Chapin Furniture Outlet Inc. v. Town of Chapin

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-2129

CHAPIN FURNITURE OUTLET INCORPORATED,

Plaintiff - Appellant,

versus

TOWN OF CHAPIN, SOUTH CAROLINA, a
municipality; STANLEY SHEALY, Mayor of Town of
Chapin; ADRIENNE THOMPSON, Zoning
Administrator of Town of Chapin,

Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District Judge.
(3:05-cv-01398-MBS)

Argued: September 28, 2007 Decided: October 30, 2007

Before WILKINSON and KING, Circuit Judges, and Frederick P. STAMP,
Jr., Senior United States District Judge for the Northern District
of West Virginia, sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Douglas M. Bragg, WINSTON & BRAGG, Wilsonville, Oregon, for
Appellant. Michael Stephen Pauley, VINTON D. LIDE & ASSOCIATES,
Lexington, South Carolina, for Appellees. ON BRIEF: D. Reece
Williams, III, CALLISON, TIGHE & ROBINSON, Columbia, South
Carolina, for Appellant. Vinton D. Lide, VINTON D. LIDE &
ASSOCIATES, Lexington, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Chapin Furniture Outlet Incorporated appeals from the district

court’s award of summary judgment to the Town of Chapin and two of

its officials (collectively, the “Town”) in this § 1983 proceeding.

See Chapin Furniture Outlet, Inc. v. Town of Chapin, No. 3:05-1398-

MBS (D.S.C. Sept. 20, 2006) (the “Opinion”).1 In May 2005, Chapin

Furniture initiated this action in the District of South Carolina

— seeking declaratory and injunctive relief, as well as nominal

and consequential damages — challenging the Town’s attempt to

apply a zoning ordinance against Chapin’s use of an electronic sign

outside its place of business. Chapin contends that the court

erred in ruling that the ordinance was content-neutral and did not

contravene the First Amendment. Because the Town has revised the

challenged ordinance to meet Chapin’s contentions and will not

reenact it, Chapin’s claims are moot. As explained below, we

vacate and remand for dismissal.

I.

A.

Chapin Furniture, which operates a furniture store in the

small town of Chapin, South Carolina, erected an electronic sign,

called an electronic message center (the “EMC”), outside its store

1
The district court’s Opinion is found at J.A. 614-24.
(Citations herein to “J.A. ____” refer to the Joint Appendix filed
by the parties in this appeal.)

2
in August 2004. The EMC is designed to flash or scroll messages

across its display screen. Chapin installed the EMC at the top of

a sign post it shared with other businesses, located on Chapin Road

between the Town’s only two traffic lights. The EMC is the largest

and tallest sign on the block and the only one of its type in the

Town.

When Chapin added the EMC to the sign post, the Town’s zoning

ordinance (the “Ordinance”) prohibited, inter alia, the

installation of:

Flashing signs, signs with flashing or reflective disks,
signs with flashing lights or lights of changing degree
of intensity or color or signs with electrically scrolled
messages (except government signs and signs which give
time and temperature information). If a time and
temperature sign alternates between a time message and a
temperature message it shall continuously show one
message a minimum of three (3) seconds in time before
switching to the other message.

Town of Chapin Zoning Ordinance § 901(G). The Ordinance required

those wishing to replace or construct signs to first obtain a

permit, but failed to specify a time within which the Town had to

act on a permit application. Id. at § 900.2. Although the Town

contends that the purpose of the restrictions spelled out in the

Ordinance was to protect the rural aesthetics of the Town and, as

a safety measure, to reduce distractions to drivers, the safety

purpose was not specified in connection with the sign restrictions.

On August 20, 2004, the Town’s Zoning Administrator informed

Chapin that its EMC was operating in a manner that violated the

3
Ordinance. On September 21, 2004, the Administrator sent a letter

to Chapin advising that its new sign was not in compliance with the

Ordinance and that the EMC manufacturer had “misrepresented the

nature of the sign when applying for a permit.” J.A. 150.2 The

Administrator concluded, after conferring with the Planning

Commission, the Town Council, the Mayor, and others, that the “sign

is unacceptable to everyone and an exception will not be made to

allow it to remain.” Id. Accordingly, the Administrator asked

Chapin to “[p]lease respect our ordinances and remove the sign.”

