City of Houston v. Randall Kallinen

ACCEPTED
01-12-00050-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/9/2015 5:34:23 PM
CHRISTOPHER PRINE
CLERK

No. 01-12-00050-CV
FILED IN
______________________________________________________________
1st COURT OF APPEALS
HOUSTON, TEXAS
12/9/2015 5:34:23 PM
In the Court of Appeals for the
CHRISTOPHER A. PRINE
First District of Texas at Houston Clerk
______________________________________________________________

CITY OF HOUSTON,
Appellant
V.

RANDALL KALLINEN AND PAUL KUBOSH,
Appellees
______________________________________________________________

On Appeal from the 295th District Court of Harris County, Texas
Trial Court Cause No. 2008-75633
Honorable Caroline Baker, Presiding Judge
______________________________________________________________

Supplemental Brief of Appellant
______________________________________________________________

Donna L. Edmundson Fernando De Leon
City Attorney Senior Assistant City Attorney
SBN: 24025325
Judith L. Ramsey CITY OF HOUSTON LEGAL
Chief, General Litigation Section DEPARTMENT
900 Bagby Street, 4th Floor
Houston, Texas 77002
832.393.6491 (telephone)
832.393.6259 (facsimile)
fernando.deleon2@houstontx.gov

Attorneys for Appellant

Oral Argument Requested
 Identity of Parties and Counsel

Appellant: Trial & Appellate Counsel:

City of Houston Judith L. Ramsey
Fernando De Leon
CITY OF HOUSTON LEGAL DEPARTMENT
900 Bagby Street, 4th Floor
Houston, Texas 77002
832.393.6491 (telephone)
832.393.6259 (facsimile)
judith.ramsey@houstontx.gov
fernando.deleon2@houstontx.gov

Appellees: Trial & Appellate Counsel:

Randall Kallinen Joseph R. Larsen
and Paul Kubosh SEDGWICK LLP
1200 Smith Street, Suite 1600
Houston, Texas 77002
832.426.7020 (telephone)
877.527.1451 (facsimile)
joseph.larsen@sedgwicklaw.com

David A. Furlow
LAW OFFICE OF DAVID A. FURLOW, P.C.
4126 Rice Boulevard
Houston, Texas 77005
713.202.3931 (telephone)
866.382.0147 (facsimile)
dafurlow@gmail.com

ii
 Table of Contents

Page

Identity of Parties and Counsel ..................................................................... ii

Index of Authorities ................................................................................... vii
Record and Appendix Reference Key ........................................................... x

Statement of the Case .................................................................................. xi

Statement Regarding Oral Argument .......................................................... xii
Issues Presented ......................................................................................... xii

Introduction and Overview........................................................................... 1

Statement of Facts........................................................................................ 2

A. Only Kallinen submits TPIA Requests to City............................. 2

B. City releases 82% of requested documents. .................................. 2

C. Appellees sue City. .................................................................... 3

D. Appellees ensure Attorney General does not rule on City’s
proper request. ........................................................................... 4

E. Trial court grants partial summary judgment to Appellees;
City releases all documents held not excepted from
disclosure. ................................................................................. 4

F. Trial court holds attorney fees hearing; enters final judgment
for Appellees. ............................................................................ 5

G. City files plea and new trial motion contesting jurisdiction
and fee award. ........................................................................... 6

H. Trial court modifies judgment, dismisses Kubosh, awards
fees only to Kallinen .................................................................. 6

I. This Court rules for City; Texas Supreme Court disagrees. .......... 8

iii
Summary of Argument................................................................................. 8

Argument .................................................................................................. 11

I. The trial court erred by denying the City’s plea and otherwise had
no subject-matter jurisdiction over Appellees’ claims. ......................... 11

A. The trial court had no subject-matter jurisdiction because
Appellees’ TPIA mandamus and attorney fee claims were
not justiciable. ......................................................................... 11

1. Appellees’ TPIA mandamus and attorney fee claims
were no longer justiciable at the time of final judgment
because they were mooted when the City, prior to
final judgment, produced all withheld documents that
the trial court ordered the City to disclose. ....................... 11

2. As a result, the trial court had no subject-matter
jurisdiction because Appellees’ TPIA mandamus and
attorney fee claims were not justiciable at the time of
final judgment. ............................................................... 13

B. The trial court also had no subject-matter jurisdiction
because all Appellees’ claims are barred by immunity. ............... 15

1. Appellees’ TDJA claims are barred by immunity
because they are redundant and duplicative of their
TPIA claims. .................................................................. 15

2. Appellees’ TPIA mandamus claims are also barred by
immunity because the TPIA does not waive the City’s
immunity and the only proper defendant for such
claims is the pertinent public information officer. ............. 17

3. Appellees’ TDJA claims are likewise barred by
immunity because the TDJA also does not waive the
City’s immunity and the only proper defendant for
such claims is the pertinent public information officer. ..... 20
4. As a result, the trial court also had no subject-matter
jurisdiction because all Appellees’ claims are barred by
immunity. ...................................................................... 21

iv
II. The trial court erred by awarding attorney fees to Appellees
because there was no evidence or insufficient evidence to support
any award of fees to them. ................................................................. 22

A. Kallinen was not entitled to any award of attorney fees
because he did not actually incur any attorney fees—as
Kubosh incurred all the claimed fees. ........................................ 22

B. Appellees were not entitled to any award of attorney fees
because they failed to properly segregate recoverable
(alleged) fees from non-recoverable (alleged) fees. ..................... 24

C. Appellees offered no evidence or insufficient evidence to
support the amount of the award of attorney fees. ..................... 25
III. The trial court also had no subject-matter jurisdiction over
Kubosh’s claims; Kubosh’s TPIA mandamus and attorney fee
claims were never justiciable due to lack of ripeness and standing
because he never submitted any TPIA request to the City. .................. 28

Conclusion and Prayer ............................................................................... 29

Certificate of Compliance ........................................................................... 30

Certificate of Service .................................................................................. 31

Appendix

A. Order on Plaintiffs’ Summary Judgment (dated October 12, 2009)
(CR.582)
B. Order Granting Plaintiffs’ Motion for Partial Summary Judgment
and No-Evidence Partial Motion for Summary Judgment on
Conceded Documents (dated October 12, 2009) (CR.583-85)
C. Order (dated December 8, 2009) (CR.931-32)
D. Order on City’s Motion to Strike Paul Kubosh (dated March 1,
2010) (CR.969)
E. Final Judgment (dated October 12, 2011) (CR.1094-95)

v
F. Order (dated January 5, 2012) (CR.1208)
G. Amended Final Judgment (dated July 12, 2012) (CR[2].17-18)
H. First Court of Appeals Judgment and Opinion (dated August 29,
2013)
I. Supreme Court Judgment and Opinion (dated March 20, 2015)
J. Order for Supplemental Briefing On Remand

vi
 Index of Authorities

Page(s)

Cases

A & T Consultants, Inc. v. Sharp,
904 S.W.2d 668 (Tex. 1995) ................................................................... 18

BHP Petroleum Co., Inc. v. Millard,
800 S.W.2d 838 (Tex. 1990) ................................................................... 16

Bonham State Bank v. Beadle,
907 S.W.2d 465 (Tex. 1995) ................................................................... 15

Chenault v. Phillips,
914 S.W.2d 140 (Tex. 1996) ................................................................... 15

City of El Paso v. Heinrich,
284 S.W.3d 366 (Tex. 2009) ........................................................ 18, 19, 20

City of Houston v. Kallinen,
414 S.W.3d 815 (Tex. App.—Houston [1st Dist.] 2013), rev’d, 462
S.W.3d 25 (Tex. 2015) ............................................................................ xi

City of Houston v. Texan Land & Cattle Co.,
138 S.W.3d 382 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ............ 16

DaimlerChrysler Corp. v. Inman,
252 S.W.3d 299 (Tex. 2008) ................................................................... 14

Guthrie v. Garcia,
352 S.W.3d 307 (Tex. App.—Houston [14th Dist.] 2011, no pet.) . 18, 19, 20

Int’l Grp. P’ship v. KB Home Lone Star L.P.,
295 S.W.3d 650 (Tex. 2009) ................................................................... 12

Jackson v. State Office of Admin. Hearings,
351 S.W.3d 290 (Tex. 2011) ........................................................ 16, 17, 23

Kallinen v. City of Houston,
462 S.W.3d 25 (Tex. 2015)...................................................................... xi

vii
M.D. Anderson Cancer Center v. Novak,
52 S.W.3d 704 (Tex. 2001)..................................................................... 13

