Trulock v. City of Duncanville

• Decision Date: 19 February 2009
• Docket Number: No. 05-08-00343-CV.,05-08-00343-CV.
• Parties: Thomas J. "Jim" TRULOCK, Appellant v. The CITY OF DUNCANVILLE, Appellee.
• Court: Texas Court of Appeals

277 S.W.3d 920

Thomas J. "Jim" TRULOCK, Appellant v. The CITY OF DUNCANVILLE, Appellee.

No. 05-08-00343-CV.

Court of Appeals of Texas, Dallas.

February 19, 2009.

Edward B. Klein, Attorney At Law, Gary P. Cantrell, Attorney At Law, Carrollton, TX, for Appellant.

Robert E. Hager, Nichols Jackson Dillard, Hager & Smith, LLP, Kimberly Rogalin Lafferty, Dallas, TX, for Appellee.

Before Justices BRIDGES, FITZGERALD, and LANG.

OPINION

Opinion by Justice LANG.

Thomas J. "Jim" Trulock appeals the county court's interlocutory "Order Denying [Trulock's] Application for Temporary Injunction and for Declaratory Judgment," which dismissed his claims for "want of jurisdiction." In two issues, Trulock argues: (1) the county court erred when it determined it did not have jurisdiction to hear the matter or grant him injunctive relief; and (2) the City of Duncanville's Ordinance No.2039 violates liberties and protections guaranteed by the Texas and United States Constitutions.

In its response, Duncanville argued, inter alia, this Court lacks subject matter jurisdiction over this appeal under the doctrine of mootness because a justiciable controversy no longer exists. Duncanville claimed Ordinance No.2039 was repealed, amended, and modified, in part, by the enactment of Ordinance No.2051. This Court requested supplemental briefing from both parties on the issue of whether this case has become moot during the pendency of this interlocutory appeal.

After reviewing the supplemental briefing, we conclude this case has become moot during the pendency of this interlocutory appeal. Trulock's interlocutory appeal is dismissed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Trulock issues "invitations to engage in sexual activity and guests at his house [located in Duncanville, Texas,] are often advocates of a `swinging' lifestyle." Trulock's house is known as "The Cherry Pit."

On November 6, 2007, Duncanville adopted Ordinance No.2039 for the regulation of sex clubs. See Duncanville, Tex., Code of Ordinances ch. 11B, Sex Club Regulations (Ordinance No.2039, adopted Nov. 6, 2007), modified, amended, and repealed in part by Ordinance No.2051 (adopted May 6, 2008). Trulock was cited for the operation of a sex club in violation of Ordinance No.2039 on November 11, 2007 (citation no. C000417), December 8, 2007 (citation no. C000422), December 22, 2007 (citation no. C000430), December 31, 2007 (citation no. C000431), and one other occasion (citation no. C000577).¹

On December 12, 2007, Trulock filed suit against Duncanville in county court seeking: (1) a declaratory judgment that Ordinance No.2039 is invalid and unenforceable because it violates his constitutional rights; and (2) an injunction restraining Duncanville from enforcing Ordinance No.2039. On January 7, 2008, Duncanville filed special exceptions, an original answer, and counterclaims under the Sexually Oriented Business Ordinance for civil penalties, nuisance, injunctive relief, and a declaratory judgment. See Duncanville, Tex., Code of Ordinances ch. 11A, Sexually Oriented Businesses, Dance Halls & Massage Establishments. On January 9, 2008, Trulock filed his first amended petition.

On January 25, 2008, the county court held a hearing on Trulock's application for temporary injunction set forth in his first amended petition. During the hearing, Duncanville's special exceptions were argued. At the conclusion of the hearing, before ruling on Trulock's application for temporary injunction or Duncanville's special exceptions, the county court granted Trulock's request for leave to amend his petition. On February 1, 2008, Trulock filed his second amended petition. On February 3, 2008, Duncanville filed a second set of special exceptions.

On February 21, 2008, the county court signed its "Order Denying [Trulock's] Application for Temporary Injunction and for Declaratory Judgment," which concluded the county court lacked jurisdiction to consider Trulock's claims, denied Trulock's application for a temporary injunction, and dismissed Trulock's claims for want of jurisdiction. Duncanville's counterclaims under the Sexually Oriented Business Ordinance remain pending in the county court. On March 10, 2008, Trulock filed his notice of interlocutory appeal of the county court's order dismissing his claims for want of jurisdiction.

On May 6, 2008, Duncanville repealed, amended, and modified, in part, Ordinance No.2039 when it enacted Ordinance No.2051. See Duncanville, Tex., Code of Ordinances ch. 11B, Sex Club Regulations (May 6, 2008).