Id. Chapin failed to comply with her request to remove the sign.

Nearly six months later, on March 7, 2005, the Town’s Mayor

sent Chapin a second letter, again requesting that the sign be

removed. The Mayor asserted that the sign violated the Ordinance

because it did not “provide name and nature of store only . . . .

[and] the sign must not flash, change degree of intensity or

electrically scroll.” J.A. 398. Concluding that the sign

“violates all of the above,” the Mayor requested that Chapin “not

delay this matter any further” and indicated that it had “until

2
Chapin’s permit may have been obtained by misrepresentations
made by the EMC’s manufacturer about the nature of changes to the
sign. The Zoning Administrator contends that she was informed by
telephone that Chapin was simply going to add illumination to the
sign it already displayed. Because the Ordinance does not require
a permit for changes to an existing lawful sign that do not render
the sign in violation of the Ordinance, the Administrator
determined that Chapin did not need a permit for the changes
proposed. When the manufacturer indicated that he would like a
permit anyway, the permit fee was waived and Chapin secured the
permit that very day.

4
March 31, 2005 to have [its] sign removed.” Id. Chapin also

failed to comply with this request, but the Town took no action to

enforce the Ordinance — it never cited, fined, or charged Chapin

with violating the Ordinance, and never instituted any court

proceedings or otherwise forced the EMC into disuse. Chapin has

thus continued to use the EMC, but has modified the rate at which

messages are flashed and stopped scrolling messages across the

display screen.

B.

On May 12, 2005, Chapin filed a ten-count § 1983 complaint in

the District of South Carolina, asserting that the Ordinance

violated its rights under the First, Fifth, and Fourteenth

Amendments. The complaint requested declaratory and injunctive

relief, plus nominal and consequential damages. The crux of

Chapin’s position is the allegation that “[b]y enacting and

enforcing the regulation of [EMCs], the Town of Chapin is willfully

and unlawfully depriving [it], and other citizens and businesses in

Chapin, of their right of free expression through this form of

communication, as guaranteed by the First and Fourteenth

Amendments.” J.A. 13. Chapin contends that the First Amendment is

contravened because: (1) the Ordinance, in allowing the government

to utilize EMCs, and allowing the display of time and temperature

information only, impermissibly regulates speech based on content

and viewpoint; (2) the Town’s stated purpose of protecting rural

5
aesthetics fails to show an interest sufficient to permit it to

regulate speech in this manner; and (3) the entirety of the

Ordinance is an unconstitutional prior restraint, because its

permit scheme fails to provide a defined time period for the Town

to make permit decisions.

In February 2006, the Town filed a motion for summary judgment

and Chapin filed a cross-motion for partial summary judgment. On

June 22, 2006, at a hearing on the summary judgment motions, the

Town informed the district court that it was in the process of

revising the Ordinance. As a result, the court obtained

supplemental briefing on the mootness issue, which implicated its

jurisdiction to address the issues raised by Chapin.

On September 20, 2006, the district court issued the Opinion

from which this appeal is taken, awarding summary judgment to the

Town, denying Chapin’s request for partial summary judgment, and

concluding that Chapin’s claims were not moot. On the mootness

issue, the court explained that the Town had failed to meet its

“burden of demonstrating that [it] would not reenact the challenged

provisions of the Ordinance.” Opinion 4.3 On the merits, the

court concluded that the Ordinance was a content-neutral regulation

of speech that advanced legitimate governmental interests in

3
The Opinion indicates that “[t]he Town approved the revised
ordinance on July 18, 2006,” and the district court treated the
Revised Ordinance as final. Opinion 2. The Revised Ordinance,
however, was not actually enacted until November 7, 2006, after the
Town had conducted a public hearing.

6
preserving rural community aesthetics and avoiding traffic hazards.

