance and negligence ⁵ against Developer and Builder, and requested temporary and permanent mandatory injunctive relief requiring Developer and Builder to relocate the Lines.

With their answer Developer and Builder pursued a third-party indemnification claim against Red Plains Professionals, Inc., the engineering company responsible for producing the plat drawings and corresponding development plans. Developer and Builder alleged that Engineer negligently failed to include and specify the utility easements on the final drawings submitted for the recorded final plat, and that to the extent Developer and Builder were found liable for Engineer's negligence, Engineer was obligated to indemnify and hold Developer and Builder harmless from any damages assessed against them. Developer and Builder also pressed for inclusion of the City of Edmond as a necessary party, asserting the City was the owner of the Lines after the City's approval and acceptance of the final plat in December 2014.  ⁶

Developer and Builder moved for summary judgment in September 2023, requesting judgment in their favor with respect to Homeowners’ trespass and nuisance claims and their requests for temporary and permanent injunctive relief. Developer and Builder advanced several arguments in support of their motion. They argued that because the Lines were constructed during the development of the subdivision in a location approved by the City on the preliminary plans,  ⁷ and because the improvements were then dedicated and conveyed to the City prior to Homeowners’ ownership, the City acquired a utility easement by implication or necessity which negated their alleged commitment of any trespass. They argued that none of Homeowners’ claims could stand against them since they were no longer the owners of the Lines and had no right of control over the Lines. Lastly, Developer and Builder argued that injunctive relief was not appropriate for two reasons: (1) Homeowners could not meet their burden to warrant the imposition of such an extraordinary remedy;  ⁸ and (2) Homeowners had an adequate remedy at law.  ⁹

In their response to Developer and Builder's summary judgment motion, Homeowners asserted that their request for injunctive relief was proper and likely to be granted. They denied that ownership of the Lines was transferred to the City through dedication and acceptance of the final plat but that, regardless, Builder caused the Lines to be located outside of an easement granted by Developer, and that Builder had an ongoing duty to remove the continuing trespass. Homeowners challenged Developer and Builder's contention that the City owned any easement by necessity or implication.  ¹⁰

Developer and Builder's reply in support of their summary judgment motion attached new evidentiary material -- an “As-Built Survey” -- which “attests that ‘[the Lines were] constructed in accordance with the [preliminary plans] and all City of Edmond and Oklahoma Department of Environmental Quality regulations.” Submission of this As-Built Survey was to counter the affidavit of Homeowner's expert witness, Kelly Parker, engineer, wherein Mr. Parker opined that the as-built Lines “appear[ed] to vary from” the preliminary plans and were offensive to the City's ordinance which generally required utilities to be located along the rear portion of the subdivided lots and within twenty-foot easements.

Developer and Builder then filed a separate “Supplemental Filing of Exhibits to its Reply in Support of Defendants’ Motion for Summary Judgment.” This supplemental filing included another affidavit from Engineer. This additional affidavit sponsored the conclusions made in Developer and Builder's reply concerning the As-Built Survey, and disputed Mr. Parker's affidavit. The supplemental filing also attached the affidavit of Stephen Lawrence, Director of Engineering for the City. Mr. Lawrence's affidavit stated that the City “took ownership of the Line[s] upon the City Council's acceptance of dedication of the Line[s] on or about December 8, 2014,” that the Lines were installed in accordance with the preliminary plans “reviewed and approved by the City's Engineering Department on or about March 27, 2014,” and that “[o]ther than the Final Plat ․ not indicating a Utility Easement over portions of the Line[s], the Line[s were] located and installed in conformance with the City's Ordinances and Subdivision Regulations.”

Homeowners then filed their “Supplemental Filing of Exhibits to Their Response to Defendants’ Motion for Summary Judgment,” amending the affidavit of Kelly Parker to include additional information responsive to contentions made in Developer and Builder's reply and supplemental materials. In this amended affidavit, Mr. Parker maintained that the issues framed in the litigation were not “an engineering problem” but rather a “failed development process problem,” i.e. Developer and Builder “failed to convey proper easements” for the Lots, which failure has detrimentally affected the Homeowners’ use of their Lots.

