                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         June 1, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
STATE OF OKLAHOMA, ex rel.
DEPARTMENT OF
TRANSPORTATION,

             Plaintiff - Appellee,

v.                                                         No. 14-5100
                                              (D.C. No. 4:09-CV-00452-TCK-TLW)
UNITED STATES OF AMERICA,                                  (N.D. Okla.)
SMALL BUSINESS
ADMINISTRATION,

             Defendant - Appellee,

ARVEST BANK, a foreign corporation,

             Defendant - Appellant,

and

CROW REAL ESTATE
INVESTMENTS, LLC, a terminated
Oklahoma limited liability company;
CROW ENTERPRISES, LLC, an
Oklahoma limited liability company,
d/b/a Turnpike Chrysler Jeep Dodge;
COUNTY TREASURER OF OTTAWA
COUNTY, OKLAHOMA; SECURITY
BANK,

             Defendants.


                            ORDER AND JUDGMENT*

      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
                                                                            (continued)
Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.


      This appeal by Defendant-Appellant Arvest Bank (Arvest) involves a dispute

over the priority rights to funds deposited in the district court as just compensation

for a condemnation of real property by the Oklahoma Department of Transportation

(ODOT). Arvest appeals the district court’s ruling that it was not entitled to first

priority in the deposited funds because it had released its lien on the property during

the pendency of the condemnation proceedings. The district court had jurisdiction

under 28 U.S.C. § 2410(a)(4) because the Small Business Administration (the SBA)

held a mortgage on the condemned property. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

                                 I. BACKGROUND

                                 A. Original Petition

      ODOT filed a petition in federal court to condemn 1.88 acres of a 5.16 acre

parcel of land owned by Crow Real Estate Investments, LLC and Crow Enterprises,

LLC (collectively, “Crow”) for highway expansion. ODOT named as defendants

Crow, which operated a car dealership on the property; Arvest, which then held a


argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.



                                          -2-
first-priority mortgage lien on the property for $468,040.27; the SBA, which held

second-priority lien on the property for $129,022.45; and the County Treasurer of

Ottawa County, Oklahoma. See Okla. ex rel. Dep’t of Transp. v. Lamar Adver. of

Okla., Inc., 335 P.3d 771, 775 (Okla. 2014) (“[P]roperty interests entitled to

[condemnation] compensation include every valuable interest that can be enjoyed and

recognized as property.”).

      In Oklahoma, “[c]ondemnation proceedings are begun by one party filing a

petition in district court to appoint a commission made up of three disinterested

landowners to determine the amount of just compensation.” Indep. Sch. Dist. No. 5

v. Taylor, 324 P.3d 415, 420 (Okla. Civ. App. 2013) (internal quotation marks

omitted). After inspecting and assessing the property, the commission files a report

with the district court assessing the just compensation for the taking. Id. at 421;

Okla. Stat. tit. 69, § 1203(c). The interested property holders then have a right to

demand a jury trial on the issues of damages in a condemnation proceeding. Taylor,

324 P.3d at 421; Okla. Stat. tit. 69, § 1203(e). A jury verdict sets the final damage

award and supersedes the commissioners’ assessment of just compensation. City of

Okla. City v. Garnett, 296 P.2d 766, 767 (Okla. 1956); Okla. Stat. tit. 69, § 1203(e).

“[T]he ‘date of taking’ is established when the condemner pays the commissioners’

award into court.” Okla. ex rel. Dep’t of Transp. v. Post, 125 P.3d 1183, 1188

(Okla. 2005).




                                          -3-
                B. Amended Complaint and Disbursement of Funds

      The court referred ODOT’s condemnation proceeding to a magistrate judge,

who appointed three commissioners to estimate the just compensation for the taking.

Before the commissioners issued their report, ODOT amended its complaint to take

the full 5.16 acres, based on Crow’s representation that it would be physically and

functionally impossible for it to operate a car dealership on the remaining acreage if

ODOT only took 1.88 acres. The commissioners estimated the just compensation for

the full 5.16 acre parcel at $1,856,506.42. In early March 2010, ODOT deposited

that sum with the court. Crow, Arvest, the SBA, and ODOT each filed a timely

demand for a jury trial on the issue of damages.

      While the pre-trial proceedings were pending, Crow asked the court to

disburse the funds on deposit. As no party objected, on March 29, 2010, the court

ordered the deposited funds to be disbursed as follows: $1,259,443.70 to Crow,

$468,040.27 to Arvest, and $129,022.45 to the SBA. The court’s order made

explicit, however, that “[n]either the deposit previously made, nor the disbursement

ordered herein, shall constitute a waiver of any parties’ right to demand a jury trial or

right to contest the amount of just compensation for the subject property.” Aplt.

