the City of Houston v. Dolcefino Communications, LLC D/B/A Dolcefino Consulting And Wayne Dolcefino, in His Individual Capacity ( 2018 )

Opinion issued October 30, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00979-CV
———————————
THE CITY OF HOUSTON, Appellant
V.
DOLCEFINO COMMUNICATIONS, LLC D/B/A DOLCEFINO
CONSULTING; AND WAYNE DOLCEFINO, IN HIS INDIVIDUAL
CAPACITY, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2017-50825
MEMORANDUM OPINION
In this interlocutory appeal, appellant, the City of Houston, appeals the trial
court’s orders that granted a motion to compel filed by appellees, Dolcefino
Communications, LLC d/b/a Dolcefino Consulting, and Wayne Dolcefino, in His
Individual Capacity (“Dolcefino”). In three issues on appeal, the City argues that
the trial court abused its discretion because its order (1) is not permitted by the Texas
Public Information Act (“TPIA”);1 (2) did not meet the requirements of a temporary
injunction; and (3) granted more relief than Dolcefino requested.
We conclude that we lack jurisdiction over this interlocutory appeal and
dismiss.
Background
The underlying dispute stems from Ecohub LLC’s attempt to serve as the
recycler for the City. Although negotiations appeared to be fruitful with the City’s
previous administration, the current City administration declined to contract with
Ecohub for its recycling needs. Confused by the City’s decision, EcoHub hired
Dolcefino, an investigative journalist, to research the City’s recycling contracts.
Beginning in early 2017, Dolcefino made multiple requests for public records from
the City pursuant to the TPIA.2
After not receiving the requested documents, EcoHub brought a petition for
writ of mandamus3 on August 1, 2017, asking the trial court to conduct an in camera
1
See generally TEX. GOV’T CODE ANN. § 552.001 et seq. (West 2012 & Supp. 2018).
2
Dolcefino made requests on January 6, March 21, June 21, July 5, July 12, July 19,
July 25, and August 10, 2017.
3
See TEX. GOV’T CODE ANN. § 552.321 (West 2012).
2
inspection of the responsive documents that the City claimed were exempt from
disclosure. The City answered and generally denied the allegations, asserted
sovereign immunity and governmental immunity and further asserted that EcoHub
did not have standing to bring a petition for writ of mandamus.
In its live petition, its second amended petition for writ of mandamus filed on
October 31, 2017,4 Dolcefino requested the trial court to require the City to
“produce. . . either the public records it has agreed to produce but has not yet
produced, or the records responsive to the July 25, 2017 Request” and “conduct an
in camera inspection. . . to ensure that all responsive (but withheld) records that [the
City] claim are not exempt do in fact qualify for the claimed exemptions.”
On October 24, 2017, the City of Houston moved for partial summary
judgment against EcoHub, pointing out that the requests made to the City were from
Wayne Dolcefino or Dolcefino consulting and that EcoHub lacked standing to bring
a petition for writ of mandamus. The trial court subsequently denied the City’s
motion for partial summary judgment.5
4
In its first amended petition, EcoHub, now joined by Dolcefino, asserted that it also
made a July 25, 2017 TPIA request, which the City neither acknowledged receipt
of, nor did it timely seek an attorney general opinion required by section 552.301(b).
See TEX. GOV’T CODE ANN. § 552.301(b) (West 2012). Dolcefino requested that
the City should disclose the public records and that the trial court should issue an
order compelling production of all public records responsible to the July 25, 2017
request “no later than 5 calendar days after the Court signs the order to compel.”
5
While this appeal was pending, we granted the parties’ unopposed motion to lift the
automatic stay below to allow EcoHub to non-suit its claims in the trial court. After
3
A few days after filing its second amended petition for writ of mandamus,
Dolcefino filed a motion to compel production of documents and an amended motion
to compel on November 20. In its amended motion to compel, Dolcefino stated that
it sent a TPIA request on July 25, 2017, but the City never responded. Dolcefino
also stated that the City failed to get more time within the 10-day period found in the
TPIA. Dolcefino therefore requested an order from the trial court to have the City
fully comply with its July 25 TPIA request. Dolcefino further requested that the trial
court compel the City to produce, for the trial court’s in camera inspection, all public
information included within Dolcefino’s other TPIA requests dated January 6,
March 21, June 21, July 5, July 12, July 19, and August 10, 2017. Dolcefino further
argued that after the in camera inspection, the trial court should order the City to
produce all responsive public information not subject to a statutory exemption within
five days of the trial court’s ruling.
The City responded, arguing that Dolcefino’s amended motion to compel was
moot because the City provided the documents pursuant to the July 25 request within
45 days, a reasonable period of time after it learned about Dolcefino’s request.6 The
EcoHub filed a motion to dismiss itself as a party to this appeal, stating that all of
its claims had been nonsuited in the trial court, we granted EcoHub’s motion and
dismissed it from this appeal.