Id. at 5-6. It also determined that the Ordinance did not

unconstitutionally restrict commercial speech or constitute a prior

restraint thereon. Id. at 8-9. For these reasons, the court

concluded that the “Ordinance passe[d] constitutional muster.” Id.

at 11. On October 18, 2006, Chapin filed its notice of appeal, and

we possess jurisdiction pursuant to 28 U.S.C. § 1291.

C.

On November 7, 2006, after the district court had awarded

summary judgment to the Town and Chapin had initiated this appeal,

the Town validly enacted its revised Ordinance (the “Revised

Ordinance”). The Revised Ordinance includes a Statement of Purpose

and Intent, i.e., that the “intent of these sign regulations” is to

preserve, inter alia, “the health, safety, welfare and general

well-being of the community’s citizens.” See Appellee’s Br.,

Addendum A, § 900.1. The Revised Ordinance now prohibits:

Flashing signs, signs with flashing or reflective disks,
signs with flashing lights or lights of changing degree
of intensity or color or signs with electrically scrolled
messages.

Id. at § 901(G). The Revised Ordinance does not contain an

exception for governmental signs or for signs displaying only time

and temperature information. In addition, it provides that, upon

receipt of all necessary information, permit requests will be acted

upon by the Town within two weeks of receipt. Id. at § 900.2.

Although Chapin fails to assert on appeal any First Amendment

7
concerns regarding the Revised Ordinance, it maintains that the

revisions were adopted in an effort to render its claims moot and

that the Ordinance could be reenacted at any time.4

II.

We review de novo a district court's award of summary

judgment, viewing the facts in the light most favorable to the

non-moving party. See Seabulk Offshore, Ltd. v. Am. Home Assur.

Co., 377 F.3d 408, 418 (4th Cir. 2004). We also review de novo a

district court’s ruling concerning subject matter jurisdiction,

including a ruling on mootness. See Covenant Media of S.C., LLC v.

City of N. Charleston, 493 F.3d 421, 428 (4th Cir. 2007)

(concluding that district court’s conclusion regarding Article III

jurisdiction is “legal conclusion that we review de novo”).

4
The Revised Ordinance does not permit scrolling messages and
Chapin mentions this point (briefly) only in its reply brief.
Chapin’s summary briefing on this issue provides an insufficient
basis for our review. See Fed. R. App. P. 28(a)(9)(A) (providing
that appellant’s brief must contain “contentions and the reasons
for them, with citations to the authorities and parts of the record
on which the appellant relies”). Assuming that Chapin preserved
this issue, its discontent with such a de minimus aspect of the
Revised Ordinance is not sufficient to preserve a live case or
controversy. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.
1999) (concluding that “federal jurisdiction requires that a party
assert a substantial federal claim” (emphasis in original, internal
quotation marks omitted)); Davis v. Pak, 856 F.2d 648, 650 (4th
Cir. 1988) (concluding that mere assertion of constitutional
violation not sufficient to obtain jurisdiction because
jurisdiction requires party to assert substantial federal claim).

8
 III.

Before assessing the merits of Chapin’s appellate contentions,

we must first determine whether its claims have been rendered moot

by the Town’s adoption of the Revised Ordinance. This process is

necessary because the Constitution limits our jurisdiction to the

adjudication of actual cases and controversies. See U.S. Const.

art. III, § 2; DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per

curiam). “[A] case is moot when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in the

outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). The

requirement that a case involve an actual, ongoing controversy

extends throughout the pendency of an action. See Preiser v.

Newkirk, 422 U.S. 395, 401 (1975). To satisfy the Article III case

or controversy requirement, “[a] litigant must have suffered some

actual injury that can be redressed by a favorable judicial

decision.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70-71

(1983). When a case or controversy ceases to exist, the litigation

becomes moot and the federal court no longer possesses jurisdiction

to proceed. Id.

A.

