Ron and Brian Hutcherson had big plans for Brian's residence in Glendale, Arizona, which they planned to turn into a "Residence of Terror" for Halloween this year, as they've done for the past two years. Problem: their $40,000 extreme makeover is in violation of housing association rules, and the housing association finally had had enough. The HOA attorney sent the brothers a letter saying that after a proceeding, assuming things did not go the Hutchersons' way, they'd be stuck with a $2500 daily fine for every day the haunted house was around. The brothers, who had planned to charge the public a fee to visit their marvel, are not sure what they will do next. Read more here in a Phoenix Metro News story, or watch video from KXNV here.
I would assume that inside changes and invitations to a few friends would be okay; it's the changes to the outside of the unit, plans to open the community to non-residents, and charges to visit the "Residence of Terror" without discussing any of these with the housing association board (and getting approval) which are objectionable. Of course, the Hutchersons may argue (if it's true) that they've done this before, and no one has said "boo." However, the neighbors' and HOA board's failure to object in the past only goes so far to bar objection at this point.
Meanwhile, read what the Georgia Supreme Court did earlier this year when the City of Comer tried to shut down a haunted house in a residential area. Timothy Seymour set up a haunted house at his residence, but the city objected and filed for an injunction, on the theory that the haunted house was a "special event," which would presumbly be disruptive to the area. The trial court denied the request and the city appealed, all the way to the Georgia Supremes. The Court dismissed the case because Mr. Seymour had shut down his haunted house, since by the time the wheels of justice had ground around, Halloween had come and gone. Now, you might reasonably say, Halloween happens every year, and Mr. Seymour might set up his haunted house again. You're quite right. Here's what the Court has to say on the matter.
Timothy Scott Seymour owned a home and an adjacent barn in an area zoned by the City of Comer (“Comer”) as residential. Seymour decided to operate a haunted house on the property in October 2007 to raise money for charity. On September 4, 2007, Seymour approached members of Comer's city council informally about operating the haunted house and, based on that contact, believed there was no objection to the haunted house and no need for a zoning permit. The event was scheduled to occur on October 19, 20, 26, 27, and 31, 2007. On October 19, 2007, Comer moved for a temporary restraining order and injunction to enjoin Seymour from operating the haunted house, citing a violation of Comer's 1999 zoning code which prohibited “special events” from being held in areas zoned as residential. The temporary restraining order was denied and Seymour operated the haunted house as planned on October 19 and 20, 2007. On October 25, 2007, a day before the haunted house was scheduled to operate for a second weekend, a final hearing was held and both sides presented witnesses and documentary evidence. At the conclusion of the hearing, the trial court denied Comer injunctive relief. The last day Seymour operated the haunted house was October 31, 2007. Although Comer requests that this Court consider the merits and reverse the trial court's order denying injunctive relief, we must dismiss the appeal as moot.
“[A] case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights… .” Collins v. Lombard Corp., 270 Ga. 120, 121 (1) (508 SE2d 653) (1998)....When the act that is the subject of a grant or denial of injunctive relief is completed, then the matter is moot and no longer subject to appeal....Comer sought to enjoin the operation of Seymour's haunted house in a residential zone and was denied. Seymour last operated the haunted house on October 31, 2007. Therefore, the activity sought to be enjoined has already ceased. Any determination this Court would make regarding the trial court's denial of the injunction would be an abstract exercise unrelated to any existing facts. Collins v. Lombard Corp., supra, 270 Ga. at 121.(1) Because the matter is moot, the appeal is dismissed. OCGA § 5-6-48 (b)(“Where the questions presented have become moot” the appeal “shall be dismissed”).
Now, two of the Justices on the Court did not see the question as moot. They did agree with the City--that if Mr. Seymour reopened his haunted house--the issue would still be there, but the City would be precluded from doing anything about it because it had been to court already, and the trial court had denied the injunction.
Because the error complained of in this case is capable of repetition, but is likely to evade judicial review, I must dissent from the majority's decision to dismiss this appeal as moot. Collins v. Lombard Corp., 270 Ga. 120, 121 (508 SE2d 653) (1998) (where “the error is capable of repetition and yet evades review, the appeal will be considered”) (citation and punctuation omitted; emphasis supplied).
Here, the trial court denied the City injunctive relief that would have prevented Seymour from conducting his October 2007 haunted house without a permit. Halloween occurs every year, and if Seymour decides to have another haunted house at the same location as his 2007 haunted house, any attempt by the City to enjoin Seymour's efforts would be barred by res judicata or collateral estoppel in light of the trial court's prior ruling on the merits of this same issue between these same parties. See, e.g., Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995) (“[r]es judicata prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim”) (footnote omitted); Norris v. Atlanta & West Point R. Co., 254 Ga. 684, 685 (333 SE2d 835) (1985) (collateral estoppel “precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action”) (citation omitted). Assuming without deciding that the trial court erred in denying the City injunctive relief in the first instance, Seymour would nevertheless be allowed to conduct his haunted house every year at the same location without the City having any recourse. This would be true even if the City had a potentially meritorious legal argument for enjoining the haunted house activities that were occurring without a City permit. OCGA §§ 9-12-40 and 9-12-42. Therefore, dismissal is inappropriate in this case, as it will serve only to ensure that the underlying issues in this case may recur in perpetuity while constantly evading substantive judicial review. I therefore respectfully dissent from the majority's decision to dismiss this appeal as moot.
I am authorized to state that Justice Carley joins in this dissent.
Here's a link to the case, City of Comer v. Seymour, 283 Ga. 536 (2008).