DocketNumber： 03-14-00129-CV
Filed Date： 5/27/2015
Status： Precedential
Modified Date： 9/29/2016
ACCEPTED 03-14-00129-CV 5427072 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/27/2015 9:40:05 AM JEFFREY D. KYLE CLERK CAUSE NO. 03-14-00129-CV *** FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS THIRD COURT OF APPEALS DISTRICT 5/27/2015 9:40:05 AM AUSTIN, TEXAS JEFFREY D. KYLE Clerk *** CITY OF NEW BRAUNFELS, TEXAS; GALE POSPISIL, ROBERT CAMARENO, TOM WIBERT and MARY QUINONES Appellants, V. GARRISON MAURER, d/b/a COMAL TOWING; JERAMIE HERNANDEZ d/b/a JJ TOWING and ROBERT FLEMING, d/b/a PRO CARE WRECKER SERVICE Appellees, APPELLANTS’ OPPOSED MOTION TO DISMISS ENTIRE CASE AS MOOT LAW OFFICES OF RYAN HENRY, PLLC Ryan S. Henry State Bar No. 24007347 1380 Pantheon Way, Suite 215 San Antonio, Texas 78232 210-257-6357 (Telephone) 210-569-6494 (Facsimile) Ryan.henry@rshlawfirm.com ATTORNEY FOR APPELLANTS 1 CERTIFICATE OF CONFERENCE I certify that I attempted to confer with counsel for Co-Defendants in this case and have been unsuccessful in doing so. The Co-Defendants are not part of this appeal, but since the motion is to dismiss the entire case as to the City Defendants and not just the appeal, I attempted to confer with them as well. I also certify that I conferred with Plaintiffs’/Appellees’ attorney of record in this appeal via telephone. He advised he could not say whether he was opposed or unopposed at this time, even after providing him a copy of the proposed motion. As a result, the City assumes he is opposed to this motion to dismiss the entire case as moot. CERTIFICIATE OF SERVICE I certify that a true copy of this document has been sent by regular U.S. Mail unless otherwise indicated, to the person(s) listed below on the 26th day of May, 2015. Mr. Daniel P. McCarthy Fax No. (210) 979-8734 MCCARTHY LAW FIRM P.C. and to dan@mccarthy-law.com 10001 Reunion Place, Suite 640 San Antonio, Texas 78216 Attorney for Plaintiffs Mr. Samuel V Houston, III Fax No. (210) 826-0075 Houston Dunn, PLLC and to sam@hdappeals.com 4040 Broadway, Suite 440 San Antonio, Texas 78209 Attorney for Plaintiffs Mr. Ricardo H. “Richard” Silvas Fax No. (210) 236-5420 4538 Centerview Suite 240 and to richard@rsilvas.com San Antonio, Texas 78228 Attorney for Defendant New Braunfels Wrecker Service, LLC Joe Medillin d/b/a New Braunfels Towing Company Mr. Troy D. Burch, Jr. Fax No. (830) 629-0953 BURCH LAW FIRM and to tburch@burchfirm.com 328 S. Seguin Ave. New Braunfels, Texas 78130 Attorney for Hill Country Custom Towing 2 Mr. David G. Pfueffer Fax No. (830) 629-2161 BRAZLE AND PFUEFFER LLP and to dpfeuffer@nblawyers.net 170 E. San Antonio Street New Braunfels, Texas 78130 Attorney for Kahlig Enterprises, Inc. d/b/a Bluebonnet Collision Service a/k/a Bluebonnet Motors /s/____________________________ RYAN S. HENRY 3 MAY IT PLEASE THE COURT: NOW COMES Appellants/Defendants City of New Braunfels, Gale Pospisil, Robert Camareno, Tom Wibert and Mary Quinones (“City Defendants”) and files this opposed motion to dismiss this case as moot, and would respectfully show the Court the following: Summary The crux of this case turns on four separate towing contracts awarded to four separate towing companies who were placed on a non-consent tow list created from RFP #13-001. C.R. 10. The contracts in question expired on December 31, 2014 by their own terms. C.R. 32. A new ordinance, No. 2015-04, took effect on May 1, 2015 which dispenses with the system utilized by the City in awarding the four prior contracts and adding anyone to the list. Please find attached as Exhibit A, a certified copy of Ordinance No. 2015-04. With a new regulatory process beginning which does not use contracts and the contracts which made the basis of this suit no longer being in place, this case has become moot. Appellants hereby move to dismiss the entire case as moot. Factual Recap & Arguments Relief Requested is Prospective Only It is important to note that Maurer and the other Plaintiffs are not seeking damages for being left off the list and expressly stated they are not suing to force the 4 City to place them on the list. C.R. 235, para. 8. They state “Plaintiffs seek prospective injunctive and declaratory relief that would prohibit the City from continuing to operate under the contracts it awarded under the RFP. ….Plaintiffs have intentionally