At the district court's hearing on the summary judgment motion, the district court sustained Developer and Builder's motion for summary judgment with respect to Homeowners’ trespass, nuisance, and injunctive relief claims, but denied summary judgment with respect to Homeowners’ negligence-based claims, for failure of Developer and Builder to raise that issue in their summary judgment briefing. The December 11, 2023 Journal Entry reflected this disposition of Homeowners’ claims. It was silent with respect to Developer and Builder's third-party claim for indemnity against Engineer and was silent with respect to any claim against City, as well.  ¹¹

Homeowners’ Petition in Error was filed on December 20, 2023, as an appeal from an “Interlocutory Order Appealable by Right.” It was designated and assigned as such. Homeowners attached the Journal Entry as Exhibit A to their Petition in Error. Their Exhibit B (Summary of the Case) and Exhibit C (Issues to be Raised on Appeal) allege error, for various specified reasons, in the district court's granting of partial summary judgment on their “claims for injunctive relief and trespass.” Homeowners dismissed their negligence claim without prejudice the day after filing their Petition in Error. Homeowners as well as Developer and Builder have submitted briefs on appeal.

After the appellate record had been assembled, the briefing had been completed and the case assigned to this Court, Homeowners filed an Amended Petition in Error attaching an order awarding Developer and Builder prevailing party attorney fees and costs pursuant to 12 O.S.2021 § 940 [negligent or willful injury to property]. The Amended Petition in Error did not raise any assignment of error regarding the partial summary judgment in favor of Developer and Builder. Instead, Homeowners argued that the award was excessive, was granted without statutory basis, and that the order awarding fees failed to set forth with specificity the facts and computation to support the award.

SCOPE OF APPELLATE REVIEW

Appellate jurisdiction includes review of “final orders, judgments, an enumerated class of interlocutory orders, and a separate class of interlocutory orders where the exercise of appellate jurisdiction is discretionary.” In re Guardianship of Berry, 2014 OK 56, 34, 335 P.3d 779, 789-90 (citations omitted). See also Raven Res., LLC v. Legacy Bank, 2009 OK CIV APP 101, 8, 229 P.3d 1273, 1277-78. At the time of the filing of this appeal, only the district court's denial of Homeowners’ request for injunctive relief was appealable.  ¹² 12 O.S.2021 § 952(b)(2). See also House v. Town of Dickson, 2007 OK 57, 9, 193 P.3d 964, 967-68 (explaining that a partial summary adjudication is not appealable unless it is an interlocutory order appealable by right, is certified for immediate appeal pursuant to 12 O.S. § 952(b)(3), or is certified for appeal pursuant to 12 O.S. § 994). However, in their Petition in Error Homeowners also request that we reverse the district court's summary adjudication of their trespass claim.  ¹³ “This request raises the issues concerning the nature of their trial court filings, the adjudication of the trial court reviewed on appeal, and whether the request for [review of the merits of other claims] impermissibly broadens the scope of an interlocutory appeal beyond the authorizing statute, 12 O.S.[2021] § 952(b)(2).” W. Heights Indep. Sch. Dist. No. I-41 of Oklahoma Cnty. v. State ex rel. Oklahoma State Dep't of Educ., 2022 OK 79, 17, 518 P.3d 531, 539-540.

Homeowners’ request does impermissibly broaden the scope of their interlocutory appeal beyond the authorizing statute, 12 O.S.2021 § 952(b)(2), under which their appeal was lodged. As stated in Western Heights, where the substance of an interlocutory order contains “both adjudications of issues that are immediately appealable and adjudications on other issues that are not immediately appealable, then only the former part of the order is immediately appealable.” Id. 21, 518 P.3d at 541. Consequently, we review the district court's denial of Homeowners’ other underlying claims “to such extent [the disposition] may be construed ․ within a context of a request for ․ injunctive relief.” Id. 23, 518 P.3d at 541.

We address Homeowners’ separate request for reversal of the fee award and Developer and Builder's request for appeal-related attorney fees at Part III of this Opinion.

