Rachel Anderson v. Metropolitan Government Of Nashville & Davidson County, TN

01/23/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 15, 2017 Session

RACHEL ANDERSON, ET AL. v. METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY, TN

Appeal from the Circuit Court for Davidson County

No. 15C3212 Kelvin D. Jones, Judge

___________________________________

No. M2017-00190-COA-R3-CV

___________________________________

This case involves various issues related to an ordinance the Metropolitan Government of

Nashville and Davidson County enacted to address short-term rental properties. Among

other things, the enacted ordinance provided that no more than 3% of non-owner-

occupied single-family or two-family residential units would be granted short-term rental

permits in each census tract. The plaintiffs, who previously listed their home on

Airbnb.com, filed suit against the Metropolitan Government challenging the

enforceability of the ordinance on several fronts. In addition to asserting that the enacted

ordinance was unconstitutionally vague, the plaintiffs contended that the 3% cap on

certain short-term rentals was an unlawful monopoly. After competing motions for

summary judgment were filed, the trial court held that the definition of a “short-term

rental property” was unconstitutionally vague as-applied to the plaintiffs, but it also held

that the 3% cap did not constitute a monopoly. Given the plaintiffs’ success on their

constitutional “vagueness” claim, the trial court found them to be prevailing parties under

42 U.S.C. § 1988 and awarded them certain attorney’s fees. On appeal, both sides raise

issues asserting error. Because several definitions contained within the governmental

ordinance have been amended since the filing of this appeal, we conclude that the

plaintiffs’ constitutional “vagueness” claim is now moot. Concerning the propriety of the

3% cap on non-owner-occupied short-term rentals, we have determined that the cap is

constitutionally permissible even assuming that it constitutes a monopoly. For reasons

discussed herein, we vacate the award of attorney’s fees and remand the issue for

reconsideration.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in

Part, Vacated in Part and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O.

GIBSON and KENNY ARMSTRONG, JJ., joined.

Lora Barkenbus Fox and Catherine J. Pham, Nashville, Tennessee, for the appellant,

Metropolitan Government of Nashville & Davidson Co.

Braden H. Boucek, Nashville, Tennessee, for the appellees, Rachel Anderson, and P. J.

Anderson.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

Rachel and P.J. Anderson (“the Andersons”) moved from Chicago to Nashville in

August 2013 due to Mr. Anderson’s career as an aspiring musician. The couple bought a

home in the Germantown neighborhood of Nashville and began listing their home on

Airbnb.com in the fall of that year.

In 2014, the Metropolitan Council, the legislative body for the Metropolitan

Government of Nashville and Davidson County (“Metro”), began debating laws to

address short-term rental properties. This process resulted in the passage of two

ordinances in February 2015, Substitute Ordinance No. BL2014-909 and Ordinance No.

BL2014-951. Under the ordinances, a “Short Term Rental Property,” or “STRP,” was

defined to mean “a residential dwelling unit containing not more than four sleeping

rooms that is used and/or advertised for rent for transient occupancy by guests as those

terms are defined in Section 5.12.010 of the metropolitan code.” Substitute Ordinance

No. BL2014-909; Ordinance No. BL2014-951. The ordinances also specifically stated

that “[r]esidential dwelling units rented to the same occupant for more than 30 continuous

days, Bed and Breakfast establishments, boarding houses, hotels, and motels shall not be

considered Short Term Rental Property.” Substitute Ordinance No. BL2014-909;

Ordinance No. BL2014-951. The primary ordinance implicated in this appeal, Ordinance

No. BL2014-951, imposed a number of requirements and restrictions on homeowners

seeking to operate a STRP. Among other things, it required operators of a STRP to

obtain a permit, to obtain proof of liability insurance coverage, and to obey certain fire

safety requirements. Ordinance No. BL2014-951. Advertising restrictions were also

implemented. First, homeowners were prohibited from advertising their property for use

as a STRP without having first obtained a permit. Id. However, even with a permit,

homeowners were not allowed to display signs or other advertising on the property

indicating that the dwelling unit was being utilized as a STRP. Id.

As is of particular relevance to this appeal, Ordinance No. BL2014-951 also

placed a limit on the number of non-owner-occupied STRPs allowed. Specifically, it

provided that no more than 3% of the single-family or two-family residential units within

each census tract shall be permitted as non-owner-occupied STRPs. Id. No limitation

was implemented regarding the overall number of owner-occupied STRPs.

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The Andersons obtained an owner-occupied permit in June 2015, and the

following month, enforcement of the ordinances began. At the time they obtained their

owner-occupied permit, the Andersons had no intention of moving from Nashville.

However, things soon changed. After the Andersons obtained their permit, Mrs.

Anderson’s employer proposed promoting her to an executive level position. The

opportunity was appealing and offered several benefits, but in order to take the position,

the Andersons would have to move back to Chicago.

For various reasons, the Andersons decided that they would like to move but still

keep their home in Nashville. Because they also desired to continue offering short-term

rentals of their Nashville home, they intended to convert their STRP permit from an

owner-occupied permit to a non-owner-occupied permit. Although Mr. Anderson

attempted to get a non-owner-occupied permit on August 19, 2015, his efforts proved

unsuccessful. Because the 3% cap on non-owner-occupied permits had already been

reached in the Andersons’ census tract, the request for a permit was denied.

The present litigation commenced shortly thereafter on August 26, 2015, when the

Andersons filed suit against Metro in the Davidson County Circuit Court. The suit was

brought in part under 42 U.S.C. § 1983 and asserted several claims, nearly all of which

alleged constitutional infirmities with portions of the Metro Code. Most of the raised

concerns related to alleged invalidity of Ordinance No. BL2014-951 (the “STRP

ordinance”). First, the Andersons contended that there was an overlap between the

definitions for hotels, bed and breakfast establishments, and boardinghouses, which were

exempt from the STRP ordinance, and the definition for STRPs. Assuming they were not

determined to be exempt from Metro’s new STRP ordinance, the Andersons alleged that

the ordinance must be deemed unconstitutionally vague when measured against the due

process clause of the Fourteenth Amendment to the federal Constitution and Article 1,

Section 8 of the Tennessee Constitution. The Andersons also raised state and federal

constitutional claims with respect to the advertising restrictions contained in the STRP

ordinance. According to the Andersons, the advertising restrictions unlawfully abridged

their free speech rights.

