Date: 02-19-2009

Case Style: Thomas J. "Jim" Trulock v. The city of Duncanville

Case Number: 05-08-00343-CV

Judge: Douglas S. Lang

Court: Texas Court of Appeals, Fifth District on appeal from the County Court at Law No. 2, Dallas County

Plaintiff's Attorney: Ed Klein and Gary P. Cantrell, Carrollton, Texas

Defendant's Attorney: Bob Hager, Dallas, Texas and Kimberly Rogalin Lafferty, Nichols, Jackson, Dillard, Hager & Smith, Dallas, Texas

Description: 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 Duncanville claimed Ordinance No. 2039 was repealed, amended, and modified, in part, by the enactment of Ordinance No. 2051.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Code of Ordinances ch. 11B, Sex Club Regulations (Ordinance No. 2039, adopted Nov. 6, 2007), modified, amended, and repealed in part by Ordinance No. 2051 (adopted May 6, 2008).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). See Footnote 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. See Footnote 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. See Footnote 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. See Footnote 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. RR. 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 (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 (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 (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; Spencer, 523 U.S. at 17; 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 (1982) (per curiam); Weinstein, 423 U.S. at 148. The mere physical or theoretical possibility that the same party may be subjected to the same action again is not sufficient to satisfy the test. See Murphy, 455 U.S. at 482; cf. City of Mesquite v. Alladin's Castle, Inc., 455 U.S. 283, 288-89 (1982) (without discussing “capable of repetition, yet evading review” exception or need for “reasonable expectation” or “demonstrated probability,” determined issue not moot because city's repeal of objectionable language would not preclude it from re-enacting precisely same provision district court's judgment vacated).

C. Application of the Law to the Facts

1. No Live Controversy Remains

Duncanville argues the case has become moot during the pendency of this interlocutory appeal because: (1) Trulock's challenge to the constitutionality of section 11B-7 of Ordinance No. 2039, relating to abatement for public nuisance, was rendered moot by its repeal in Ordinance No. 2051; and (2) although Ordinance No. 2051 contains a savings clause, Trulock was convicted by a jury on October 27, 2008, for the citations issued under Ordinance No. 2039 and no further charges or actions are pending. Trulock argues there is still a live controversy between the parties because: (1) Ordinance No. 2039 is embedded within Ordinance No. 2051; (2) the savings clause in Ordinance No. 2051 is broad, so he may still be prosecuted for violations that occurred during the time when Ordinance No. 2039 was in effect; and (3) there is a live claim for attorneys' fees.

First, Trulock argues Ordinance No. 2039 is so embedded within Ordinance No. 2051 that it is impossible to remove the unconstitutional portions of Ordinance No. 2039. See Footnote 5 Trulock has not provided us with any specific examples or argument beyond that broad assertion. Ordinance No. 2051 repealed, amended, and modified, in part, Ordinance No. 2039 in several respects, including several definitions pertinent to the actions that are prohibited: (1) it repealed the definitions of “Consideration,” See Footnote 6 “Operate and maintain,” See Footnote 7 and “Sex Club” See Footnote 8 and replaced them with new definitions; (2) it added a definition of “Donation” See Footnote 9 ; (3) it repealed the section entitled “Operation and maintenance of a sex club declared a public nuisance and prohibited” and replaced it with a new section See Footnote 10 ; (4) it repealed the section entitled “Abatement of public nuisance” and replaced it with a new section; See Footnote 11 and (5) it added a section relating to appeals of orders to cease the operation and maintenance of a sex club. See Footnote 12 We conclude Ordinance No. 2051 significantly altered Ordinance No. 2039. See Ne. Fla. Chapter of Associated Contractors, 508 U.S. 662 n.3 (ordinance must be significantly altered or case not moot on appeal); Long Term Care, 249 S.W.3d at 478-79 (cannot moot case by altering law in insignificant way). Further, these changes repealed, amended, and modified the portions of Ordinance No. 2039 that Trulock complained were unconstitutional.

Second, Trulock argues the savings clause in Ordinance No. 2051 is broad, so he may still be prosecuted for violations that occurred during the time when Ordinance No. 2039 was in effect. Ordinance No. 2051 contains the following savings clause:

All rights and remedies of the City of Duncanville are expressly saved as to any and all violations of the provisions of any ordinances governing Sex Clubs that have accrued at the time of the effective date of this Ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this Ordinance but may be prosecuted until final disposition by the courts.


