Austin Transportation Study Policy Advisory Committee (“ATSPAC”) and the State Department of Highways and Public Transportation 1 (“SDHPT”) appeal an award of attorney’s fees and costs under the open meetings act. We will affirm the judgment of the trial court.
BACKGROUND
This appeal is the latest chapter in a long fought battle over transportation planning for the Austin area which has pitted neighborhoods, local business, and environmental groups against the planning board and other governmental entities. A summary of the facts leading to this dispute aides an understanding of the context of this appeal.
In 1984, by mutual agreement, the State of Texas, the City of Austin (the “City”), and Travis County, Texas (the “County”), organized ATSPAC. Subsequently, ATS-PAC was designated as a “Metropolitan Planning Organization” pursuant to the requirements for federal highway funding. See Federal-Aid Highway Act of 1962, Pub.L. No. 87-866, § 9(a), 76 Stat. 1145, 1148, amended by Federal-Aid Highway Act of 1970, Pub.L. No. 91-605, § 143, 84 Stat. 1713, 1737, amended by Federal-Aid Highway Act of 1978, Pub.L. No. 95-599, § 169, 92 Stat. 2689, 2723 (23 U.S.C. § 134, since amended). The primary function of ATSPAC is the drafting of planning documents for submission to the federal government in connection with applications for federal highway funding. During 1986, ATSPAC adopted several plans and documents pursuant to this function. For varied reasons, the appellees, The Sierra Club, Save Barton Creek Association, Allandale Neighborhood Association, Texas Association for Public Transportation, and Koenig Lane Business Association, (collectively, “the Sierra Club”) opposed the proposals set out in these documents.
The Sierra Club became aware that ATS-PAC, in the course of adopting the planning documents, had failed to comply fully with the notice provisions of the open meetings act, Tex.Rev.Civ.Stat.Ann. art. 6252-17 (West 1970 & Supp.1992) (“the Act”). The Sierra Club filed suit against ATSPAC seeking a declaratory judgment that the Act applied to ATSPAC and injunctive relief to set aside any actions taken in violation of the Act. Later, the Sierra Club joined the City, the County, SDHPT, and other governmental entities as defendants. On ATSPAC’s motion, the trial court rendered a summary judgment dismissing the cause on the grounds that ATSPAC was not a “governmental body” and was not subject to the requirements of the Act. By the same order, the trial court dismissed the lawsuit against the City, the County, SDHPT, and the other governmental enti
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ties. However, the dismissal as to these parties was
without
prejudice to Sierra Club’s right to refile. On appeal, this Court determined that ATSPAC was a “special district” as defined in section 3A(f) of the Act, and thus was subject to compliance with its provisions; we remanded the cause for trial.
See Sierra Club v. Austin Transp. Study Policy Advisory Comm.,
During the pendency of the first appeal, the Texas Legislature amended the Act to provide an award of attorney’s fees for a substantially prevailing party. 2 The amendment became effective August 31, 1987. Act of June 18, 1987, 70th Leg., R.S., ch. 549, § 7, 1987 Tex.Gen.Laws 2211, 2214. Under this amendment, three inquiries were relevant to an award of attorney’s fees — whether the party had substan-' tially prevailed in the litigation, whether the suit was bought in good faith, and whether the governmental body’s conduct had a reasonable basis in law. After the case was remanded, the Sierra amended its petition to include a prayer for attorney’s fees under section 3(b) and again joined the City, the County, and SDHPT to the suit.
The Sierra Club then moved for a partial summary judgment to determine whether ATSPAC violated the Act in the conduct of its meetings. The Sierra Club asked for injunctive relief and for attorney’s fees under section 3(b) of the Act and the Uniform Declaratory Judgments Act, Tex.Civ.Prac. & Rem.Code § 37.009 (West 1986). After a hearing on December 8, 1990, the trial court granted the Sierra Club’s motion for partial summary judgment in part and denied defendants’ cross-motions for summary judgment. The trial court’s decision was announced, by letter addressed to counsel and filed with the district clerk, on January 10, 1990. However, due to disagreements on the wording of the order, a written order of the partial summary judgment was not signed until March 20, 1990. The trial court held that ATSPAC had not fully complied with the Act on thirty-three occasions; that the actions taken at those meetings had been properly validated at a subsequent meeting held in compliance with the Act, thereby mooting the Sierra Club’s claims for injunctive relief; that in-junctive relief was denied; and that the Sierra Club “had substantially prevailed in this litigation and that it is equitable and just to award [the Sierra Club] reasonable and necessary attorney’s fees and costs in this case.” (Emphasis added). The court’s partial summary judgment held the defendants, ATSPAC, SDHPT, the County, and the City, jointly and severally liable for attorney’s fees and costs. The parties did not present evidence on the amount of fees. Accordingly, the trial court left the amount of fees for determination by further proceedings.
