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City of Houston v. Kallinen

Court of Appeals of Texas, First District

February 28, 2017

THE CITY OF HOUSTON, Appellant
v.
RANDALL KALLINEN, Appellee

         On Appeal from the 295th District Court Harris County, Texas, Trial Court Case No. 2008-75633

          Panel consists of Justices Bland, Brown, and Lloyd.

          OPINION ON REHEARING

          JANE BLAND JUSTICE.

         In this appeal, we determine whether the City of Houston must pay attorney's fees to compensate a citizen who pursued and won access to information under the Texas Public Information Act. Invoking the PIA, Randall Kallinen asked the City of Houston to disclose information regarding a traffic-light camera study that the City had commissioned. The City granted part of the request, but it withheld some documents while it sought an opinion from the Attorney General about whether the withheld documents were subject to disclosure. See Tex. Gov't Code Ann. § 552.306(a) (West 2015) (giving Attorney General 45 business days after request to issue opinion).

         Before the Attorney General ruled, Kallinen sued for mandamus relief, asking the trial court to order disclosure of the withheld documents. The City filed a plea to the jurisdiction, contending that the trial court lacked jurisdiction until the Attorney General ruled. The trial court overruled the City's plea, granted Kallinen's motion for summary judgment, ordered disclosure of many of the withheld documents, and awarded Kallinen attorney's fees. The City appealed.

         This court agreed with the City's argument that court intervention was premature given that the Attorney General had not made a determination, and dismissed Kallinen's suit for lack of jurisdiction. The Texas Supreme Court reversed that ruling and remanded the case to our court to address the remaining issues in the City's appeal. See Kallinen v. City of Houston, 462 S.W.3d 25, 29 (Tex. 2015) (per curiam) (Kallinen I).

         On remand, the parties provided supplemental briefing. In that briefing, the City contends that: (1) the case was moot before the trial court entered its order and thus it does not owe attorney's fees; (2) Kallinen's claims are barred by governmental immunity; and (3) the trial court abused its discretion in awarding attorney's fees.

         After we issued our opinion on remand, the City moved for rehearing. We deny the motion for rehearing, withdraw our opinion and judgment, and issue this opinion and judgment in their stead.

         BACKGROUND

         In its order determining liability under the PIA, the trial court ruled that the City had refused to release documents sought in the lawsuit that were public information not subject to any exception from disclosure under the PIA. It further found that the City's withholding of those documents had necessitated the mandamus suit that Kallinen and Paul Kubosh, who at the time was also a plaintiff in the suit, had substantially prevailed, entitling them to an award of reasonable attorney's fees and costs. The trial court then set the fee issue for trial.

         The court held a full-day trial on the issue of Kubosh and Kallinen's reasonable attorney's fees. Kubosh and Kallinen filed their closing arguments and a supplemental brief, including counsel's supplemental affidavit on fees incurred through the bench trial.

         After post-trial briefing, the trial court signed an amended final judgment, modifying its earlier judgment to reflect that it dismissed Kubosh's claims for lack of standing. Kubosh does not appeal that ruling. The trial court also issued findings of fact and conclusions of law, reiterating its findings that Kallinen had "substantially prevailed" in his mandamus action under the PIA and that the evidence supported an award to Kallinen of reasonable and necessary attorney's fees of $92, 176, plus conditional appellate fees. The amended final judgment includes the Bates-labeled documents that the court ordered produced as "public information and not subject to an exception under the Act." The amended judgment recited that the City "had refused to release this information."

         DISCUSSION

         I. Compliance with the trial court's judgment compelling disclosure did not moot Kallinen's claim for attorney's fees.

         In its supplemental brief after remand, the City maintains for the first time that Kallinen's attorney's fee claim became moot because the City voluntarily provided Kallinen with the documents it had withheld after the trial court ordered it to, before the trial court signed its amended final judgment awarding fees. Kallinen responds that the City did not act voluntarily in producing the documents, but rather in compliance with the trial court's order, that the court's order was incorporated into an amended final judgment from which the City appealed, and the City has maintained that it has no obligation to disclose the documents under the PIA. Thus, Kallinen further responds, the remaining fee claim presents a continuing live controversy, which the trial court properly resolved.

         Whether a claim is moot turns on whether a justiciable controversy exists to resolve. A justiciable controversy between the parties must exist at every stage of the legal proceedings, including the appeal, or the case is moot. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). If a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome, then the case becomes moot. Id. The same is true if a judgment would not have any practical legal effect upon a then-existing controversy. Zipp v. Wuemling, 218 S.W.3d 71, 73 (Tex. 2007). A case is not moot, however, if some issue remains in controversy. In re Gruebel, 153 S.W.3d 686, 689 (Tex. App.- Tyler 2005, orig. proceeding).

         The City's belated argument that it complied with the trial court's order to disclose the withheld documents did not end the parties' dispute: the City continued to challenge the trial court's ruling through a plea to the jurisdiction, a challenge that ended with the Supreme Court's ultimate rejection of the City's position. See Kallinen I, 462 S.W.3d at 9. We presume the City prosecuted the case on appeal before this court and defended its position in the Texas Supreme Court in good faith. See Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012).

