Dr. Robert Gruebel v. City of Nacogdoches and Commercial Bank of Texas, N.A.--Appeal from 145th District Court of Nacogdoches County

NO. 12-04-00176-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DR. ROBERT GRUEBEL, APPEAL FROM THE 145TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE CITY OF NACOGDOCHES &

COMMERCIAL BANK OF TEXAS NACOGDOCHES COUNTY, TEXAS

APPELLEES

MEMORANDUM OPINION

PER CURIAM

In this appeal, Dr. Robert Gruebel challenges a declaratory judgment signed in the 145th District Court of Nacogdoches County, Texas in trial court cause number C19,868-2003 styled Dr. Robert Gruebel v. The City of Nacogdoches and Commercial Bank of Texas, N.A. The central issue in the appeal is the interpretation of Article XI of the City s ordinance relating to historic preservation. Specifically, the issue is whether a certificate of appropriateness from the Nacogdoches Historic Landmark Preservation Committee is required prior to demolition of a building located within the Historic Overlay of the City.

Gruebel previously informed this Court that the City issued a demolition permit for the building that is the subject of this appeal and that the building has been demolished. // Consequently, we ordered Gruebel to show cause why this appeal should not be dismissed as moot. Gruebel responded arguing that the appeal is not moot because (1) a demolition permit has not been issued for a building that was the subject of a previously dismissed appeal // and therefore (2) this Court should declare that any demolition permit for that building should be issued pursuant to and in accordance with the amended ordinance.

Mootness

It is well-settled law that [a] case becomes moot when it appears that one. . . seeks judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy. Swank v. Sharp, 358 S.W.2d 950, 951 (Tex. Civ. App. Dallas 1962, no writ) (citations omitted). Accordingly, an appeal will be dismissed if, without any fault of the appellee, an event has occurred which makes a determination of it unnecessary or renders it impossible for an appellate court to grant effectual relief. Id. at 952.

Here, Gruebel did not supersede the lower court s judgment. The City issued a demolition permit and the building in controversy was demolished. Nonetheless, Gruebel argues that this appeal is not moot because whether the amended ordinance applies to the issuance of a demolition permit for the remaining building is an issue that is still in controversy. However, the issue Gruebel identifies is not in controversy in the instant appeal. Moreover, the building that remains was the subject of another appeal, which has been dismissed on Gruebel s motion.

Conclusion

Even if Gruebel were to prevail in this appeal, the relief granted would be ineffectual because the demolition Gruebel sought to prevent has already occurred. The unresolved issue Gruebel identifies is not in controversy in this appeal, and the building to which the issue relates is not involved in this appeal. Therefore, we hold that this appeal is moot and should be dismissed. Accordingly, the appeal is dismissed as moot.

Opinion delivered March 16, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)