Patsy B. Anderton, et al. v. City of Cedar Hill, 05-17-00138-CV (Tex. App. – Dallas, May 25, 2018)
The Dallas Court of Appeals affirmed-in-part and reversed-in-part a judgment for the City of Cedar Hill (“City”) in a case involving a non-conforming use in a specific zoning district.
This case went up and down the appellate latter in one appeal already. The Andertons purchased an existing landscaping and building materials business—a commercial rather than local retail business—that operated on Lots 5 and 6, about the time the City rezoned the area to a retail zone. The Andertons requested a zoning change to make their legal non-conforming use a legal conforming use, which the City denied. Several years later the City filed a declaratory petition and sought civil penalties against the Andertons prohibiting them from operating the existing business on the lots. The Andertons counterclaimed under Tex. Loc. Gov’t Code Chapter 245 for vested rights and inverse condemnation. Both parties moved for summary judgment. The trial court granted the City’s summary judgment motions and denied the Andertons’ motions. The Andertons appealed the first time and won a partial remand. However, afterwards, the City passed two zoning amendments making the lots lawful. The City sought attorney’s fees for the claims it won in the first appeal and filed a plea to the jurisdiction on the Andertons’ remaining counterclaims. The trial court denied the plea and went to trial on the attorney’s fee issue. The trial court later entered a final judgment on remand, dismissing the Andertons’ claims for non-conforming use rights in Lots 5 and 6 as moot and awarding the City its attorney’s fees. The Andertons appealed.
The court first held, given the zoning amendments, at the time it rendered judgment, the trial court had no practical ability to alter the legal relationship between the parties. As a result, the Andertons’ claim as to the non-conforming use status was moot and the trial court was obliged to dismiss barring some valid exception. 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. The record did not reflect any evidence indicating the City was likely to rezone the property back to retail only, so the first exception does not apply. Theoretical possibility is not sufficient to satisfy the test. The “collateral consequences” doctrine applies to the narrow circumstances when vacating the underlying judgment will not cure the adverse consequences suffered by the party seeking to appeal that judgment. The Andertons, however, do not argue, and the record does not reflect, any concrete disadvantages or disabilities that will persist should their claim be dismissed as moot. So, the judgement is affirmed as to the Andertons’ counterclaims. As to the award of attorney’s fees, the UDJA does not condition the entitlement to fees on prevailing party status. The trial court’s findings of fact and conclusions of law affirmatively indicate the trial court awarded the City its attorney’s fees as “equitable and just based on the claims asserted in this case, the objectives sought by the parties and the outcome of this case” and not as a “prevailing party.” However, not withstanding, the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees. As in cases involving only a modicum of success in the context of the prevailing party statute, even fees supported by uncontradicted testimony may be “unreasonable” in light of the amount involved, the results obtained, and in the absence of evidence that such fees were warranted due to circumstances unique to the case. After going through the win/loss points and going through each lot in the case, the appellate court held the trial court abused its discretion in awarding attorney’s fees.
If you would like to read this opinion click here. Panel consists of Justice Lang, Justice Fillmore and Justice Schenck. Opinion by Justice Schenck. The attorney listed for Patsy Anderton is Arthur J. Anderson. The attorneys listed for the City are Ronald G. Macfarlane Jr., James W. Morris Jr., and Terry D. Morgan.