Charles Wiper Inc. (Wiper), the relator in this mandamus case, petitioned the circuit court for a writ ordering the City of Eugene to process its Measure 37 claim. See former ORS 197.352 (2005) (Measure 37), amended by Oregon Laws 2007, chapter 424, section 4, renumbered as ORS 195.305 (2007) (Measure 49). The circuit court allowed the writ, issued a general judgment to that effect, and eventually awarded Wiper its attorney fees by way of a supplemental judgment. The city appeals both judgments, arguing that, by the time the court entered them, the action was moot as a result of the passage of Measure 49. We agree that the general judgment in this case was entered after the case had become moot; accordingly, we vacate the judgment and supplemental judgment and remand for entry of a judgment dismissing Wiper’s petition.
The facts are undisputed. Wiper owns land within Eugene city limits. When it first acquired the property, the land was outside of the city limits; when it was subsequently annexed, it became subject to a variety of land use regulations to which it had not been subject before. According to Wiper, those land use regulations restrict the property’s use and reduce its fair market value. Measure 37 went into effect in 2004; under that law, the city had to either waive enforcement of the land use regulations that did not apply to the property when Wiper acquired it or pay him compensation for the reduction in value that those regulations caused. In December 2006, Wiper filed a Measure 37 claim requesting that the city take one or the other of those actions. Under the Eugene City Code, the city council was required to take action on a Measure 37 claim within 180 days of its filing. 1
*385 The city, however, did not act on Wiper’s claim within 180 days. In June 2007, well past the 180-day deadline, Wiper filed a petition for an alternative writ of mandamus that would compel the city to act on the Measure 37 claim or show cause why it was not required to do so. The alternative writ issued, and the city elected to defend its inaction.
In the meantime, the Oregon legislature was in the process of amending Measure 37. The amendments, which were passed by the legislature and referred to the voters as Measure 49, were passed during the general election on November 6, 2007.
See generally Corey v. DLCD,
On November 30, 2007 — that is, after the voters passed Measure 49 but before its effective date — the circuit court held a hearing on Wiper’s mandamus petition. The city contended that, in light of Measure 49, the issuance of the writ sought by Wiper would have no practical effect on the rights of the parties; Wiper’s claim would be handled under the Measure 49 process rather than Measure 37. Hence, the city contended, Wiper’s petition should be dismissed as moot. The city further contended that, on the merits, the writ should not issue because the city was under no obligation to process Wiper’s claim until the city manager made a recommendation regarding the claim, which the manager still had not done.
Wiper took the position that “whether the City had a legal obligation [to process the claim] should be determined as of the date the Alternative Writ was issued [in June]” and not under Measure 49. As for the merits, Wiper argued that the city council could not foist responsibility for the delay onto the city manager. In Wiper’s words, “the city is the city” — whether acting through the city manager or the city *386 council — and the city violated its own ordinance, whatever the reason for delay.
The circuit court agreed with Wiper on the question of mootness and on the merits, and on the same day as the hearing (November 30, 2007), the court issued an order stating, ‘Writ to issue, and [Wiper’s counsel] shall prepare Writ.” However, the court did not sign or enter a judgment at that time. Indeed, the general judgment regarding Wiper’s petition was not signed until nearly a month later, on December 26, 2007, and it was not entered until January 4, 2008. The judgment stated,
“Judgment is entered in favor of [Wiper] and against [the city]. A preemptory writ of mandamus is issued ordering [the city] to hold a public hearing, if one is to be held, not later than January 31, 2008, and to adopt a resolution pursuant to Eugene Code 2.090(2) with respect to [Wiper’s] Measure 37 claim for compensation not later than February 11, 2008.”
The writ, too, was signed on December 26, 2007, and issued along with the judgment.
On January 28, 2008, pursuant to the writ, the city held a public hearing on Wiper’s Measure 37 claim. Shortly thereafter, the city council adopted a resolution denying the claim. Ten days later, the circuit court awarded attorney fees to Wiper by way of a supplemental judgment. See ORS 34.210(2) (court may, in its discretion, “designate a prevailing party and award attorney fees, costs and disbursements to the prevailing party” in a mandamus action). This appeal followed.
We begin with the question of mootness, a “species of justiciability.”
