Date: 02-28-2017

Case Style: The City of Houston v. Randall Kallinen

Case Number: 01-12-00050

Judge: Jane Bland

Court: Texas Court of Appeals, First District on appeal from the 295th District Court, Harris County

Plaintiff's Attorney: Judith L. Ramsey and Fernando De Leon

Defendant's Attorney: Joseph Robert Larsen

Description: 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


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a traffic-light camera study that the City had commissioned. The City granted
part of the request, but it withheld some documents while it sought an opinion
from the Attorney General about whether the withheld documents were
subject to disclosure. See TEX. GOV’T CODE ANN. § 552.306(a) (West 2015)
(giving Attorney General 45 business days after request to issue opinion).
Before the Attorney General ruled, Kallinen sued for mandamus relief,
asking the trial court to order disclosure of the withheld documents. The City
filed a plea to the jurisdiction, contending that the trial court lacked
jurisdiction until the Attorney General ruled. The trial court overruled the
City’s plea, granted Kallinen’s motion for summary judgment, ordered
disclosure of many of the withheld documents, and awarded Kallinen
attorney’s fees. The City appealed.
This court agreed with the City’s argument that court intervention was
premature given that the Attorney General had not made a determination, and
dismissed Kallinen’s suit for lack of jurisdiction. The Texas Supreme Court
reversed that ruling and remanded the case to our court to address the
remaining issues in the City’s appeal. See Kallinen v. City of Houston, 462
S.W.3d 25, 29 (Tex. 2015) (per curiam) (Kallinen I).
On remand, the parties provided supplemental briefing. In that briefing,
the City contends that: (1) the case was moot before the trial court entered its


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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.


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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


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judgment from which the City appealed, and the City has maintained that it
has no obligation to disclose the documents under the PIA. Thus, Kallinen
further responds, the remaining fee claim presents a continuing live
controversy, which the trial court properly resolved.
Whether a claim is moot turns on whether a justiciable controversy
exists to resolve. A justiciable controversy between the parties must exist at
every stage of the legal proceedings, including the appeal, or the case is moot.
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). If a controversy ceases to
exist or the parties lack a legally cognizable interest in the outcome, then the
case becomes moot. Id. The same is true if a judgment would not have any
practical legal effect upon a then-existing controversy. Zipp v. Wuemling, 218
S.W.3d 71, 73 (Tex. 2007). A case is not moot, however, if some issue
remains in controversy. In re Gruebel, 153 S.W.3d 686, 689 (Tex. App.—
Tyler 2005, orig. proceeding).
The City’s belated argument that it complied with the trial court’s order
to disclose the withheld documents did not end the parties’ dispute: the City
continued to challenge the trial court’s ruling through a plea to the jurisdiction,
a challenge that ended with the Supreme Court’s ultimate rejection of the
City’s position. See Kallinen I, 462 S.W.3d at 9. We presume the City
prosecuted the case on appeal before this court and defended its position in


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the Texas Supreme Court in good faith. See Heckman v. Williamson Cty., 369
S.W.3d 137, 162 (Tex. 2012).
The continuation of the controversy is demonstrated by the City’s
conduct during the course of this litigation. Cf. Miga v. Jensen, 96 S.W.3d
207, 212 (Tex. 2002) (“[P]ayment on a judgment will not moot an appeal of
that judgment if the judgment debtor clearly expresses an intent . . . to exercise
his right of appeal and appellate relief is not futile.”). The City appealed the
trial court’s judgment in this case, challenging the trial court’s jurisdiction to
compel production of the documents. After prevailing in the court of appeals,
the City defended its position in the Texas Supreme Court. The Texas
Supreme Court did not decline to rule for lack of jurisdiction based on the
absence of controversy under the PIA, and the City did not ask the Court to
so decline. See Kallinen I, 462 S.W.3d at 27 (“The parties agree that the only
basis for the trial court’s jurisdiction is Section 552.321(a) of the PIA.”).
Neither the trial court’s final judgment nor the City’s notice of appeal reflects
an agreement by the City to release the documents to Kallinen.1 To the
contrary, the City has vigorously prosecuted its position that the trial court
1 Under the rule enunciated in In re Dallas Area Rapid Transit, 967 S.W.2d 358 (Tex. 1998), the City could have withheld the documents while it pursued its appeal, but chose not to do so. See id. at 359 (holding that governmental body’s notice of appeal superseded judgment compelling production of documents under Chapter 552 without need to post security).


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lacked the jurisdiction to adjudicate Kallinen’s public information suit in the
first place—and, concomitantly, the authority to order the documents’ release.
On rehearing, the City contends that the Texas Supreme Court’s
decision in Intercontinental Group Partnership v. KB Home Lone Star L.P.,
295 S.W.3d 650, 652 (Tex. 2009), dictates a holding that this case is moot. In
KB, however, the issue was not one of justiciability or mootness, but of the
right to recover under a contract—a justiciable issued presented to, and
decided by, the Texas Supreme Court. See id. The Supreme Court did not
determine that compliance with a trial court order mooted the controversy. See
id. Rather, the Court interpreted a “prevailing party” contract provision, and
it concluded that one party did not prevail under the agreement when the jury
found breach of the contract but awarded no damages. See id. Drawing from
cases construing “prevailing party” as used in state and federal statutes, the
Court held that KB was not entitled to jury fees because it had not secured
either a damages award or equitable relief. Id. at 658.
The City imports KB’s language that a plaintiff does not “prevail” for
purposes of qualifying for a fee award unless it obtains “relief on the merits”
of a claim “that materially alters the relationship between the parties.” Id. at
653. The City notes that it is the “judgment [and not preliminary rulings or
findings] that is critical to the prevailing-party determination.” Id. at 654, 656.


