Appeal from the 295th District Court Harris County, Texas,
Trial Court Case No. 2008-75633
consists of Justices Bland, Brown, and Lloyd.
OPINION ON REHEARING
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
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.
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).
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.
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
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.
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.
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."
Compliance with the trial court's judgment
compelling disclosure did not moot
Kallinen's claim for attorney's fees.
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.
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).
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
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. 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.
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.
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.
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
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.
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.
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.").
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