On October 9, 2008, Trulock filed a motion to enforce the automatic stay in this Court pursuant to section 51.014(b) of the Texas Civil Practice and Remedies Code, which Duncanville disputed. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(b) (Vernon 2008). On October 22, 2008, this Court stayed all further proceedings in County Court at Law No. 2, cause no. CC-07-16110-B, until disposition of this appeal pursuant to Texas Rule of Appellate Procedure 29.2. See TEX.R.APP. P. 29.3.²

On October 28, 2008, in municipal court, a jury found Trulock guilty of five counts of the offense of operation of a sex club in cause nos. C000417-1, C000422-1, C000430-1, C000431-1, and C000577-1.³ The municipal court's judgments show Trulock's punishment was assessed at a fine in the amount of $1,063 for each of the five citations.⁴

II. MOOTNESS DURING THE PENDENCY OF APPEAL

In its supplemental brief on the issue of mootness, Duncanville asserted there is no live controversy between the parties and Trulock has not established an exception to the doctrine of mootness. In his supplemental brief on the issue of mootness, Trulock contends: (1) there are live controversies between the parties relating to Ordinance No.2039; and (2) an exception to the mootness doctrine applies because the issue is "capable of repetition, yet evading review."

A. Standard of Review

Whether a court has subject matter jurisdiction is a legal question that is reviewed de novo. See City of Shoreacres v. Tex. Comm'n of Envtl. Quality, 166 S.W.3d 825, 830 (Tex.App.-Austin 2005, no pet.). The mootness doctrine implicates subject matter jurisdiction. See id.; Pantera Energy Co. v. R.R. Comm'n of Tex., 150 S.W.3d 466, 471 (Tex.App.-Austin 2004, no pet.).

B. Applicable Law

An appellate court is prohibited from deciding a moot controversy. See Nat'l Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex.1999). This prohibition is rooted in the separation of powers doctrine in the Texas and United States Constitutions that prohibits courts from rendering advisory opinions. See Nat'l Collegiate, 1 S.W.3d at 86.

For a plaintiff to have standing, a controversy must exist between the parties at every stage of the legal proceedings, including the appeal. See Pantera, 150 S.W.3d at 471. If a case becomes moot, the parties lose their standing to maintain their claims. Id.

Generally, an appeal is moot when the court's action on the merits cannot affect the rights of the parties. VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993). A case on appeal is moot if: (1) there are no live controversies between the parties; and (2) any decision rendered by the appellate court would be an advisory opinion. See Seals v. City of Dallas, 249 S.W.3d 750, 754 (Tex.App.-Dallas 2008, no pet.) (citing Camarena v. Tex. Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988)); cf. id. (issue on appeal is moot if either: (1) a party seeks judgment on controversy that does not really exist; or (2) a party seeks judgment which, when rendered for any reason, cannot have any practical legal effect on a then-existing controversy). A party cannot moot a case on appeal by simply altering the complained-of law in some insignificant way. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 n. 3, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); Long Term Care Pharmacy Alliance v. Tex. Health & Human Servs. Comm'n, 249 S.W.3d 471, 478-79 (Tex.App.-Eastland 2007, no pet.) (minor substantive amendments to law that neither repealed earlier version of law nor substantively changed complained-of portion of earlier version of law did not moot case). Also, a dispute over attorneys' fees is a live controversy. Allstate Ins. v. Hallman, 159 S.W.3d 640, 642 (Tex.2005).

There are two exceptions that confer jurisdiction regardless of mootness: (1) the issue is "capable of repetition, yet evading review"; and (2) the collateral consequences doctrine. Gen. Land Office of State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990); accord Weinstein v. Bradford, 423 U.S. 147, 148, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam) (capable of repetition, yet evading review); see also Tex. Educ. Agency v. Dallas Indep. Sch. Dist., 797 S.W.2d 367, 369 (Tex.App.-Austin 1990, no writ).

The "capable of repetition, yet evading review" exception has only been used to challenge unconstitutional acts performed by the government. See Gen. Land, 789 S.W.2d at 571. This exception applies only in rare circumstances. See Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001). It is limited to situations where the following circumstances are simultaneously present: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, or the party cannot obtain review before the issue becomes moot; and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. See Weinstein, 423 U.S. at 148, 96 S.Ct. 347; Spencer, 523 U.S. at 17, 118 S.Ct. 978; Williams, 52 S.W.3d at 184; Gen. Land, 789 S.W.2d at 571.

There must be a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam); Weinstein, 423 U.S. at 148, 96...