J & J Anderson, Inc. v. Town of Erie

Decision Date18 July 1985
Docket NumberNo. 84-2110,84-2110
Citation767 F.2d 1469
PartiesJ & J ANDERSON, INC., d/b/a Feathaire Aviation, Inc., a Colorado Corporation, Joanne Marie Anderson, Gerald Leverantz, David Nixon, and Monte Haskell, Plaintiffs-Appellants, v. The TOWN OF ERIE, a Colorado Municipal Corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Neil E. Piller, Schey & Schey, P.C., Longmont, Colo., for plaintiffs-appellants.

Barre M. Sakol, Thorburn, Sakol & Throne, Boulder, Colo., for defendant-appellee.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

J & J Anderson, Inc., et al., appellants, seek review of an order of the district court denying their request for attorney's fees J & J Anderson, Inc. is a Colorado corporation whose principal business is the training of ultralight aircraft pilots and the sale, repair, maintenance and service of ultralight aircraft. The corporation commenced business in July, 1982, at the Tri-County Airport, a privately owned airport located within the boundaries of the town of Erie, Colorado. The individual appellants are three ultralight aircraft pilots.

                made under 42 U.S.C. Sec. 1988. 1   The relevant facts may be briefly summarized
                

By September, 1983, the board of trustees of the town of Erie had received numerous complaints about the operation of ultralight aircraft in and about the town. During regularly scheduled board meetings it was not uncommon for the board to have "fifty or sixty people in the audience complaining about ultralight operations," and the number of complaints "reached a point where the trustees had to limit testimony on ultralight aircraft." (R., Vol. II at 55.) The complaints involved the safety of those on the ground but most complaints from citizens related to noise. Id. at 58. At no time did any area residents appear before the board in support of ultralight operations. Id. at 56.

On December 8, 1983, the Town of Erie, acting through its board of trustees, promulgated and enacted Ordinance No. 339, prohibiting any ultralight aircraft from landing or taking off within the town. (Ordinance No. 339 is set forth in Appendix A, attached hereto.) The ordinance had an effective date of January 14, 1984.

On January 13, 1984, appellants filed their complaint alleging that the Town of Erie had violated their constitutional rights by adopting Ordinance No. 339. Appellants sought to have the ordinance declared unconstitutional and to have its enforcement enjoined. Plaintiffs-Appellants alleged that the ordinance denied them their rights to equal protection as guaranteed by the 14th Amendment in that it prohibits ultralights from taking off and landing while permitting other small aircraft from continued use of the airport; further, they alleged that the ordinance constituted a "taking" in violation of the just compensation clause of the 5th Amendment as made applicable to the states by the 14th Amendment, in that there is no just compensation for "taking fundamental property rights from Plaintiffs, specifically the right to carry on a lawful occupation, the right to own and enjoy private property, and the right of freedom of transit through navigable airspace guaranteed by 49 U.S.C., section 1304." (R., Vol. I, p. 24.) A hearing was held on January 23, 1984, on appellants' motion for a temporary restraining order, after which the district court entered an order enjoining enforcement of the ordinance. In so doing the district court ruled:

... upon the finding and conclusion that there is a high probability that Ordinance No. 339 ... is so overbroad in its prohibitions as to be a confiscation of the plaintiffs' property rights and is also an interference with F.A.A. regulations, and it appearing that plaintiffs have no adequate remedy at law....

ORDERED, that the enforcement of Ordinance No. 339 ... is restrained until conclusion of the hearing on the plaintiffs' motion for preliminary injunction, which is set for February 2, 1984 ...

Thereafter, the parties extended the term of the temporary restraining order until March 17, 1984, to permit settlement discussions.

On March 7, 1984, the district court held a hearing on a motion to intervene filed by the owner of Tri-County Airport and several other parties. The district court denied the motion to intervene, finding "very substantial factual and legal issues in dispute between plaintiffs and those who sought to intervene with respect to a lease and certain other matters concerning the plaintiffs' operations at the airport." (R. Vol I At that juncture, the sole issue before the district court was appellants' request for costs of $232.75 and attorney's fees of $8,433.00. In a subsequent order denying appellants' request for costs and attorney's fees, the court stated:

                at 83.)    On March 21, 1984, the hearing date set for appellants' motion for preliminary injunction, the parties notified the court that the issues between them had been resolved by the repeal of the offending ordinance.  The parties also stipulated to an extension of the restraining order until its repeal was effected by publication of the repealing ordinance
                

While this court has not ruled on the merits of the controversy set forth in the complaint, the plaintiffs can be considered to be prevailing parties under Chicano Police Officer's Ass'n. v. Stover, 624 F.2d 127 (10th Cir.1980). Nonetheless, it is this court's view that the award of costs and attorney's fees to the plaintiffs in this action would be unjust. It is apparent from the testimony presented during the hearing on the motion for temporary restraining order, and even more apparent from the motion to intervene and the pleadings tendered therewith, together with the briefs in support and opposing that motion, that in this situation the Town of Erie Town Council became involved in what was essentially a private dispute between the residents of a particular subdivision near the airport, the airport owners, and the plaintiffs. This is not a case in which the plaintiffs were acting as a "private attorney general" to vindicate a public interest. Indeed, the plaintiffs were here to assert a private property right, and, while there are, of course, constitutional overtones to the protection of property against confiscatory governmental action, the constitutional issue in this case is somewhat secondary. Additionally, it is to be emphasized that this court's temporary restraining order was also based upon a conclusion that there was a likely interference with FAA regulations. That ground would not support an award of attorney's fees under Sec. 1988. Certainly no attorney's fees should be awarded for the opposition to the motion to intervene.