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But the City tacitly concedes that Kallinen obtained the statutory relief he
sought through court order. The final judgment reiterates this relief—the
compelled disclosure of documents that had been withheld short of court
intervention, and the attorney’s fees expended in obtaining this relief.
Section 552.323(a) provides that a trial court “shall assess costs of
litigation and reasonable attorney fees incurred by a plaintiff who
substantially prevails” under the PIA. See TEX. GOV’T CODE ANN.
§ 552.323(a). Disclosure is what a plaintiff suing under the PIA seeks. When
that disclosure is compelled by the court and incorporated into a final
judgment, the plaintiff has obtained relief.
The City challenges both whether Kallinen has “substantially
prevailed” and the reasonableness of the fee awarded. Under analogous
circumstances, the Texas Supreme Court has held that a controversy remained
justiciable. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 643 (Tex. 2005)
(“Hallman’s remaining interest in obtaining attorney’s fees ‘breathes life’ into
this appeal and prevents it from being moot.”). KB thus informs the issue
whether a fee award is appropriate, not whether the issue has become moot.
The City also points to Texas State Board Of Veterinary Examiners v.
Giggleman, 408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.), in which the
Austin Court of Appeals determined a claim under the PIA to be moot when


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the government complied with an interlocutory order. In that case, the Texas
Veterinary Board refused to provide Dr. Giggleman with a copy of the
exhibits that had accompanied a complaint filed against him. See 408 S.W.3d
at 698–99. Id. The trial court signed an interlocutory summary judgment that
ordered the Board to release the documents to Giggleman. Id. at 700. Before
the trial court had ruled on Giggleman’s attorney’s fee claim, the Board
produced the documents it had withheld. Id. at 701. The Board then filed a
plea to the jurisdiction, seeking dismissal of Giggleman’s suit as moot. Id.
The trial court refused to dismiss the case and awarded Dr. Giggleman his
attorney’s fees. See id. at 701–02.
The Austin Court of Appeals reversed. Id. at 709. It agreed with the
Board that its production of the exhibits was “voluntary” and rendered the suit
moot. See id. at 706. The court of appeals observed that the final judgment
did not compel disclosure under the PIA and that, because the Board had
already disclosed the exhibits, a fee claim based on “judicially sanctioned
relief” did not exist. See id. at 703, 705 (observing that the final judgment
“did not award Giggleman any relief on his mandamus claim” and that
interlocutory order granting such relief was “impliedly vacated.”).
In this case, in contrast, the trial court’s amended final judgment:
(1) ruled that the documents withheld by the City were public information not


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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 Miga, 96 S.W.3d at 212 (concluding appeal
was not moot where judgment debtor expressed intent to continue pursuing
appeal at same time it unconditionally tendered money awarded in judgment
to judgment creditor).2
The Supreme Court’s ruling on the question of the trial court’s
jurisdiction settled one aspect of the City’s appeal. See Kallinen I, 462 S.W.3d
2 Since Giggleman was decided, the Austin Court of Appeals has relied on it in deciding two other PIA attorney’s-fee issues and the Amarillo Court of Appeals relied on Giggleman in deciding one. See Tex. Dep’t of Family & Protective Servs., No. 03-15-00631-CV, 2016 WL 3521888 (Tex. App.— Austin June 23, 2016, pet. denied); Hudson v. Paxton, No. 03-13-00368-CV, 2015 WL 738605 (Tex. App.—Austin Feb. 20, 2015, pet. denied); Brazee v. City of Spur, No. 07-12-00405-CV, 2014 WL 2810339 (Tex. App.— Amarillo 2014, no pet.). In all three instances, the governmental respondent voluntarily produced the requested documents before the trial court made any ruling on the merits of the petitioner’s PIA claim, thus preventing the


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at 28–29. The City continues to claim, however, the protection of
governmental immunity to challenge the trial court’s award of attorney’s fees
to Kallinen and to contest the trial court’s determination that Kallinen
“substantially prevail[ed]” pursuant to section 552.323(a). These unresolved
issues present a live controversy. See Hallman, 159 S.W.3d 640 at 643. The
City’s argument that is has complied with the trial court’s compelled
disclosure did not resolve them. To the extent that Giggleman holds
differently, we decline to follow it. Accordingly, we hold that the controversy
is not moot and consider the City’s remaining jurisdictional challenges
because they bear on the trial court’s award of attorney’s fees.
II. The Texas Public Information Act waives the City’s governmental immunity and allows for the recovery of attorney’s fees against it.
The City further contends that it is not a proper party to this action and
governmental immunity bars the assessment of attorney’s fees against it.
Governmental immunity protects the State from lawsuits for money damages.
Tex. Nat. Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002),
quoted in Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.
petitioner from attaining prevailing-party status. See Gates, 2016 WL 3521888 at *2–3 (granting respondent’s plea to the jurisdiction); Hudson, 2015 WL 738605 at *1–2 (granting summary judgment in favor of respondents based on mootness); Brazee, 2014 WL 2810339 at *1 (issuing order denying mandamus relief).


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2006). Political subdivisions of the state, including the City, are entitled to
immunity from judgments for money damages absent express waiver of that
immunity. Reata Constr., 197 S.W.3d at 374.
The City contends that the PIA requires a public information officer to
be named as the respondent, not the City, and thus the trial court had no
jurisdiction to impose fees against it because its immunity is not waived. See
TEX. GOV’T CODE ANN. § 552.201(b) (providing that “[e]ach elected county
officer is the officer for public information and the custodian . . . of the
information created or received by that county officer’s office”). Kallinen
sued the City directly and did not individually name its public information
officer. According to the City, the statutory duty to produce public
information for inspection belongs to the officer. See TEX. GOV’T CODE ANN.
§§ 552.204, 552.221.
Governmental immunity bars suits for money damages asserted against
the government absent express waiver. Reata Constr., 197 S.W.3d at 374. A
mandamus suit seeking documents under the PIA, however, is not a suit for
money damages. Moore v. Collins, 897 S.W.2d 496, 500 (Tex. App.—
Houston [1st Dist.] 1995, no writ) (declaring that “nothing in the Open
Records Act permits punitive or compensatory damages for failure to turn
over public records”); see TEX. GOV’T CODE ANN. § 552.321(a). Because the