STANDARD OF REVIEW

Appellate courts do not disturb orders granting or refusing an injunction “unless there is a showing that the court abused its discretion or that the judgment is clearly against the weight of the evidence.” First Am. Bank & Trust Co., Purcell, Oklahoma v. Sawyer, 1993 OK CIV APP 115, 13, 865 P.2d 347, 350 (citing Johnson v. Ward, 1975 OK 129, 42, 541 P.2d 182, 188). To reverse under such a standard requires a finding that the district court's conclusions and judgment “were clearly erroneous, against reason and evidence.” Latigo Oil & Gas, Inc. v. BP Am. Prod. Co., 2024 OK 35, 15, 549 P.3d 1252, 1257 (citation omitted). In reaching such a determination, we must review both fact and law issues. Id. 16, 549 P.3d at 1257. Any underlying questions of law receive de novo review. Id.

ANALYSIS

An injunction “is a command to refrain from a particular act.” 12 O.S.2021 § 1381. It is an “extraordinary remedy, and relief by this means is not to be lightly granted.” Okla. Call for Reproductive Justice v. Drummond, 2023 OK 11, 2, 543 P.3d 110, 114. An injunction “may be the final judgment in an action, or may be allowed as a provisional remedy.” 12 O.S.2021 § 1381. While a temporary injunction “protects a court's ability to render a meaningful decision on the merits of the controversy,” a permanent injunction is perpetual in effect and may be granted only following a final hearing on the merits. Okla. Call for Reproductive Justice, 2023 OK 111, 2, 543 P.3d at 110. The district court's disposition of both Homeowners’ second (temporary injunction) and third (permanent injunction) “causes of action” renders it a disposition of the latter, permanent type.

I. The Nature of the Right Sought to be Protected

Before we can determine whether injunctive relief was properly denied, we must examine the nature of the right Homeowners sought to protect. Glenn v. Fox, 1993 OK CIV APP 26, 5, 853 P.2d 779, 781. Homeowners’ request for injunctive relief essentially requested that the district court “command [Developer and Builder] to refrain from [the] particular act” of continuing to commit a trespass through ongoing “maintenance” of the Lines across their Lots.  ¹⁴ Ordinarily, injunctive relief is preventative or protective in nature and restrains action that has yet to be taken. Okla. Pub. Emps. Ass'n v. Okla. Dept. of Cent. Svcs., 2002 OK 71, 20, 55 P.3d 1072, 1081. See also 42 Am. Jur. 2d Injunctions § 2. But a mandatory injunction “commands the performance of some positive act.” Owens v. Zumwalt, 2022 OK 14, 7, 503 P.3d 1211, 1214. The same rules which apply to preventative or prohibitive injunctions apply to mandatory injunctions but are more strictly construed. Id. 8, 503 P.3d at 1214. The party requesting the mandatory injunction must show a clear right's violation “and a case of necessity and great hardship,” where other adequate redress cannot be afforded. Id.

Homeowners’ request is in the nature of a mandatory injunction and must be more strictly construed than if the request were preventative or prohibitive in nature.

II. Merits of the Controversy

To lodge a successful challenge to the denial of a permanent injunction a plaintiff must show entitlement to actual success on the merits, irreparable harm if the injunction is denied, that the threatened injury outweighs any injury the opposing party will suffer under the injunction, and that the injunction is in the public interest. Crystal Bay Estates Homeowners’ Ass'n, Inc. v. Cox, 2022 OK CIV APP 38, 11, n.7, 521 P.3d 812, 817 (citing 42 Am. Jur. 2d Injunctions § 18). Our review of the first and final factors satisfy us, under the heightened scrutiny for imposition of a mandatory injunction, that the district court did not err in its refusal to grant injunctive relief.

A. Ownership of the Lines

Developer and Builder maintain that, because the Lines were constructed during development of the subdivision in the exact location approved by the City and were intended to appear on and be dedicated to the City in its acceptance of the Final Plat in 2014, none of Homeowners’ claims, including mandatory injunctive relief, may be pressed against them since they are not the owners or operators of the Lines. The question of ownership of the Lines is a question of law which we review de novo. “Oklahoma case law clearly recognizes two types of dedications of land for public purposes: ‘First, statutory; and, second, implied or dedications at common law.’ ” Bowen v. Tucker, 2007 OK CIV APP 57, 13, 164 P.3d 1155, 1158 (citing Henry v. Ionic Petro. Co., 1964 OK 37, 9, 391 P.2d 792, 794). As the name makes clear, statutory dedications of realty for public use are those “made under a statute, and are necessarily express.” Siegenthaler v. Newton, 1935 OK 998, 8, 50 P.2d 192, 195. Implied dedications arise when the owner of the realty assents to dedication for a certain purpose, and it is put to use for the purpose intended by the owner. Henry, 1964 OK 37, 9, 391 P.2d at 794. So, for example, where land is subdivided into blocks, lots, and streets according to a plat, and the lots are sold pursuant to the plat, a dedication is complete as implied even though all requirements of a statutory dedication might not be satisfied. Id. Put another way,

To constitute a dedication of land, or an easement therein, to the public, two things are necessary: An intention by the owner clearly indicated in words or acts to dedicate the land to the public use; and an effective acceptance of the dedication by or for the public, by reliance placed thereon, or by user, or otherwise.

Bowen, 2007 OK CIV APP 57, 13, 164 P.3d at 1158 (citing Bd. Of Cnty. Comm'rs of Garfield Cnty. v. Anderson, 1934 OK 6, 36, 29 P.2d 75, 78).

The record reveals that the Lines were constructed in 2014 during the development of the Cottage Grove subdivision in the location depicted on the March 2014 preliminary plans. The Lines were installed on land owned by Developer prior to approval of the Final Plat and prior to the sale of the Lots to Homeowners (or their predecessors in interest). The meeting minutes from the City Council's December 8, 2014 council meeting reflect the following agenda item, which was approved and accepted that same day:

Item

Consideration of Acceptance of Final Plat, Improvements and Maintenance Bonds for Cottage Grove

Background

Water lines, sanitary sewer lines, paving, and a portion of the drainage improvements have been completed and are ready for acceptance with the required maintenance bonds ․

The Final Plat bears Developer's certificate of ownership and dedication as well as City's December 8, 2014 acceptance of the dedication. Consistent with the language appearing on the Final Plat, Developer and Builder alleged in their third-party petition, and City admitted in its answer, that the Lines were dedicated to City. Developer and Builder's undisputed evidence was that the Lines had been connected to the City's sewer system since their original construction in 2014 and remained part of City's public sewer system. Homeowners admitted that their homes are four of the twenty-two lots serviced by the Lines.

These facts collectively demonstrate Developer's intent, as then-owner of the realty, to dedicate the already-installed Lines for public use. They also demonstrate City's (and Homeowners’) use and reliance thereon. An implied common-law dedication of the Lines arose by operation of law. The district court's conclusion that the Lines had previously been dedicated to and accepted by City prior to Homeowners’ ownership of their Lots was not in error.

B. Actual Success on the Merits

Homeowners’ position is that Developer and Builder are “under a duty to remove” the Lines which represent a continuing trespass. They cite to the Restatement (Second) of Torts, sections 158 and 161 in support of their argument:

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally ․ fails to remove from the land a thing which he is under a duty to remove. Restatement (Second) of Torts, § 158

“[a] trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.”

Id. § 161 (emphasis added).

A trespass is the actual physical invasion of another's property without permission. Frank v. Mayberry, 1999 OK 63, 19, 985 P.2d 773, 776. Given our limited review of the issue within the context of “a request for ․ injunctive relief,”  ¹⁵ Homeowners’ trespass claim properly failed on the merits for a number of reasons. The “physical invasion” of the Lines was not upon the lands of another and was not placed tortiously without permission of the then-owner of the property, the Developer, but rather was physically placed there at Developer's direction for the development of the subdivision.  ¹⁶ Furthermore, there can be no duty to remove the “thing” sought to be removed when its placement was not conditioned upon a promise of future removal. See, e.g., Restatement (Second) of Torts, § 160, comment d;  ¹⁷ Davilla v. Enable Midstream Partners L.P., 913 F.3d 959, 969 (considering Oklahoma law and Restatement (Second) of Torts, § 160 in concluding that it is the expiration of an easement which creates the duty to remove the “thing” placed upon the lands of another).