As a preliminary matter, Chapin maintains that we cannot

dismiss its appeal as moot because the Town has waived any mootness

contention in failing to file a cross-appeal, and in raising

mootness only in its response brief. This contention is without

9
merit, however, because mootness is a jurisdictional question that

we are obliged, if necessary, to address sua sponte. See

Friedman’s, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002)

(noting that “the question of whether we are presented with a live

case or controversy is a question we may raise sua sponte” as

mootness goes to heart of Article III jurisdiction (internal

quotation marks omitted)); see also Mt. Healthy City Sch. Bd. of

Educ. v. Doyle, 429 U.S. 274, 278 (1977) (concluding that “we are

obliged to inquire sua sponte whenever a doubt arises as to the

existence of federal jurisdiction”). Accordingly, because we lack

jurisdiction “to decide questions that cannot affect the rights of

litigants in the case before [us],” we must address whether the

Town’s adoption of the Revised Ordinance has mooted Chapin’s case.

See North Carolina v. Rice, 404 U.S. 244, 246 (1971).

B.

1.

As spelled out above, Chapin has complained about multiple

aspects of the Ordinance. See supra Part I.B. However, the

Revised Ordinance undermines each of Chapin’s contentions. It

makes no exception for the government or for time and temperature

EMCs, and its Statement of Purpose and Intent confirms that the

“intent of these sign regulations” is to preserve, inter alia, “the

health, safety, welfare and general well-being of the community’s

citizens.” See Appellee’s Br., Addendum A, § 900.1. Moreover, the

10
Revised Ordinance requires the Town to approve or deny permit

applications within two weeks of obtaining the necessary

information. Id. at § 900.2. Because the challenged aspects of

the Ordinance have been remedied, Chapin’s claims for injunctive

and declaratory relief appear to be moot. See Coal. for the

Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d

1301, 1310 (11th Cir. 2000) (noting that “superseding statute or

regulation moots a case . . . to the extent that it removes

challenged features of the prior law”). Our review of the mootness

issue does not end here, however, because voluntary cessation of a

challenged activity does not automatically deprive us of

jurisdiction.

2.

As we recognized in Am. Legion Post 7 of Durham v. City of

Durham, “the mere amendment or repeal of a challenged ordinance

does not automatically moot a challenge to that ordinance.” 239

F.3d 601, 605 (4th Cir. 2001) (citing City of Mesquite v. Aladdin’s

Castle, Inc., 455 U.S. 283, 289 (1982)). Instead, we must assess

the likelihood that the Town will reenact the Ordinance. Id. at

606. This is so because “[a] case is not moot, and the exercise of

federal jurisdiction may be appropriate . . . if a party can

demonstrate that the apparent absence of a live dispute is merely

a temporary abeyance of a harm that is ‘capable of repetition, yet

evading review.’” Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir

11
2006) (citing Mellen v. Bunting, 327 F.3d 355, 363-64 (4th Cir.

2003)). Nevertheless, a lawsuit challenging a statute that no

longer exists can become moot “even where re-enactment of the

statute at issue is within the power of the legislature.” Am.

Legion Post 7, 239 F.3d at 606. “Only if reenactment is not merely

possible but appears probable may we find the harm to be ‘capable

of repetition, yet evading review’ and hold that the case is not

moot.” Brooks, 462 F.3d at 348.

In its evaluation of the mootness issue, the district court

concluded that the Town had failed to meet its “burden of

demonstrating that [it] would not reenact the challenged provisions

of the Ordinance.” Opinion 4. Two important events have occurred

since the court’s Opinion of September 20, 2006. First, on

November 7, 2006, the Town enacted the Revised Ordinance, despite

having already been awarded summary judgment in this case. Second,

the Town assured this Court at oral argument that it will not

reenact the Ordinance. Accordingly, we are confident that the

Ordinance will not be reenacted and that any alleged harm to Chapin

is not “capable of repetition, yet evading review.” See Reyes v.

City of Lynchburg, 300 F.3d 449, 453 (4th Cir. 2002) (concluding

overbreadth claim moot where city repealed challenged ordinance,

promised not to reenact similar one, and there was “no reasonable

expectation” that city would reenact it). The claims made in

Chapin’s complaint are therefore now moot. Id. at 453 (agreeing

12
with lower court that case was “moot as to future application”

because City repealed ordinance and promised not to reenact similar

one).