MBM Fin. Corp. v. Woodlands Operating Co.,
292 S.W.3d 660 (Tex. 2009) ................................................................... 16

Mission Consol. Indep. Sch. Dist. v. Garcia,
253 S.W.3d 653 (Tex. 2008) ................................................................... 21

Patel v. Tex. Dep’t of Licensing & Regulation,
469 S.W.3d 69 (Tex. 2015)..................................................................... 16

Patterson v. Planned Parenthood of Houston,
971 S.W.2d 439 (Tex. 1998) ................................................................... 14

Rapid Settlements, Ltd. v. Settlement Funding, LLC,
358 S.W.3d 777 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ............ 24

Reata Const. Corp. v. City of Dallas,
197 S.W.3d 371 (Tex. 2006) ................................................................... 21

State Bar of Tex. v. Gomez,
891 S.W.2d 243 (Tex. 1994) ................................................................... 14

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) ........................................................ 13, 14, 15

Tex. Dep’t of State Health Servs. v. Holmes,
294 S.W.3d 328 (Tex. App.—Austin 2009, pet. denied) .......................... 20

Tex. Dep’t of Transp. v. Jones,
8 S.W.3d 636 (Tex. 1999) ...................................................................... 21

Tex. Natural Res. Conservation Comm’n v. IT-Davy,
74 S.W.3d 849 (Tex. 2002)..................................................................... 21

Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman,
408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.)................. 11, 12, 13, 16

Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299 (Tex. 2006) ................................................................... 24

viii
Williams v. Lara,
52 S.W.3d 171 (Tex. 2000)................................................................ 14, 15

Constitution and Statutes
Tex. Const. art. XI, § 5 ................................................................................. x

Tex. Gov’t Code § 311.034 ......................................................................... 21

Tex. Gov’t Code § 552.003 .................................................................... 18, 28

Tex. Gov’t Code § 552.221 ......................................................................... 17

Tex. Gov’t Code § 552.321 .................................................................... 18, 28
Tex. Gov’t Code § 552.323 .............................................................. 11, 22, 26

Tex. Loc. Gov’t Code § 9.008 ....................................................................... x

ix
 Record and Appendix Reference Key

All record and appendix items are cited as follows:

“CR.[page]” Clerk’s Record (filed January 26, 2012).

“CR[1].[page]” 1st Supplemental Clerk’s Record (filed June 6,
2012).

“CR[2].[page]” 2nd Supplemental Clerk’s Record (filed August 17,
2012).

“CR[3].[page]” 3rd Supplemental Clerk’s Record (filed April 12,
2013).

“CR[4].[page]” [4th] Supplemental Clerk’s Record (filed June 5,
2013, but without designation as the “4th”
supplement).

“RR[1].[page]” Reporter’s Record of October 6, 2010 trial court
hearing on Appellees’ attorney fee claim.

“RR[2].[page]” Reporter’s Record of the December 12, 2011 trial
court hearing on the City of Houston’s motion for
new trial and plea to the jurisdiction.

“Ex. [number or letter]” Exhibits to a specified Reporter’s Record.

“App. [letter]” Items in the attached Appendix.

x
 Statement of the Case

Nature of the case: Randall Kallinen [Kallinen] and Paul Kubosh
[Kubosh] sued the City of Houston [City]1 seeking
mandamus relief under the Texas Public Information
Act [TPIA] to compel release of documents and
declaratory relief under the Texas Declaratory
Judgment Act [TDJA] to declare that release is
required. CR.2-8, 30-38.

Course of proceedings: Kallinen and Kubosh [Appellees] filed a motion for
partial summary judgment. CR.648-54. On October
12, 2009, the trial court granted in part and denied in
part Appellees’ motion and ordered the City to
disclose certain documents. CR.582-85; App. A;
App. B. On October 12, 2011, the court entered a
final judgment reiterating its summary judgment
ruling and awarding attorney fees to Appellees
jointly. CR.1094-95; App. E.

The City filed a motion for new trial and plea to the
jurisdiction. CR.1103-47. On January 5, 2012, the
trial court denied the City’s plea and granted in part
and denied in part the City’s motion. CR.1208;
App. F.2
1
The City is a Texas home-rule city operating under a municipal charter pursuant to Article
XI, Section 5, of the Texas Constitution. See Tex. Const. art. XI, § 5. In accordance with
Section 9.008(b) of the Texas Local Government Code, the City respectfully requests this
Court to take judicial notice of its published charter and status thereunder as a home-rule
city. See Tex. Loc. Gov’t Code § 9.008(b).
2
In its original brief in this appeal (prior to the Supreme Court’s ruling), the City addressed
issues relating to the trial court’s original final judgment in an abundance of caution given
that it did learn that the trial court entered a modified final judgment until the day it filed its
original appeal brief. Although the modified final judgment is at issue here, the City
addresses issues relating to Kubosh also in an abundance of caution in the event that this
Court’s September 3, 2015 order (App. J) allowing supplemental briefing by the parties does
not contemplate the filing of a responsive brief by the City to Appellees’ supplemental brief.
In addition, for the same reason, to the extent that any of the City’s arguments as to
Kallinen also apply to Kubosh, the City addresses those arguments as to Appellees.

xi
Trial court disposition: On July 12, 2012, the trial court entered a modified
final judgment dismissing Kubosh due to lack of
standing and awarding attorney fees only to
Kallinen. CR[2].17-18; App. G. The City timely
appealed. CR.1213-14; CR[5].29-30.

Prior judgments by this This Court reversed the trial court’s order denying
Court and Supreme the City’s plea and rendered judgment dismissing
Court: Appellees’ claims against the City for want of
jurisdiction. See City of Houston v. Kallinen, 414
S.W.3d 815 (Tex. App.—Houston [1st Dist.] 2013),
rev’d, 462 S.W.3d 25 (Tex. 2015); App. H. The
Texas Supreme Court reversed this Court’s judgment
and remanded to this Court for further proceedings
in accordance with its opinion. See Kallinen v. City of
Houston, 462 S.W.3d 25 (Tex. 2015); App. I.

Current procedural On September 3, 2015, this Court entered an order
posture: allowing the parties to file supplemental briefing to
aid this Court’s consideration of the issues on
remand. App. J.

Statement Regarding Oral Argument

The City respectfully requests that the Court hear oral argument in this

appeal to allow the parties an opportunity to simplify and focus the issues for

the Court’s consideration.

Issues Presented

The trial court erred in denying the City’s plea to the jurisdiction and

motion for new trial for the following reasons:

xii
1. The trial court had no subject-matter jurisdiction over
Appellees’ claims.

a. The trial court had no subject-matter jurisdiction over
Appellees’ TPIA mandamus and attorney fee claims because
they were no longer justiciable at the time of final judgment;
they were mooted when the City, prior to final judgment,
produced to Kallinen all withheld documents that the trial
court ordered the City to disclose.

b. The trial court also had no subject-matter jurisdiction
because all Appellees’ claims are barred by immunity.

i. Appellees’ TDJA claims are barred by immunity because
they are redundant and duplicative of their TPIA claims.

ii. Appellees’ TPIA mandamus claims are also barred by
immunity because the TPIA does not waive the City’s
immunity and the only proper defendant for such claims
is the pertinent public information officer.

iii. Appellees’ TDJA claims are likewise barred by immunity
because the TDJA likewise also does not waive the City’s
immunity and the only proper defendant for such claims
is the pertinent public information officer.

2. The trial court erred by awarding attorney fees to Appellees
because there was no evidence or insufficient evidence to
support any award of fees to them.

a. Kallinen was not entitled to any award of attorney fees
because he did not actually incur any attorney fees—as
Kubosh incurred all the claimed fees.

b. Appellees offered no evidence or insufficient evidence to
support the amount of the award of attorney fees.

3. The trial court also had no subject-matter jurisdiction over
Kubosh’s claims; Kubosh’s TPIA mandamus and attorney fee
claims were never justiciable due to lack of ripeness and

xiii
standing because he never submitted any TPIA request to the
City.

xiv
 Introduction and Overview

After the City released most of the documents that Kallinen requested

relating to the City’s red light traffic camera system under the TPIA, Appellees

sued the City seeking mandamus relief (as well as attorney fees) under the

TPIA to compel disclosure of documents that the City withheld based on

TPIA disclosure exceptions. They filed their suit against the City, not a City

official. They also sought redundant and duplicative declaratory relief (as well

as attorney fees) under the TDJA to declare that disclosure is required. Kubosh

joined the suit despite the fact that only Kallinen submitted any TPIA request

to the City.