not plead for monetary damages, such as lost profits or loss of business opportunity, because it would invoke sovereign immunity.” C.R. 244 para. 21. “Plaintiffs' seeks this Court to declare void the actions taken by The City of New Braunfels through its city council at the city council meeting on December 10, 2012 in the awarding the contracts to the Defendants…” C.R. 244 para. 22. The towing contracts and the list expired by their own terms on December 31st of 2014. C.R. 32. The Plaintiffs are seeking prospective relief only to prevent the City from utilizing the non-consent tow call list (which no longer exists). C.R. 14- 16. They seek to hold the list void ab initio. C.R. 16. They bring suit against the City individuals for ultra-vires claims, which can only be prospective in nature under City of El Paso v. Heinrich,284 S.W.3d 366
, 376 (Tex. 2009). C.R. 9, 50-51. As a result, all of the relief sought is to prevent and control future action, not for anything allegedly lost in the past. The future action is now dictated by the ordinance which moots their claims for allegedly not following competitive bidding requirements. The ordinance was not enacted until after the contract and list expired by their own terms. 5 Mootness Generally As the court is well aware, the mootness doctrine prevents courts from rendering advisory opinions, which are outside the jurisdiction conferred by Article II, Section 1 of the Texas Constitution. See Valley Baptist Med. Ctr. v. Gonzalez,33 S.W.3d 821
, 822 (Tex. 2000). A controversy must exist between the parties at every stage of the legal proceeding, including the appeal. Bd. of Adjustment of City of San Antonio v. Wende,92 S.W.3d 424
, 427 (Tex. 2002) (Emphasis added). An issue may become moot when a party seeks a ruling on some matter that, when rendered, would not have any practical legal effect on a then-existing controversy. See In re H & R Block Fin. Advisors, Inc.,262 S.W.3d 896
, 900 (Tex. App.--Houston [14th Dist.] 2008, orig. proceeding); City of Farmers Branch v. Ramos,235 S.W.3d 462
, 469 (Tex. App.--Dallas 2007, no pet.). When an appeal is moot, a court must set aside the judgment and dismiss the cause in its entirety. City of Fort Worth v. Pastusek Indus., Inc.,48 S.W.3d 366
, 371 (Tex. App.--Fort Worth 2001, no pet.). 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 6Collegiate, 1 S.W.3d at 86
; see also Trulock v. City of Duncanville,277 S.W.3d 920
, 923-24 (Tex. App.—Dallas 2009, no pet.). Contracts are Moot When a contract expires and is no longer in effect or when it has been superseded by an amended contract, a dispute on the contract becomes moot. Hutto Citizens Group v. County of Williamson & Waste Mgmt. of Tex., 2009 Tex. App. LEXIS 5690,2009 WL 2195582 (Tex. App. -- Austin, July 23, 2009); Meeker v. Tarrant County College Dist.,317 S.W.3d 754
, 760, (Tex. App. -- Fort Worth 2010); See, e.g., Day v. First City Nat'l Bank of Houston,654 S.W.2d 794
, 795 (Tex. App.- -Houston [14th Dist.] 1983, no writ) (stating that a case is moot when the actions sought to be enjoined have been fully performed). A suit to enjoin the performance of a contract becomes moot after the contract has been fully performed. See Hulett v. West Lamar Rural High Sch. Dist.,232 S.W.2d 669
, 670 (Tex. 1950). When a request for injunctive relief becomes moot because the action sought to be enjoined has been accomplished, a request for declaratory relief also becomes moot. Speer v. Presbyterian Children's Home & Serv. Agency,847 S.W.2d 227
, 229 (Tex. 1993); Labrado v. County of El Paso,132 S.W.3d 581
, 589 (Tex. App. -- El Paso 2004). All of the contracts at issue have expired by their own terms and are no longer in effect. As a result, the claims are moot. 7 List is Moot as New Ordinance was passed A chapter of the City’s original ordinance (Chapter 138, Article V, Section 138-122) was repealed prior to the creation of the complained of non-consent tow list. C.R. 119. It utilized a specific rotation system for placement on the list. No ordinance regulation was therefore in effect at the time of RFP 13-001, which sought to utilize a contract agreement to control non-consent tows. The City sent out the RFP, received responses, reconsidered whether it wanted to use a single-source tow company, and awarded four contracts instead of one. C.R. 122. However, after the expiration of the four contracts under the list, the City enacted a completely new ordinance, No. 2015-04. Ex. A. A significant alteration in the law on a subject can render a controversy moot. Trulock v. City of Duncanville,277 S.W.3d 920