After attempting to negotiate the amount of attorney’s fees, the Sierra Club moved for a summary judgment to determine the amount. Defendants opposed the motion on the ground that the factors set out in section 3(b) were jury questions, and thus, were not proper for determination by summary judgment. The trial court denied the motion for summary judgment.
The Sierra Club filed a second motion for partial summary judgment urging the court to determine as a matter of law the issues of the Sierra Club’s good faith and ATSPAC’s reasonable basis in law. Defendants successfully opposed this motion, and the matter proceeded ultimately to a two-week jury trial. At defendants’ insistence, the trial court submitted all the issues pertinent to an award of attorney’s fees under section 3(b) to the jury. The jury found: that (1) the Sierra Club had substantially prevailed in the litigation; (2) the Sierra Club had brought the suit in good faith; (3) ATSPAC’s conduct did not have a reasonable basis in law; and (4) the Sierra Club was entitled to an award of reasonable attorney’s fees and costs totalling $146,300 *687 through the entry of judgment. The jury also made findings of reasonable attorney’s fees for each step up the appellate ladder.
After the verdict, the City and the County reached settlements with the Sierra Club and were dismissed from the cause before the rendition of judgment. ATSPAC and SDHPT each filed motions to disregard the jury finding and for judgment non obstan-te veredicto. The trial court rendered a final judgment in accordance with the jury findings holding ATSPAC and SDHPT jointly and severally liable for the attorney’s fees. Defendants filed motions for a new trial and motions for a remittitur of the attorney’s fees award. The trial court denied each of these motions. In the order denying the motions, however, the trial court stated its own findings on the issues. The trial court found, contrary to the jury findings, that ATSPAC’s conduct had a reasonable basis in law. The trial court agreed with the other jury findings and held that the amount of the award was a jury question. To avoid the necessity of a retrial if it were determined on appeal that the issue of the amount of fees under section 3(b) was for determination by the court, the trial court rendered a conditional finding that $102,550 was a reasonable amount of attorney’s fees. However, the trial court did not modify the judgment previously rendered on the jury findings.
ATSPAC appeals the judgment on twelve points of error and SDHPT brings four additional points of error.
DISCUSSION AND HOLDING
Retrospective Application of Statute
In ATSPAC’s first point of error and SDHPT’s fourth point of error, each argue that the attomey’s-fee provisions of section 3(b) of the Act cannot be applied retrospectively. This section became effective August 31, 1987. Appellants argue that this section cannot be applied to award attorney’s fees in an action based on violations of the Act occurring before that date. Appellants argue that a retrospective application of section 3(b) to this case would violate article I, section 16 of the Texas Constitution.
3
See Ex parte Abell,
The parties disagree as to whether any of ATSPAC’s violations of the Act occurred after the effective date of the attomey’s-fees provisions. While the record reflects that several ATSPAC meetings were held in violation of the Act after August 31, 1987, all of the substantive actions that the Sierra Club sought to have set aside were taken at meetings before that date.
The chronology of the violations, however, is not important to the resolution of this point. ATSPAC first raised the issue of the retrospective application of section 3(b) in its first supplemental answer, filed March 2,1990, and SDHPT first raised the issue in its motion to disregard the jury findings and for judgment non obstante veredicto, filed January 11, 1991. Each of these were filed after the date of the hearing on the Sierra Club’s first motion for partial summary judgment, December 8, 1989.
The trial court rendered a partial summary judgment on March 20, 1990, holding that the Sierra Club had substantially prevailed in the litigation and was entitled to an award of reasonable attorney’s fees. Neither ATSPAC nor SDHPT had filed a pleading raising the constitutional issue at the time of the hearing.