6
The City explained that it overlooked Dolcefino’s July 25, 2017 request and was
unaware of it until Dolcefino sent a follow-up letter in October 2017.
4
City also agreed to provide the requested public records in camera for the trial court’s
review.
On December 6, 2017, the trial court granted Dolcefino’s motion to compel,
ordering the City to (1) produce all public information responsive to Dolcefino’s
July 25 TPIA request no later than January 5, 2018; (2) certify in writing that it has
fully and completely responded to Dolcefino’s July 25 request; (3) produce all public
information that has not been submitted to the Court for in camera review regarding
Dolcefino’s seven TPIA requests; and (4) certify in writing that it has fully and
completely responded to Dolcefino’s TPIA requests.
On December 21, 2017, the City filed a motion to reconsider, arguing that the
trial court’s order granted relief on the merits. The City pointed out that the trial
court may order information to be discovered but only “under a protective order until
a final determination is made.”7 The City also complained about the portion of trial
court’s order that required it to certify in writing that it has complied with
Dolcefino’s TPIA requests because it granted relief that Dolcefino did not even seek.
The trial court held a hearing on the City’s motion for reconsideration. At the
hearing, the City’s counsel agreed with the trial court that Dolcefino’s petition for
writ of mandamus sought to obtain the documents that the City believed did not need
7
See TEX. GOV’T CODE ANN. § 552.322 (West 2012).
5
to be produced, which was based on the attorney general’s opinion that certain
information was exempt from disclosure. When the trial court inquired whether the
City had produced documents in response to the TPIA requests, the City answered
that it was still in the “continuing process of doing so.” The trial court then asked if
the City produced the documents requested by Dolcefino in January 2017 to which
the City answered, “We’re still working on some production, yes, Your Honor.” The
trial court again asked if “there are documents that maybe responsive to the TPIA
requests that have not been withheld under some sort of privilege or exclusion?”
One City attorney answered, “I believe that’s right.” Another City attorney
answered, “I don’t think that’s right.”
After further discussions, the trial court stated, “So then if you’ve produced
everything responsive, except for the documents you’ve submitted in camera, which
I haven’t ruled on yet, what’s the issue? The City responded, “The issue is that we
have an improper motion to compel documents that’s procedurally not authorized
under the rules—” The trial court then asked, “Isn’t it moot, since you produced
everything?” The City responded, “We have a pending order, and—do we have
anything else about the documents that goes to this? There is—we cannot have an
order compelling the City to do something that’s improper under the Rules of
Procedure or the mandamus provision of the TPIA.” The following exchange
between the trial court and two attorneys for the City continued:
6
Court: So you can tell me that you have produced all documents
that you have not sought in-camera review on?
Casey: Your Honor, we can tell you that we’ve complied with the
TPIA. The TPIA is not, You produce all documents. The
TPIA—
Court: No. You have produced—you have produced the
documents that were requested under the TPIA that you
have not—
Casey: In compliance with the TPIA. If there is some stray
documents somewhere that they come up with—it’s
similar to doing a due diligence under a request for
production. So we have—we’re complying with the
standards of the TPIA. The order does not make us
comply with the standards of the TPIA. The order is
outside of the TPIA.
Court: What language do you think needs to be in the order to
make sure it gets the TPIA?
De Leon: There is no language that can be in the order to compel
that could comply with the TPIA, except maybe for
purposes of production for in-camera inspection, and
that’s it. The TPIA does not authorize a motion to compel
production of documents. It authorizes a suit for petition
for writ of mandamus. That is the claim. It’s like—this
may not be the best analogy, but’s the quickest one I can
think of. Filing a suit for breach of contract and the
plaintiff coming in and saying, Well, the filing—filing a
motion to compel. Well, they breached the contract, they
owe me $100,000, so motion to compel $100,000. That’s
what they’ve basically got through this order is relief on
the merits.
On March 29, 2018, the trial court issued an amended order, requiring the City
to state in writing that it has complied with Dolcefino’s July 25, 2017 TPIA request.
7
The trial court’s amended order also stated that the City submitted documents in
camera and therefore required the City to state in writing, with the exception of
documents withheld for in camera inspection, that it has fully and completely
responded to Dolcefino’s TPIA requests dated: January 6, March 21, June 21, July
5, July 12, July 19, and August 10.
After the trial court issued its amended order on Dolcefino’s amended motion
to compel, the City filed a notice of appeal, noting that it was an interlocutory appeal
of a grant of a temporary injunction.