In late 2009, the trial court ruled on the TPIA exceptions asserted by the

City, and the City immediately complied by producing all documents that the

trial court ruled were not excepted from disclosure. In late 2011, the trial court

entered a final judgment which included an attorney fee award jointly to

Appellees. Later, in mid-2012, after the City filed a motion for new trial and

plea to the jurisdiction, the trial court entered modified final judgment

dismissing Kubosh for lack of standing and awarding attorney fees only to

Kallinen.3 But as a result of the City’s production of all documents that the trial

3
In its original brief in this appeal, given that it did not learn that the trial court entered a
modified final judgment until the day it filed that brief, the City addressed issues relating to
court ordered the City to disclose, Kallinen’s claims were all rendered moot

prior to final judgment and he was entitled to no attorney fee award. As a

result, all Kallinen’s claims should be dismissed for lack of subject matter

jurisdiction and the fee award to him should be reversed and rendered in the

City’s favor.

Statement of Facts

A. Only Kallinen submits TPIA Requests to City.

In November and December 2008, Kallinen submitted four email

requests to the City pursuant to the TPIA requesting release of documents

relating to the City’s red light traffic camera system. CR.41-48. Kubosh did not

submit to the City any TPIA request for documents. CR.75, 194, 322, 607,

674, 746-47, 920, 1001; CR[1].139, 258, 262; RR[1].28, 54. Kallinen’s requests

did not mention or reference Kubosh. CR.41-48.

B. City releases 82% of requested documents.

The City released approximately 3,235 pages of documents to Kallinen

pursuant to his requests (about 82% of all responsive documents). CR.398,

the trial court’s original final judgment in an abundance of caution. Although the modified
final judgment is at issue here, the City addresses issues relating to Kubosh also in an
abundance of caution in the event that this Court’s September 3, 2015 order allowing
supplemental briefing by the parties does not contemplate the filing of a reply brief by the
City. In addition, for the same reason, to the extent that any of the City’s arguments as to
Kallinen would also apply to Kubosh, the City addresses those arguments as to both.

2
541-68, 586, 746, 825, 883, 890, 901, 908, 1054, 1071. The City withheld only

about 700 pages of documents based primarily on TPIA disclosure exceptions

for materials protected by the deliberative process privilege and attorney-client

privilege. CR.398, 586, 746, 825, 883, 890, 901, 908, 1054, 1071. The City also

timely requested a ruling by the Texas Attorney General on application of the

exceptions. CR.75, 80, 81-83, 86-91, 194, 199-202, 205-10, 321, 326-29, 334-

39, 399, 421-27, 587, 607, 746-47, 867, 919-20, 1054, 1071.

C. Appellees sue City.

On December 26, 2008, both Appellees sued the City seeking mandamus

relief under the TPIA to compel disclosure of all the documents that Kallinen

sought in his four requests to the City and declaratory relief under the TDJA to

declare that disclosure is required. CR.2-8, 30-38. Appellees filed suit: (1) less

than two weeks after Kallinen’s fourth request to the City, (2) before the City

completed all its submissions to the Attorney General supporting TPIA

exceptions for the withheld documents, (3) before the Attorney General had an

opportunity to complete its review of the City’s submissions and issue its

ruling, and (4) despite the fact that Kubosh never requested any documents

from the City. CR.2-8, 30-38, 41-48, 75, 80-83, 86-91, 176-77, 194, 199-202,

205-10, 321, 326-29, 334-39, 341-42, 399, 421-27, 429-34, 587, 607, 746-47,

867, 919-20, 1054, 1071, 1110-11, 1135-36, 1139-42, 1186-87.

3
D. Appellees ensure Attorney General does not rule on City’s proper
request.

On January 30, 2009, Appellees (through their counsel) sent an email to

the Attorney General’s office requesting that it decline to issue a ruling, despite

the City’s proper request, based on the pendency of their recently-filed lawsuit

against the City. CR.399, 428-30, 1110, 1135-36. On December 16, 2008, and

January 8, 2008, the Attorney General sent letters to the City declining to issue

any ruling and instead deferring to the trial court to decide whether the

withheld documents were excepted from disclosure under the TPIA. CR.176-

77, 341-42, 399, 431-34, 1110-11, 1139-42, 1186-87.

E. Trial court grants partial summary judgment to Appellees; City
releases all documents held not excepted from disclosure.

On September 14, 2009, Appellees filed a motion for partial summary

judgment arguing that the withheld documents were not excepted from

disclosure. CR.615, 648-54. On September 28, 2009, the City filed a response.

CR.398-541. On October 2, 2009, Appellees filed a reply. CR.569-74. On

October 12, 2009, the trial court entered two orders granting in part and

denying in part Appellees’ motion for summary judgment and ordering the

City to disclose some of the withheld documents. CR.582-85; App. A; App. B.

The City then immediately disclosed to Appellees all withheld documents that

the trial court ordered the City to disclose. CR.1104.

4
F. Trial court holds attorney fees hearing; enters final judgment for
Appellees.

On November 16, 2009, Appellees filed a motion for entry of judgment

and award of attorney fees. CR.659-67. On December 3, 2009, the City filed a

response. CR.882-920. On December 8, 2009, the trial court entered an order

reiterating its October 12, 2009 ruling and stating that Appellees’ attorney fee

claim would be heard at the January 2010 trial setting (which was postponed

several times). CR.925, 931-32, 940-41; App. C.4

On November 20, 2009, the City filed a motion to strike Kubosh as a

party-plaintiff on the ground that he has no standing to seek relief as a TPIA

“requestor” because he never actually submitted to the City any request for

documents. CR.746-50. On November 25, 2009, Appellees filed a response.

CR.810-14. On December 30, 2009, Appellees filed a supplemental response.

CR.935-37. On March 1, 2010, the trial court entered an order denying the

City’s motion to strike Kubosh. CR.969; App. D.

On October 6, 2010, the trial court held a hearing on Appellees’ attorney

fee claim against the City. RR[1]. On October 12, 2011, the court entered a

4
Judge Tracy Christopher presided over all trial court proceedings below until December
2009 when she was appointed as a Justice of the Fourteenth Court of Appeals. After Judge
Christopher entered the December 8, 2009 order, Judge Caroline Baker presided over all
subsequent trial court proceedings below.

5
final judgment again reiterating its October 12, 2009 ruling and awarding

attorney fees to Appellees jointly. CR.1094-95; App. E.

G. City files plea and new trial motion contesting jurisdiction and fee
award.

On November 10, 2011, the City filed a motion for new trial and plea to

the jurisdiction. CR.1103-47. On December 8, 2011, Appellees filed a

response. CR.1151-61. On December 12, 2011, the trial court held a hearing

on the City’s new trial motion and plea. RR[2]. On January 5, 2012, the court

entered an order granting in part and denying in part the City’s new trial

motion and denying the City’s plea. CR.1208; App. F. The court granted the

City’s new trial motion only as to the attorney fee award to Kubosh and denied

the remainder of the motion. CR.1208; App. F. The parties subsequently filed

motions seeking clarification of the trial court’s ruling. CR[1].2-5, 44-122, 257-

60. But in an abundance of caution, on January 12, 2012, the City filed a

notice of appeal. CR.1213-14.

H. Trial court modifies judgment, dismisses Kubosh, awards fees only to
Kallinen

On March 9, 2012, Appellees filed a motion for reconsideration of the

trial court’s ruling on the City’s new trial motion as to the award of attorney

fees to Kubosh or (alternatively) for severance as to Kubosh so that the

judgment as to Kallinen may become final and appealable. CR[1].2-5. On

6
April 12, 2012, the City filed a response. CR[1].44-122. The City also filed a

motion seeking (alternatively) entry of judgment awarding no attorney fees to

any Appellee. CR[1].44-122. On May 4, 2012, Appellees filed a supplemental

motion for reconsideration of the trial court’s ruling on the City’s new trial

motion as to the award of attorney fees to Kubosh or (alternatively) for entry of

an amended final judgment and order reflecting dismissal as to Kubosh.

CR[1].257-60. On May 24, 2012, the City filed a response. CR[2].2.