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requested relief in this case—the production of public records—is not a claim
for money damages, it is not in the first instance barred by governmental
immunity.
Neither does the failure to name the public information officer
individually result in governmental immunity for the City. The City relies on
AT&T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995), for the
proposition that the “proper party” for a section 552.321 mandamus claim is
the officer for public information rather than the governmental body. See id.
at 673. But the statute has been amended to resolve the jurisdictional problem
recognized in Sharp. See Act of June 19, 1999, 76th R.S., ch. 1319, § 27,
1999 TEX. GEN. LAWS 4511 (codified at TEX. GOV’T CODE. ANN.
§ 552.321(b)) (providing for district court jurisdiction over mandamus suit).
Sharp observed that the PIA “authorizes mandamus actions against a
governmental body” at the same time “it imposes the duty of compliance upon
the public records officer.” See 904 S.W.2d at at 681. This anomaly, the
Court observed, makes a literal application of the statute unworkable—“a
governmental body has no duty to perform what a writ of mandamus would
order.” Id. In most cases, though, the Court recognized, “[t]his discrepancy
can be overlooked,” “and courts can treat petitions for writ of mandamus


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against governmental bodies and against public records officers
interchangeably.” Id.
Our sister court recognized that the City is a proper party in City of
Houston v. Houston Municipal Employee Pension System, No. 14-15-00865
CV, 2016 WL 6886881 (Tex. App.—Houston [14th Dist.] Nov. 22, 2016, no
pet. h.). The court considered and rejected the contention that the City was
immune from suit because the plaintiff failed to name the proper respondent.
Noting the interchangeability of the two, it concluded that “[t]he identity of
the respondent in the case under review does not matter for purposes of
jurisdiction; therefore, . . . mandamus may be sought under [the PIA] against
either the City of Houston or its public information officer. Id. at *11 (citing
Sharp, 904 S.W.2d at 681).
Although the Texas Supreme Court did not squarely address the
amended statute in Kallinen I, we note that it did not decline to decide this
case as barred by governmental immunity. Instead, it noted that the PIA
provided the basis for jurisdiction in the case. See Kallinen I, 462 S.W.3d at
28–29. The plain language of the amended mandamus statute supports the
naming of a governmental body as the respondent: it declares that the
requestor may file a suit under its provisions “for a writ of mandamus
compelling a governmental body to make information available for public


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inspection if the governmental body refuses” to request an attorney general
opinion or supply public information not excepted from disclosure. TEX.
GOV’T CODE ANN. § 552.321(a).
Although the claim for attorney’s fees is a monetary one, the PIA
expressly authorizes it. The attorney’s fees provision holds the governmental
body responsible for paying any award of attorney’s fees and costs in a proper
case. See TEX. GOV’T CODE ANN. § 552.323(a). Accordingly, we reject the
City’s contention that the PIA requires the requestor to name the public
information officer as the respondent or face dismissal for lack of jurisdiction
on the ground that immunity bars the claim. Thus, we turn to the merits of
the City’s appeal of the trial court’s fee award.
III. The trial court acted within its discretion in awarding reasonable attorney’s fees based on the PIA’s requirements.

A. Standard of review
An award of attorney’s fees rests in the discretion of the trial court. El
Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012) (citing Ragsdale v.
Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (per curiam)).
A trial court abuses that discretion if it acts arbitrarily, unreasonably, or
without regard to guiding legal principles, or if its decision is not supported
by legally or factually sufficient evidence. See Bocquet v. Herring, 972
S.W.2d 19, 21 (Tex. 1988); Charette v. Fitzgerald, 213 S.W.3d 505, 512 (Tex.


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App.—Houston [14th Dist.] 2006, no pet.); see also Beaumont Bank, N.A. v.
Buller, 806 S.W.2d 223, 226 (Tex. 1991) (explaining that legal and factual
sufficiency of evidence are relevant factors in determining whether trial court
abused its discretion). In reviewing a fee award, we consider whether the trial
court (1) had sufficient evidence upon which to exercise its discretion and (2)
erred in its application of that discretion. Grotewold v. Meyer, 457 S.W.3d
531, 533–34 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing Moroch
v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied)).
B. Kallinen is a prevailing party as the statute defines one, and he adduced evidence of reasonable and necessary attorney’s fees.

Section 552.323 of the Government Code provides that a plaintiff may
recover attorney’s fees upon a showing that he has substantially prevailed in
his suit and the government did not withhold the documents in reasonable
reliance on an applicable court order or published appellate opinion:
(a) In an action brought under Section 552.321 or 552.3215, the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails, except that the court may not assess those 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


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(3) a written decision of the attorney general, including a decision issued under Subchapter G or an opinion issued under Section 402.042.
(b) In an action brought under Section 552.324, the court may assess costs of litigation and reasonable attorney’s fees incurred by a plaintiff or defendant who substantially prevails. In exercising its discretion under this subsection, the court shall consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith.
TEX. GOV’T CODE ANN. § 552.323.
A party seeking the recovery of an attorney’s fee award bears the
burden of proving the amount of the fees and their reasonableness. See El
Apple, 370 S.W.3d at 762–63. To establish the amount of the fees, the proof
should include:
(1) the nature of the work, (2) who performed the services and their rate, (3) approximately when the services were performed, and (4) the number of hours worked.
Id. at 763. To show reasonableness, the applicant must adduce evidence
according to the eight nonexclusive factors. See id. at 761 (first citing TEX.
DISCIPLINARY R. PROF’L CONDUCT 1.04(b); and then citing Arthur Andersen
& Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)). These
include:


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(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
Id.
The City contends that there is no evidence that Kallinen incurred any
of the claimed fees. The City points to the law firm’s invoices, which, it
claims, identify Kubosh as the individual who incurred the fees and not
Kallinen, the named plaintiff.
At the time the trial court held the bench trial on attorney’s fees, it had
not dismissed Kubosh from the case. During the trial, counsel’s testimony
referred to both Kallinen and Kubosh collectively as “clients.” The invoices
in evidence are addressed to Kubosh at his law office, but each invoice


