City of Houston v. Kallinen

516 S.W.3d 617, 2017 WL 769904, 2017 Tex. App. LEXIS 1685
CourtCourt of Appeals of Texas
DecidedFebruary 28, 2017
DocketNO. 01-12-00050-CV
StatusPublished
Cited by12 cases

This text of 516 S.W.3d 617 (City of Houston v. Kallinen) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Houston v. Kallinen, 516 S.W.3d 617, 2017 WL 769904, 2017 Tex. App. LEXIS 1685 (Tex. Ct. App. 2017).

Opinion

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, Kal-linen 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 prema[621]*621ture 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.

[622]*622Whether 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 29. 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

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Cite This Page — Counsel Stack

Bluebook (online)
516 S.W.3d 617, 2017 WL 769904, 2017 Tex. App. LEXIS 1685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-houston-v-kallinen-texapp-2017.