On July 12, 2012, the trial court entered a modified final judgment ruling

that Kubosh has no standing and awarding him no attorney fees. CR[2].17-18;

App. G. On July 24, 2012, the City filed a request for findings of fact and

conclusion of law. CR[2].19-20. On August 10, 2012, the City filed a motion

for new trial as to the trial court’s amended final judgment. CR[2].21-33. On

August 15, 2012, Appellees filed proposed findings of fact and conclusion of

law. CR[2].36-41. On August 17, 2012, the City filed a notice of past due

findings of fact and conclusion of law. CR[3].26-27.

On September 19, 2012, in an abundance of caution, the City filed

another notice of appeal as to the trial court’s amended final judgment.

CR[3].29-30. On October 3, 2012, Appellees also filed a notice of appeal notice

of appeal as to the trial court’s amended final judgment. CR[4].3-4. On

7
February 6, 2013, the trial court issued findings of fact and conclusion of law

relating to the award of attorney fees to Kallinen. CR[4].5-6.

I. This Court rules for City; Texas Supreme Court disagrees.

On August 29, 2013, this Court reversed the trial court’s order denying

the City’s plea and rendered judgment that Appellees claims against the City

are dismissed for want of jurisdiction. App. H. On March 20, 2015, the

Supreme Court reversed this Court’s judgment and remanded to this Court for

further proceedings in accordance with its opinion. App. I. Both this Court’s

and the Supreme Court’s rulings focused on the City’s argument regarding

whether the trial court had subject matter jurisdiction over Appellees’ claims

before the Attorney General ruled on the City’s request for decision on the

documents it withheld based on TPIA disclosure exceptions—and did not

address other arguments raised by the City. App. H; App. I.5

Summary of Argument

First, Appellees’ TPIA mandamus and attorney fee claims were not

justiciable. Appellees’ TPIA mandamus and attorney fee claims were no longer

5
For the Court’s convenience, the City includes in this brief arguments (infra, pp. 17-28) that
were raised in its original appeal brief in the event the Court prefers to have one brief
containing all the City’s arguments not addressed by this Court’s and the Supreme Court’s
rulings.

8
justiciable at the time of final judgment because they were mooted when, prior

to final judgment, the City produced to Kallinen all withheld documents that

the trial court ordered the City to disclose, obviating any justiciable

controversy regarding entitlement to mandamus relief or attorney fees. The

trial court therefore had no subject matter jurisdiction at the time it entered its

modified final judgment because Appellees’ TPIA mandamus and attorney fee

claims were no longer justiciable at that time due to mootness.

Second, Appellees’ claims against the City are barred by governmental

immunity, which defeats subject matter jurisdiction, for several reasons.

Appellees’ TDJA claims are barred by immunity because they are redundant

and duplicative of their TPIA claims. Appellees’ TPIA mandamus claims are

also barred by immunity because the TPIA does not waive the City’s immunity

and the only proper defendant for such claims is the pertinent public

information officer. Appellees’ TDJA claims are likewise barred by immunity

because the TDJA likewise does not waive immunity and the only proper

defendant for such claims is the pertinent public information officer. The trial

court therefore had no subject matter jurisdiction because Appellees’ claims

against the City are barred by governmental immunity.

Third, there was no evidence or insufficient evidence to support any

award of attorney fees to Appellees. Kallinen was not entitled to any award of

9
attorney fees because he did not actually incur any fees—as Kubosh, who was

not a “requestor” and therefore had no justiciable claim on which to sue,

incurred all the claimed fees. In addition, Appellees offered no evidence or

insufficient evidence to support the amount of the attorney fee award. The trial

court therefore also erred by awarding attorney fees to Appellees because they

failed to satisfy their burden to support any award of fees.

Finally, although the trial court ultimately dismissed Kubosh and his

claims, the City nonetheless also addresses those claims here in the event that

it does not have the opportunity to file a reply brief. Kubosh’s TPIA

mandamus and attorney fee claims were never justiciable due to lack of

ripeness and standing because he never actually submitted any TPIA request to

the City, obviating any status as a TPIA “requestor” authorized to file suit.

The trial court therefore also never had no subject matter jurisdiction over

Kubosh’s TPIA mandamus and attorney fee claims.

10
 Argument

I. The trial court erred by denying the City’s plea and otherwise had no
subject-matter jurisdiction over Appellees’ claims.

A. The trial court had no subject-matter jurisdiction because
Appellees’ TPIA mandamus and attorney fee claims were not
justiciable.

1. Appellees’ TPIA mandamus and attorney fee claims were
no longer justiciable at the time of final judgment because
they were mooted when the City, prior to final judgment,
produced all withheld documents that the trial court
ordered the City to disclose.

The trial court had no subject-matter jurisdiction over Appellees’ TPIA

mandamus and attorney fee claims due to mootness. The TPIA provides that,

in an action under Section 552.321, “the court shall assess costs of litigation

and reasonable attorney fees incurred by a plaintiff who substantially prevails”

(subject to certain exceptions). See Tex. Gov’t Code § 552.323(a).6 The term

“substantially prevails” incorporates the concept of a “prevailing party” and

must be construed in line with prevailing-party requirements for recovering

attorney fees. See Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408

S.W.3d 696, 703 (Tex. App.—Austin 2013, no pet.).

6
Section 552.323(a) specifies exception prohibiting the court from assessing “costs and fees
against a governmental body if the court finds that the governmental body acted in
reasonable reliance on: (1) a judgment or an order of a court applicable to the governmental
body; (2) the published opinion of an appellate court; or (3) a written decision of the
attorney general, including a decision issued under Subchapter G or an opinion issued
under Section 402.042.” See Tex. Gov’t Code § 552.323(a).

11
 Although a requestor may plead TPIA mandamus and attorney fee

claims and even obtain favorable interlocutory summary judgment on

mandamus, the case is rendered moot and the requestor does not substantially

prevail where the governmental body produces the disputed documents before

final judgment, thus obviating any justiciable controversy. See Giggleman, 408

S.W.3d at 702-06; see also Int’l Grp. P’ship v. KB Home Lone Star L.P., 295

S.W.3d 650, 653 (Tex. 2009) (to qualify as “prevailing party” there must be

judicially sanctioned relief on the merits that materially alters the legal

relationship between the parties such as damages award, injunctive or

declaratory relief, or consent decree or settlement in party’s favor). Satisfaction

of the TPIA “substantially prevails” prong for fee recovery requires an

enforceable final judgment against the defendant from whom fees are sought,

or comparable relief through a consent decree or settlement. See Giggleman, 408

S.W.3d at 703; see also Int’l Grp. P’ship, 295 S.W.3d at 654.

In this case, Appellees’ TPIA mandamus and attorney fee claims were

mooted prior to the trial court’s final judgment. It is undisputed that, after the

trial court granted summary judgment in favor of Appellees but before it

entered final judgment, the City immediately and voluntarily produced to

Appellees all withheld documents that the trial court ordered the City to

disclose. CR.1104. By doing so, the City obviated any justiciable controversy

12
regarding Kallinen’s (or Kubosh’s) entitlement to mandamus relief or attorney

fees. See Giggleman, 408 S.W.3d at 704. This result is particularly appropriate

here, where the City timely and properly requested an Attorney General

opinion, but was deprived of the ability to obtain and rely on such an

opinion—by Appellees’ filing suit before the Attorney General ruled and

requesting the Attorney General to defer ruling due to their suit. Had the City

not been so deprived, Appellees would not have been entitled to attorney fees

because the City would have complied with the Attorney General ruling. It is

also consistent with both Section 552.321 and Giggleman to hold that the City

which—once it was provided with authoritative guidance in the trial court’s

ruling, relied on it, and produced the documents—should not have been

subjected to an award of attorney fees.

2. As a result, the trial court had no subject-matter
jurisdiction because Appellees’ TPIA mandamus and
attorney fee claims were not justiciable at the time of final
judgment.

Subject matter jurisdiction is essential to the authority of a court to

decide a case. See M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704, 708

(Tex. 2001); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.

1993). Subject matter jurisdiction requires that the party bringing the suit have

standing, that there be a live controversy between the parties, and that the case

13
be justiciable. See State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994);

Tex. Ass’n of Bus., 852 S.W.2d at 443-46. The justiciability doctrines of ripeness,

standing, and lack of mootness are constitutional components of subject matter

jurisdiction—and are rooted in the prohibition against advisory opinions,

which is rooted, in turn, in the separation-of-powers doctrine. See Patterson v.

Planned Parenthood of Houston, 971 S.W.2d 439, 442-43 (Tex. 1998); Williams v.

