City of Galveston, Texas, and BP v. Saint-Paul,
No. 01-06-00580-CV (Tex.App.- Houston [1st Dist.] Feb. 14, 2008)(Alcala) (Open Meetings Act, standing, attorney's fees)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS
Opinion by Justice Elsa Alcala
Panel members: Chief Justice Radack, Justices Jennings and Alcala
Full style of case: The City of Galveston, Texas; BP Energy Company, Intervenor; Board of Trustees of the Galveston Wharves v. Nancy Saint-Paul
Trial court: 122nd District Court of Galveston County (Judge Hon. John Ellisor)
This appeal concerns whether three meetings that resulted in an option for a lease for property on Pelican Island, which is owned by appellant, the City of Galveston (“the City”), but controlled and managed by appellant, the Board of Trustees of the Galveston Wharves (“the Board”), met the requirements of the Texas Open Meetings Act (“the Act”). See Tex. Gov’t Code Ann. §§ 551.001–.146 (Vernon 2004 & Supp. 2007).
After a bench trial, the trial court determined that (1) the notice for the meeting by the Board to approve a Lease Option Agreement (“the Option Agreement”) with BP Energy Company was inadequate under the Act because it “did not provide sufficient information on the subject to be considered by the governing body”; (2) the notice for the City’s meeting for the attornment
“Attornment” is a common law term used to describe a contractual arrangementamong a lessor, lessee, and a third party. An attornment agreement is one in which(a) the lessee agrees to abide by the lease, even though the original lessor may ceaseto hold rights in the property and in which (b) third parties and future lessors(including lessors who foreclose on or succeed to the rights of the original lessor)agree to recognize the lease and maintain the tenant in peaceable possession of thepremises on the same terms and conditions called for in the lease. See, e.g., Willis v.Moore, 59 Tex. 628, 636–37 (1883) (“The word is taken from the feudal law, whereit signifies the transfer by act of the lord and consent of the tenant to a new lord whohad acquired the estate.”) (quoting Abbot’s Law Dictionary).
of the lease was also inadequate under the Act because it “did not provide sufficient information on the subject to be considered by the City Council”; and (3) the notice for the meeting by the Board to approve the Replacement Lease Option Agreement (“the Replacement Agreement”) met the requirements of the Act, replaced the Option Agreement, and was not a ratification of the Option Agreement.
In a single issue, the Board asserts that the notice for the meeting at which it agreed to the Option Agreement was adequate. In two issues, the City contends that its notice for the Attornment Agreement meeting met the requirements of the Act and that it should have been the prevailing party entitled to an award of attorney’s fees under the Act.
The Texas Association of School Boards’ Legal Assistance Fund filed an amicuscuriae brief in support of the City’s appeal.
In four issues in the cross-appeal, appellee, Nancy Saint-Paul, contends that the trial court erred (1) by finding valid the Replacement Agreement because it merely ratified the Option Agreement that had been formed in violation of the Act; (2) by refusing to hold the Option Agreement invalid on the grounds that it violated the Texas Government Code as it did not involve competitive bidding and it was a sale disguised as a lease; and (3) by sustaining the Board’s claim of the attorney-client privilege for certain documents requested during discovery.
We conclude that the notice of the Board’s meeting to consider the Replacement Agreement met the requirements of the Act and therefore affirm the trial court’s determination that the Replacement Agreement was valid. We dismiss as moot the Board’s sole issue, which asserts that the notice for its meeting regarding the Option Agreement met the requirements of the Act, because the Option Agreement was replaced by the Replacement Agreement. We also dismiss Saint-Paul’s challenges aimed at voiding the Option Agreement for the Board’s failure to comply with the bidding requirements because she lacks standing to make that complaint. We reverse the portion of the trial court’s judgment in which it ruled that the notice for the City’s Attornment Agreement meeting did not meet the requirements of the Act, and we remand to the trial court to consider the City’s request for attorney’s fees. We also do not reach Saint-Paul’s evidentiary challenge, which is contingent on a remand of the Board’s appeal.
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We affirm the trial court’s judgment concerning the Board’s adoption of the Replacement Agreement. We dismiss Saint-Paul’s appeal concerning the lack of bidding because she lacks standing to assert that claim. We dismiss the appeal by the Board because the issue is moot. We do not reach the discovery challenge by Saint-Paul. We reverse the trial court’s declaration that the City’s notice was inadequate and hold that it was adequate to meet the requirements of the Texas Open Meetings Act. We remand this cause for the trial court to consider the City’s request for attorney’s fees under the Texas Open Meetings Act.
Panel consists of Chief Justice Radack and Justices Jennings and Alcala.