The Andersons’ attack on the new STRP ordinance was not limited to advertising

and definitional concerns but also included challenges to the 3% cap. According to the

Andersons, the 3% cap on non-owner-occupied STRPs violated equal protection, was a

substantive due process violation, and was an unlawful monopoly in violation of Article

1, Section 22 of the Tennessee Constitution.1 In specific regards to their anti-monopoly

claim, the Andersons contended that the cap had “no legitimate relation to any valid

public purpose.”

1

The equal protection and substantive due process challenges to the 3% cap are not at issue in

this appeal.

-3-

In addition to contesting the validity of the new STRP ordinance, the Andersons

took issue with another Metro ordinance codified at Metro Code § 6.28.010, which

required every person “engaged in the business of lodging transients” to keep a register of

its guests and to show such register to the police upon written request. According to the

Andersons, this requirement ran afoul of Article 1, Section 7 of the Tennessee

Constitution and the Fourth Amendment to the federal Constitution. In requesting relief

stemming from the aforementioned claims, the complaint sought declaratory relief,

injunctive relief, and the recovery of attorney’s fees pursuant to 42 U.S.C. § 1988.

In September 2015, the Andersons filed a motion for a preliminary injunction

concerning a minority of the claims they had asserted in their complaint, and in October

2015, Metro filed a motion to dismiss the lawsuit. Both motions were heard by the trial

court on October 30, 2015, and later resolved in a series of orders entered on November

12, 2015. The trial court’s November 12 orders granted partial relief to both sides. In

finding that the Andersons were likely to succeed on the merits of their free speech and

search and seizure claims, the trial court entered an injunction “prohibiting enforcement

of either the prohibition on STRP signage or the obligation to keep and surrender guest

records.” The Andersons’ substantive due process claim, however, was dismissed.

The parties’ dispute over the Andersons’ free speech and search and seizure claims

hinged, in part, on the applicability of the United States Supreme Court’s decisions in

Reed v. Town of Gilbert, -- U.S. ---, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015), and City

of Los Angeles v. Patel, -- U.S. ---, 135 S. Ct. 2443, 192 L. Ed. 2d 435 (2015). Whereas

the Andersons suggested that these decisions strongly casted doubt on the

constitutionality of the prohibition on signage included in the STRP ordinance and the

requirement to surrender guest records codified at Metro Code § 6.28.010, Metro initially

disclaimed this notion. In 2016, however, Metro took steps to amend the ordinances

related to the Andersons’ free speech and search and seizure claims, citing both Reed and

Patel as a basis for its action.

The first change that occurred was in relation to the requirements contained in

Metro Code § 6.28.010. As previously noted, that section mandated that those “engaged

in the business of lodging transients” must show a register of its guests to the police upon

written request. As amended in May 2016 by Ordinance No. BL2016-177, Metro Code §

6.28.010 now includes the following provision:

If inspection of the book or register is refused, the operator, manager, or

person in charge shall secure the book or register in the manner required by

the requesting police officer, so that its contents are preserved. The book or

register shall be kept in the secured location until such time as an

administrative or judicial search warrant, subpoena, or order can be granted

or denied, and any appeal resolved.

-4-

Subsequent to the amendment of Metro Code § 6.28.010, an ordinance was

introduced in July 2016 to amend the ban on advertising included within the STRP

ordinance. Specifically, the ordinance proposed deleting Metro Code § 6.28.030.E,

which had prohibited homeowners from displaying STRP advertising on their property,

and replacing it with the following language: “Signage. Any sign, as defined in M.C.L.

17.32.030.B, on a property used as a short term rental property shall be governed by the

provision of M.C.L[.] Chapter 17.32 Sign Regulations.” The ordinance passed its second

reading on August 2, 2016.

In light of the changes to Metro Code § 6.28.010 and the impending changes to

Metro Code § 6.28.030.E, Metro filed a motion on August 12, 2016 to dissolve the

preliminary injunction that had been granted by the trial court and to dismiss the

Andersons’ free speech and search and seizure claims. According to Metro, the

Andersons’ free speech and search and seizure claims were rendered moot by the changes

(and imminent changes) to the Metro Code. On August 17, 2016, subsequent to the filing

of Metro’s motion, the ordinance amending the STRP advertising restrictions was finally

approved. The following week, on August 25, 2016, the trial court entered an agreed

order dismissing the Andersons’ free speech and search and seizure claims as moot.

Incident to its dismissal of these claims, the trial court dissolved its preliminary

injunction.

Following the dissolution of the preliminary injunction, four primary claims

remained pending in the trial court: (1) the Andersons’ claim for an exemption under the

STRP ordinance; (2) the constitutional “vagueness” claim; (3) the equal protection claim;

and (4) the anti-monopoly claim. These claims were subsequently the center of

competing motions for summary judgment, and on October 28, 2016, the trial court

entered an order with respect to each side’s request for summary judgment. Although the

trial court concluded that the “STRP” definition was unconstitutionally vague as had been

argued by the Andersons, it granted Metro’s motion for summary judgment with respect

to the Andersons’ equal protection and anti-monopoly claims.2 The trial court later

amended its October 28 order by clarifying that the STRP definition was

unconstitutionally vague “as-applied” to the Andersons, and in an order entered on

January 23, 2017, awarded the Andersons over $100,000.00 in attorney’s fees. This

appeal followed.

ISSUES PRESENTED

Collectively, the parties’ principal appellate briefs raise the following issues:

2

The trial court held that it could not conclude whether or not the Andersons’ property was

exempt from the STRP ordinance given its determination that the STRP definition was unconstitutionally

vague.

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1. Did the trial court err in determining that the STRP definition was

unconstitutionally vague?

2. Did the trial court err in failing to conclude that the 3% cap represented an

unlawful monopoly?

3. Did the trial court err in awarding attorney’s fees and costs to the Andersons based

on its “vagueness” ruling?

4. Did the trial court err in concluding that the Andersons only prevailed on their

constitutional “vagueness” claim?

STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. Robinson v.

Baptist Mem’l Hosp., 464 S.W.3d 599, 606 (Tenn. Ct. App. 2014) (citations omitted).

“The resolution of a motion for summary judgment is a matter of law, which we review

de novo with no presumption of correctness.” Id. at 607 (citing Martin v. Norfolk S. Ry.

Co., 271 S.W.3d 76, 84 (Tenn. 2008)). In general, an award of attorney’s fees will be

reversed or altered only if the trial court has abused its discretion. Sunburst Bank v.