, 927 (Tex. App.—Dallas 2009, no pet.)(Citing Ne. Fla. Chapter of AssociatedContractors, 508 U.S. at 662
n. 3,113 S. Ct. 2297
) (ordinance must be significantly altered or case not moot on appeal). When the actions made the basis of this lawsuit occurred, no regulation was in effect. The City could create and assign whoever it wished to the non-consent list but chose to use an RFP process. However, the contracts entered into at the end of this process expired by their own terms. Then, effective May 1, 2015, a completely new regulation applied, thereby changing the regulatory landscape again and the method under which non-consent tows are awarded. 8 As a result, Plaintiffs’ claims for relief have become moot. They sought to enjoin the enforcement and execution of the four contracts awarded to competitors, which have now expired under their own terms. They sought to enjoin the use of the awarded list, which has expired and is now superseded by the new ordinance. They sought to require compliance with competitive bidding laws they felt applied, however the ordinance no longer utilizes a competitive bidding element. The legislative findings expressly state the City wishes to abandon a contract system for incident management tows and reinstate a rotation list system. Ex. A, p. 2. Ordinance 2015-04 states that the rotation list shall be created on an annual basis, starting on May 1st of each year. Ex. A, Sec. 138-132 p. 11. Applications from tow truck operators shall only be accepted within a defined time period each year and shall be submitted to the Chief of Police. Ex. A, Sec. 138-132(b)-(c). Any tow- truck operator who qualifies under the regulation requirements “will be placed on the rotation list system for one year, subject to their rotation assignment which will be determined by the Police Department.” Ex. A, Sec. 138-132(e). All qualifying operators “shall be placed on the rotation list.” Ex. A, Sec. 138-133(a). A lottery will be held if an odd number of operators are on the list to determine who gets an extra rotation. Ex. A, Sec. 138-133(b). It is up to Plaintiffs to qualify for the list by ensuring compliance with all regulation requirements. However, if they qualify, they are placed on the list with everyone else and are not subject to the same types of 9 actions complained of in the lawsuit. As a result, the claims are moot. No relief can be awarded which will dispel a current controversy. It is important to note that the mootness is not caused purely because a new ordinance was passed. The ordinance was not passed and did not become effective until after the contracts made the basis of this suit expired by their own terms. The expiration of the contracts alone qualifies as mooting the case. However, in addition to that, the enactment of the ordinance also mooted the case independently of the mootness caused by the expiration of the contracts. Either basis, standing alone, is proper to moot the claims. Both standing together creates a multitier mootness. Texas Open Meetings Act Claims are also Moot Plaintiffs bring suit under the Texas Open Meetings Act (“TOMA”) attempting to hold the contracts and list void. C.R. at 129. Declaring a meeting- agenda notice violated TOMA cannot have any practical legal effect on a currently- existing controversy when it would only void contracts and a list that have previously been superseded or expired. Meeker v. Tarrant County College Dist.,317 S.W.3d 754
, 761 (Tex. App. -- Fort Worth 2010). An issue becomes moot when a party seeks a ruling on some matter that, when rendered, would not have any practical legal effect on a then-existing controversy. See In re H & R Block Fin. Advisors, Inc.,262 S.W.3d 896
, 900 (Tex. App.--Houston [14th Dist.] 2008, orig. 10 proceeding); City of Farmers Branch v. Ramos,235 S.W.3d 462
, 469 (Tex. App.-- Dallas 2007, no pet.). Stated another way, an issue is moot if it becomes impossible for the court to grant effective relief. H&R Block Fin. Advisors, Inc.,262 S.W.3d 896
, 900 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (Citing Williams v. Lara,52 S.W.3d 171