Save Our Springs Legal Defense Fund v. City of Austin

874 S.W.2d 109, 1994 Tex. App. LEXIS 300, 1994 WL 45628

• Court: Court of Appeals of Texas
• Decided: February 16, 1994
• Docket: No. 3-93-087-CV
• Status: Published

Opinions

ORDER ASSESSING COSTS OF APPEAL

KIDD, Justice.

Appellants Save Our Springs Legal Defense Fund and Save Barton Creek Association have filed a motion for rehearing directed at the assessment of appeal costs in our judgment of August 25, 1998. In that judgment, we ordered each party to pay its own costs of appeal. Appellants now request us to tax their costs of appeal against appellee, City of Austin, and to clarify that our assessment of the costs of appeal does not express an opinion on the apportionment of attorney’s fees among the parties. We will grant the motion.

Appellants brought this action to enjoin the City of Austin from constructing a forty-eight-ineh sewer line through Zilker Park in Austin, Texas. The sewer construction project is known as the South Austin Outfall-Phase II. Following the district court’s denial of a request for a temporary injunction, appellants brought an interlocutory appeal to this Court. During the pendency of this appeal and after the case had been orally argued and submitted to this Court for decision, appellee Texas Water Commission (TWC)¹ moved to dismiss the appeal as moot. The basis for TWC’s motion was that the Austin City Council had voted not to proceed with the construction of the sewer line and had canceled the construction contract. Based upon certified copies of the Austin City Council’s minutes memorializing the decision to cancel the sewer line project, this Court held, “The action of the City Council has eliminated the subject matter of the controversy underlying this appeal and mooted the appeal.”

In their motion for rehearing, appellants state that the City of Austin “has taken precisely the action Appellants sought to enforce by urging its request for temporary injunction.” Thus, the appellants urge us to exercise our discretion to tax appellants’ appeal costs against the City of Austin.²

The Rules of Appellate Procedure provide this court with considerable discretion to equitably assess the costs on appeal. See Tex. R.App.P. 89 (providing that “nothing herein shall he construed to limit or impair the power of the court of appeals to otherwise tax the costs for good cause”) (emphasis added). The appellants argue that the City of Austin has rendered further pursuit of injunctive relief unnecessary by voluntarily abandoning construction of the sewer project that the appellants had sought to enjoin. Thus, the appellants contend that we should exercise our discretion to tax their costs of this appeal against the City of Austin. We agree.

Accordingly, we grant the motion for rehearing and order that the City of Austin pay all costs of this appeal incurred by it and the appellants; and that the Texas Water Commission, the Texas Parks and Wildlife Commission, and the Texas Antiquities Committee pay any costs of appeal incurred by them. See Tex.R.App.P. 89; London v. Merriman, 756 S.W.2d 736, 742 (Tex.App. — Corpus Christi 1988, writ denied).

Our determination regarding the costs of appeal should not be construed as an expression of opinion by this Court on any question regarding the apportionment of attorney’s fees among the parties to this proceeding.

It is so ordered this 16th day of February 1994.

1 . Although South Austin Outfall-Phase II was a City of Austin project, other agencies such as Texas Water Commission, Texas Parks and Wildlife Commission, and Texas Antiquities Committee were appellees in this Court because of their involvement with project oversight and licensing.

2 . We note the narrowness of appellants’ requested relief. Appellants do not ask us to consider any court costs other than those of this appeal and specifically request that our decision not affect the apportionment of attorney’s fees that might be awarded.