Lara, 52 S.W.3d 171, 184 (Tex. 2000).

Ripeness concerns when an action may be brought and requires that, at

the time a lawsuit is filed, the facts have developed sufficiently so that an injury

has occurred or is likely to occur, rather than being contingent or remote. See

Patterson, 971 S.W.2d at 442. A controversy is not ripe when resolution

depends on contingent or hypothetical facts. Id. at 443. Standing concerns who

may bring an action and requires the plaintiff to be personally aggrieved.

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05 (Tex. 2008). A plaintiff

does not have standing unless the alleged injury is concrete and particularized,

actual or imminent, not hypothetical. Id. at 305. Mootness concerns the

cessation of what was once a live controversy between the parties. Williams, 52

S.W.3d at 184. A controversy ceases to exist and a case becomes moot if the

issues presented are no longer live or the parties lack a legally cognizable

14
interest in the outcome. Id. If a case becomes moot, the parties lose standing to

maintain their claims. Id.

The trial court therefore had no jurisdiction at the time it entered final

judgment because Appellees’ TPIA mandamus and attorney fee claims were

mooted, and thus no longer justiciable, prior to that judgment due to the City’s

production of the remaining documents to Kallinen.

B. The trial court also had no subject-matter jurisdiction because
all Appellees’ claims are barred by immunity.

1. Appellees’ TDJA claims are barred by immunity because
they are redundant and duplicative of their TPIA claims.

The TDJA also does not waive immunity for Appellees’ TDJA claims

seeking relief that is redundant or duplicative of the relief they seek through

their TPIA mandamus claims. Declaratory relief is proper if a justiciable

controversy exists as to the rights and status of the parties and the controversy

will be resolved by the declaration sought. See Bonham State Bank v. Beadle, 907

S.W.2d 465, 467 (Tex. 1995); Tex. Ass’n of Bus., 852 S.W.2d at 446. But a mere

request for declaratory relief alone does not establish jurisdiction because the

TDJA is not a grant of jurisdiction, but merely a procedural device for deciding

cases already within a court’s jurisdiction. See Chenault v. Phillips, 914 S.W.2d

140, 141 (Tex. 1996) (per curiam); Tex. Ass’n of Bus., 852 S.W.2d at 444. The

15
TDJA is not available to settle disputes already pending before a court. See

BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990).7

Under the redundant remedies doctrine, courts will not entertain an

action brought under the TDJA when the same claim could be pursued

through different channels. See Patel v. Tex. Dep’t of Licensing & Regulation, 469

S.W.3d 69, 79 (Tex. 2015). The focus of the doctrine is on the initiation of the

case and, in the jurisdictional and immunity context, whether the Legislature

created a statutory waiver of sovereign immunity that permits the parties to

raise their claims through some avenue other than the UDJA. Id. The Texas

Supreme Court, as well as the Austin Court of Appeals, has confirmed that an

award of attorney fees under the TDJA is unavailable if the claim for

declaratory relief is merely incidental to or redundant of relief sought through

TPIA claims. See Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 300-

01 (Tex. 2011); Giggleman, 408 S.W.3d at 704.

In this case, Appellees’ pleadings confirm that their TDJA claims are

redundant and duplicative their TPIA claims. Their TDJA and TPIA claims

both complain only about the disclosure of documents that Kallinen requested
7
Nor can a party use the TDJA to seek the same relief afforded under another cause of
action merely in an effort to obtain recovery of otherwise impermissible attorney fees. See
MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009); see also City of
Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 392 (Tex. App.—Houston [14th Dist.]
2004, no pet.).

16
from the City. So Appellees’ TDJA claims only seek to resolve issues already

pending before the trial court through their TPIA claims and raise no new or

different controversies. Appellees allege duplicative TDJA claims merely in an

effort to obtain attorney fees, under the permissive TDJA standard, that are

otherwise unrecoverable under the TPIA here. Allowing Appellees to recover

attorney fees under the TDJA when they cannot meet the requirements for fee

recovery under the TPIA would frustrate the limits established by the TPIA.

See Jackson, 351 S.W.3d at 300. Appellees’ TDJA claims are therefore also

barred by immunity because they seek relief that is redundant and duplicative

of the relief that they seek through their TPIA claims.

2. Appellees’ TPIA mandamus claims are also barred by
immunity because the TPIA does not waive the City’s
immunity and the only proper defendant for such claims is
the pertinent public information officer.

The TPIA does not waive immunity for Appellees’ TPIA mandamus

claims against the City under section 552.321(a)—it authorizes such claims

only against the pertinent City official. The TPIA requires an “officer for

public information of a governmental body” to produce public information for

inspection and/or duplication on application by any person to the officer. See

Tex. Gov’t Code § 552.221(a). It also authorizes a “requestor” to file suit for a

17
writ of mandamus compelling “a governmental body” to make information

available for public inspection. See Tex. Gov’t Code § 552.321(a).8

The Texas Supreme Court reconciled these provisions and held that the

only “proper party” against whom mandamus may be sought under Section

552.321(a) is the officer for public information rather than the governmental

body. See A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 672-73, 681 (Tex.

1995). The Court based its conclusion on the duty that the public information

officer has to make public information available under Sections 552.203 and

552.221(a). Id. In addition, the Fourteenth Court of Appeals followed Sharp

and reversed a summary judgment disposing of a mandamus suit filed against

a county sheriff in his official capacity. See Guthrie v. Garcia, 352 S.W.3d 307,

308-10 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

The Guthrie Court also relied on the Texas Supreme Court decision in

Heinrich regarding the ultra vires exception to governmental immunity based on

the distinction between suits against a governmental entity and those against a

public official in his official capacity. See Guthrie, 352 S.W.3d at 309

(discussing City of El Paso v. Heinrich, 284 S.W.3d 366, 372-76 (Tex. 2009)). The

Heinrich court explained as follows:

8
The TPIA defines a “requestor” as “a person who submits a request to a governmental
body for inspection or copies of public information.” See Tex. Gov’t Code § 552.003(6).

18
 From this rationale, it is clear that suits to require state officials to
comply with statutory or constitutional provisions are not
prohibited by sovereign immunity, even if a declaration to that
effect compels the payment of money. To fall within this ultra vires
exception, a suit must not complain of a government officer’s
exercise of discretion, but rather must allege, and ultimately prove,
that the officer acted without legal authority or failed to perform a
purely ministerial act. Thus, ultra vires suits do not attempt to exert
control over the state—they attempt to reassert the control of the
state. Stated another way, these suits do not seek to alter
government policy but rather to enforce existing policy.

Heinrich, 284 S.W.3d at 372. The Guthrie court therefore held that the

requestor’s mandamus suit against the county sheriff in his official capacity

was proper under Section 552.321(a) because any claim against the county for

mandamus relief would necessarily have failed as a matter of law. See Guthrie,

352 S.W.3d at 309-10.

In this case, Appellees filed their TPIA mandamus claims under Section

552.321(a) only against the City. They did not file those claims against the

City’s public information officer for the withheld information. So Appellees

did not file suit against the only proper party against whom mandamus relief

may be sought under Section 552.321(a), and the City is therefore immune

from Appellees’ TPIA mandamus claims under Section 552.321(a).

19
 3. Appellees’ TDJA claims are likewise barred by immunity
because the TDJA also does not waive the City’s
immunity and the only proper defendant for such claims is
the pertinent public information officer.

The TDJA also does not waive immunity for Appellees’ TDJA claims

against the City—and, just like the TPIA, only authorizes such claims against

the pertinent City official. As outlined above, the Heinrich Court explained the

ultra vires exception to immunity based on the distinction between suits against

a governmental entity and those against public officials in their official

capacities. See Heinrich, 284 S.W.3d at 372-76; see also Guthrie, 352 S.W.3d at

309. But Heinrich also confirmed that a plaintiff may not bring declaratory

judgment actions against a governmental entity to determine rights under a

particular statute. See Heinrich, 284 S.W.3d at 372-73; see also Tex. Dep’t of State

Health Servs. v. Holmes, 294 S.W.3d 328, 335 (Tex. App.—Austin 2009, pet.

denied). Rather, plaintiffs are limited to bringing ultra vires suits against

governmental officials in their official capacities. See Heinrich, 284 S.W.3d at

372-73; Holmes, 294 S.W.3d at 335. So as a technical matter, governmental

entities—as opposed to their officers in their official capacities—remain

immune from suit. See Heinrich, 284 S.W.3d at 372-73.