The record shows there were only five citations for violations of Ordinance No. 2039 issued to Trulock that accrued by the effective date of Ordinance No. 2051, i.e., May 6, 2008. Duncanville has provided us with certified copies of the municipal court's judgments convicting Trulock as to these five citations. Duncanville advises there are no further charges or actions pending against Trulock under Ordinance No. 2039. Trulock does not argue there are any pending citations against him for violations of Ordinance No. 2039. The savings clause in Ordinance No. 2051 preserves only violations “that have accrued” as of the date of the adoption of Ordinance No. 2051.

Also, Duncanville states it did not take action against Trulock under Ordinance No. 2039 to abate the public nuisance and, pursuant to the savings clause in Ordinance No. 2051, all future abatement orders would be subject to the provisions of Ordinance No. 2051, not Ordinance No. 2039. We are not advised how the savings clause has that effect. However, in his second amended petition and brief on appeal, Trulock admitted that the building official has neither ordered nor served Trulock with an order of abatement for public nuisance, requiring him to vacate the premises. In his second amended petition, Trulock stated he “may be forced to vacate the premises of his home.” In his brief on appeal, he stated “Duncanville has chosen to thus far enforce only a portion of [] Ordinance [No. 2039],” “the threat of additional enforcement, and ejection from his home is real,” and “Ordinance [No. 2039] grants The [sic] Building Official of the City of Duncanville apparent unbridled authority to order any occupant in violation of [] Ordinance [No. 2039] to vacate the premises upon which the alleged activity is purported to have occurred . . . . [I]f that ordinance is executed, [Trulock] will be deprived of a recognized liberty and property right without due process of law.” (Emphasis added). Trulock has not argued nor does the record show that the building official ordered Trulock to abate for public nuisance or Trulock was served with an order of abatement for public nuisance under Ordinance No. 2039 before the effective date of Ordinance No. 2051. Trulock has shown no basis for any action against him by Duncanville under the prior Ordinance No. 2039.

We conclude because we have not been shown there are orders of abatement for public nuisance or citations pending against Trulock for violations of Ordinance No. 2039 that accrued before the effective date of Ordinance No. 2051, Trulock has not demonstrated any live controversy.

Third, Trulock argues there is a live claim for attorneys' fees. However, the county court granted Duncanville's second set of special exceptions and dismissed Trulock's claims. We conclude there is no live claim for attorneys' fees.

Premised on the foregoing, we conclude this case has become moot during the pendency of this appeal because there are no live controversies between the parties and any decision rendered by this Court would be an advisory opinion. As a result, we must consider the parties' arguments regarding whether an exception to the doctrine of mootness applies.

2. An Exception to Doctrine of Mootness Does Not Apply

Trulock argues this court has jurisdiction regardless of mootness because the issue is “capable of repetition, yet evading review.” He claims the ease with which Duncanville modified Ordinance No. 2039, enacted the savings clause in Ordinance No. 2051, and enforced the citations for violations of Ordinance No. 2039, despite having amended it, demonstrate the issue is “capable of repetition, yet evading review.” Duncanville responds that Trulock has not established any exception to the doctrine of mootness.

To establish the “capable of repetition, yet evading review” exception, Trulock must show: (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; Spencer, 523 U.S. at 17; Williams, 52 S.W.3d at 184; Gen. Land, 789 S.W.2d at 571. However, Trulock does not explain how there is a “reasonable expectation” that he will be subjected to the same enforcement actions under Ordinance No. 2039 again. As we stated above, Ordinance No. 2039 has been repealed, amended, and modified, in part, and there are no pending violations of Ordinance No. 2039 preserved by the savings clause in Ordinance No. 2051. Accordingly, we conclude there is no “reasonable expectation” that Trulock will suffer the same alleged wrong. Based on this conclusion, we need not consider whether the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, or Trulock could obtain review before the issue became moot.

We conclude an exception to the doctrine of mootness does not apply because the issue is not “capable of repetition, yet evading review.” If Trulock is cited or served an order of abatement for public nuisance under Ordinance No. 2051, there will be ample time for him to obtain judicial review of that ordinance. See Lewis v. Continental Bank Corp., 494 U.S. 472, 482 (1990).

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http://www.5thcoa.courts.state.tx.us/files/05/recent/080343F.HTM

Outcome: The case has become moot during the pendency of this interlocutory appeal. This Court's October 22, 2008 order staying all further proceedings in County Court at Law No. 2, cause no. CC-07-16110-B, is vacated. Trulock's interlocutory appeal is dismissed.

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