Jurisdiction
As a threshold matter, we must determine if we have jurisdiction over this
case as an interlocutory appeal. This Court generally has jurisdiction over appeals
from a final judgment unless a statute authorizes an interlocutory appeal. See TEX.
CIV. PRAC. & REM. CODE ANN. §§ 51.012, 51.014(a)(1)–(13) (West 2015 & Supp.
2018) (listing appealable interlocutory orders); CMH Homes v. Perez, 340 S.W.3d
444, 447 (Tex. 2011) (“Unless a statute authorizes an interlocutory appeal, appellate
courts generally only have jurisdiction over appeals from final judgments.”). The
City, in its notice of appeal of the trial court’s amended order,8 states that this is an
8
The trial court rendered two orders on Dolcefino’s amended motion to compel—
one order on December 6, 2017 and a second amended order on March 29, 2018.
Because the trial court rendered an amended order on March 29, 2018, the trial
court’s previous December 6, 2017 order is rendered moot. See In re Office of
Attorney Gen., 276 S.W.3d 611, 617 (Tex. App.—Houston [1st Dist.] 2008, orig.
8
accelerated interlocutory appeal of a grant of a temporary injunction. See TEX. CIV.
PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp. 2018) (stating that granting
or refusing temporary injunction is reviewable on interlocutory appeal). Thus,
whether we have jurisdiction depends on whether the trial court’s amended order
can properly be characterized as a temporary injunction.
On appeal, the City argues that the trial court’s amended order is a temporary
injunction because it required the City to “state” in writing if it has fully and
completely responded to the TPIA requests at issue, it was effective immediately, it
was designed to operate during the pendency of the suit, and it imposed a deadline
for compliance by the City. Dolcefino responds that the orders amount to nothing
more than the trial court trying to manage its docket.
proceeding) (“This amended order superseded the August 8 order and moots the
OAG’s complaint about the August 8 order.”); In re K.L.R., 162 S.W.3d 291, 301
(Tex. App.—Tyler 2005, no pet.) (noting that complaints relating to temporary
orders that have been superseded by final order are moot); Anderson v. Teco
Pipeline Co., 985 S.W.2d 559, 562 (Tex. App.—San Antonio 1998, pet. denied)
(holding that a later judgment, styled “amended final judgment,” implicitly vacated
an earlier judgment, styled “final judgment”); see also Erlewine v. Erlewine, No.
03–06–00308–CV, 2007 WL 2462042 (Tex. App.—Austin Aug. 29, 2007, no pet.)
(mem. op.); Nexus Fuels, Inc. v. Hall, No. 05–98–02147–CV, 1999 WL 993929, at
*2 (Tex. App.—Dallas Nov. 1, 1999, no pet.) (not designated for publication)
(stating that “[o]nce an amended order is entered, it supersedes the original order”
and concluding that because original order had been superseded, appellant’s
complaints regarding merits of original order were moot). Thus, the City’s
complaints about the trial court’s December 6, 2017 order are moot, and we confine
our discussion to the March 29, 2018 amended order.
9
Although styled as an order granting a motion to compel, “it is the character
and function of an order that determine its classification.” Del Valle Indep. Sch.
Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). “The purpose of a temporary
injunction is to preserve the status quo of the subject matter of a suit pending a final
trial of the case on its merits.” Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517,
519 (Tex. 1961). The writ restrains the doing of certain acts during the pendency of
the suit to which it is ancillary. See Laredo Junior Coll. Dist. v. Zaffirini, 590 S.W.2d
535, 536 (Tex. Civ. App.—San Antonio 1979, writ ref’d n.r.e.) (citing Riggins v.
Thompson, 96 Tex. 154, 71 S.W. 14 (Tex. 1902)).
There are two general types of temporary injunctions: prohibitive and
mandatory. RP & R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex. App.—Houston [14th
Dist.] 2000, no pet.); LeFaucheur v. Williams, 807 S.W.2d 20, 22 (Tex. App.—
Austin 1991, no pet.). A prohibitive injunction forbids conduct, whereas a
mandatory injunction requires it. Lifeguard Benefit Servs., Inc. v. Direct Med.
Network Sols., Inc., 308 S.W.3d 102, 112 (Tex. App.—Fort Worth 2010, no pet.);
RP & R, Inc., 32 S.W.3d at 400. A temporary mandatory injunction changes the
status quo. RP & R, Inc., 32 S.W.3d at 401. Consequently, it should only be granted
when necessary to prevent irreparable injury or extreme hardship. Iranian Muslim
Org. v. City of San Antonio, 615 S.W.2d 202, 208 (Tex. 1981); RP & R, Inc., 32
S.W.3d at 401; LeFaucheur, 807 S.W.2d at 22. A trial court has the power to grant
10
a temporary mandatory injunction only when the circumstances justify it. RP & R,
Inc., 32 S.W.3d at 400–01; Rhodia, Inc. v. Harris Cty., 470 S.W.2d 415, 419 (Tex.