         The continuation of the controversy is demonstrated by the City's conduct during the course of this litigation. Cf. Miga v. Jensen, 96 S.W.3d 207, 212 (Tex. 2002) ("[P]ayment on a judgment will not moot an appeal of that judgment if the judgment debtor clearly expresses an intent . . . to exercise his right of appeal and appellate relief is not futile."). The City appealed the trial court's judgment in this case, challenging the trial court's jurisdiction to compel production of the documents. After prevailing in the court of appeals, the City defended its position in the Texas Supreme Court. The Texas Supreme Court did not decline to rule for lack of jurisdiction based on the absence of controversy under the PIA, and the City did not ask the Court to so decline. See Kallinen I, 462 S.W.3d at 27 ("The parties agree that the only basis for the trial court's jurisdiction is Section 552.321(a) of the PIA."). Neither the trial court's final judgment nor the City's notice of appeal reflects an agreement by the City to release the documents to Kallinen.[1] To the contrary, the City has vigorously prosecuted its position that the trial court lacked the jurisdiction to adjudicate Kallinen's public information suit in the first place-and, concomitantly, the authority to order the documents' release.

         On rehearing, the City contends that the Texas Supreme Court's decision in Intercontinental Group Partnership v. KB Home Lone Star L.P., 295 S.W.3d 650, 652 (Tex. 2009), dictates a holding that this case is moot. In KB, however, the issue was not one of justiciability or mootness, but of the right to recover under a contract-a justiciable issued presented to, and decided by, the Texas Supreme Court. See id. The Supreme Court did not determine that compliance with a trial court order mooted the controversy. See id. Rather, the Court interpreted a "prevailing party" contract provision, and it concluded that one party did not prevail under the agreement when the jury found breach of the contract but awarded no damages. See id. Drawing from cases construing "prevailing party" as used in state and federal statutes, the Court held that KB was not entitled to jury fees because it had not secured either a damages award or equitable relief. Id. at 658.

         The City imports KB's language that a plaintiff does not "prevail" for purposes of qualifying for a fee award unless it obtains "relief on the merits" of a claim "that materially alters the relationship between the parties." Id. at 653. The City notes that it is the "judgment [and not preliminary rulings or findings] that is critical to the prevailing-party determination." Id. at 654, 656. But the City tacitly concedes that Kallinen obtained the statutory relief he sought through court order. The final judgment reiterates this relief-the compelled disclosure of documents that had been withheld short of court intervention, and the attorney's fees expended in obtaining this relief.

         Section 552.323(a) provides that a trial court "shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails" under the PIA. See Tex. Gov't Code Ann. § 552.323(a). Disclosure is what a plaintiff suing under the PIA seeks. When that disclosure is compelled by the court and incorporated into a final judgment, the plaintiff has obtained relief.

         The City challenges both whether Kallinen has "substantially prevailed" and the reasonableness of the fee awarded. Under analogous circumstances, the Texas Supreme Court has held that a controversy remained justiciable. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 643 (Tex. 2005) ("Hallman's remaining interest in obtaining attorney's fees 'breathes life' into this appeal and prevents it from being moot."). KB thus informs the issue whether a fee award is appropriate, not whether the issue has become moot.

         The City also points to Texas State Board Of Veterinary Examiners v. Giggleman, 408 S.W.3d 696 (Tex. App.-Austin 2013, no pet.), in which the Austin Court of Appeals determined a claim under the PIA to be moot when the government complied with an interlocutory order. In that case, the Texas Veterinary Board refused to provide Dr. Giggleman with a copy of the exhibits that had accompanied a complaint filed against him. See 408 S.W.3d at 698-99. Id. The trial court signed an interlocutory summary judgment that ordered the Board to release the documents to Giggleman. Id. at 700. Before the trial court had ruled on Giggleman's attorney's fee claim, the Board produced the documents it had withheld. Id. at 701. The Board then filed a plea to the jurisdiction, seeking dismissal of Giggleman's suit as moot. Id. The trial court refused to dismiss the case and awarded Dr. Giggleman his attorney's fees. See id. at 701-02.

         The Austin Court of Appeals reversed. Id. at 709. It agreed with the Board that its production of the exhibits was "voluntary" and rendered the suit moot. See id. at 706. The court of appeals observed that the final judgment did not compel disclosure under the PIA and that, because the Board had already disclosed the exhibits, a fee claim based on "judicially sanctioned relief" did not exist. See id. at 703, 705 (observing that the final judgment "did not award Giggleman any relief on his mandamus claim" and that interlocutory order granting such relief was "impliedly vacated.").

         In this case, in contrast, the trial court's amended final judgment: (1) ruled that the documents withheld by the City were public information not subject to an exception under the PIA; (2) compelled their disclosure; (3)declared that Kallinen was a "prevailing party" under the statute; and (4)awarded attorney's fees. The trial court made no finding that the documents had been produced, nor did it "impliedly vacate" its interlocutory ruling. And, for the City's part, it continued to vigorously prosecute its jurisdictional challenges both post-judgment and on appeal, which precludes any reasonable inference that it intended, by providing the documents, to end the dispute. Compare Giggleman, 408 S.W.3d at 701 (concluding dismissal warranted where Board produced documents, then sought dismissal of Giggleman's suit as moot) with ...


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