First Commerce of America v. Nimbus Center Assoc.,
*387 “[Plaintiffs’ contention that Measure 49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect. In fact, Measure 49 by its terms deprives Measure 37 waivers — and all orders disposing of Measure 37 claims — of any continuing viability, with a single exception that does not apply to plaintiffs’ claim. Thus, after December 6, 2007 (the effective date of Measure 49), the final order at issue in the present case had no legal effect. It follows that resolution of the issue that the Court of Appeals decided in Corey and as to which we allowed review — whether the Court of Appeals or the circuit court has jurisdiction to review DLCD’s final order respecting plaintiffs’ Measure 37 claim — can have no practical effect upon the parties: If the order at issue has no continuing legal effect, then neither party can gain anything from review in either forum. The case is moot.”
In light of
Corey
and subsequent case law, it is clear that, at least as of December 6, 2007, there was no justiciable controversy between Wiper and the city regarding the processing of the Measure 37 claim.
See Corey,
Wiper offers two bases for upholding the general and supplemental judgments. First, Wiper focuses on the court’s November order that the writ should issue, an order entered before Measure 49 went into effect. In Wiper’s view, it would have been error for the court to dismiss the case as moot at that point based upon “the potential or subsequent effect of a law that was not in effect at the time the trial court rendered its decision.”
The problem with that argument, however, is that the writ did not issue in November 2007. The writ issued along with the general judgment, neither of which was signed until late December. It is the judgment — not the court’s November order — that finally determined the parties’ rights and obligations.
See
ORS 34.240
(“From the judgment of the circuit court
* * * refusing to allow a mandamus, or directing a peremptory mandamus, an appeal may be taken in like manner and with like effect as in an action.” (Emphasis added.));
State ex rel Lowell v. Eads,
Second, Wiper argues that this case is (and was) justiciable because, even if the underlying mandamus dispute was nonjusticiable, it nonetheless formed the predicate for the circuit court’s attorney fee award.
See 2606 Building v. MICA OR I Inc.,
In
Kay v. David Douglas Sch. Dist. No. 40,
The Supreme Court approached the issue differently:
“The problem, however, is not whether the appeal was moot, but whether a justiciable controversy between the parties existed at the time of the circuit court’s judgment. * * *
“The judgment holding defendants liable for plaintiffs’ attorney fees might have prevented the case from becoming moot on appeal, because that award depended on plaintiffs’ success on the merits. But the award of attorney fees did not occur until the court signed a written order or judgment, which the court did only on June 28,1984, more than a month after the scheduled commencement exercises.”
*390
The same reasoning applies here. The issue is not whether the appeal is moot; the question is whether the circuit court should have dismissed the proceedings once Measure 49 went into effect, because the issuance of the writ would no longer have had any practical effect on the rights of the parties. Here, as in
Kay,
the court’s subsequent attorney fee award did not revive a controversy that had already become moot by the time the circuit court entered judgment on the merits. And, in the absence of a favorable judgment on the merits, Wiper had no entitlement to attorney fees as a “prevailing party.”
See
ORS 34.210(2) (authorizing court to “award attorney fees, costs, and disbursements to the prevailing party” in a mandamus action); ORS 20.077(2) (“For the purposes of making an award of attorney fees on a claim, the prevailing party
is the party who receives a favorable judgment
or arbitration award on the claim.” (Emphasis added.));
cf. Crandon Capital Partners v. Shelk,
Judgment and supplemental judgment vacated; remanded for entry of judgment dismissing petition as moot.
Notes
Eugene City Code 2.090(2) provided:
“Upon conclusion of any hearing, and prior to the expiration of 180 days from the date the claim was filed, the city council shall adopt a resolution that:
“(a) Determines that the claim is a valid claim and removes or modifies land use regulation(s) with respect to the subject property to allow the owner to use the property for a use permitted at the time the owner acquired the property;
“(b) Determines that the claim is a valid claim and compensation is due to the claimant in an amount set forth in the council’s resolution;
“(c) Determines that the claim is a valid claim and that the city should acquire the property; or
“(d) Denies the claim.”
At oral argument, Wiper argued that, although the city argued at the November 30 hearing that the petition would be moot when Measure 49 went into effect seven days later, the city never renewed or updated its argument when mootness was no longer prospective and, for that reason, speculative. We conclude that the court was fully aware of the city’s mootness argument and that a renewed and updated motion was not necessary in order to preserve its claim of error; and, in any event, the issue is one of justiciablity.