It is the view of this court that when the Town of Erie Town Council became aware of the constitutional implications of its actions through this court's temporary restraining order, the Council acted promptly in repealing the offending ordinance and should not now be called upon to pay attorney's fees.

R. Vol. I at 84.

On appeal, appellants present one issue; i.e., did the district court abuse its discretion in refusing to award them costs and attorney's fees under Sec. 1988?

Appellants contend that they were the prevailing parties and are therefore entitled to receive reasonable attorney's fees under Sec. 1988. Appellants note that the district court properly found that they were prevailing parties under our Chicano Police Officers Association v. Stover, 624 F.2d 127 (10th Cir.1980). Appellants further contend, citing to Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), that, as prevailing parties, they were entitled to attorney's fees under Sec. 1988 unless special circumstances rendered the award of attorney's fees unjust. The court's grounds for denial of attorney's fees were its findings that the appellants were asserting a private property right, that the constitutional issues were secondary, and that Erie promptly repealed the ordinance once the constitutional implications of adopting the statute became clear. According to appellants, none of these findings constitutes special circumstances under Sec. 1988; thus, the denial of an award of reasonable attorney's fees was an abuse of the court's discretion.

In response, Erie argues that appellants were not prevailing parties because they failed to meet the two-part test for a prevailing party established in Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978), which was cited with approval in our decision in Operating Engineers Local Union No. 3 v. Bohn, 737 F.2d 860 (10th Cir.1984). In Erie argues that appellants failed to meet the first part of the Nadeau two-part test since "[t]here is a total absence of evidence to demonstrate that Plaintiffs' lawsuit was a necessary factor in improving their situation. The record is devoid of any evidence to demonstrate that Plaintiffs attempted to obtain relief from Ordinance No. 339 prior to filing their lawsuit." (Defendant-Appellee's Brief on Appeal at 4.) Erie further argues that the appellants failed to meet the second part of the Nadeau test because they failed to establish that its (Erie's) conduct in response to the lawsuit was required by law.

Nadeau, the court held that a person who brings an action alleging a civil rights violation, but who does not receive a judgment on the merits, is still a prevailing party for purposes of Sec. 1988 if he shows (1) that his lawsuit is causally linked to securing the relief obtained and (2) that the defendant's conduct in response to the lawsuit was required by law.

Erie also argues, citing to Zarcone v. Perry, 581 F.2d 1039 (2nd...

To continue reading

Request your trial
71 cases
  • Dennis v. State, 88-205
    • United States
    • Nebraska Supreme Court
    • February 16, 1990
    ...Del. v. Kassel, 730 F.2d 1139 (8th Cir.1984), cert. denied 469 U.S. 834, 105 S.Ct. 126, 83 L.Ed.2d 68 (1984); J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469 (10th Cir.1985); Private Truck Council v. Secretary of State, 503 A.2d 214 (Me.1986), cert. denied 476 U.S. 1129, 106 S.Ct. 1997,......
  • Jones v. Wilkinson
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 8, 1986
    ...of its action has been rejected as a special circumstance warranting denial of attorney's fees. J. & J. Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474 (10th Cir.1985); Love v. Mayor of Cheyenne, 620 F.2d 235, 236 (10th Cir.1980); Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir.1983); ......
  • Powder River Basin Resource Council v. Babbitt, 93-8117
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 18, 1995
    ...the relief obtained and (2) that the defendant's conduct in response to the lawsuit was required by law." J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1473 (10th Cir.1985) (citing Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978)); see also Hewitt v. Helms, 482 U.S. 755, 760-62, 107 S......
  • Ellis v. University of Kansas Medical Center
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 21, 1998
    ...response to an action that in itself was frivolous or groundless." Beard, 31 F.3d at 952 (quoting J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1475 (10th Cir.1985)). In this respect, the settlement agreement between Ellis and the defendants must have "materially [altered] the legal ......
  • Request a trial to view additional results
1 books & journal articles
  • Attorneys Fees in Civil Rights Cases
    • United States
    • Kansas Bar Association KBA Bar Journal No. 74-10, October 2005
    • Invalid date
    ...F.2d 199, 202 (8th Cir. 1980; American Constitutional Party v. Monroe, 650 F.2d 184, 187-88 (9th Cir. 1981); J&J Anderson Inc. v. Erie, 767 F.2d 1469, 1474-75 (10th Cir. 1985); Doe v. Busbee, 684 F.2d 1375, 1379 (11th Cir. 1982). 28. Buckhannon Bd. v. West Virginia D.H.H.R., 532 U.S. 598 (2......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT