Exodyne Properties, Inc. v. City of Phoenix

• Decision Date: 25 September 1990
• Docket Number: No. 1,CA-CV,1
• Citation: Exodyne Properties, Inc. v. City of Phoenix, 165 Ariz. 373, 798 P.2d 1382 (Ariz. App. 1990)
• Parties: EXODYNE PROPERTIES, INC., an Arizona corporation, Plaintiff/Appellant, v. CITY OF PHOENIX, a political subdivision of the State of Arizona, and City of Phoenix Historic Preservation Commission, Defendants/Appellees. 88-421.
• Court: Arizona Court of Appeals

Page 1382

798 P.2d 1382

165 Ariz. 373

EXODYNE PROPERTIES, INC., an Arizona corporation, Plaintiff/Appellant, v.CITY OF PHOENIX, a political subdivision of the State of Arizona, and City of Phoenix Historic Preservation Commission, Defendants/Appellees.

No. 1 CA-CV 88-421.

Court of Appeals of Arizona Division 1, Department D.

Sept. 25, 1990.

Lancy, Scult & Lazarus by David K. Jones, Phoenix, for plaintiff/appellant.

Roderick C. McDougall, City Atty. by Edward P. Reeder, Asst. City Atty., Phoenix, for defendants/appellees.

OPINION

GRANT, Chief Judge.

This is an appeal from a denial by the City of Phoenix(the City) of an application by appellantExodyne Properties, Inc.(Exodyne) for permission to demolish five buildings located within the City's Roosevelt Historic Preservation District.Exodyne substantively challenges the trial court's interpretation of the Phoenix Historic Preservation Ordinance (the Ordinance) and the trial court's award of partial attorney's fees.Because we find that the trial court incorrectly interpreted the Ordinance, we reverse and remand with directions that Exodyne be awarded the reasonable amount of attorney's fees requested.

FACTS

The facts are undisputed.On January 9, 1987, Exodyne applied for a Certificate of Appropriateness for demolition of five structures within the Roosevelt Historic Preservation District.Pursuant to a request by the Historic Preservation Commission(the Commission), Exodyne submitted to the Commission a packet of additional information on February 13, 1987.On March 12, 1987, the Commission considered Exodyne's applications and ultimately voted to continue the matter until September 28, 1987, at which time the Commission denied the application.

On October 27, 1987, Exodyne filed a special action in superior court to compel the Commission to issue the Certificate of Appropriateness and the demolition permits.Such issuance, it contended, was required by section 910(j) of the Ordinance which provides: "If the HP Commission does not either approve or deny an application for a ... Certificate of Appropriateness within 90 days after the filing of a complete application, the application shall be deemed approved."Phoenix Historic Preservation Ordinance, § 910(j).

By minute entry dated January 21, 1988, the trial court found that Exodyne's application was complete on February 13, 1987, the date that the requested additional information was submitted.The trial court also found that Exodyne's application was deemed approved by operation of law 90 days thereafter, May 14, 1987.The court went on to hold, however, that the Commission's September 28, 1987, action, purporting to deny the application, "was legally tantamount to a reconsideration of the earlier deemed approval."

The court held that the denial resulting from the Commission's "reconsideration" was effective May 14, 1987, the date the earlier default approval became effective.The court further held that this denial implicated Section 911(d)(2) of the Historic Preservation Ordinance which provides, in pertinent part:

If, after 12 months have expired following consideration by the HP Commission of the application for Certificate of Appropriateness, the owner decides not to preserve the structure, and no agreement has been made to purchase the property to preserve it, and the City has not initiated eminent domain proceedings to acquire the property, then the Historic Preservation Officer shall notify the Building and Safety Director that the permit to move or demolish the structure may be issued....

Phoenix Historic Preservation Ordinance, § 911(d)(2).Thus, the court held that the twelve-month period commenced on May 14, 1987, and that demolition could be prevented on or before May 14, 1988, if the City reached an agreement to purchase the property or initiated eminent domain proceedings.The City initiated eminent domain proceedings on February 18, 1988, well within the twelve-month period, and has since acquired the property.Final judgment was entered on May 24, 1988.

Although Exodyne requested attorney's fees totalling $20,348.50, pursuant to A.R.S. § 12-2030, ¹the trial court awarded fees of only $5,492.69.The trial court's reasoning in making this reduction is not entirely clear to this court.

Exodyne raises essentially one issue on appeal: Whether the trial court abused its discretion by awarding only partial attorney's fees.In order to decide this issue, however, the following threshold questions must first be resolved: (1) Did the trial court err in finding that the September 28, 1987, Commission action was a reconsideration of the earlier approval? and, (2) What amount accurately reflects reasonable attorney's fees pursuant to A.R.S. § 12-2030? and (3) Can that amount be reduced in the trial court's discretion to reflect the degree of success on the merits?