Homeowners also premised their request for injunctive relief upon the occurrence of a nuisance. A “nuisance consists in unlawfully doing an act, or omitting to perform a duty, which ․ annoys, injures or endangers the comfort, repose, health, or safety of others.” 50 O.S.2021 § 1. The Oklahoma Supreme Court has not previously decided whether a landowner may obtain recovery in nuisance against their predecessor in interest for conditions existing on the land. However, we find persuasive numerous other authorities which foreclose a property owner's nuisance action against a predecessor in interest. See, e.g., Moore v. Texaco, Inc., 244 F.3d 1229, 1232-33 (10th Cir. 2001) (discussing cases from other states outside of Oklahoma and determining it likely that Oklahoma would reach the same conclusion as “nearly every other court to consider the issue: that an action for private nuisance is designed to protect neighboring landowners from conflicting uses of property, not successor landowners from conditions on land they purchased.”). We agree with the Tenth Circuit's conclusion. The Plaintiffs’ nuisance claim fails because: (1) the Developer did not engage in an “unlawful act” when initially installing the sewer line -- it had to be located somewhere as evidenced by the Plaintiffs’ use of the line since purchasing the property, and (2) a nuisance claim does not protect successor landowners like the Plaintiffs from the conditions existing on the land when they completed their purchase.

C. The Public Interest Consideration

Developer and Builder asserted that any mandatory injunction ordering relocation of the Lines would affect not only the Homeowners’ Lots, but also every other homeowner in the subdivision whose sewer lines were tied into the Lines traversing the subsurface of Homeowners’ Lots. Homeowners admitted that their Lots and the lots of eighteen other homes in the subdivision were provided the benefits of indoor plumbing and access to City's sewer system through existence of the Lines. Based upon this evidence, and bearing in mind that the issuance of an injunction is an extraordinary remedy, we cannot conclude that it would have advanced the public interest for the district court to have issued a mandatory injunction requiring the Developer and/or Builder to relocate the Lines, meanwhile disrupting the indoor plumbing and access to sewer services of eighteen other homeowners not party to the suit.

III. The Fee and Cost Award

Homeowners’ Amended Petition in Error, filed on July 5, 2024, was filed after the record was assembled and the parties’ appellate briefing was complete. At “Part V. RECORD ON APPEAL,” the Amended Petition in Error states that the “Record is concurrently filed as required by Rule 1.34 (Driver's License Appeals, etc.) or Rule 1.36 (Summary judgments and motions to dismiss granted).” Yet Homeowners’ amended designation of record identified eleven district court filings related to Developer and Builder's application for attorney fees and costs and Homeowners’ motion to stay proceedings pending appeal. These designated filings were never made part of the record on appeal, nor, of course, based on timing, was any argument in the appellate briefing made concerning the limited issues identified in the Amended Petition in Error.

Oklahoma Supreme Court Rule 1.26 addresses the filings of amended, premature, and supplemental petitions in error. It provides at subsection (a) that a “petition in error may be amended at any time before brief-in-chief is filed, or thereafter by leave of Court.” But it also provides at subsection (d) that an “amended petition in error to challenge a post-trial order granting or denying costs, interest, or attorney's fees must be filed ․ within thirty (30) days of the date of the post-trial order challenged.” Homeowners complied with the thirty-day timing requirement for filing an amended petition in error under Rule 1.26(d).

However, Oklahoma Supreme Court Rule 1.34(g) provides that the appealing party “bears responsibility to ensure timely preparation of an adequate record to review the issues urged by that party. The appealing party must timely order and pay for transcripts, designate [the] record, monitor proper completion in the trial court, and request any extension of time if necessary for the performance of duties of the court reporter or district court clerk.” Id.

Those items Homeowners identified in their Amended Designation of Record were required to be ready for completion on or before six months from the filing of the June 28, 2024 Journal Entry awarding fees and costs to Developer and Builder. Yet the supplemental record had not been completed by the time this Court issued its (now withdrawn) Opinion on November 20, 2025, and the record remains incomplete. It was Homeowners’ “undivided responsibility” to produce the appellate record necessary to show the district court's error. Evans v. Greer, 2025 OK 89, 10 n.9, 581 P.3d 101, 106 n.9 (citation omitted). “[F]ailure to include the relevant documents in the appellate record is, by itself, a sufficient basis to deny” the assignments of error alleged in the Amended Petition in Error. Id. The June 28, 2024 Journal Entry's award of fees and costs is affirmed insofar as it establishes Developer and Builder's entitlement to fees and costs.