App. at 102.

      In April 2010, Arvest released its mortgage lien on the Crow property in

response to a letter from Crow’s attorneys demanding it do so. SBA did not release

its mortgage lien.



                                          -4-
            C. Second Amended Complaint and Return of Disbursed Funds

      In December 2010, ODOT filed a second amended complaint, reducing the

amount of land being taken to the original 1.88 acres, having determined Crow could

operate its dealership if ODOT acquired only 1.88 acres. The parties consented to

the filing, and pursuant to court order the commissioners issued a second report

valuing the 1.88 acre parcel at $592,766.00.

      ODOT then moved for return of the excess disbursed funds, namely, the

$1,263,740 difference between the commissioners’ valuation of the 5.16 acre parcel

and the 1.88 acre parcel. Crow, Arvest, and the SBA objected, arguing in part that

any return was premature in light of the pending jury trial, which would make the

final damage award. Arvest and the SBA also argued they should not be required to

return the excess funds because their liens would not be fully satisfied by the

$592,766.00 valuation. Arvest did not inform the court it had released its lien.

      Following a hearing, the magistrate judge granted ODOT’s motion in April

2012. He ruled there had been two distinct takings under Oklahoma law during the

condemnation proceeding: (1) the taking of the 5.16 acre parcel, effective when the

funds were deposited with the court, but which terminated when the parties consented

to ODOT’s second amended complaint, and (2) the taking of the 1.88 acre parcel,

which was effective when the commissioners filed the second valuation report

because ODOT had already paid the just compensation monies into the court.

Because the parties had consented to ODOT reducing its condemnation to 1.88 acres,

the magistrate judge concluded it would violate Oklahoma’s constitution and

                                         -5-
condemnation laws to allow Crow, Arvest and the SBA to retain use of the funds

disbursed based on a condemnation of 5.16 acres.

       On April 26, 2012, the magistrate judge ordered Crow, Arvest, and the SBA to

return all of the disbursed funds so as to (1) repay directly to ODOT each parties’

proportionate share of the $1,263,740 excess funds and (2) to re-deposit with the

court all of the remaining $592,766 pending trial.1 Stating, as it turns out incorrectly

regarding Arvest, that neither Arvest or the SBA had released its lien, the magistrate

judge required the remaining funds be re-deposited for later determination of the

parties’ relative priorities because the $592,766 valuation was likely to be

insufficient to fully satisfy both liens. Aplt. App. at 282. Arvest appealed the

magistrate judge’s order to the district court, but still did not disclose it had released

its lien. The district court affirmed the order. Arvest and the SBA returned their

excess funds to ODOT and re-deposited the remaining funds with the court. Crow,

however, never returned or re-deposited any of the funds it had received.

               D. Final Compensation Award and Disbursement of Funds

       In September 2012, ODOT informed the court a title search revealed Arvest

had released its lien in April 2010, and Crow had encumbered the property to

Security Bank. Thereafter, based on the parties’ stipulation, the district court entered


       1
       Thus, Crow was ordered to repay ODOT $857,314.52 and deposit
$402,129.18 with the district court; Arvest was ordered to repay ODOT $318,599.17
and deposit $149,441.10 with the court; and the SBA was ordered to repay ODOT
$87,826.73 and deposit $41,195.72 with the court.



                                           -6-
an Agreed Partial Journal Entry of Judgment in December 2012, establishing a final

just compensation award of $559,443.70 for the 1.88 acre parcel, granting ODOT a

mortgage on Crow’s entire property, and ruling disbursement of the funds on deposit

would be determined by subsequent court order.

       Arvest, ODOT, and the SBA each sought the full amount of the $190,636.81

on deposit with the court. ODOT argued it should receive all the money because

Crow’s failure to return the disbursed funds meant it had paid more than the just

compensation for the 1.88 acres. The SBA asserted it had first priority on the funds

because Arvest had released its lien. Arvest countered that it should be recognized as

the equitable holder of a first priority lien, arguing it had been obligated by

Okla. Stat. tit. 46, § 15(A) to release its lien when the money was disbursed, and

would not have released its lien had it known ODOT would later amend its

complaint.

       The magistrate judge issued a report and recommendation (R&R) rejecting

ODOT’s argument, concluding ODOT’s proper remedy was to maintain a suit against

Crow to recover the excess monies. The magistrate judge concluded that Arvest’s

release of its mortgage lien eliminated its first priority status, and that the SBA was

entitled to all the funds on deposit as the first priority lien holder. The district court

adopted the R&R on July 28, 2014, and ordered all of the funds be paid to the SBA.