In this case, like their TPIA claims, Appellees also filed their TDJA

claims only against the City. They did not file those claims against the

20
pertinent City official in his or her official capacity. So Appellees did not file

suit against the only proper party against whom declaratory relief may be

sought under the TDJA, and the City is therefore also immune from

Appellees’ TDJA claims.

4. As a result, the trial court also had no subject-matter
jurisdiction because all Appellees’ claims are barred by
immunity.

Sovereign and governmental immunity protect the State and its political

subdivisions, including municipalities, from suit and liability unless such

immunity is waived. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d

653, 655 & n.2 (Tex. 2008); Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371,

374 (Tex. 2006). Courts interpret waivers of immunity narrowly because the

intent to waive must be clear and unambiguous. See Garcia, 253 S.W.3d at 655;

Reata Const. Corp., 197 S.W.3d at 375; Tex. Gov’t Code § 311.034. The party

suing the governmental entity has the burden to both plead and prove consent

to suit under a clear and unambiguous constitutional or statutory waiver of

that immunity. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d

849, 853-55 (Tex. 2002); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999). Immunity from suit defeats subject-matter jurisdiction. See Reata Const.

Corp., 197 S.W.3d at 374; IT-Davy, 74 S.W.3d at 855.

21
 The trial court therefore had no jurisdiction because all Appellees’ claims

are barred by immunity for several reasons: (1) their TDJA claims are barred

because they are redundant and duplicative of their TPIA claims, (2) their

TPIA mandamus claims are barred because the TPIA does not waive

immunity and the only proper defendant for such claims is the pertinent public

information officer, and (3) their TDJA claims are barred by immunity because

the TDJA also does not waive immunity and the only proper defendant for

such claims is the pertinent public information officer.

II. The trial court erred by awarding attorney fees to Appellees because
there was no evidence or insufficient evidence to support any award of
fees to them.

A. Kallinen was not entitled to any award of attorney fees because
he did not actually incur any attorney fees—as Kubosh incurred
all the claimed fees.

Even if the trial court had subject matter jurisdiction (which the City

denies), Kallinen was not entitled to any attorney fee award because he did not

actually incur any fees. As noted above, the TPIA requires the trial court to

assess costs of litigation and reasonable attorney fees in a mandamus suit

under Section 552.321—but may only award costs and fees that are actually

incurred by a plaintiff who substantially prevails. See Tex. Gov’t Code

§ 552.323(a). The Texas Supreme Court has confirmed that attorney fees are

incurred only where a party becomes liable for them and that a fee award

22
under Section 552.323(a) or the TDJA is proper only where the fees are

actually incurred. See Jackson, 351 S.W.3d at 299-301 (holding that licensed

attorney was not entitled to recover attorney fees under TPIA because he did

not incur attorney fees since he represented himself or under TDJA because his

declaratory relief claim was merely incidental to his TPIA claim).

In this case, the evidence presented at the trial court hearing on attorney

fees, including all billing invoices that Appellees’ counsel submitted for

representation of Appellees in this case, conclusively establishes that only

Kubosh incurred all the claimed fees allegedly incurred in connection with the

TPIA requests for information that only Kallinen submitted to the City.

Appellees’ counsel submitted all billing invoices only to Kubosh—and did not

submit any billing invoices to Kallinen. RR[1] Ex. 2. Kallinen offered no

evidence that he incurred any of the claimed fees. RR[1] Ex. 2. Kallinen was

therefore not entitled to any award of attorney fees because he did not actually

incur any attorney fees—as Kubosh incurred all the claimed fees.9

9
To the extent that Appellees challenge the trial court’s dismissal of Kubosh due to lack of
standing, the attorney fee award under the court’s original final judgment was nonetheless
erroneous. First, for the reasons outlined above (which are incorporated here for all
purposes), Kubosh was not entitled to any fee award because his TPIA mandamus and
attorney fee claims were not justiciable. Second, for the same reasons that Kubosh was not
entitled to any fee award, the fee award to Appellees jointly was erroneous and could not
stand because Kallinen was not entitled to any fees that Kubosh was not entitled to recover
—and Appellees failed to segregate the fees that each allegedly incurred.

23
 B. Appellees were not entitled to any award of attorney fees
because they failed to properly segregate recoverable (alleged)
fees from non-recoverable (alleged) fees.

Even if Kallinen incurred any fees (which the City denies), neither

Appellee was entitled to any award of attorney fees because each failed to

properly segregate recoverable (alleged) fees from non-recoverable (alleged)

fees. The Texas Supreme Court has confirmed that where attorney fees relate

to a claim for which fees are not recoverable, a claimant must segregate

recoverable from unrecoverable fees. See Tony Gullo Motors I, L.P. v. Chapa, 212

S.W.3d 299, 313 (Tex. 2006). Intertwined facts do not make fees recoverable;

it is only when discrete legal services advance both a recoverable and

unrecoverable claim that they are so intertwined that they need not be

segregated. See Chapa, 212 S.W.3d at 313-14; see also Rapid Settlements, Ltd. v.

Settlement Funding, LLC, 358 S.W.3d 777, 787 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (citing Chapa, 212 S.W.3d at 313-14).

In this case, as noted above, Appellees’ counsel failed to segregate any

attorney fees incurred with regard to documents that the trial court ordered the

City to disclose from any incurred with regard to documents that the City

ultimately disclosed to Appellees voluntarily. RR[1] Ex. 2. Appellees’ counsel

also failed to segregate any attorney fees incurred by Kubosh from any

incurred by Kallinen. RR[1] Ex. 2. But such segregation as to Kubosh and

24
Kallinen is critical to determining the amount of fees to which each may be

entitled. It is particularly critical to ensuring that neither is awarded any

attorney fees incurred only by Kubosh—who, as outlined above, lacks standing

not only for the same reasons why Kallinen lacks standing, but also for the

additional reason that he never actually submitted any TPIA request to the

City and therefore is not even a requestor authorized to file suit for mandamus

relief under Section 552.321(a). Appellees were therefore not entitled to any

award of attorney fees because they failed to properly segregate recoverable

(alleged) fees from non-recoverable (alleged) fees.10

C. Appellees offered no evidence or insufficient evidence to support
the amount of the award of attorney fees.

In the alternative, and subject to the City’s arguments on lack of

jurisdiction (including that Kallinen is not a prevailing party for purposes of

TPIA fee recovery), Appellees also failed to offer any evidence or any

sufficient evidence to support any fee award. As noted above, the TPIA

authorizes the court to assess reasonable attorney fees incurred by a plaintiff

who substantially prevails in a mandamus suit under Section 552.321(a). See

10
Although Appellees did segregate fees to a limited (and insufficient) extent after the trial
court’s original final judgment, they failed to properly segregate fees separately incurred by
each of them.

25
Tex. Gov’t Code § 552.323(a). In this case, Appellees offered no evidence or

insufficient evidence to establish that any attorney fees they allegedly incurred

were reasonable. The City’s attorney fee expert, Patrick Zummo, testified at

the attorney fee hearing in the trial court that Appellees’ claimed attorney fees

were not reasonable or proper for multiple reasons.

Mr. Zummo explained that Appellees’ counsel did not exercise

appropriate billing judgment. RR[1].122, 134-35, 139, 1144. Mr. Zummo’s

testimony also confirms that Appellees’ evidence cannot support their burden

to prove that the claimed attorney fees were reasonable because:

1. The billing invoices included many single entries for total time allegedly
expended in a single day instead of multiple daily entries broken down
for discrete individual tasks. RR[1].128-29, 141-43, 149, 182.

2. Many task descriptions were too generic which precluded any
independent assessment of the reasonableness of the stated time
amounts. RR[1].132, 133, 147.

3. Many task descriptions were redacted which also precluded independent
assessment of the reasonableness of the stated time amounts. RR[1].121,
130, 133, 149, 151, .

4. Tasks relating to the deliberative process privilege and attorney-client
privilege on which the City relied were not segregated even though they
could have been segregated for the most part. RR[1].148-49, 152-54.

5. The billing invoices included amounts for extensive research on legal
issues of Appellees’ counsel touted expertise. RR[1].132, 156-57.

6. The billing invoices included amounts for numerous attorney-client
conferences to discuss “strategy” despite the fact that strategy had not

26
 significantly changed and that Appellees are lawyers. RR[1].132-33, 141-
42, 147-48, 150, 151, 180, .