Civ. App.—Houston [1st Dist.] 1971, no writ). While granting a mandatory
injunction is within the sound discretion of the trial court, the grant should be denied
absent a clear and compelling presentation of extreme necessity or hardship. RP &
R, Inc., 32 S.W.3d at 401; Rhodia, 470 S.W.2d at 419.
The City cites two cases in support of its argument that the trial court’s
amended order is a temporary injunction. In Qwest v. AT&T Corp., the trial court
entered an order restricting Qwest’s activities for a period of three years and
commanded Qwest to “undertake certain monitoring and notice provisions when
conducting certain boring operations.” 24 S.W.3d 334, 336 (Tex. 2000). The court
of appeals dismissed the appeal because the order did not meet the “traditional
requirements” of a temporary injunction—preserve the status quo, require a bond,
set a trial date, or limit the duration until further order of the court. Id. at 335. The
supreme court reversed, stating “[b]ecause the trial court’s order place[d] restrictions
on Qwest and [was] made effective immediately so that it operate[d] during the
pendency of the suit, it function[ed] as a temporary injunction. Id. at 337. The
supreme court explained that “it is the character and function of an order that
determine its classification.” Id. at 336.
11
The City also cites Helix Energy Solutions Group, Inc. v. Howard, a Jones
Act case, in which the trial court ordered Helix to (1) make retroactive and
continuing maintenance payments; (2) pay reasonable and customary charges for
Howard’s medical treatment; and (3) continue paying maintenance and cure until
the trial court made further orders. 452 S.W.3d 40, 42 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). Our sister court concluded, “Because the interlocutory order
in this case requires Helix to perform certain actions—specifically, to make
continuing payments to Howard—it is a classic example of a mandatory injunction.”
Id. at 44.
Here, Dolcefino’s amended motion to compel requested the trial court to order
the City to release public information that it had already agreed to turn over, but had
yet to do so. It further asked the City to submit information to the trial court for in
camera review. In its response to the amended motion to compel, the City stated
that the July 25 request for public information was moot because it had already given
the public information to Dolcefino. But, at the hearing on the City’s motion for
reconsideration of the trial court’s order granting the motion to compel, when asked
if everything had already been turned over, the City gave conflicting answers. As a
result, the trial court’s amended order required the City to state whether it had, in
fact, complied with Dolcefino’s TPIA requests.
12
Thus, unlike Qwest and Helix, the trial court’s amended order does not require
the City to perform any action that rises to the level of an injunction. Instead, the
amended order merely attempts to clarify whether the City has complied with the
TPIA requests, other than the documents that have been submitted to the trial court
for in camera review, and to narrow the issues that are actually in dispute. For
example, the trial court does not need to address public information that the City has
already produced to Dolcefino and that is not in dispute. Rather, the trial court need
only focus on the documents submitted for in camera review.9 See TEX. GOV’T CODE
ANN. § 552.3221 (West Supp. 2018).
After considering the character and function of the trial court’s amended
order, we conclude that ordering the City to clarify whether it has complied with
TPIA requests, after getting conflicting information at a hearing and learning that
the City has not complied with requests dating back to January 2017, does not
amount to a temporary injunction. Accordingly, we disagree with the City that the
trial court’s amended order serves as a temporary injunction.10 As such, the trial
court’s amended order is a non-appealable interlocutory order.
9
The trial court may also need to determine whether the City has a compelling reason
to withhold information even though it failed to seek an attorney general opinion.
See TEX. GOV’T CODE ANN. § 552.302 (West 2012).
10
We also note that the City never argued below that that the trial court’s interlocutory
order amounted to a temporary injunction. Instead, the City’s argument has been
that Dolcefino’s amended motion to compel was not authorized by the TPIA. We
13
Alternative Relief
The City alternatively requests that if we conclude that the amended order is
an unappealable interlocutory order, we should treat its brief as a petition for writ of
mandamus. See CMH Homes v. Perez, 340 S.W.3d 444, 453 (Tex. 2011). Even if
we considered appellant’s brief as a petition for writ of mandamus, we would
conclude that the City has not shown that they are entitled to mandamus relief based
on the record before us. See TEX. R. APP. P. 52.8(a).
Accordingly, we dismiss the appeal for lack of jurisdiction. We dismiss any
pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Brown and Caughey.
express no opinion on this complaint other than noting that the TPIA specifically
states that it does not affect the scope of civil discovery under the Texas Rules of
Civil Procedure. See TEX. GOV’T CODE ANN. § 552.005 (West 2012).
14