However, Homeowners’ Amended Petition in Error does preserve one issue without resort to filings absent from the record; the June 28, 2024 Journal Entry awarding fees and costs fails to comply with Fleig v. Landmark Construction Group, 2024 OK 25, 549 P.3d 1208, a decision of the Oklahoma Supreme Court issued two months prior to the Journal Entry. That decision requires that “a trial court order awarding attorney fees must, with specificity of facts and computations to support an award, include findings of fact regarding hours spent, reasonable hourly rates and the value placed on additional factors in each case.” Id. 14, 549 P.3d at 1211. The Journal Entry's failure to comply with the requirements of Fleig is evident from the face of the Journal Entry itself, a certified copy of which was attached as Exhibit A to Homeowners’ Amended Petition in Error. That part of the Journal Entry determining the amount of the attorney fees and costs award is vacated and this case is remanded with instructions to enter an order complying with the holding in Fleig.

Because we affirm that portion of the district court's order finding entitlement to fees pursuant to 12 O.S.2021 § 940, Developer and Builder's request for appeal-related attorney fees is granted. “[W]here the issue involves an award of attorney fees below, a party who prevails on appeal ‘is entitled to recover for legal services rendered’ on the appeal.” Friend v. Friend, 2022 OK 29, 10, 506 P.3d 1092, 1095. Upon remand, the district court is directed to determine the amount of appeal-related attorney fees to be awarded to Developer and Builder.

CONCLUSION

The district court's conclusion to deny mandatory injunctive relief requiring Developer and/or Builder to relocate the Lines is not against the clear weight of the evidence, and we therefore affirm the December 11, 2023 decision of the district court.

We further affirm that part of the June 28, 2024 Journal Entry awarding fees and costs to Developer and Builder insofar as it establishes Developer and Builder's entitlement to fees and costs. That portion of the Journal Entry determining the amount of the award is vacated and remanded for entry of an order complying with the holding in Fleig. The matter is further remanded for the district court's determination of an amount to be awarded for appeal-related attorney fees.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.

FOOTNOTES

1.   Appellants Jared Clark and Erin Clark are the owners of Lot 25, Appellant Brian Black is the owner of Lot 26, Appellants Greg Rohde and Jennifer Rohde were the owners of Lot 27 at the time of the district court's disposition of the case, and Appellants Armando Carro and Tawnya Carro are the owners of Lot 28. These parties will collectively be referred to as “Homeowners.”

2.   Developer and Builder filed their request for appeal-related attorney fees after the issuance of this Court's November 20, 2025 Opinion.

3.   The sanitary sewer lines at issue in this action were referred to by the parties as Line B and Line E. Line E runs across the rear portions of the Lots. Line B runs perpendicular to Line E from the back to the front yard of Lot 26. According to Homeowners, Line B's path follows near and along the foundation of Lot 26's home structure. Lines B and E will collectively be referred to as the Lines.

4.   Homeowners characterize each theory of liability as a separate “cause of action.” “Only a single cause of action can be predicated on the same set of facts, but different theories of liability may be pressed in support of each claim alleged.” Hadnot v. Shaw, 1992 OK 21, 24, 826 P.2d 978, 987.

5.   Homeowners’ “Sixth Cause of Action” was for “Negligence and Negligent Infliction of Emotional Distress.” Unlike intentional infliction of emotional distress, negligent infliction of emotional distress is not an independent theory of recovery separate from the underlying claim of actionable negligence. Kraszewski v. Baptist Medical Center of Oklahoma, Inc., 1996 OK 141, 13, 916 P.2d 241, 248. It is, in effect, simply the tort of negligence. Lockhart v. Loosen, 1997 OK 103, 16, 943 P.2d 1074, 1081.

6.   Developer and Builder also alleged the City “was required to review the application submitted for the Recorded Plat in order to ensure compliance with the City's Subdivision Regulations and Development Codes” and that “[u]pon information and belief, the City failed to properly ensure/require that the Utility Easements at Issue were included and specified on the final version of the Recorded Plat.” However, Developer and Builder's prayer for relief requested judgment on their third-party indemnity claim only against Engineer in the event Homeowners’ prevailed in their action against Developer and/or Builder.

7.   The parties do not dispute that indication of the presence of the Lines was omitted from the Final Plat through which the City accepted the dedication of the subdivision.

8.   Developer and Builder argued that, according to the Engineer, relocating the Lines would cost hundreds of thousands of dollars, would negatively impact eighteen other lots within the development, and would be contrary to the preliminary plans (which did indicate the presence of the Lines) which were approved by the City. Developer and Builder argued that the only injury suffered by the Homeowners was that they were “unable to build some unknown items within 20 feet of their rear property lines.”

9.   Developer and Builder argued that Homeowners’ adequate remedy at law could either be in pursuit of a reverse condemnation action against the City or alternatively was reflected in their own prayer for money damages against Developer and Builder.

10.   In their motion for summary judgment, Developer and Builder advanced this argument based upon an “affirmative defense” City raised in its answer to Developer and Builder's third-party petition.

11.   The district court had the following to say with respect to its ruling:All the other arguments that were made by [Builder] and [Developer] as to whether or not there could be an easement by necessity, whether or not this could be rectified by condemnation, whether or not this could be addressed by monetary damages versus injunctive relief, those are all claims that The City of Edmond perhaps would have, but not [Builder] ․ [A]t least as pled right now [there are] no claims that [Homeowners] would have against [Builder].․Again, my ruling pertains to the [Homeowners’] claims against [Developer and Builder]. As things are currently pled, that does not mean that, you know, plaintiffs don't exist. It just means that the claims don't exist pursuant to [Homeowners] versus [Developer and Builder].Homeowners then made oral motion for leave to amend the pleadings to include additional defendants and claims. The district court responded that such a request would need to either be by agreement or by court order. The record as designated reveals no further action on this request by Homeowners.

12.   Homeowners were undoubtedly aware that this was the case because they stated on their Petition in Error that their “appeal is brought from ․ [an] Interlocutory Order Appealable by Right.”

13.   And, in their appellate briefing (briefing which is permissible in an interlocutory appeal but prohibited in accelerated summary judgment procedure), Homeowners further request reversal of the summary disposition of their nuisance claim.

14.   Homeowners’ brief-in-chief clarifies that they seek an injunction requiring Developer and Builder “to remove the offending lines.”

15.   See W. Heights Indep. Sch. Dist. No. I-41 of Oklahoma Cnty. v. State ex rel. Oklahoma State Dep't of Educ., 2022 OK 79, 23, 518 P.3d at 541.

16.   Developer was the owner of the realty at the time of the placement of the Lines. “This being the case, [the placement of the Lines] did not involve a physical invasion of real estate owned by anyone except [Developer] itself. This is not a trespass.” Moore v. Texaco, Inc., 244 F.3d 1229, 1233 (10th Cir. 2001). Accord 75 Am. Jur. 2d Trespass § 32 (“To maintain an action of trespass, the plaintiff must have had ․ possession of the real property in question at the time when the alleged trespass occurred”) (emphasis added); Williamson v. Fowler Toyota, Inc., 1998 OK 14, 15, 956 P.2d 858, 862 (trespass is a physical invasion without the consent of the person “lawfully entitled to possession.”).An exception arises where the “trespass is continuous in character and has not ceased at the time when the property is conveyed to the plaintiff ․” 75 Am. Jur. 2d Trespass § 32. (emphasis added). Because there was no trespass of the Lines at the time of their placement upon the lands of another, there was no trespass which could have continuously failed to cease as a trespass upon ownership transfer.

17.   “If a structure, chattel, or other thing is placed on land with the possessor's consent conditioned upon the actor subsequently removing it, the termination of consent creates a duty to remove it from the land ․” Id.

OPINION ON REHEARING BY JOHN F. FISCHER, JUDGE:

WISEMAN, P.J. and BLACKWELL, J., concur.