7. The billing invoices included amounts for unproductive speculation and
investigation regarding whether Professor Robert Stein of Rice
University allowed an alleged employment relationship between his wife
and staff of the Mayor of the City of Houston to influence his research,
analysis and opinions. RR[1].146-47.

8. The billing invoices included amounts for excessive time spent reviewing
the City’s documents and performing other tasks. RR[1].136-44, 151.

Mr. Zummo’s testimony therefore raised numerous fact issues regarding

whether Appellees satisfied their burden to prove that the claimed attorney fees

were reasonable.

Mr. Zummo testified that the foregoing issues with Appellees’ claimed

attorney fees required reduction of about $21,440.00 (based upon 67 hours at

$320 per hour). RR[1].151-52. Mr. Zummo also testified that, based on the

count of the documents subject to the trial court’s rulings, Appellees were not

successful in their attempt to obtain 25% of the documents they sought—

reflecting the total percentage of withheld document for which the City

claimed the attorney-client privilege. RR[1].153-55. Mr. Zummo determined

that, even after deduction of $21,440 as stated above, the remaining amount

should be further reduced accordingly to a percentage reflecting only the total

percentage of withheld documents that the trial court ordered the City to

27
disclose. RR[1].153-55. Mr. Zummo’s testimony therefore also confirms that

the amount of attorney fees awarded was excessive.

III. The trial court also had no subject-matter jurisdiction over Kubosh’s
claims; Kubosh’s TPIA mandamus and attorney fee claims were never
justiciable due to lack of ripeness and standing because he never
submitted any TPIA request to the City.

The trial court also had no subject-matter jurisdiction over Kubosh’s

TPIA mandamus and attorney fee claims due to lack of ripeness and standing.

As noted above, the TPIA authorizes a “requestor” to file suit for a writ of

mandamus compelling a governmental body to make information available for

public inspection—and defines a “requestor” as “a person who submits a

request to a governmental body for inspection or copies of public information.”

See Tex. Gov’t Code §§ 552.321(a), 552.003(6). The plain language of Section

552.321 therefore only authorizes a person who submits a request for

information to a governmental body to file suit for a writ of mandamus. In this

case, it is undisputed that Kubosh never actually submitted any request for

information to the City before filing his TPIA claims against the City—despite

their lack of ripeness and his lack of standing. The trial court therefore had no

subject-matter jurisdiction over Kubosh’s TPIA mandamus and attorney fee

claims under Sections 552.321(a) and Section 552.323 because those claims

were not justiciable due to lack of ripeness and standing.

28
 Conclusion and Prayer

For these reasons, the City Houston asked this Court to (1) reverse the

order of the trial court denying the City’s plea to the jurisdiction and render

judgment in the City’s favor that all Kallinen’s claims against the City are

dismissed for want of jurisdiction, and (2) reverse the modified final judgment

of the trial court awarding attorney fees to Kallinen and render judgment in the

City’s favor that Kallinen is not entitled to attorney fees and shall take nothing

on any of his claims against the City.

29
 Respectfully submitted,

DONNA L. EDMUNDSON
City Attorney
JUDITH L. RAMSEY
Chief, General Litigation Section

By: /s/ Fernando De Leon
Fernando De Leon
Senior Assistant City Attorney
SBN: 24025325
CITY OF HOUSTON LEGAL
DEPARTMENT
900 Bagby Street, 4th Floor
Houston, Texas 77002
832.393.6491 (telephone)
832.393.6259 (facsimile)
fernando.deleon2@houstontx.gov

Attorneys for Appellee

Certificate of Compliance

I certify that the foregoing was prepared in Microsoft Word 2010
Version 14.0 in Calisto MT 14 point font; the word-count function shows that,
excluding those sections exempted under TRAP 9.4(i)(1), the brief contains
6,660 words.

/s/ Fernando De Leon
Fernando De Leon

30
 Certificate of Service

I hereby certify that a true and correct copy of the foregoing document
has been forwarded on December 9, 2015 to the following counsel of record by
e-service:

Joseph R. Larsen David A. Furlow
SEDGWICK LLP LAW OFFICE OF DAVID
1200 Smith Street, Suite 1600 A. FURLOW, P.C.
Houston, Texas 77002 4126 Rice Boulevard
joseph.larsen@sedgwicklaw.com Houston, Texas 77005
dafurlow@gmail.com
Attorneys for Appellees

/s/ Fernando De Leon
Fernando De Leon

31
 Appendix

Tab
A. Order on Plaintiffs’ Summary Judgment (dated October 12, 2009)
(CR.582)
B. Order Granting Plaintiffs’ Motion for Partial Summary Judgment and
No-Evidence Partial Motion for Summary Judgment on Conceded
Documents (dated October 12, 2009) (CR.583-85)
C. Order (dated December 8, 2009) (CR.931-32)
D. Order on City’s Motion to Strike Paul Kubosh (dated March 1, 2010)
(CR.969)
E. Final Judgment (dated October 12, 2011) (CR.1094-95)
F. Order (dated January 5, 2012) (CR.1208)
G. Amended Final Judgment (dated July 12, 2012) (CR[2].17-18)
H. First Court of Appeals Judgment and Opinion
(dated August 29, 2013)
I. Supreme Court Judgment and Opinion (dated March 20, 2015)
J. Order for Supplemental Briefing On Remand
Tab A
 P-
re\PsTz.
NO. 2008-75633

Randall Kallinen, IN THE DISTRICT COURT OF

VS.
HARRIS COUNTY, TEXAS
City of Houston

295th JUDICIAL DISTRICT

Order on Plaintiffs' Summary Judgment

After reviewing the requested documents in camera, the court grants the Plaintiffs'
Motion for Summary Judgment in part and denies it in part. The court holds that the documents
that the City of Houston are withholding under the deliberative process privilege do not fall
under that exception as defined by Garland v. Dallas Morning News, 22 S.W. 3d 351 (Tex.
2000).
However, most of the documents that the City is withholding under the attorney client
privilege are privileged with the exception of:
COMA 64, 102, 133 and 149.
There are a few documents that the City has listed under both exceptions. COHP 36, 37
and 38, 40 are protected under attorney client. COHP 39, the top email only is protected. COHP
41, the top email is protected.
The documents will remain confidential pending a decision to appeal by the City.

FILED Loren Jackson Signed October 12, 2009.
District Clerk

OCT 12 2009
Harris County, Texas

By
Tracy Christopher
Judge Presiding
Tab B
 Flied 09 October 8 P6:18
Low Jackson - District Cleric
Harris Cou239854
ED101J01
CAUSE NO. 2008-75633 By Sandra Talbert

RANDALL KALLINEN and
PAUL KUBOSH
IN THE DISTRICT COURT OF
P- 3
v. HARRIS COUNTY, TEXAS
s 7-
CITY OF HOUSTON, TEXAS 295th JUDICIAL DISTRICT

ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
AND NO-EVIDENCE PARTIAL MOTION FOR SUMMARY JUDGMENT ON
CONCEDED DOCUMENTS

CAME BEFORE the Court this day Plaintiffs Randall Kallinen and Paul Kubosh's Motion

for Entry of Judgment on Conceded Documents. The Court FINDS that the City, in its Response to

Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Motion for Partial Summary

Judgment, provided no evidence or argument that the documents identified below fall within either

the attorney-client privilege or deliberative process privilege exception to the Texas Public

Information Act. Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Motion for

Partial Summary Judgment is hereby GRANTED as to these documents, set out below by Bates

numbers:

A004 A055
A005-A007 A056
A009-A014 A057-A058
A015-A018 A059-A061
A025 A062
A034-A035 A063
A036-A037 A072-A075
A049 A076-A078
A050 A079
A051 A080
A084 A094-A095
A085 A096-A097
A086-A088 A100-A101
A089-A091 A103
A092-A093 A104

100583
A105 A183
A112-A113 A184
A114 A185
A123-A124 A186
A125 A187-A188
A126 A192-A193
A127-A131 A202-A203
A132 A208
A134-A136 A222
A137-A138 A223
A139-A141 A224
A142-A143 A225
A144-A148 A226
Al 56-A160 A227
A161 A228
A163 A229
A172 A240
A175 A241
A176 A243
A177 A245
A178 A247-A248
A179 A249
A180

P004-P005 P220-P221
P005-P007 P222
P008-P009 P223-P228
P027-P029 P250
P030 P251
P031 P252
P032 P257
P033 P258
P034 P261-P262
P035 P288
P044-P045 P289
P046 P290-294
P047 P295
P048 P296
P063 P297-P313
P066-P114 P313-P315
P115-P116 P357
P117-P119 P390
P124 P393-P425
P157 P426
P159-P160

2
 Judgment is hereby entered in favor of Plaintiffs Randall Kallinen and Paul Kubosh on their

claims under the Texas Public Information Act and Texas Declaratory Judgments Act for the above-

referenced documents. 11 • VI V .11 I •I e: .1

., • s• :1 nce o ion :1 I .1 "I • •• • Si IS se documents

_3.1Alielt-remain-irminrfition and on which the Court has nT)ryarruleci7—•

Signed this 1a day of October, 2009.