The City argues that Exodyne's entitlement to demolition permits, as determined by the trial court's interpretation of the Ordinance, is moot, since the City has already initiated eminent domain proceedings against the properties.The City also contends that the trial court should not have awarded any attorney's fees pursuant to A.R.S. § 12-2030 because Exodyne was not a prevailing party below and because Exodyne is not seeking mandamus relief.

MOOTNESS

On February 18, 1988, after the trial court's January 21, 1988, minute entry, but before final judgment was entered on May 24, the City initiated eminent domain proceedings against the subject properties.The City argues that because it has now acquired the properties by eminent domain, Exodyne no longer has the right to demolish any structures on the properties, and that the issue of Exodyne's entitlement to demolition permits is therefore moot.Consequently, the City argues that we should dismiss that portion of Exodyne's appeal which challenges the trial court's interpretation of the Ordinance.

Although, generally this court will not decide moot questions or abstract propositions, exceptions to this rule exist where there is either an issue of great "public importance,"Camerena v. Department of Pub. Welfare, 106 Ariz. 30, 470 P.2d 111(1970), or an issue "capable of repetition yet evading review."Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147, 161(1973);Odle v. Imperial Ice Cream Co., 11 Ariz.App. 203, 463 P.2d 98(1970).Nevertheless, because we find that the amount of attorney's fees due Exodyne is not a moot issue, and further, that we must address the trial court's interpretation of the Ordinance in order to adequately determine the fee issue, we need not address whether one of these exceptions to the mootness doctrine applies.SeeContempo-Tempe Mobile Home Owners Ass'n v. Steinert, 144 Ariz. 227, 229, 696 P.2d 1376, 1378(App.1985).

The City is correct that the substantive issue of whether it is required to issue demolition permits is now moot, since resolution of the issue will not affect Exodyne's right to demolish structures on the subject properties.SeeBoard of Supervisors v. Robinson, 105 Ariz. 280, 463 P.2d 536, cert. denied, 399 U.S. 913, 90 S.Ct. 2211, 26 L.Ed.2d 568(1970).However, Exodyne no longer seeks to demolish the buildings; rather, it challenges the trial court's interpretation of the Ordinance solely for the purpose of showing that the trial court's apportionment of attorney's fees, which Exodyne alleges was based on the court's decision on the merits, was in error.

Exodyne's entitlement to attorney's fees is not an "abstract" question, but rather one which involves existing rights.Thus, review of the trial court's award of attorney's fees is not a moot issue, and is not made so simply because resolution of the issue may necessarily entail a review of the merits of the demolition-permit issue.See, e.g., Smith v. Board of Walla Walla County Comm'rs, 48 Wash.App. 303, 306, 738 P.2d 1076, 1078(1987)(court of appeals must reach merits of trial court's granting of writ of mandamus to determine the continuing controversy over the award of attorney fees);LaMoureaux v. Totem Ocean Trailer Express, Inc., 651 P.2d 839, 840 n. 1(Alaska1982)(which held that a reviewing court will not hear a moot case simply to determine who is the prevailing party for purposes of awarding costs and attorney fees), overrulingState Comm'r of Health & Human Services v. Seward Marine Servs., Inc., 612 P.2d 1010, 1012 n. 3(Alaska1980), andMunroe v. City Council of Anchorage, 545 P.2d 165, 170, modified, 547 P.2d 839(Alaska1976).

Our refusal to dismiss Exodyne's appeal of the trial court's interpretation of the Ordinance is supported by the decision in Jay v. Kreigh, 110 Ariz. 299, 518 P.2d 122(1974), cited by both parties.In Jay, a group of citizens petitioned the Pima County Board of Supervisors to incorporate their community into the Town of Oro Valley.When their petition was denied, the plaintiffs filed an action for a writ of mandamus to compel the Board of Supervisors to order approval of the incorporation petition.In March of 1972, the trial court, by minute entry, ordered the Board to incorporate; however, the judgment was not signed until mid-June of that year.In the meantime, the City Council of Tucson annexed the territory, thereby preventing the board from incorporating.

This court held that the city's annexation deprived the Board of Supervisors of jurisdiction to declare Oro Valley an incorporated town.The supreme court reversed, holding the case was not moot:

The matter was tried and determined, albeit by minute entry, before the City of Tucson attempted to defeat incorporation.Assuming that the Board of Supervisors had a duty to declare the Town of Oro Valley incorporated in the first place, the trial court had jurisdiction to order the Board of Supervisors to do what the Board ought to have done in the first place, and once the Superior Court acquired jurisdiction over the subject matter of the...