Arvest appeals.




                                           -7-
                                   II. DISCUSSION

                                      A. Jurisdiction

      ODOT argues we lack jurisdiction over this appeal because the district court’s

July 28 order was not a final appealable order under § 1291. ODOT contends it is

still entitled to an order from the district court granting it an additional money

judgment against Crow for the unreturned disbursement. We disagree.

      The December 2012 Agreed Partial Journal Entry of Judgment determined the

amount of just compensation for ODOT’s condemnation. The July 28, 2014 order

determined the parties’ priority rights to the funds on deposit and ordered those funds

disbursed. As part of that determination, the July 28 order resolved ODOT’s

argument that it was entitled to the funds as reimbursement from Crow: it ruled that

ODOT’s only remedy to recover the excess funds from Crow was to maintain a

separate action against Crow, citing United States v. Featherston, 325 F.2d 539, 541

(10th Cir. 1963) (holding that “[i]f the ultimate recovery is less than the amount

deposited, the government can get the excess back from the clerk [of court] or, if it

has been paid to the landowner, maintain a suit to recover it from him.”). Because

the July 28 order disposed of all of the claims and ended the condemnation

proceedings, it was a final, appealable order. See Riley v. Kennedy, 553 U.S. 406,

419 (2008) (holding a final decision “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.”) (internal quotation marks

omitted).



                                          -8-
                           B. ODOT’s Arguments Waived

      ODOT’s arguments that it was entitled to the $190,636.81 or an order from the

district court directing that Crow make payment to ODOT are not properly before

this court. ODOT did not file a cross-appeal from the district court’s decision and,

thus, waived any challenge to the district court’s order of disbursement. See Trigalet

v. Young, 54 F.3d 645, 647 n.3 (10th Cir. 1995) (holding that court lacked

jurisdiction to consider issue when party did not file a cross-appeal); see also Mass.

Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 480-81 (1976) (per curiam) (holding a

party may not seek to enlarge its own rights or lessen the rights of its adversary

absent a cross-appeal).

        C. Arvest’s Arguments Regarding Distribution of Remaining Funds

      Arvest argues (1) it was entitled to the entire $190,636.81 because it was the

first priority lienholder as of the date of the taking—when ODOT deposited funds

into the court in March 2010 based on the first commissioners’ award; (2) Oklahoma

condemnation law does not provide for two commissioners’ awards; and (3) the April

26, 2012 order requiring the parties to repay and re-deposit the funds disbursed in

March 2010 should be reversed to avoid unjust enrichment to the SBA and ODOT.

“[W]e review the district court’s interpretation and determination of state law

de novo.” Berry & Murphy, P.C. v. Carolina Cas. Ins. Co., 586 F.3d 803, 808

(10th Cir. 2009).




                                          -9-
1. First Lienholder Argument

      First, Arvest argues it was the first lienholder on the effective date of the

taking—in March 2010—when ODOT paid into the court the amount of just

compensation set by the first commissioners’ report. It contends the later repayment

of the disbursement monies cannot operate to change its priority rights as of the date

of the taking. Arvest further asserts it was statutorily obligated to release the lien

after the March 2010 disbursement under Okla. Stat. tit. 46, § 15(A), which states:

“[a]ny mortgage on real estate shall be released by the holder of any such mortgage

within fifty (50) days of the payment of the debt secured by the mortgage,” subject to

a penalty of up to $100 per day for failure to release the mortgage. Id. It argues the

SBA should not be allowed to take priority over Arvest’s lien by virtue of ignoring

its own obligation under § 15(A) to release its lien.

      Arvest’s argument ignores relevant Oklahoma law. The commissioners’

assessment of just compensation is just that – an assessment; it is superseded by any

subsequent jury verdict, which sets the final damage award. Garnett, 296 P.2d

at 767; Indep. Sch. Dist. No. 5, 324 P.3d at 422; Okla. Stat. tit. 69, § 1203(e)(1)

(“[E]ither party may within sixty (60) days after the filing of [the commissioners’]

report file with the clerk a written demand for a trial by jury, in which case the

amount of damages shall be assessed by a jury.”). Indeed, “where a demand is made

for a jury trial in a condemnation proceeding, the award made by the commissioners

is not competent evidence to go before the jury,” Taylor, 324 P.3d at 422, and

“[t]he Commissioners’ award will no longer be relevant when superseded by the

                                          - 10 -
jury’s verdict,” Okla. ex rel. Dep’t of Transp. v. Mehta, 180 P.3d 1214, 1220

(Okla. Civ. App. 2008).

