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Anderton v. City of Cedar Hill

Court of Appeals of Texas, Fifth District, Dallas

May 25, 2018

PATSY B. ANDERTON AND DOYLE ANDERTON, INDIVIDUALLY AND D/B/A A-1 GRASS, SAND AND STONE, Appellants
v.
CITY OF CEDAR HILL, TEXAS, Appellee

          On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-09-12187-A

          Before Justices Lang, Fillmore, and Schenck

          OPINION

          DAVID J. SCHENCK JUSTICE

         Patsy B. Anderton and Doyle Anderton, individually and d/b/a A-1 Grass, Sand and Stone (the Andertons), appeal the trial court's final judgment on remand, dismissing as moot the Andertons' claims for non-conforming use rights in Lots 5 and 6 and awarding attorney's fees to the City of Cedar Hill (the City). In their first three issues, the Andertons urge that the trial court erred in denying their motion for summary judgment against the City. In their seventh issue, the Andertons urge that because the final judgment on remand does not include a specific ruling on their motion for summary judgment, the case should be remanded to the trial court. In their fourth, fifth, and sixth issues, the Andertons argue the trial court erred in awarding the City its attorney's fees. We affirm the portion of the trial court's judgment dismissing as moot the Andertons' claims for non-conforming use rights in Lots 5 and 6, reverse the portion of the trial court's judgment awarding the City its attorney's fees, and remand the issue of attorney's fees for further proceedings consistent with this opinion.

         Background

         This case appears before this Court following an earlier remand to the trial court. See Anderton v. City of Cedar Hill, 447 S.W.3d 84, 87 (Tex. App.-Dallas 2014, pet. denied). Because the procedural history of this case is well-known to the parties, we focus only on those facts relevant to this appeal.

         In 2000, the City adopted a Comprehensive Plan to implement changes along its major corridors to rely heavily on local retail. Around that same time, the Andertons purchased an existing landscaping and building materials business-a commercial rather than local retail business-that operated on Lots 5 and 6 in the River Oaks Section 2 Addition located along the west side of U.S. 67. The Andertons initially undertook a lease on the two lots. In 2001, the City rezoned Lot 5 from a special use zoning district for exclusive mini-warehouse storage to local retail. The Andertons continued their business operations. In 2007, the Andertons bought Lots 5, 6, and 7. Later that year, the City began questioning the Andertons' use of Lot 5 as part of a commercial business instead of in compliance with the local retail zoning. The Andertons requested a change to the zoning of the lots to make their legally non-conforming use of the property a legally conforming use; the City denied that request. The City also issued five citations against the Andertons for unlawful expansion of a non-conforming land use as to Lot 5, but a jury would later unanimously find the Andertons "not guilty" as to all five citations.

         In 2009, the City filed its original petition against the Andertons for violations of its zoning ordinance and building code. It sought declaratory judgment, civil penalties, injunctive relief, and attorney's fees, which collectively and among other things would have had the effect of prohibiting the Andertons from operating their business on Lots 5 and 7.[1] The Andertons responded by asserting counterclaims against the City for alleged violations of vested rights under Chapter 245 of the Texas Local Government Code, inverse condemnation, and violations of federal due process and equal protection rights. The City moved for partial summary judgment on its claims involving the Andertons' use of Lots 5, 6, and 7 as well as the Andertons' counterclaims. The Andertons moved for summary judgment on their counterclaims and on all the City's claims.

         The trial court granted partial summary judgment in favor of the City and later entered a final judgment that incorporated the partial summary judgment. The Andertons appealed the trial court's decisions regarding their Chapter 245 counterclaim, their inverse condemnation counterclaim, the non-conforming use status of Lot 5, and the award of the City's attorney's fees. This Court (1) reversed the trial court's judgment to the extent it granted summary judgment against the Andertons on their claims of non-conforming use rights in Lot 5, (2) reversed the trial court's judgment to the extent it dismissed the Andertons' inverse condemnation claim as not ripe, (3) reversed the trial court's award of attorney's fees to the City, (4) affirmed the final judgment in all other respects, [2] and (5) remanded the non-conforming use and inverse condemnation claims and the issue of attorney's fees for further proceedings. See Anderton, 447 S.W.3d at 98. Thus, as the case was postured for remand following the first appeal, the Andertons had largely prevailed and were postured, on remand, on the offense with respect to the remaining claims.

         Following this Court's remand of the case, the City passed two zoning amendments that, according to its own amended petition, made the Andertons' use of Lots 5 and 6 lawful as they requested but were denied prior to the City filing this lawsuit. The City's amended petition thus abandoned all claims except that of attorney's fees pursuant to the Uniform Declaratory Judgments Act (UDJA). The City urged that because the trial court had previously granted judgment in favor of the City on some of its claims and because none of those rulings were overturned on appeal, the City was entitled to costs and reasonable and necessary attorney's fees. The City also filed a plea to the jurisdiction seeking dismissal of the Andertons' counterclaims. The same day the City filed its amended petition and plea to the jurisdiction, the Andertons filed an amended counterclaim and a traditional and no-evidence motion for summary judgment. The Andertons' amended counterclaim sought only declaratory judgment that their uses of Lots 5 and 6 were legal and attorney's fees pursuant to the UDJA. The City filed its own motion for summary judgment on the Andertons' claim for attorney's fees and later filed a response to the Andertons' summary judgment motion and objections to the Andertons' summary judgment evidence.

         The trial court held a hearing on the City's plea to the jurisdiction and on the summary judgment motions of both parties. At that hearing, the trial court denied the City's plea to the jurisdiction because the claims for attorney's fees remained extant. The case then proceeded to a bench trial on that issue.[3] The parties both submitted affidavits and offered testimony as to their competing claims. 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. At the request of the Andertons, the trial court issued findings of fact and conclusions of law. The trial court later denied the Andertons' request for additional and amended findings of fact and conclusions of law, their motion for new trial, and their request for entry of amended final judgment on remand. This appeal followed.

          Discussion

         I. Did the trial court err in denying the Andertons' Motion for Summary Judgment?

         In their first issue, the Andertons seek to continue their pursuit of the remaining claims notwithstanding the City's effective surrender as to them and the City's resulting claim of mootness. They urge the trial court erred in denying the Andertons' summary judgment motion because the City never filed a written response or offered any controverting evidence on the issue of whether the Andertons had legally conforming rights as to Lots 5 and 6.

         The Andertons sought (1) declaratory judgment that their uses of Lots 5 and 6 were legal non-conforming uses and (2) an award of attorney's fees pursuant to the UDJA. The City filed a response to the Andertons' motion in which it argued its passage of two zoning amendments rendered the Andertons' non-conforming use claims moot. The City attached to its response an affidavit of its planning director and a copy of the two zoning amendments that (1) classify the use of "landscape materials sales" as a use permitted within the affected district and (2) expressly state that "the business on Lots 5 and 6 fall[s] within the new definition of landscape materials sales." Thus, the record shows the City filed a response and supporting evidence in response to the Andertons' motion for summary judgment filed after remand.

         Although the majority of the Andertons' arguments supporting their first issue appear to rely on their assertions the City did not file a written response with controverting evidence, the Andertons also urge that the City's two zoning amendments "might not have totally mooted the case because the City could later decide to rezone the property to adversely impact the Andertons' business." We construe the Andertons' brief to urge that their non-conforming use claims related to Lots 5 and 6 were not rendered moot by ...


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