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contains a reference line identifying the clients as “Kubosh, Paul and Kallinen,
Randall.” During the City’s cross-examination of Kallinen’s counsel the
following exchange occurred:
Q. I believe you said your clients have paid your bill? A. Correct.
Also, before the trial court ruled on the attorney’s fee application,
Kallinen’s counsel submitted a supplemental affidavit in which he averred
that, since the original fee application’s submission, “Kallinen and Kubosh
have incurred an additional $4,480 in fees . . . .” This is sufficient evidence
to support the trial court’s implicit finding that Kallinen incurred the
attorney’s fees.
The City further asserts that Kallinen’s counsel failed to segregate
attorney’s fees incurred by Kubosh from those incurred by Kallinen. When
the trial court dismissed Kubosh’s claims against the City, however, it revised
its fee award. Following the trial court’s announcement of its ruling that
Kubosh lacked standing, Kallinen and Kubosh filed a motion for
reconsideration of that ruling or, in the alternative, for an amended final
judgment and order reflecting Kubosh’s dismissal. The motion included a
table of itemized entries from the billing records submitted at trial that,
according to counsel’s accompanying affidavit, related to matters solely
concerning Kubosh. Counsel averred that “[a]ll other work was done jointly


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in connection with obtaining release of the contested documents.” The table
reflects that the total for time billed solely to Kubosh amounted to $3,488.00.
This amount corresponds to the difference between the fee award contained
in the original final judgment and the reduced fee award contained in the
amended final judgment. We hold that Kallinen provided adequate evidence
segregating the fees incurred in connection with his own representation from
those incurred in connection with Kubosh’s representation.
The City next asserts that Kallinen offered no evidence that the fees he
incurred were reasonable. The reasonableness of an attorney’s fee award
generally presents a question of fact. Volume Millwork, Inc. v. W. Houston
Airport Corp., 218 S.W.3d 722, 735 (Tex. App.—Houston [1st Dist.] 2006,
pet. denied). The record shows that during the day-long trial on attorney’s
fees, Kallinen’s counsel addressed the factors to consider in awarding fees,
including that
 “because these are document-intensive cases, there is a great deal of time and labor involved, particularly when you have so many documents involved and where the City is claiming privilege on all of them”;

 the issues involved in determining whether the asserted privilege applies are not “novel . . ., but they are difficult to resol[ve] and require[] a great deal of skill”;

 he has the experience, skill and background necessary to perform the legal services required of the case, including


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nearly 20 years of experience handling public information cases, has been recognized for a high level of expertise in the area, and has spoken at legal seminars about managing public information cases; and that

 he billed at a fixed hourly rate, which was “quite a bit less than other lawyers with some law firms that do the same thing,” and he identified one such lawyer whose “rates are significantly higher . . . .”
In accounting for the hours billed, Kallinen’s counsel described the
significant time involved in opposition to what he described as the City’s
dilatory tactics throughout the litigation. Kallinen offered into evidence
approximately 57 pages of redacted bills detailing the services that resulted in
those fees, including the type of each service performed, the amount of time
expended on the service, the identity and billable rate of the person who
performed it, and the date on which the service was performed. The record
thus contains evidence to support the trial court’s implicit finding that
Kallinen’s attorney’s fee request was reasonable.
The City points to testimony from its own expert that disputes the
reasonableness of Kallinen’s attorney’s fee request, contending that its expert
“raised numerous fact issues regarding whether [Kallinen] satisfied [his]
burden to prove that the claimed attorney fees were reasonable.” This
contention, however, misapprehends the nature of appellate review. None of
the criticism of billing practices or legal strategies offered by the City’s expert,


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which the City itemizes in its brief, conclusively negates the testimony and
evidence supporting the award. The trial court was entitled to give more credit
and weight to the testimony of Kallinen’s counsel than to that of the City’s
expert in determining a reasonable fee award. See City of Keller v. Wilson,
168 S.W.3d 802, 819 (Tex. 2005) (discussing trial court’s authority to resolve
factual disputes during bench trial). We hold that the trial court acted within
its discretion in determining the reasonable amount of attorney’s fees for the
services rendered.
Finally, the City contends that Kallinen failed to properly segregate
recoverable attorney’s fees from non-recoverable fees. The Texas Supreme
Court has confirmed that where attorney’s 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 id. at
313–14.
According to the City, Kallinen was not entitled to recover fees incurred
in connection with documents that the City disclosed, as opposed to
documents which the trial court ordered disclosed. But Chapa requires


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segregation of unrecoverable claims, not documents. See id. The plain
language of section 552.323(a) allows for a party who substantially prevails
to recover attorney’s fees and costs.
As a practical matter, counsel will spend little time on obtaining
voluntarily disclosed documents; most of the time on the case is spent
pursuing disclosure of the withheld documents and in recovery of the
associated attorney’s fees. Documents are of varying worth; in determining a
reasonable fee award, a trial court may credit whether the documents it
compelled to be disclosed, either standing alone or when viewed together with
the remaining documents, were of any value to the fee applicant as well as
focus on the overall merit of the parties’ arguments for and against disclosure.
The trial court ordered the City to produce documents that it withheld, and it
incorporated this order into its final judgment. It reasonably could have
concluded that the Kallinen substantially prevailed by achieving their court
ordered production, and it could consider the reasonableness of the time
expended by Kallinen’s attorneys in obtaining them. The City has not
demonstrated that the trial court abused its discretion on this basis.
With respect to the conditional award of appellate attorney’s fees,
Kallinen’s appellate counsel provided testimony about the relevant factors
used in evaluating a fee claim and an estimate of the fees associated with a


24

successful appeal to this court and to the Texas Supreme Court. See El Apple,
370 S.W.3d at 764; Sentinel Integrity Sols., Inc. v. Mistras Grp., Inc., 414
S.W.3d 911, 930 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). On
appeal, the City does not challenge the trial court’s award of appellate fees.