Patterson, 971 S.W.2d 1, 7 (Tenn. Ct. App. 1997) (citations omitted). “A court abuses its

discretion when it causes an injustice to the party challenging the decision by (1)

applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or

(3) basing its decision on a clearly erroneous assessment of the evidence.” Lee Med., Inc.

v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citations omitted).

DISCUSSION

The Andersons’ Constitutional “Vagueness” Claim

Throughout the entirety of this litigation, the Andersons’ constitutional

“vagueness” claim has been predicated on the notion that Metro’s definition of a “STRP”

overlaps with specified uses that are themselves exempted from the reach of the STRP

ordinance. In developing this point at summary judgment, the Andersons argued as

follows:

The problem begins with the STRP law’s effort to exempt other entities that

house transients. An STRP is defined as a residential dwelling unit

containing not more than four (4) sleeping rooms that is used and

advertised for rent for transient occupancy by guests as those terms are

defined in the Hotel Occupancy Tax ordinance (Section 5.12.010). Metro

Code § 6.28.030(A). The STRP ordinance provides that bed and breakfast

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establishments, boardinghouses, hotels, and motels shall not be considered

short-term rental property, and are thus not governed by the law.

....

In many instances, these terms will overlap.

....

[For example,] the Andersons’ home fits the definition of a hotel. See

Metro Code § 5.12.10. Their home is a structure. They furnish

accommodations to transients for a consideration. Their home is occupied

and intended for occupancy by transients for dwelling, lodging or sleeping

purposes. While their home is a residential dwelling unit, an element of an

STRP, the hotel definition does not exclude residences from the definition.

....

There is no clear line of demarcation between these terms. An STRP may

at once be an STRP and governed by the law, or a hotel/boardinghouse/bed

and breakfast, and not. The ordinance collapses into a hopeless mess that

either exempts the Andersons or must be voided as vague and

unenforceable.

Although the trial court ultimately agreed with the Andersons on this issue and

concluded that the “STRP” definition was unconstitutionally vague as-applied to them,

Metro argues that this determination was in error. On appeal, it asks us to reverse the

trial court’s conclusion on this issue. Although the Andersons argue in response that the

trial court’s conclusion regarding “vagueness” was proper, we will not address the

constitutional “vagueness” issue. It is apparent to us that the matter is no longer

justiciable.

Tennessee courts have limited their role to deciding “legal controversies.” Norma

Faye Pyles Lynch Family Purpose LLC v. Putnam Cnty., 301 S.W.3d 196, 203 (Tenn.

2009) (citation omitted). A proceeding involves a “legal controversy” when the disputed

issue is real and existing, as opposed to theoretical or abstract. Id. (citations omitted).

Justiciability doctrines assist the courts in determining whether a particular case presents

a legal controversy. Id. Among the many justiciability doctrines that exist, the mootness

doctrine is at issue here. Although the doctrines of standing and ripeness “focus on the

suit’s birth, the doctrine of mootness focuses attention on the suit’s death.” Id. at 204

(citation omitted). Importantly, “[a] case must remain justiciable (remain a legal

controversy) from the time it is filed until the moment of final appellate disposition.” Id.

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at 203-04 (citations omitted). A case can become moot, and therefore lose justiciability,

“either by court decision, acts of the parties, or some other reason occurring after

commencement of the case.” Id. at 204 (citations omitted). If a case no longer serves as

a means to provide some sort of judicial relief, it will be considered moot. Id. (citations

omitted).

Here, the record reflects that Metro passed a new ordinance to deal with the STRP

definition after the trial court declared the prior ordinance unconstitutional. Specifically,

subsequent to the filing of notices of appeal in this case, Metro approved Substitute

Ordinance No. BL2016-492.

In pertinent part, the new ordinance deletes the previous definition of “Short Term

Rental Property” and replaces it with a new one. Under the new ordinance, a STRP

“means a residential dwelling unit containing not more than four sleeping rooms that is

used and/or advertised only through an online marketplace for rent for transient

occupancy by guests.” Notably, unlike the old definition, the new definition does not

pose the issue complained about by the Andersons. That is, it does not state that bed and

breakfast establishments, boarding houses, hotels, and motels shall not be considered

“Short Term Rental Property.” In any event, the new ordinance also provides new

definitions for “Hotel,” “Bed and breakfast inn,” and “Boarding house.”

Because the Andersons’ constitutional “vagueness” claim relates to a definition

that is no longer in place, our inquiry into the matter would not be an inquiry into a “legal

controversy.” The issue is a moot one. As such, we decline to address the matter. See

City of Memphis v. Hargett, 414 S.W.3d 88, 97 (Tenn. 2013) (“[T]he Plaintiffs’ claims

concerning the library photo ID cards are premised upon the construction of a provision

that is no longer in force. Because the amended version of the Act will govern future

elections, a judgment granting the Plaintiffs the interpretation they seek would not

provide any meaningful relief.”).

Monopoly Issue/Validity of the 3% Cap

Notwithstanding the definitional amendments that have mooted the constitutional

“vagueness” issue, we are of the opinion that the validity of the 3% cap remains a live

controversy because the new ordinance, Substitute Ordinance No. BL2016-492, also

provides that “[n]o more than three percent of the single-family or two-family residential

units within each census tract shall be permitted as . . . non-owner-occupied short-term

rental use.”3 According to the Andersons, the 3% cap represents an unconstitutional

monopoly. For the reasons set forth below, we disagree.

3

The ordinance originally providing for a 3% cap, Ordinance No. BL2014-951, had implemented

the 3% cap by adding a new section to the Metropolitan Code. That section, section 6.28.030, was

deleted in its entirety by Substitute Ordinance No. BL2016-492. Under the new ordinance, the 3% cap

and the new definitions regarding homesharing were placed under Title 17 of the Metropolitan Code.

-8-

Article 1, Section 22 of our State Constitution provides that “monopolies are

contrary to the genius of a free State, and shall not be allowed.” A monopoly has been

defined to mean “an exclusive right granted to a few, which was previously a common

right.” City of Watauga v. City of Johnson City, 589 S.W.2d 901, 904 (Tenn. 1979). “If

there is no common right in existence prior to the granting of the privilege for franchise,

the grant is not a monopoly.” Id. (citations omitted). Importantly, whether a legislative

enactment grants a monopoly is not ultimately dispositive of whether that enactment is

constitutional. Despite our Constitution’s anti-monopoly clause, it is clear that not all

monopolies are unlawful.

In general, a monopoly is permitted when it is directed toward the public good.