C.

Chapin contends, however, that even if its claims for

declaratory and injunctive relief have been mooted by the Revised

Ordinance, its claim for nominal damages yet presents a live

controversy.5 Chapin posits that “for so long as the plaintiff has

a cause of action for damages, a defendant’s change in conduct will

not moot the case.” Buckhannon Bd. & Care Home, Inc v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 608-09 (2001). This

proposition is normally valid, and it has been applied where a

plaintiff is only pursuing a claim for nominal damages. See Henson

v. Honor Comm. of the Univ. of Va., 719 F.2d 69, 72 n.5 (4th Cir.

1983) (observing that withdrawal of disciplinary charges did not

moot claim because plaintiff also sought nominal damages); see also

KH Outdoor, LLC v. Clay County, 482 F.3d 1299, 1303 (11th Cir.

2007) (noting that, because nominal damages were requested, changes

made to ordinance did not moot claim).

Chapin’s assertion of a nominal damages claim alone is

insufficient to preserve a live controversy, however, as the

5
Chapin has not pursued its claim for consequential damages on
appeal. See Fed. R. App. P. 28(a)(9)(A); Carter v. Lee, 283 F.3d
240, 252 n.11 (4th Cir. 2002) (noting that contentions not raised
in opening brief are deemed waived).

13
Ordinance was never enforced against it and it has not suffered any

constitutional deprivation. See Tanner Adver. Group, LLC v.

Fayette County, 451 F.3d 777, 786 (11th Cir. 2006) (concluding that

“request for damages that is barred as a matter of law cannot save

a case from mootness”)(citing Arizonans for Official English v.

Arizona, 520 U.S. 43, 69 (1997)). The Supreme Court’s decision in

Carey v. Piphus, 435 U.S. 247, 254 (1978), “obligates a court to

award nominal damages when a plaintiff establishes the violation of

[a constitutional right] but cannot prove actual injury.” Farrar

v. Hobby, 506 U.S. 103, 112 (1992). As the Supreme Court has

observed, “[w]hatever the constitutional basis for § 1983

liability, such damages must always be designed to compensate

injuries caused by the [constitutional] deprivation.” Memphis

Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 309-10 (1986) (internal

quotation marks omitted). Thus, although Chapin need not prove an

actual, compensable injury in order to recover nominal damages, it

must nevertheless show that a constitutional deprivation occurred.

Id. at 308 n.11; see also Reyes, 300 F.3d at 453 (“Nominal damages

may be available in a § 1983 case if a plaintiff was deprived of an

absolute right yet did not suffer an actual injury.”); Williams v.

Griffin, 952 F.2d 820, 825 n.2 (4th Cir. 1991) (concluding that “in

the absence of a showing of actual injury, [plaintiff] would still

be entitled to nominal damages upon proof of a constitutional

violation”).

14
 In the absence of a constitutional deprivation, Chapin’s

nominal damages claim does not save this case from mootness.

Moreover, the fact that Chapin could have suffered some

constitutional deprivation if the Town had enforced the Ordinance

does not save its claim for nominal damages — such damages are

reserved for constitutional deprivations that have occurred, not

those that are merely speculative. See Tanner, 451 F.3d at 786-87

(concluding that claims of appellant could not be saved from

mootness by claim for damages where sign ordinance had not caused

harm); see also Comm. for the First Amendment v. Campbell, 962 F.2d

1517, 1526 (10th Cir. 1992) (finding that, although adoption of new

policy mooted claims for injunctive relief, “the district court

erred in dismissing the nominal damages claim which relates to past

(not future) conduct”) (emphasis in original).

In Covenant Media of South Carolina, LLC v. City of North

Charleston, we recently addressed a mootness issue related to

nominal damages in a § 1983 case. See 493 F.3d 421 (4th Cir.

2007). Covenant Media had filed a civil action against the City of

North Charleston, alleging a violation of its First Amendment

rights by enforcement of the City’s sign regulation. Id. at 424.