Outcome: 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


2

a traffic-light camera study that the City had commissioned. The City granted
part of the request, but it withheld some documents while it sought an opinion
from the Attorney General about whether the withheld documents were
subject to disclosure. See TEX. GOV’T CODE ANN. § 552.306(a) (West 2015)
(giving Attorney General 45 business days after request to issue opinion).
Before the Attorney General ruled, Kallinen sued for mandamus relief,
asking the trial court to order disclosure of the withheld documents. The City
filed a plea to the jurisdiction, contending that the trial court lacked
jurisdiction until the Attorney General ruled. The trial court overruled the
City’s plea, granted Kallinen’s motion for summary judgment, ordered
disclosure of many of the withheld documents, and awarded Kallinen
attorney’s fees. The City appealed.
This court agreed with the City’s argument that court intervention was
premature given that the Attorney General had not made a determination, and
dismissed Kallinen’s suit for lack of jurisdiction. The Texas Supreme Court
reversed that ruling and remanded the case to our court to address the
remaining issues in the City’s appeal. See Kallinen v. City of Houston, 462
S.W.3d 25, 29 (Tex. 2015) (per curiam) (Kallinen I).
On remand, the parties provided supplemental briefing. In that briefing,
the City contends that: (1) the case was moot before the trial court entered its


3

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.


4

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


5

judgment from which the City appealed, and the City has maintained that it
has no obligation to disclose the documents under the PIA. Thus, Kallinen
further responds, the remaining fee claim presents a continuing live
controversy, which the trial court properly resolved.
Whether a claim is moot turns on whether a justiciable controversy
exists to resolve. A justiciable controversy between the parties must exist at
every stage of the legal proceedings, including the appeal, or the case is moot.
Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). If a controversy ceases to
exist or the parties lack a legally cognizable interest in the outcome, then the
case becomes moot. Id. The same is true if a judgment would not have any
practical legal effect upon a then-existing controversy. Zipp v. Wuemling, 218
S.W.3d 71, 73 (Tex. 2007). A case is not moot, however, if some issue
remains in controversy. In re Gruebel, 153 S.W.3d 686, 689 (Tex. App.—
Tyler 2005, orig. proceeding).
The City’s belated argument that it complied with the trial court’s order
to disclose the withheld documents did not end the parties’ dispute: the City
continued to challenge the trial court’s ruling through a plea to the jurisdiction,
a challenge that ended with the Supreme Court’s ultimate rejection of the
City’s position. See Kallinen I, 462 S.W.3d at 9. We presume the City
prosecuted the case on appeal before this court and defended its position in


6

the Texas Supreme Court in good faith. See Heckman v. Williamson Cty., 369
S.W.3d 137, 162 (Tex. 2012).
The continuation of the controversy is demonstrated by the City’s
conduct during the course of this litigation. Cf. Miga v. Jensen, 96 S.W.3d
207, 212 (Tex. 2002) (“[P]ayment on a judgment will not moot an appeal of
that judgment if the judgment debtor clearly expresses an intent . . . to exercise
his right of appeal and appellate relief is not futile.”). The City appealed the
trial court’s judgment in this case, challenging the trial court’s jurisdiction to
compel production of the documents. After prevailing in the court of appeals,
the City defended its position in the Texas Supreme Court. The Texas
Supreme Court did not decline to rule for lack of jurisdiction based on the
absence of controversy under the PIA, and the City did not ask the Court to
so decline. See Kallinen I, 462 S.W.3d at 27 (“The parties agree that the only
basis for the trial court’s jurisdiction is Section 552.321(a) of the PIA.”).
Neither the trial court’s final judgment nor the City’s notice of appeal reflects
an agreement by the City to release the documents to Kallinen.1 To the
contrary, the City has vigorously prosecuted its position that the trial court
1 Under the rule enunciated in In re Dallas Area Rapid Transit, 967 S.W.2d 358 (Tex. 1998), the City could have withheld the documents while it pursued its appeal, but chose not to do so. See id. at 359 (holding that governmental body’s notice of appeal superseded judgment compelling production of documents under Chapter 552 without need to post security).


7

lacked the jurisdiction to adjudicate Kallinen’s public information suit in the
first place—and, concomitantly, the authority to order the documents’ release.
On rehearing, the City contends that the Texas Supreme Court’s
decision in Intercontinental Group Partnership v. KB Home Lone Star L.P.,
295 S.W.3d 650, 652 (Tex. 2009), dictates a holding that this case is moot. In
KB, however, the issue was not one of justiciability or mootness, but of the
right to recover under a contract—a justiciable issued presented to, and
decided by, the Texas Supreme Court. See id. The Supreme Court did not
determine that compliance with a trial court order mooted the controversy. See
id. Rather, the Court interpreted a “prevailing party” contract provision, and
it concluded that one party did not prevail under the agreement when the jury
found breach of the contract but awarded no damages. See id. Drawing from
cases construing “prevailing party” as used in state and federal statutes, the
Court held that KB was not entitled to jury fees because it had not secured
either a damages award or equitable relief. Id. at 658.
The City imports KB’s language that a plaintiff does not “prevail” for
purposes of qualifying for a fee award unless it obtains “relief on the merits”
of a claim “that materially alters the relationship between the parties.” Id. at
653. The City notes that it is the “judgment [and not preliminary rulings or
findings] that is critical to the prevailing-party determination.” Id. at 654, 656.


