The Dallas Court of Appeals recently had an opportunity to review and apply the mootness doctrine with respect to appeals and, in the process, expound on the rarely invoked exception to mootness known as "capable of repetition, yet evading review" (CORYER). In this case, the Plaintiff sought a temporary injunction and declaratory judgment that Duncanville’s ordinance prohibiting the operation of Plaintiff’s "sex club," known as the Cherry Pit, as a public nuisance. The trial court denied Plaintiff’s request for a temporary injunction and the Plaintiff filed an interlocutory appeal. While the case was on appeal, Duncanville repealed and amended the challenged ordinance. Duncanville moved to dismiss the appeal because it was moot.
The Court first addressed mootness generally by stating that "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." The Plaintiff argued that his case fell into the exception to mootness known as CORYER. The Court rejected this argument and held that:
"This exception only applies in rare circumstances . . . . It is limited to situations where the following circumstances are simultaneously present: (1) the challenged action was in its duration too short to be 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 subject to the same action again."
Because there was "no reasonable expectation" that Plaintiff would "suffer the same alleged wrong" by enforcement of the repealed ordinance and would have "ample time to obtain judicial review" of the new ordinance, the Court held that the CORYER exception did not apply and dismissed the appeal as moot. The Court’s opinion in Trulock v. CIty of Duncanville can be found at this link.