Covenant Media had submitted an application to construct a

billboard as required by the City’s sign regulation, and when the

City failed to act on its application for several months, Covenant

Media filed suit. Id. at 425. Covenant Media contended that the

15
sign regulation was unconstitutional because it “failed to require

a decision on a sign permit within a specific time period, in

contravention of procedural safeguards mandated by Freedman v.

Maryland, 380 U.S. 51, 58-59 (1965).” Id. at 428. In addition to

injunctive relief, Covenant Media sought nominal damages. Id. at

427. During the litigation, North Charleston adopted a revised

regulation, which placed a forty-five day time limitation on the

disposition of sign permit applications — a procedural provision

not included in its predecessor regulation. Id. at 426. We

decided that, if the City’s original sign regulation lacked the

procedural safeguards mandated by Freedman, Covenant had “suffered

an injury by the City’s application of an unconstitutional

ordinance that is redressable at least by nominal damages.” Id. at

428. Accordingly, we determined that “Covenant’s suit is not moot

because if Covenant is correct on the merits, it is entitled to at

least nominal damages.” Id. at 429 n.4. We nevertheless cautioned

that “a plaintiff must establish that he has standing to challenge

each provision of an ordinance by showing that he was injured by

application of those provisions.” Id. at 430 (emphasis added).

The Covenant Media situation is readily distinguishable from

this appeal. Unlike the plaintiff in Covenant Media, Chapin’s

permit application received prompt attention. In fact, Chapin was

not required to submit a permit application before making changes

to its sign. Despite assurances that it did not need a permit,

16
Chapin nevertheless submitted an application. In response, the

Town immediately waived the permit fee and approved the

application. It was only after Chapin installed and began using

its EMC, on August 20, 2004, that the Town realized the nature of

Chapin’s changes to its sign and requested that it remove the EMC.

Notwithstanding Chapin’s violation of the Ordinance, the Town

did not fine or cite Chapin, and no court proceedings were

initiated against it. In fact, in its summary judgment papers,

Chapin informed the district court that “[f]rom the time the sign

was put up through the course of this litigation, the Chapin

Furniture Outlet sign has been in use advertising for the

businesses located on the property the sign is on.” J.A. 360.

Chapin noted that “[t]he sign has been displaying these messages at

the same intervals allowed for time and temperature signs.” Id. at

360-61. Such flashing messages violated the Ordinance, but Chapin

concedes that it has used its EMC throughout the pendency of its

dispute with the Town. Any contention that Chapin’s speech was

chilled by the Ordinance or the Town’s letters requesting

compliance therewith is thus entirely undermined. And, Chapin has

failed to allege any other constitutional deprivation sufficient to

support a claim for nominal damages. Unlike the plaintiff in

Covenant Media, Chapin is unable to show any constitutional injury

caused by the Ordinance. As we observed there, “a plaintiff must

establish that he has standing to challenge each provision of an

17
ordinance by showing that he was injured by application of those

provisions.” Covenant Media, 493 F.3d at 430.

Absent a constitutional deprivation, Chapin’s claim for

nominal damages fails to present a case or controversy sufficient

to avoid mootness. Because we cannot grant “any effectual relief

whatever,” including nominal damages, in favor of Chapin, this

proceeding must be dismissed as moot. Calderon v. Moore, 518 U.S.

149, 150 (1996) (per curiam).

IV.

Pursuant to the foregoing, we vacate the judgment of the

district court and remand for dismissal.6

VACATED AND REMANDED

6
When a claim becomes “moot after the entry of a district
court’s final judgment and prior to the completion of appellate
review, we generally vacate the judgment and remand for dismissal.”
Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir. 2003). Although
vacatur is not appropriate where mootness occurs due to the
voluntary actions of the losing party, it is available where
“appellate review of the adverse ruling was prevented by the
vagaries of circumstance or the unilateral action of the party who
prevailed below.” Valero Terrestrial Corp. v. Paige, 211 F.3d 112,
117-18 (4th Cir. 2000) (internal citations and quotation marks
omitted).

18