8

But the City tacitly concedes that Kallinen obtained the statutory relief he
sought through court order. The final judgment reiterates this relief—the
compelled disclosure of documents that had been withheld short of court
intervention, and the attorney’s fees expended in obtaining this relief.
Section 552.323(a) provides that a trial court “shall assess costs of
litigation and reasonable attorney fees incurred by a plaintiff who
substantially prevails” under the PIA. See TEX. GOV’T CODE ANN.
§ 552.323(a). Disclosure is what a plaintiff suing under the PIA seeks. When
that disclosure is compelled by the court and incorporated into a final
judgment, the plaintiff has obtained relief.
The City challenges both whether Kallinen has “substantially
prevailed” and the reasonableness of the fee awarded. Under analogous
circumstances, the Texas Supreme Court has held that a controversy remained
justiciable. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 643 (Tex. 2005)
(“Hallman’s remaining interest in obtaining attorney’s fees ‘breathes life’ into
this appeal and prevents it from being moot.”). KB thus informs the issue
whether a fee award is appropriate, not whether the issue has become moot.
The City also points to Texas State Board Of Veterinary Examiners v.
Giggleman, 408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.), in which the
Austin Court of Appeals determined a claim under the PIA to be moot when


9

the government complied with an interlocutory order. In that case, the Texas
Veterinary Board refused to provide Dr. Giggleman with a copy of the
exhibits that had accompanied a complaint filed against him. See 408 S.W.3d
at 698–99. Id. The trial court signed an interlocutory summary judgment that
ordered the Board to release the documents to Giggleman. Id. at 700. Before
the trial court had ruled on Giggleman’s attorney’s fee claim, the Board
produced the documents it had withheld. Id. at 701. The Board then filed a
plea to the jurisdiction, seeking dismissal of Giggleman’s suit as moot. Id.
The trial court refused to dismiss the case and awarded Dr. Giggleman his
attorney’s fees. See id. at 701–02.
The Austin Court of Appeals reversed. Id. at 709. It agreed with the
Board that its production of the exhibits was “voluntary” and rendered the suit
moot. See id. at 706. The court of appeals observed that the final judgment
did not compel disclosure under the PIA and that, because the Board had
already disclosed the exhibits, a fee claim based on “judicially sanctioned
relief” did not exist. See id. at 703, 705 (observing that the final judgment
“did not award Giggleman any relief on his mandamus claim” and that
interlocutory order granting such relief was “impliedly vacated.”).
In this case, in contrast, the trial court’s amended final judgment:
(1) ruled that the documents withheld by the City were public information not


10

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 Miga, 96 S.W.3d at 212 (concluding appeal
was not moot where judgment debtor expressed intent to continue pursuing
appeal at same time it unconditionally tendered money awarded in judgment
to judgment creditor).2
The Supreme Court’s ruling on the question of the trial court’s
jurisdiction settled one aspect of the City’s appeal. See Kallinen I, 462 S.W.3d
2 Since Giggleman was decided, the Austin Court of Appeals has relied on it in deciding two other PIA attorney’s-fee issues and the Amarillo Court of Appeals relied on Giggleman in deciding one. See Tex. Dep’t of Family & Protective Servs., No. 03-15-00631-CV, 2016 WL 3521888 (Tex. App.— Austin June 23, 2016, pet. denied); Hudson v. Paxton, No. 03-13-00368-CV, 2015 WL 738605 (Tex. App.—Austin Feb. 20, 2015, pet. denied); Brazee v. City of Spur, No. 07-12-00405-CV, 2014 WL 2810339 (Tex. App.— Amarillo 2014, no pet.). In all three instances, the governmental respondent voluntarily produced the requested documents before the trial court made any ruling on the merits of the petitioner’s PIA claim, thus preventing the


11

at 28–29. The City continues to claim, however, the protection of
governmental immunity to challenge the trial court’s award of attorney’s fees
to Kallinen and to contest the trial court’s determination that Kallinen
“substantially prevail[ed]” pursuant to section 552.323(a). These unresolved
issues present a live controversy. See Hallman, 159 S.W.3d 640 at 643. The
City’s argument that is has complied with the trial court’s compelled
disclosure did not resolve them. To the extent that Giggleman holds
differently, we decline to follow it. Accordingly, we hold that the controversy
is not moot and consider the City’s remaining jurisdictional challenges
because they bear on the trial court’s award of attorney’s fees.
II. The Texas Public Information Act waives the City’s governmental immunity and allows for the recovery of attorney’s fees against it.
The City further contends that it is not a proper party to this action and
governmental immunity bars the assessment of attorney’s fees against it.
Governmental immunity protects the State from lawsuits for money damages.
Tex. Nat. Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002),
quoted in Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.
petitioner from attaining prevailing-party status. See Gates, 2016 WL 3521888 at *2–3 (granting respondent’s plea to the jurisdiction); Hudson, 2015 WL 738605 at *1–2 (granting summary judgment in favor of respondents based on mootness); Brazee, 2014 WL 2810339 at *1 (issuing order denying mandamus relief).


12

2006). Political subdivisions of the state, including the City, are entitled to
immunity from judgments for money damages absent express waiver of that
immunity. Reata Constr., 197 S.W.3d at 374.
The City contends that the PIA requires a public information officer to
be named as the respondent, not the City, and thus the trial court had no
jurisdiction to impose fees against it because its immunity is not waived. See
TEX. GOV’T CODE ANN. § 552.201(b) (providing that “[e]ach elected county
officer is the officer for public information and the custodian . . . of the
information created or received by that county officer’s office”). Kallinen
sued the City directly and did not individually name its public information
officer. According to the City, the statutory duty to produce public
information for inspection belongs to the officer. See TEX. GOV’T CODE ANN.
§§ 552.204, 552.221.
Governmental immunity bars suits for money damages asserted against
the government absent express waiver. Reata Constr., 197 S.W.3d at 374. A
mandamus suit seeking documents under the PIA, however, is not a suit for
money damages. Moore v. Collins, 897 S.W.2d 496, 500 (Tex. App.—
Houston [1st Dist.] 1995, no writ) (declaring that “nothing in the Open
Records Act permits punitive or compensatory damages for failure to turn
over public records”); see TEX. GOV’T CODE ANN. § 552.321(a). Because the