See Leeper v. State, 53 S.W. 962, 965 (Tenn. 1899) (“If a privilege thus conferred upon

an individual, the object of which is to benefit the state and its citizens, can be termed a

‘monopoly,’ it is certainly not of that class prohibited by the constitution, which refers to

privileges granted for a money consideration, or which are bestowed upon an individual

for his benefit.”). In fact, it is “settled law that the anti-monopoly clause of our

constitution does not prohibit the legislature from granting a monopoly, in so far as such

monopoly has a reasonable tendency to aid in the promotion of the health, safety, morals

and well being of the people.” Checker Cab Co. v. City of Johnson City, 216 S.W.2d

335, 337 (Tenn. 1948). In other words, “[i]f in the exercise of . . . [the] police power an

incidental monopoly happens to be created, it is not one which offends the anti-monopoly

clause of our Constitution.” Landman v. Kizer, 255 S.W.2d 6, 7 (Tenn. 1953) (citation

omitted).

Although there is some suggestion by the Andersons on appeal that the police

power cannot justify a monopoly, we are of the opinion that their position is in error.

While it is true that our Supreme Court has stated that a “monopoly cannot be validly

created merely by connecting such creation with the exercise of a police power,” Checker

Cab Co., 216 S.W.2d at 337, we understand this to mean that a government’s invocation

of the police power should not be blindly accepted by the courts. That is, the professed

justification for a monopoly is not acceptable merely because it is ostensibly connected to

the police power; the monopoly must actually bear a legitimate relation to the public

purposes sought to be accomplished. Id. (“[I]f the monopoly created has a legitimate

relation to the public purpose sought to be accomplished in the exercise of the police

power, then a Court is without authority to determine such monopoly invalid on the

theory that it thinks some other method would have accomplished the purpose sought.”).

As the previously-cited Landman decision instructs, a monopoly created through the

exercise of the police power is permitted “if the actual and real tendency of such

ordinance or statute is to effect the purpose of protecting the safety, health and morals of

the public.” Landman, 255 S.W.2d at 7 (citation omitted).

In advocating for a higher standard of review than is actually provided by the

relevant Tennessee decisions on this issue, the Andersons argue that whereas police

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powers may be a basis to promote a public’s “health, safety, morals, or welfare,”4 the

accepted justifications for a monopoly are not as broad. Specifically, by citing Checker

Cab, the Andersons contend as follows: “[M]onopolies must ‘aid in the promotion of

health, safety, morals and well being of the people.’ . . . Conspicuously absent from this

list is one highly general category – welfare. That is a significant omission.” In our

opinion, this argument lacks merit. As Metro argued in the trial court, “welfare and well-

being are synonymous terms.” Indeed, the first entry for “welfare” in Black’s Law

Dictionary defines the term as “[w]ell-being in any respect.” Black’s Law Dictionary

1625 (8th ed. 2004). Contrary to the Andersons’ argument, there is simply no

meaningful distinction between the public’s “health, safety, morals, and welfare” and the

public’s “health, safety, morals, and well-being.”5

No doubt, the Andersons’ attempt to parse the language from Checker Cab is tied

to their attempt to place the relevant standard of review as involving something more than

an inquiry into whether the police power was properly exercised. The case law clearly

indicates, however, that the scope of judicial inquiry is tied to scrutinizing whether the

police power is a proper basis for the enacted monopoly. As the Supreme Court has

stated, “[t]he courts [must] decide . . . whether [the law] has any real tendency to carry

into effect the purposes designed—that is, the protection of the public safety, the public

health, or the public morals—and whether that is really the end had in view.” Checker

Cab Co., 216 S.W.2d at 337 (quoting Motlow v. State, 145 S.W. 177, 188 (Tenn. 1912)).

In light of certain arguments advanced by the Andersons on appeal,6 we are

compelled to note that the relevant judicial considerations under this test do not involve

an inquiry into the motivations or “true purpose” behind the ordinance. Although the

Andersons suggest that the “end . . . in view” language from Checker Cab requires such

an inquiry, we respectfully disagree. In our opinion, although courts are certainly

required to determine whether a monopoly bears a legitimate relation to valid end goals,

4

See City of Knoxville v. Knoxville Water Co., 64 S.W. 1075, 1085 (Tenn. 1901) (noting that the

“public health, the public morals, the public safety, and the general and comprehensive clause of the

public welfare” have been embraced as within the scope of the police powers).

5

“Welfare” and “well-being” are clearly interchangeable, as is evidenced by judicial articulations

of the police power. Compare Knoxville Water Co., 64 S.W. at 1085 (noting that the “public health, the

public morals, the public safety, and the general and comprehensive clause of the public welfare” have

been embraced as within the scope of the police powers), with City of Norris v. Bradford, 321 S.W.2d

543, 546 (Tenn. 1958) (“The police power inherent in the sovereign is born of necessity for the protection

and advancement of the public safety, health, morals and natural well being of its people.”). Moreover,

although the Andersons suggest “welfare” is not a permissible consideration for a monopoly, we observe

that one Supreme Court decision specifically uses that term. See Landman, 255 S.W.2d at 7 (referring to

“welfare of the people” in the context of a review under the anti-monopoly clause).

6

The Andersons express concern that the true purpose of the 3% cap was economic protectionism

in favor of the “traditional hospitality sector.”

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or public purposes, this does not require a review of a legislature’s actual subjective

motivations, assuming such motivations could actually be divined. In reaching this

conclusion, we observe that the language relied upon by the Andersons from Checker

Cab is taken from Motlow v. State, 145 S.W. 177 (Tenn. 1912). This is noteworthy

because in a number of other decisions in which the Motlow language has been quoted,

Tennessee courts, including our Supreme Court, have indicated that the “motives” of the

legislative body are not considered. See Davidson Cnty. v. Rogers, 198 S.W.2d 812, 814-

15 (Tenn. 1947) (quoting the Motlow language and later stating that “[n]either the

‘motives’ of the County Court . . . nor the methods . . . are subject to . . . review”); Fiser

v. City of Knoxville, 584 S.W.2d 659, 662 (Tenn. Ct. App. 1979) (quoting the Motlow

language and later stating that the Supreme Court has rejected attempts to explore

motives behind the enactment of zoning ordinances); and Mobile Home City of

Chattanooga v. Hamilton Cnty., 552 S.W.2d 86, 87-88 (Tenn. Ct. App. 1976) (quoting

the Motlow language and later stating that “[n]either the ‘motives’ of the County Court . .

. nor the methods . . . are subject to . . . review”). If the “end . . . in view” language from

Motlow/Checker Cab required the motive inquiry suggested by the Andersons, the

pronouncements in these other cases would be irreconcilable.