      A party having an interest in the condemned property can immediately receive

the preliminary award based on the commissioners’ assessment, but it does so

“subject to the right of either party to prosecute further proceedings concerning the

sufficiency or insufficiency of the award.” Okla. ex rel. Dep’t of Transp. v.

Pendergraft, 919 P.2d 451, 453 (Okla. 1996) (internal quotation marks omitted). The

March 2010 order disbursing the funds stated the disbursement was not the final

determination of just compensation and did not act as waiver of the parties’ right to

contest the amount of just compensation or to request a jury trial. Aplt. App. at 102.

      Arvest cites no Oklahoma law stating it cannot lose its lien position even if it

releases its lien before the final damage award. Oklahoma law suggests otherwise.

The Oklahoma Supreme Court has ruled that “if a mortgagee opts to have the

commissioners’ preliminary award paid directly to him – rather than simply having

his mortgage declared a lien on an award – then the mortgagee remains subject to . . .

the right of the condemning authority to seek a judicial determination of the

sufficiency or insufficiency of the award.” Pendergraft, 919 P.2d at 453.

      Further, as the district court ruled, a mortgagee can refuse to release a lien

without penalty under § 15(A) when it has a good-faith belief there are substantial

grounds for contesting that repayment has been made. See Grissom v. Dye, 269 P.2d

367, 370-71 (Okla. 1953) (holding there must be a clear showing of bad faith to seek

a penalty under § 15(A)). Based on Oklahoma’s statutory condemnation statutes and

                                         - 11 -
case law holding that distribution of a preliminary award is not the final damage

award and that a mortgage holder might be required to return any excess funds,

Arvest had a good faith legal justification to assert it had no assurance it had received

payment in full from Crow when it received the March 2010 distribution.

2. Two Commissioners’ Awards

      Arvest argues the district court erred in ordering the parties to repay and

redeposit the monies disbursed in March 2010 because Oklahoma condemnation

statutes only contemplate one commission’s award. Arvest states that Oklahoma

courts strictly adhere to the statutory condemnation proceedings and argues if

Oklahoma’s legislature had intended to allow for multiple commission awards, it

would have said so.

      Contrary to Arvest’s assertion, Oklahoma’s condemnation law does allow for

the possibility of a court ordering a new or supplemental commissioners’ report. See

Okla. Stat. tit. 69, § 1203(e)(1) (A new appraisal should be ordered “as right and

justice may require . . . on good cause shown.”); Garnett, 296 P.2d at 767 (holding it

was not error for the court to order a supplemental commissioners’ report). Here,

based on the original petition, the court initially asked the commissioners to value a

taking of 1.88 acres; then, after the amended complaint was filed, to value a 5.16 acre

taking; and then, after the second amended complaint was filed, without objection by

any party, and while a jury trial was pending, to value the original 1.88 acre taking.

Cf. Garnett, 296 P.2d at 767 (“The original report and the supplemental report made

one complete report covering the property they were directed to value in the first

                                         - 12 -
instance.”). We find no support for Arvest’s assertion this was contrary to Oklahoma

condemnation law.

3. The April 26, 2012 order and unjust enrichment

      Finally, Arvest argues the order mandating repayment of the first award should

be reversed to prevent unjust enrichment in favor of SBA and ODOT. It asserts that

ODOT made a business decision to condemn the whole 5.16 acre parcel, voluntarily

deposited the amount of the estimated damage award based on the first

commissioners’ report, and should not be allowed to gain title to the property at a

loss to Arvest.

      We find no basis for equitable relief. ODOT acted in accordance with

Oklahoma’s policy to compensate property owners as soon as possible for a taking by

depositing funds in court based on the first commissioners’ report. Arvest chose to

take an immediate distribution and chose to release its lien when it was clear the

distribution was subject to challenge and revision. Arvest consented when ODOT

filed its second amended complaint, and it did not disclose to the court it had released

its lien. Arvest lost its first priority position through its own actions. “[E]quity may

not be invoked when its aid becomes necessary through a party’s own fault, and its

effect is to allow plaintiffs to escape from circumstances created by their own acts.”

Credithrift of Am., Inc. v. Amsbaugh, 773 P.2d 1287, 1289 (Okla. 1988).

                                      * *    *    *

      In sum, it was clear when Arvest released its lien that the commissioners’

award was preliminary, that a jury trial on the actual amount of just compensation

                                         - 13 -
was pending, and that Arvest could be required to return any excess over the amount

of the ultimate just compensation award. In short, Arvest released its lien before just

compensation was determined.

                                 III. CONCLUSION

      The judgment of the district court is affirmed.

                                                  ENTERED FOR THE COURT



                                                  Scott M. Matheson, Jr.
                                                  Circuit Judge




                                         - 14 -