13

requested relief in this case—the production of public records—is not a claim
for money damages, it is not in the first instance barred by governmental
immunity.
Neither does the failure to name the public information officer
individually result in governmental immunity for the City. The City relies on
AT&T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995), for the
proposition that the “proper party” for a section 552.321 mandamus claim is
the officer for public information rather than the governmental body. See id.
at 673. But the statute has been amended to resolve the jurisdictional problem
recognized in Sharp. See Act of June 19, 1999, 76th R.S., ch. 1319, § 27,
1999 TEX. GEN. LAWS 4511 (codified at TEX. GOV’T CODE. ANN.
§ 552.321(b)) (providing for district court jurisdiction over mandamus suit).
Sharp observed that the PIA “authorizes mandamus actions against a
governmental body” at the same time “it imposes the duty of compliance upon
the public records officer.” See 904 S.W.2d at at 681. This anomaly, the
Court observed, makes a literal application of the statute unworkable—“a
governmental body has no duty to perform what a writ of mandamus would
order.” Id. In most cases, though, the Court recognized, “[t]his discrepancy
can be overlooked,” “and courts can treat petitions for writ of mandamus


14

against governmental bodies and against public records officers
interchangeably.” Id.
Our sister court recognized that the City is a proper party in City of
Houston v. Houston Municipal Employee Pension System, No. 14-15-00865
CV, 2016 WL 6886881 (Tex. App.—Houston [14th Dist.] Nov. 22, 2016, no
pet. h.). The court considered and rejected the contention that the City was
immune from suit because the plaintiff failed to name the proper respondent.
Noting the interchangeability of the two, it concluded that “[t]he identity of
the respondent in the case under review does not matter for purposes of
jurisdiction; therefore, . . . mandamus may be sought under [the PIA] against
either the City of Houston or its public information officer. Id. at *11 (citing
Sharp, 904 S.W.2d at 681).
Although the Texas Supreme Court did not squarely address the
amended statute in Kallinen I, we note that it did not decline to decide this
case as barred by governmental immunity. Instead, it noted that the PIA
provided the basis for jurisdiction in the case. See Kallinen I, 462 S.W.3d at
28–29. The plain language of the amended mandamus statute supports the
naming of a governmental body as the respondent: it declares that the
requestor may file a suit under its provisions “for a writ of mandamus
compelling a governmental body to make information available for public


15

inspection if the governmental body refuses” to request an attorney general
opinion or supply public information not excepted from disclosure. TEX.
GOV’T CODE ANN. § 552.321(a).
Although the claim for attorney’s fees is a monetary one, the PIA
expressly authorizes it. The attorney’s fees provision holds the governmental
body responsible for paying any award of attorney’s fees and costs in a proper
case. See TEX. GOV’T CODE ANN. § 552.323(a). Accordingly, we reject the
City’s contention that the PIA requires the requestor to name the public
information officer as the respondent or face dismissal for lack of jurisdiction
on the ground that immunity bars the claim. Thus, we turn to the merits of
the City’s appeal of the trial court’s fee award.
III. The trial court acted within its discretion in awarding reasonable attorney’s fees based on the PIA’s requirements.

A. Standard of review
An award of attorney’s fees rests in the discretion of the trial court. El
Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012) (citing Ragsdale v.
Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (per curiam)).
A trial court abuses that discretion if it acts arbitrarily, unreasonably, or
without regard to guiding legal principles, or if its decision is not supported
by legally or factually sufficient evidence. See Bocquet v. Herring, 972
S.W.2d 19, 21 (Tex. 1988); Charette v. Fitzgerald, 213 S.W.3d 505, 512 (Tex.


16

App.—Houston [14th Dist.] 2006, no pet.); see also Beaumont Bank, N.A. v.
Buller, 806 S.W.2d 223, 226 (Tex. 1991) (explaining that legal and factual
sufficiency of evidence are relevant factors in determining whether trial court
abused its discretion). In reviewing a fee award, we consider whether the trial
court (1) had sufficient evidence upon which to exercise its discretion and (2)
erred in its application of that discretion. Grotewold v. Meyer, 457 S.W.3d
531, 533–34 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing Moroch
v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied)).
B. Kallinen is a prevailing party as the statute defines one, and he adduced evidence of reasonable and necessary attorney’s fees.

Section 552.323 of the Government Code provides that a plaintiff may
recover attorney’s fees upon a showing that he has substantially prevailed in
his suit and the government did not withhold the documents in reasonable
reliance on an applicable court order or published appellate opinion:
(a) In an action brought under Section 552.321 or 552.3215, the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails, except that the court may not assess those 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


17

(3) a written decision of the attorney general, including a decision issued under Subchapter G or an opinion issued under Section 402.042.
(b) In an action brought under Section 552.324, the court may assess costs of litigation and reasonable attorney’s fees incurred by a plaintiff or defendant who substantially prevails. In exercising its discretion under this subsection, the court shall consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith.
TEX. GOV’T CODE ANN. § 552.323.
A party seeking the recovery of an attorney’s fee award bears the
burden of proving the amount of the fees and their reasonableness. See El
Apple, 370 S.W.3d at 762–63. To establish the amount of the fees, the proof
should include:
(1) the nature of the work, (2) who performed the services and their rate, (3) approximately when the services were performed, and (4) the number of hours worked.
Id. at 763. To show reasonableness, the applicant must adduce evidence
according to the eight nonexclusive factors. See id. at 761 (first citing TEX.
DISCIPLINARY R. PROF’L CONDUCT 1.04(b); and then citing Arthur Andersen
& Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)). These
include:


18

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
Id.
The City contends that there is no evidence that Kallinen incurred any
of the claimed fees. The City points to the law firm’s invoices, which, it
claims, identify Kubosh as the individual who incurred the fees and not
Kallinen, the named plaintiff.
At the time the trial court held the bench trial on attorney’s fees, it had
not dismissed Kubosh from the case. During the trial, counsel’s testimony
referred to both Kallinen and Kubosh collectively as “clients.” The invoices
in evidence are addressed to Kubosh at his law office, but each invoice