In view of the foregoing understandings regarding the scope of judicial review, we

can now specifically turn to the validity of the 3% cap. First, does the 3% cap represent a

monopoly? If so, does it have a reasonable tendency to aid in the promotion of the

public’s health, safety, morals, or well-being?

The first question—whether the 3% cap is a monopoly—is vigorously disputed on

appeal. As previously noted, a monopoly is “an exclusive right granted to a few, which

was previously a common right.” City of Watauga, 589 S.W.2d at 904. In its order

dismissing the Andersons’ anti-monopoly claim, the trial court held that the 3% cap did

not constitute a monopoly because a “residential property owner’s ability to operate a

non-owner-occupied STRP was not a common right before the passage of the ordinance

in question.” Metro contends that this conclusion was correct and submits that prior to

the passage of the STRP ordinances, the housing of transients was not legally allowed in

residential neighborhoods save for those operating a boarding house. It is unclear to us

how Metro’s argument on this point should prevail. At summary judgment, Metro did

not dispute that its Zoning Administrator had written an opinion in October 2014 stating

that his department had construed STRPs to be an incidental subordinate use to a

principal residential use. Moreover, in a sworn interrogatory response, Metro expressly

stated that “STRPs were not a Codes violation prior to the passage of the ordinance.”

Metro also argues that no monopoly is implicated because there is no exclusive

right that has been granted to a few. In advancing this point, it seems to suggest that

because permits are potentially available in each census district, this defeats the notion

that a monopoly has been established. We are not persuaded by this argument because

the cap at issue, in effect, enacts a monopoly within each census tract. As the Andersons

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have pointed out in their reply brief, the definition of a monopoly recognizes that

monopolies exist “within a community or district.” Trails End Campground, LLC v.

Brimstone Recreation, LLC, No. E2014-00336-COA-R3-CV, 2015 WL 388313, at *9

(Tenn. Ct. App. Jan. 29, 2015) (quoting Black’s Law Dictionary (9th ed. 2009) (quoting

54A Am. Jur. 2d Monopolies, Restraints of Trade, and Unfair Trade Practices § 781

(1996))).

In any event, our recognition of the 3% cap as a monopoly is not dispositive in

answering whether the cap is constitutionally infirm.7 As previously indicated, not all

monopolies are unlawful. “If in the exercise of . . . [the] police power an incidental

monopoly happens to be created, it is not one which offends the anti-monopoly clause of

our Constitution, if the actual and real tendency of such ordinance or statute is to effect

the purpose of protecting the safety, health and morals of the public.” Landman, 255

S.W.2d at 7 (citation omitted).8 Our Constitution simply does not prohibit monopolies

that bear a legitimate relation to such purposes and the public well-being. Checker Cab

Co., 216 S.W.2d at 337 (citations omitted).

When Metro passed the STRP ordinances under discussion herein, it professed

that the needs of long-term residents should be balanced with the allowance of short-term

rentals.9 As is evident from the parties’ briefs, the articulated concern with respect to

Metro’s long-term residents is the protection of residential character in neighborhoods.

Although the parties dispute whether this concern is a valid object of legislative action,

the trial court concluded that it was. In the alternative to its conclusion that the 3% cap

did not represent a monopoly, the trial court held as follows:

The Court further concludes that, even if the three percent cap constitutes a

monopoly, the monopoly created would be a permissible monopoly. The

Anti-Monopoly Clause of the Tennessee constitution does not prohibit the

granting of a monopoly if such monopoly “has a reasonable tendency to aid

in the promotion of the health, safety, morals and well-being of the people.”

Checker Cab Co. v. City of Johnson City, 216 S.W.2d 335, 337 (1948).

Assuming the three percent cap creates a monopoly, the monopoly is not an

7

Our ultimate conclusion regarding the validity of the cap would not be altered even if we

assumed that we have erred in considering the 3% cap to be a monopoly. As explained herein, because

the cap has a reasonable tendency to promote the public’s welfare by protecting the residential character

of neighborhoods, it is constitutionally permitted.

8

On two occasions, this Court has likened the standard to rational basis review. See Dial-A-

Page, Inc. v. Bissell, 823 S.W.2d 202, 206-07 (Tenn. Ct. App. 1991); Esquinance v. Polk Cnty. Educ.

Ass’n, 195 S.W.3d 35, 47 (Tenn. Ct. App. 2005).

9

This recitation accompanied the original STRP ordinances and the new ordinance, Substitute

Ordinance No. BL2016-492.

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impermissible one because it has a reasonable tendency to further those

goals. The alleged monopoly specifically furthers the well-being of Metro

citizens because it balances the interest between the citizens who want to

achieve benefits from renting their property on a short-term basis against

the interest of citizens who want to protect the residential character of their

neighborhoods.

While the Andersons argue that the protection of residential character is not a valid

exercise of the police power, we disagree. We consider the protection of residential

character to implicate a matter of the public’s well-being, and we hold this opinion even

to the extent that such protection might be considered to partially involve the promotion

of an aesthetic consideration. As noted by our Supreme Court, there is a strong judicial

trend toward sustaining exercise of the police power even when aesthetic considerations

constitute the sole or primary reason for the legislation. State v. Smith, 618 S.W.2d 474,

477 (Tenn. 1981) (“[I]n modern society aesthetic considerations may well constitute a

legitimate basis for the exercise of police power, depending upon the facts and

circumstances.”).

The 3% cap before us limits the number of single-family and two-family

residential units that may be permitted as non-owner-occupied short-term rentals. The

cap thus limits the ability of owners who do not permanently reside in their homes to

transform their properties into havens for transient occupancy. When moving for

summary judgment, Metro proffered a number of declarations from local residents in an

attempt to illustrate why limiting non-owner-occupied short-term rentals was desirable.

As one resident stated, “The reason we want limits on the non-owner-occupied houses on

our street is the same reason you don’t want to live in a hotel. There is an increased

number [of] transient strangers, and there is [a] decreased sense of community.” In

expounding on this sense of community and the effect that the proliferation of non-

owner-occupied short-term rentals had already had, the same resident stated:

The residents of our street are fairly close-knit, and we form a community;

this is one of the advantages and joys of living in Nashville. We chase each

other[’]s dogs when they get loose, drag each other[’]s trash cans out to the

curb when someone’s out of town, take UPS packages out of the rain, and

more. We watch over elderly neighbors and celebrate kids[’] birthdays.