JUDGE TRACY CHRI HER

APPROVED AS TO FORM AND SUBSTANCE:

Jose
SE P WICK, DETERT, MORAN & ARNOLD LLP
1 1 1 Bagby St., Suite 2300
Houston, Texas 77002
Telephone No.: (832) 426.7000
Facsimile No.: (832) 426.7009
Attorneys for Plaintiffs Randall Kallinen and Paul Kubosh

3

ar..k 1•—.4
Tab C
 Flied 09 November 18 P2:30
Loren Jackson - District Cie*
Herds
ED101=7944
CAUSE NO. 2008-75633 • By: Melanie Broughton-Cooper

RANDALL KALLINEN and IN THE DISTRICT COURT OF
PAUL KUBOSH

v. HARRIS COUNTY, TEXAS roocx
CITY OF HOUSTON, TEXAS 295th JUDICIAL DISTRICT

74 74 A b.. R mai r 0 kikt.J__
On the day of , 2009, came on to be heard Plaintiffs Randall

Kallinen and Paul Kubosh's Motion for Judgment and for Award of Attorneys' Fees. The Court,

having reviewed papers on file in this case and having heard arguments of counsel, is of the opinion

that the motion has merit and it is hereby GRANTED.

The Court specifically FINDS that the documents set out in the Order on Summary Judgment

and Order Granting Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Motion for

Partial Summary Judgment on Conceded Documents are public information that may not be withheld

from release pursuant to an exception to the Act. The Court further FINDS that the City of Houston

had refused to release this information from release necessitating Plaintiffs' mandamus suit and that

Plaintiffs have substantially prevailed in this action. pursuant to TEX. GOV 'T CO ' • 552.323(a),

ainti s s ou s recover their reasonable and nec attorney's fees. On

e evidence presented, the Co • FINDS Plaintiffs reasona and necessary attorneys fees to be

($ ).

IT IS THEREFORE, ORDERE R , A • ' • ED AND DECREED that the documents

identified by the Order on Sum Judgment and Or• Granting Plaintiffs' Motion for Partial

Summary Judgment o-Evidence Motion for Partial S i ary Judgment on Conceded

Documents are lic information that may not be withheld pursuant to • ception to the Act.

nt.1235172 hit

^ ^,x46,47J. •..,.&"
 The Court er ORDERS, ADJUDGES and DECRE that Plaintiffs should recover its

reasonable and ssary attorney's fees, ch the Court finds to be

dollars ($ with post judgment interest thereon at the

rate of peace t (%) per um from the date of this judgment until paid, together

with all costs of court in its beh ex ded.

The Court further ORDE' , D.TUDGES and DECREES that, in the event the City appeals

this Final Judgment, the r .nable an• ecessary attorneys fees to Plaintiffs for successful defense

of this Judgment on ap al will be dollars ($ ) and successful

defense of this Ju ent before the Texas S reme Court will be dollars

($

P intiffs Randall Kal linen and Paul Kubosh allowed such writs and processes as may be

ne ary in the enforcement and collection of this Jud: ent.

it-is-so-61WERED. "1/41
_tarri.lFs t 9010
SIGNED this day of 02--C-- . , 2009. +u-To Luea (4.
ockL4,_

A k
HONORA JUDGE TRACY STOPHER

2

2
Tab D
 Filed 09 December 30 P5:44 I
Loren Jackson - Dtstrict Clerk!
Harris County
ED101J015619292
CAUSE NO. 2008-75633 By: Sandra Talbert

RANDALL KALLINEN and IN THE DISTRICT COURT OF /7---
/7---
PAUL KUBOSH
ST Y
v. HARRIS COUNTY, TEXAS

CITY OF HOUSTON, TEXAS 295th JUDICIAL DISTRICT

ORDER ON CITY'S MOTION TO STRIKE PAUL KUBOSH

CAME BEFORE the Court today the City's Motion to Strike Paul Kubosh as plaintiff in this

action. The Court, having reviewed the papers on file, including previous Orders of the Court, and

having heard argument of counsel, hereby FINDS:

The City's Motion to Strike Kubosh has already been denied by Order of the Court of

December 7, 2009 finding Paul Kubosh to be a substantially prevailing party in this lawsuit;

The City has presented no argument or authority in addition to the papers it submitted to the

Court prior to this ruling and the Court finds no basis for overturning the Order finding Kubosh a

substantially prevailing party in this case; and

The Court ORDERS that the City's Motion to Strike Paul Kubosh as a plaintiff in this matter

is, in all respects, DENIED.

Signed the day of January, 2010.

JUDGE PRESIDING
Tab E
V
CAUSE NO. 2008-75633

RANDALL KALLINEN and IN THE DISTRICT COURT OF
PAUL KUBOSH

v. HARRIS COUNTY, TEXAS

CITY OF HOUSTON. TEXAS 295th JUDICIAL DISTRICT

FINAL JUDGMENT

The Court FOUND in its Order on Plaintiffs' Summary Judgment and its Order Granting

Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Partial Motion for Summary

Judgment on Conceded Documents, both of October 12, 2009, that the documents set out therein are

public information that may not be withheld from release pursuant to an exception to the Act. As set

out in these prior Orders of the Court. Judgment is hereby entered that the following documents

identified by Bates number in the litigation are public information and not subject to an exception to

the Act:

COHA004-COHA007 COHA183-COHA188
COHA009-COHA018 COFIA192-COHA193
COHA025 COHA202-COHA203 C=D
C".41
COHA034-COHA037 COHA208 f,5 oa
COHA049-COHA051 COHA222-COHA229 ..1;
c'
.0 so
COHA055-COHA064 CO1{A240-COHA241 0,3
L)
f=")
COHA072-COHA080 COHA243
COHA084-COHA097 COHA245
COHA100-COHA105 COHA247-COHA249
COHA112-COHA114
COHA123-COHA149
COHA156-COHA161 COHP001 COHP035
COHA163 COHP039 (except top e-mail)
COHA172 COHP041 (except top e-mail)
COHA175-COHA180 COHP042-COHP426

The Court FOUND in its Order of December 8, 2009 that the City of Houston had refused to

release this information necessitating Plaintiffs' mandamus suit, and that Plaintiffs have substantially

2676379-1

010'7-'4
 •
prevailed in this action. The three referenced prior Orders of the Court are attached hereto and

incorporated herein. Judgment is hereby entered that Plaintiffs have substantially prevailed in this

Public Information Act mandamus suit and pursuant to TEX. GOV'T CODE § 552.323(a) shall

recover their reasonable attorneys' fees. Following trial on this issue and on the evidence presented,

the Court FINDS Plaintiffs' reasonable attorney's fees to be ninety-five thousand six hundred sixty

four and no/100 dollars ($95,664.00).

The Court further ORDERS, ADJUDGES and DECREES that Plaintiffs should recover its

reasonable and necessary attorney's fees. which the Court finds to be ninety-five thousand six

hundred sixty four and no/100 dollars ($95.664.00), with post-judgment interest thereon at the rate of

five percent (5 %) per annum from the date of this judgment until paid, together with all costs of

court in its behalf expended.

The Court further ORDERS, ADJUDGES and DECREES that, in the event the City appeals

this Final Judgment, the reasonable and necessary attorneys fees to Plaintiffs for successful defense

of this Judgment on appeal will be thirty thousand and no/100 dollars ($30,000.00) and successful

defense of this Judgment before the Texas Supreme Court will be fifty thousand and no/100 dollars

($50,000.00).

Plaintiffs Randall Kallinen and Paul Kubosh are allowed such writs and processes as may be

necessary in the enforcement and collection of this Judgment.

It is so ORDERED.

SIGNED this i2 day of c77LA_ , 2011.

kA_ 0-4,4_4;LL
HONORABLE JUDGE CAROLINE BAKER

2676379-1
Tab F
 O P-
pJuRY
CAUSE NO. 2008-75633 r yNNTr