19

contains a reference line identifying the clients as “Kubosh, Paul and Kallinen,
Randall.” During the City’s cross-examination of Kallinen’s counsel the
following exchange occurred:
Q. I believe you said your clients have paid your bill? A. Correct.
Also, before the trial court ruled on the attorney’s fee application,
Kallinen’s counsel submitted a supplemental affidavit in which he averred
that, since the original fee application’s submission, “Kallinen and Kubosh
have incurred an additional $4,480 in fees . . . .” This is sufficient evidence
to support the trial court’s implicit finding that Kallinen incurred the
attorney’s fees.
The City further asserts that Kallinen’s counsel failed to segregate
attorney’s fees incurred by Kubosh from those incurred by Kallinen. When
the trial court dismissed Kubosh’s claims against the City, however, it revised
its fee award. Following the trial court’s announcement of its ruling that
Kubosh lacked standing, Kallinen and Kubosh filed a motion for
reconsideration of that ruling or, in the alternative, for an amended final
judgment and order reflecting Kubosh’s dismissal. The motion included a
table of itemized entries from the billing records submitted at trial that,
according to counsel’s accompanying affidavit, related to matters solely
concerning Kubosh. Counsel averred that “[a]ll other work was done jointly


20

in connection with obtaining release of the contested documents.” The table
reflects that the total for time billed solely to Kubosh amounted to $3,488.00.
This amount corresponds to the difference between the fee award contained
in the original final judgment and the reduced fee award contained in the
amended final judgment. We hold that Kallinen provided adequate evidence
segregating the fees incurred in connection with his own representation from
those incurred in connection with Kubosh’s representation.
The City next asserts that Kallinen offered no evidence that the fees he
incurred were reasonable. The reasonableness of an attorney’s fee award
generally presents a question of fact. Volume Millwork, Inc. v. W. Houston
Airport Corp., 218 S.W.3d 722, 735 (Tex. App.—Houston [1st Dist.] 2006,
pet. denied). The record shows that during the day-long trial on attorney’s
fees, Kallinen’s counsel addressed the factors to consider in awarding fees,
including that
 “because these are document-intensive cases, there is a great deal of time and labor involved, particularly when you have so many documents involved and where the City is claiming privilege on all of them”;

 the issues involved in determining whether the asserted privilege applies are not “novel . . ., but they are difficult to resol[ve] and require[] a great deal of skill”;

 he has the experience, skill and background necessary to perform the legal services required of the case, including


21

nearly 20 years of experience handling public information cases, has been recognized for a high level of expertise in the area, and has spoken at legal seminars about managing public information cases; and that

 he billed at a fixed hourly rate, which was “quite a bit less than other lawyers with some law firms that do the same thing,” and he identified one such lawyer whose “rates are significantly higher . . . .”
In accounting for the hours billed, Kallinen’s counsel described the
significant time involved in opposition to what he described as the City’s
dilatory tactics throughout the litigation. Kallinen offered into evidence
approximately 57 pages of redacted bills detailing the services that resulted in
those fees, including the type of each service performed, the amount of time
expended on the service, the identity and billable rate of the person who
performed it, and the date on which the service was performed. The record
thus contains evidence to support the trial court’s implicit finding that
Kallinen’s attorney’s fee request was reasonable.
The City points to testimony from its own expert that disputes the
reasonableness of Kallinen’s attorney’s fee request, contending that its expert
“raised numerous fact issues regarding whether [Kallinen] satisfied [his]
burden to prove that the claimed attorney fees were reasonable.” This
contention, however, misapprehends the nature of appellate review. None of
the criticism of billing practices or legal strategies offered by the City’s expert,


22

which the City itemizes in its brief, conclusively negates the testimony and
evidence supporting the award. The trial court was entitled to give more credit
and weight to the testimony of Kallinen’s counsel than to that of the City’s
expert in determining a reasonable fee award. See City of Keller v. Wilson,
168 S.W.3d 802, 819 (Tex. 2005) (discussing trial court’s authority to resolve
factual disputes during bench trial). We hold that the trial court acted within
its discretion in determining the reasonable amount of attorney’s fees for the
services rendered.
Finally, the City contends that Kallinen failed to properly segregate
recoverable attorney’s fees from non-recoverable fees. The Texas Supreme
Court has confirmed that where attorney’s 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 id. at
313–14.
According to the City, Kallinen was not entitled to recover fees incurred
in connection with documents that the City disclosed, as opposed to
documents which the trial court ordered disclosed. But Chapa requires


23

segregation of unrecoverable claims, not documents. See id. The plain
language of section 552.323(a) allows for a party who substantially prevails
to recover attorney’s fees and costs.
As a practical matter, counsel will spend little time on obtaining
voluntarily disclosed documents; most of the time on the case is spent
pursuing disclosure of the withheld documents and in recovery of the
associated attorney’s fees. Documents are of varying worth; in determining a
reasonable fee award, a trial court may credit whether the documents it
compelled to be disclosed, either standing alone or when viewed together with
the remaining documents, were of any value to the fee applicant as well as
focus on the overall merit of the parties’ arguments for and against disclosure.
The trial court ordered the City to produce documents that it withheld, and it
incorporated this order into its final judgment. It reasonably could have
concluded that the Kallinen substantially prevailed by achieving their court
ordered production, and it could consider the reasonableness of the time
expended by Kallinen’s attorneys in obtaining them. The City has not
demonstrated that the trial court abused its discretion on this basis.
With respect to the conditional award of appellate attorney’s fees,
Kallinen’s appellate counsel provided testimony about the relevant factors
used in evaluating a fee claim and an estimate of the fees associated with a


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successful appeal to this court and to the Texas Supreme Court. See El Apple,
370 S.W.3d at 764; Sentinel Integrity Sols., Inc. v. Mistras Grp., Inc., 414
S.W.3d 911, 930 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). On
appeal, the City does not challenge the trial court’s award of appellate fees.

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