See
Tex.R.Civ.P. 166-A. Pleadings may be amended within seven days of trial or thereafter only upon leave of court. Tex. R.Civ.P. 63. A summary judgment hearing is a trial for purposes of Rule 63.
Energo Int’l Corp. v. Modem Indus. Heating, Inc.,
The record does not reflect any attempt by ATSPAC to obtain leave of court to file its amended pleading after the hearing. Therefore, ATSPAC’s first supplemental answer filed after the hearing was not properly on file at the time of the hearing. Tex.R.Civ.P. 63;
Claude Regis Vargo Enter., Inc. v. Bacarrisse, 578
S.W.2d 524, 528-29 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.);
Energo,
A constitutional challenge to a statute is an affirmative defense that must be pleaded to avoid waiver. Tex.R.Civ.P. 94;
Leckey v. Warren,
Res Judicata and Collateral Estoppel
In its second point of error, ATS-PAC argues that the doctrines of collateral estoppel and res judicata bar the attorney’s fees issues because of the dismissal of a related case in federal court. ATSPAC first raised these issues in its motion to disregard jury findings and for judgment
non obstante veredicto.
The doctrines of res judicata and collateral estoppel are affirmative defenses that are waived unless affirmatively pleaded. Tex.R.Civ.P. 94;
Traweek v. Larkin,
Sufficiency, of the Evidence
In its seventh point of error, ATS-PAC argues that the trial court erred in holding as a matter of law that the Sierra Club had substantially prevailed even though no injunctive relief was granted and none of the actions of ATSPAC were set aside. In its ninth point of error, ATS-PAC argues that the trial court erred in holding as a matter of law that the Sierra Club had brought the action in good faith even though some of the Sierra Club’s representatives had received actual notice of ATSPAC meetings, had appeared, and had participated in those meetings. The wording of these points of error is confusing as these issues were resolved by the jury findings. These points appear to challenge the legal sufficiency of the evidence to support the jury findings. Assuming the Sierra Club had the burden of proof to establish all issues relative to attorney’s fees, we shall consider these points as no-evidence points. In deciding a no-evidence point, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary.
Aim v. Aluminum Co. of Am.,
If points seven and nine complain that the court erred in not granting ATSPAC’s motion to disregard the jury findings and for judgment
non obstante veredicto,
the test is essentially the same. For a trial court to disregard a jury’s findings and to grant a motion for judgment
non obstante veredicto,
“it must be determined that there is no evidence upon which the jury could have made the findings relied upon.”
Exxon Corp. v. Quinn,
The Sierra Club presented evidence at trial by live testimony, deposition testimony, and documentation. We have reviewed the record and conclude that some evidence exists to support the jury findings that the Sierra Club brought the suit in good faith and substantially prevailed. Therefore, we overrule ATSPAC’s seventh and ninth points of error. Additionally, if these points complain of the submission of these issues to the jury, they are barred by the doctrines of invited error and waiver, as discussed below.
In its third, sixth, and eighth points of error, ATSPAC challenges the factual sufficiency of the evidence supporting the jury findings that (1) ATSPAC’s conduct did not have a reasonable basis in law; (2) the Sierra Club substantially prevailed in the litigation; and (3) the Sierra Club brought the suit in good faith. When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Cain v. Bain,
Failure to Modify Judgment
In its fourth and fifth points of error, ATSPAC argues that the trial court erred in failing to render judgment based on the court’s independent findings that ATSPAC’s actions had a reasonable basis in law and that a smaller amount of fees should be awarded. Both sides have extensively discussed the proper procedure in dividing the attorney’s fees issues between the judge and the jury under the Act, in light of the decision in
Donwerth v. Preston II Chrysler-Dodge, Inc.,
At trial, ATSPAC and SDHPT requested jury findings on the four issues related to an award of attorney’s fees under section 3(b): (1) whether the Sierra Club substantially prevailed in the litigation; (2) whether ATSPAC’s actions had a reasonable basis in law; (3) whether the Sierra Club brought the suit in good faith; and (4) what was a reasonable amount of attorney’s fees. These issues were submitted to the jury and the trial court rendered judgment based upon the jury’s findings. Essentially, ATSPAC argues that the trial court erred in submitting these issues to the jury, as ATSPAC requested.