We decorate our yards for holidays. (Christmas on Rudolph Avenue

involves a lot of Rudolph-themed decorations!) But 20%[10] of the

properties on our street are not part of this community. We have 20%

fewer neighbors and 20% fewer decorated yards.

10

According to this resident, 20% of the homes on her two-block street are non-owner-occupied

short-term rentals.

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In describing his experience with non-owner-occupied short-term rentals, another

resident stated as follows: “[M]y children’s friends have been replaced by bachelorette

parties.”

As Metro observed at summary judgment, even Mrs. Anderson expressed concern

about living in a neighborhood “that’s all short-term rentals.” When discussing this in

her deposition, she stated as follows:

Well, most of the Airbnb guests are a lot more wonderful than some

of the people that live in the neighborhood, but I just like the idea of

knowing your neighbors. You know, if you need a loaf of bread or some

milk, that you can go across the street. I mean, we don’t have much -- all

our houses are relatively small, so we spend a lot of time outside in the

summer. We all talk and things like that.

For the most part, I’ve really enjoyed getting to know all the Airbnb

guests that I’ve gotten to know, but you wouldn’t be able to develop those,

like, long-time friendships if the whole neighborhood were that way.

There is clearly a concern within the community that the development of

residential character is impacted negatively the more that single-family and two-family

residential units are inhabited by transient occupants as opposed to permanent residents.

As stated before, we are of the opinion that this concern is a valid object of municipal

action. Attempting to preserve a sense of community and residential character is a matter

of the public’s well-being, and having examined the cap in question, we conclude that it

has a reasonable tendency to promote this purpose.

Indeed, by limiting the number of one- and two-family residential units that may

be used as non-owner-occupied short-term rentals, the cap clearly bears a legitimate

relation to a valid end. By virtue of the cap, only a small percentage of these residential

units may be used for non-owner-occupied short-term rentals. This ensures the

overwhelming majority of single-family and two-family residential units are not occupied

by transient occupants. As Metro argued in a paper filed in support of its motion for

summary judgment, “If the Metro Council’s aim was to prevent short-term rental

properties with no long-term residents from overtaking residential neighborhoods, what

could be more rational than capping these types of STRPs?” Because the cap has a

reasonable tendency to aid in the protection of residential character and community,

which we conclude is a matter of public well-being, there is no basis to declare it

unlawful. Again, “[i]f in the exercise of . . . [the] police power an incidental monopoly

happens to be created, it is not one which offends the anti-monopoly clause of our

Constitution.” Landman, 255 S.W.2d at 7 (citation omitted). The trial court’s judgment

is affirmed as it relates to this issue.

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Attorney’s Fees

In this case, the Andersons asserted a number of federal constitutional claims

pursuant to 42 U.S.C. § 1983. In connection with these claims, they also sought to

recover attorney’s fees under 42 U.S.C. § 1988. Section 1988 provides that “[i]n any

action or proceeding to enforce a provision of [section 1983], the court, in its discretion,

may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42

U.S.C. § 1988(b). Although the trial court awarded the Andersons certain attorney’s fees

for their actions in the trial court pursuant to this authority, there is a dispute on appeal

concerning whether they were entitled to fees, and if so, whether the fees awarded were

proper.

As it concerns our discussion herein, only three of the Andersons’ claims are of

particular relevance: the constitutional “vagueness” claim under the Fourteenth

Amendment; the First Amendment free speech claim; and the Fourth Amendment search

and seizure claim. To recap, the Andersons were successful on their constitutional

“vagueness” claim in the trial court when, following summary judgment, the trial court

concluded that the STRP definition was unconstitutionally vague as-applied to them.

With respect to their asserted free speech and search and seizure claims, the Andersons

achieved some initial success when they were granted a preliminary injunction.

However, following the passage of ordinances that amended portions of the Metro Code

that the Andersons took issue with, these other claims were dismissed as moot.

When the Andersons sought attorney’s fees in the trial court, they contended that

they had achieved favorable results in more than one respect. In addition to highlighting

their success “in having the STRP law’s definitions declared unconstitutionally vague,”

the Andersons observed that they had “presented two claims that prevailed in an

injunction.” They argued that the results of the case warranted a “full award” of

attorney’s fees, and a declaration submitted by their attorney reflected that over

$140,000.00 in attorney’s fees had been incurred. Ultimately, the trial court did not

award the Andersons the full amount that had been requested, but instead, it awarded

approximately $103,000.00 in attorney’s fees upon finding that the Andersons had

prevailed on their Fourteenth Amendment “vagueness” claim.

For its part, Metro contends that no attorney’s fees should have been awarded. It

argues that the Andersons should not be considered “prevailing parties,” and even if they

are deemed to have prevailed, it submits that the amount of success obtained by them

does not warrant the recovery of a fee. It also takes issue with the sufficiency of the trial

court’s findings, arguing that the trial court performed no analysis of the relevant factors

to be considered when fashioning an award of fees. On the other hand, the Andersons

submit that the trial court’s award was insufficient. In pertinent part, they contend that

the trial court erred in failing to consider that they had also prevailed on their free speech

and search and seizure claims.

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“A plaintiff must be a ‘prevailing party’ to recover an attorney’s fee under §

1988.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A party is considered

“prevailing” upon proving any constitutional violation, even if only entitled to minimal

relief. Keith v. Howerton, 165 S.W.3d 248, 251 (Tenn. Ct. App. 2004) (citing Farrar v.

Hobby, 506 U.S. 103, 115 (1992)). Although ordinarily plaintiff’s counsel will be

entitled to full compensation for the time and effort expended in the representation when

a plaintiff prevails on a civil rights claim, id. at 252 (citing Hensley, 461 U.S. at 435), in

some circumstances, “even a plaintiff who formally ‘prevails’ under § 1988 should

receive no attorney’s fees at all.” Farrar v. Hobby, 506 U.S. 103, 115 (1992). The

amount of an appropriate fee must be determined on the facts of each case, Hensley, 461

U.S. at 429, and the determination of a reasonable attorney’s fee is a discretionary

inquiry. Howerton, 165 S.W.3d at 250-251 (citation omitted). A trial court abuses its

discretion when it applies an incorrect legal standard or reaches a clearly unreasonable

decision that causes an injustice to the aggrieved party. Id. at 251 (citation omitted).

At the outset, we note that we do not agree with Metro’s suggestion that an award

of any attorney’s fees was not permitted. Although Metro attempts to argue that the

Andersons should not be considered prevailing parties with respect to their constitutional

“vagueness” claim, we find this contention to be without merit. As we have already

detailed, the trial court concluded at summary judgment that the STRP definition was

unconstitutionally vague as-applied to the Andersons. At that time, therefore, the

Andersons were not subject to the STRP ordinances. Although this no doubt yielded a

significant result for the Andersons, Metro attempts to maintain that no real benefit was

achieved. According to Metro, short-term rentals were not permitted prior to the STRP

ordinances, and as such, Metro submits that the trial court’s ruling produced merely a

“symbolic victory.” However, as we have already noted, Metro did not dispute at

summary judgment that its Zoning Administrator had written an opinion in October 2014

stating that his department had construed STRPs to be an incidental subordinate use to a

principal residential use. Moreover, Metro expressly stated in a sworn interrogatory

response that “STRPs were not a Codes violation prior to the passage of the ordinance.”

The fact remains that the effect of the trial court’s ruling rendered the prior STRP

ordinances unenforceable against the Andersons. They were clearly “prevailing parties”

on this account.11

11

Although this Court previously noted that it is a “question of some difficulty” as to whether a

plaintiff who obtained relief in the trial court could be considered a prevailing party when the case

becomes moot while an appeal is pending, see McIntyre v. Traughber, 884 S.W.2d 134, 139 (Tenn. Ct.

App. 1994) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 483 (1990)), many courts have answered

this question as we have here. See, e.g., Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009)

(“When plaintiffs clearly succeeded in obtaining the relief sought before the district court and an

intervening event rendered the case moot on appeal, plaintiffs are still ‘prevailing parties’ for the purposes

of attorney’s fees for the [trial court] litigation.”).

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With that said, it is somewhat unclear why the Andersons were awarded the

amount of fees ordered by the trial court. We might surmise that the trial court gave an

amount less than had been requested because it considered the Andersons to have

prevailed on some claim(s), i.e., the vagueness claim, but not others. After all, the order

does specifically mention that the Andersons “are the prevailing party . . . because the

Court granted summary judgment on their Fourteenth Amendment ‘vagueness’ claim.”

However, on the whole, we are of the opinion that the order does not provide a sufficient

account for our appellate review. As Metro has suggested, although the trial court “noted

the correct standard” governing an award of fees,12 the trial court did not give much

indication as to how it weighed the relevant factors or what specifically informed its

reasoning. In relevant part, the trial court’s order on fees states as follows:

After reviewing the relevant pleadings and considering arguments

presented in this matter, the Court finds that the Plaintiffs are the prevailing

party within the meaning of 42 U.S.C. § 1988 because the Court granted

summary judgment on their Fourteenth Amendment “vagueness” claim.

Having considered the degree of success, the Court, in awarding

fees, considers a number of factors: the time devoted to performing the

legal service; the time limitations imposed by the circumstances; the

novelty and difficulty of the questions involved and the skill requisite to

perform the legal services properly; the fee customarily charged in this

locality for similar legal services; the amount involved; the results obtained;

and the experience, reputation, abilities of the attorney performing the legal

service.

12

This statement was made in Metro’s reply brief. In its initial brief, Metro had suggested that

the trial court’s order on attorney’s fees reflected that it did not consider all the relevant factors:

The Trial Court stated that it considered a number of factors in awarding attorney

fees and costs: “the time devoted to performing the legal service; the time limitations

imposed by the circumstances; the novelty and difficulty of the questions involved and

the skill requisite to perform the legal services properly; the fee customarily charged in

this locality for similar legal services; the amount involved; the results obtained; and the

experience, reputation, [and] abilities of the attorney performing the legal service.”

Notably, the Trial Court’s order contains no analysis of these factors, and the order does

not state that the Trial Court even considered the relationship between the extent of

success and the amount of the fee award as required[.]

As stated in this Opinion, we do not disagree with Metro that the trial court’s order is virtually devoid of

actual findings or analysis with respect to the factors it purportedly considered. However, the above

statement from Metro’s initial brief is imprecise as to the contents of the trial court’s order on fees. In

addition to the list of factors that Metro cites from the trial court’s order, the trial court’s order states that

it “considered the degree of success.”

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After considering these factors and the Declaration submitted by

Plaintiffs’ counsel, the Court hereby awards $103,000 in attorneys’ fees and

$1,304.36 in discretionary costs for a total award of $104,604.36.

Although the trial court’s order states that it considered the above factors, we have no

indication as to how it actually applied them, other than equating the Andersons’ “degree

of success” with the constitutional “vagueness” claim. We note that “[c]ourts are

required to document their decision-making process in making or denying 1988 fee

awards, and follow the guiding principles for doing so.” Whalen v. Hutchison, No.

E2001-01404-COA-R3-CV, 2002 WL 489558, at *2 (Tenn. Ct. App. Apr. 1, 2002).

Both the trial court’s findings and mode of analysis must be sufficiently clear to allow for

intelligent appellate review. Id. (citation omitted). “It is this Court’s purview to review,

not assume or speculate. Without any facts in the trial court’s order, we are forced to

guess at the rational[e] the trial court used in arriving at its decision. This we cannot do.”

Harthun v. Edens, No. W2015-00647-COA-R3-CV, 2016 WL 1056960, at *5 (Tenn. Ct.

App. Mar. 17, 2016); see also Hensley, 461 U.S. at 437 (stating that it remains important

for the court “to provide a concise but clear explanation of its reasons for the fee award”).

Because we would largely be forced to speculate how the trial court considered the

relevant factors incident to its § 1988 award, we must vacate the trial court’s award on

attorney’s fees and remand for reconsideration and further findings.

A remand is also necessitated, however, due to the one factor for which the trial

court appeared to provide a finding. As we have noted, the trial court concluded that the

Andersons were prevailing parties due to their success on the constitutional “vagueness”

claim. The implication from the order seems to be that the trial court did not consider the

Andersons to be prevailing parties concerning any other claims. We do not find favor in

this conclusion but agree with the Andersons that they prevailed on their free speech and

search and seizure claims for purposes of § 1988.

Although Metro opposes this notion and cites the decision in Sole v. Wyner, 551

U.S. 74 (2007), as a partial basis for its argument, Sole does not compel a result

unfavorable to the Andersons’ position. In that case, the United States Supreme Court

held that “[a] plaintiff who achieves a transient victory at the threshold of an action can

gain no award under [§ 1988] if, at the end of the litigation, her initial success is undone

and she leaves the courthouse emptyhanded.” Id. at 78. Importantly, however, it should

be noted that the Supreme Court’s holding was limited to a situation where the merits of

the case were decided against the plaintiff notwithstanding her initial success. The

Supreme Court emphasized that it “express[ed] no view on whether, in the absence of a

final decision on the merits of a claim for permanent injunctive relief, success in gaining

a preliminary injunction may sometimes warrant an award of counsel fees.” Id. at 86.

Subsequent decisions in the federal courts have attempted to tackle the question

left unaddressed in Sole. From our research, it does not appear that the federal courts

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have uniformly employed the same analysis governing when a preliminary injunction

might confer prevailing party status. Nonetheless, we note that there are several

decisions that suggest that the preliminary injunction obtained in this case would be

sufficient, when considered independently, to confer such status on the Andersons. See,

e.g., Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 717 (9th Cir. 2013) (noting that

courts have held that a plaintiff is a prevailing party for purposes of § 1988 when the

plaintiff “wins a preliminary injunction prohibiting enforcement of a particular statute,

and the defendant renders the case moot by repealing the statute before final judgment is

entered”). Consider, for instance, the decision in Common Cause/Georgia v. Billups, 554

F.3d 1340 (11th Cir. 2009), in which several organizations and voters filed a complaint

challenging a Georgia photo identification act. Although the plaintiffs were successful in

obtaining a preliminary injunction barring enforcement of the challenged law, the law

was repealed and replaced with a new statute. Id. at 1346. Further proceedings were

held regarding the new statute following the filing of an amended complaint, but the trial

court ultimately awarded the plaintiffs attorney’s fees for challenging the earlier statute.

Id. at 1349. Among the issues on appeal was whether the trial court erred in determining

that the plaintiffs were prevailing parties with respect to their challenge of the prior

legislation. In affirming that the plaintiffs were prevailing parties entitled to fees, the

Eleventh Circuit held as follows:

“The touchstone of the prevailing party inquiry ... is the material

alteration of the legal relationship of the parties in a manner which

Congress sought to promote in the fee statute.” Sole v. Wyner, 551 U.S. 74,

127 S.Ct. 2188, 2194, 167 L.Ed.2d 1069 (2007) (internal quotation marks

omitted). This Court has interpreted this language to require either “(1) a

situation where a party has been awarded by the court at least some relief

on the merits of his claim or (2) a judicial imprimatur on the change in the

legal relationship between the parties.” Smalbein ex rel. Estate of Smalbein

v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir.2003) (per curiam)

(internal quotation marks omitted) (emphasis omitted). We have stated that

“a preliminary injunction on the merits ... entitles one to prevailing party

status and an award of attorney’s fees.” Taylor v. City of Fort Lauderdale,

810 F.2d 1551, 1558 (11th Cir.1987).

....

The NAACP and voters are prevailing parties because the

preliminary injunction they obtained materially altered their legal

relationship with the election officials. The injunction prevented Georgia

from enforcing the requirement of photo identification for in-person voting.

That injunction remained effective until Georgia repealed the law at issue.

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Georgia argues that the decision of the district court not to enjoin the

current statute vitiated the earlier victory of the NAACP and voters, but we

disagree. Georgia relies on the rule that “[p]revailing party status ... does

not attend achievement of a preliminary injunction that is reversed,

dissolved, or otherwise undone by the final decision in the same case,”

Sole, 127 S.Ct. at 2195, but that rule is inapplicable. As the district court

explained, the preliminary injunction against the earlier statute was not

“reversed, dissolved, or otherwise undone” by any judicial decision.

Georgia instead repealed the enjoined statute.

Id. at 1356.

In another case, the Tenth Circuit has suggested that two principles should guide

our inquiry in this context:

First, and most fundamental, in order for a preliminary injunction to serve

as the basis for prevailing-party status, the injunction must provide at least

some relief on the merits of the plaintiff’s claim(s). A preliminary

injunction provides relief on the merits when it (a) affords relief sought in

the plaintiff’s complaint and (b) represents an unambiguous indication of

probable success on the merits.

....

Second, if a preliminary injunction satisfies the relief-on-the-merits

requirement, the plaintiff qualifies as a “prevailing party” even if events

outside the control of the plaintiff moot the case. If, however, the

preliminary injunction is undone by a subsequent adverse decision on the

merits, the plaintiff’s transient success in obtaining the injunction does not

render the plaintiff a “prevailing party.”

Kansas Judicial Watch v. Stout, 653 F.3d 1230, 1238 (10th Cir. 2011).

In light of the above considerations, we are of the opinion that the Andersons

should also have been considered prevailing parties due to their free speech and search

and seizure claims. The trial court found that they had demonstrated “a substantial

likelihood of success on the merits” with respect to both of these claims, and it

accordingly entered an injunction concerning the challenged ordinance requirements and

restrictions. Although these claims were ultimately dismissed, they were not resolved

adversely on the merits. Litigation over these claims ended on account of mootness.

Mootness, of course, had been established by the passage of new Metro ordinances that

altered the previous requirements and restrictions under scrutiny.

- 20 -

In summary, due to the insufficiency of the trial court’s findings in its award on

fees and its apparent conclusion that the Andersons only “prevailed” on their “vagueness”

claim, we vacate the trial court’s award on fees and remand the matter for

reconsideration. Although we are remanding the case for a reconsideration of the

attorney’s fee award, we do so only with respect to work performed in the trial court.

Although it is somewhat unclear, the Andersons’ principal brief appears to request to

recover fees incident to this appeal. Assuming that this is, in fact, their position, we do

not find merit in it. Aside from the fact that the Andersons do not request appellate

attorney’s fees in their “Statement of the Issues,” we observe that they have not prevailed

on any justiciable federal constitutional claims in this appeal.

CONCLUSION

In light of the foregoing, we do not address the merits of the Andersons’

constitutional “vagueness” claim, as that matter is now moot. With respect to the 3% cap

on non-owner-occupied short-term rentals, we have determined that the cap is

constitutionally permissible even assuming that it constitutes a monopoly. We do,

however, vacate the trial court’s award of attorney’s fees and remand the matter for

reconsideration in light of our discussion herein. Costs of this appeal are assessed as

follows: one-half against the Appellant, the Metropolitan Government of Nashville and

Davidson County, and one-half against the Appellees, Rachel Anderson and P.J.

Anderson, and their surety. Execution for costs may issue if necessary. This case is

remanded to the trial court for the collection of costs, enforcement of the judgment, and

for such further proceedings as may be necessary and consistent with this Opinion.

_________________________________

ARNOLD B. GOLDIN, JUDGE

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