ATSPAC contended below that all the relevant issues must be submitted to the jury. It now argues that the court must make the threshold determinations. A party may not request that the trial court take a particular action and then complain on appeal that the court committed error in granting its request.
Northeast Tex. Motor Lines, Inc. v. Hodges,
Limited Remand
In its tenth point of error, ATS-PAC argues that this Court’s remand of this cause on the first appeal was limited to a trial on ATSPAC’s compliance with the Act, and, thus, attorney’s fees could not properly be awarded. We determined in the prior appeal that the Act applied to ATSPAC.
Sierra Club,
Our prior opinion stated that the cause was remanded “for trial on the issue of whether ATSPAC complied with the applicable provisions of [the Act].”
Sierra Club,
The doctrine of “the law of the case” prohibits the relitigation of issues decided in the previous appeal.
Texacally Joint Venture,
Attorney’s Fees Incurred in Collection of Fees
In its eleventh point of error, ATS-PAC argues that section 3(b) does not authorize an award of attorney’s fees accrued in efforts to collect previously awarded attorney’s fees incurred in litigation of the merits. We disagree. Reasonable attorney’s fees may be awarded to any substantially prevailing party under section 3(b). Appellants cite no authority for the proposition that this award is limited to fees incurred on the merits. We see no reason that a substantially prevailing party should not recover attorney’s fees incurred in collecting previously awarded attorney’s fees. To hold otherwise would encourage bad-faith delays and resistance to attorney’s-fees judgments. Additionally, the jury made a separate finding that the Sierra Club was entitled to $59,000 in attorney’s fees incurred after the entry of the partial summary judgment. Thus, the jury rejected the argument that under principals of fairness fees should not be awarded for attorney’s fees collection efforts. We overrule ATSPAC’s eleventh point of error.
Governmental Immunity
In its second point of error, SDHPT contends that it is not subject to an award of attorney’s fees because it possesses government immunity. Absent an express waiver of governmental immunity from liability, a party cannot obtain an award of attorney’s fees from a governmental unit.
Texas Dep’t of Human
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Servs. v. Methodist Retirement Servs., Inc.,
Joint and Several Liability of SDHPT
In its first point of error, SDHPT argues that the trial court erred in rendering judgment against SDHPT and ATSPAC jointly and severally. SDHPT contends that because SDHPT had no authority or control over the operations of ATSPAC it cannot be held jointly and severally liable with ATSPAC as a partner or joint enterprise. SDHPT also argues that ATSPAC is an entity created under federal law and as such is an arm of the federal government and not a state agency. The Sierra Club replies that SDHPT, as one of the governmental entities which created and controlled ATSPAC, is liable for ATSPAC’s actions.
The Sierra Club’s apparent basis for holding SDHPT, the County, and the City liable with ATSPAC is that the parent entities entered into a joint venture in forming ATSPAC and, thus, were jointly liable for ATSPAC’s actions. The elements of a joint venture are: (1) community of interest; (2) joint right of control; and (3) sharing of profits, losses, and costs or expenses.
Brown v. Cole,
The Sierra Club does not present any authority and we are aware of no authority making state agencies strictly liable for the actions of subordinate “special districts,” metropolitan planning organizations, or other jointly created governmental entities. Additionally, there is nothing in the agreement between SDHPT, the County, and the City expressly agreeing to liability for ATSPAC’s actions. Therefore, the issue of joint and several liability depends on a determination of the relationship between ATSPAC and its parent entities.
The joint and several liability of SDHPT and the other defendants was determined by the partial summary-judgment the trial court rendered on January 10, 1990. At the summary-judgment hearing, the Sierra Club argued SDHPT’s liability based on the following: (1) SDHPT, the County, and the City created ATSPAC by written agreement; (2) the agreement controlled ATS-PAC’s voting membership, functions, area of coverage, senior staff duties, budget process, and dissolution procedures; (3) ATSPAC received $23,800 from the state and Travis County in fiscal year 1987-1988 and $25,400 from the state and Travis County in fiscal year 1988-1989; and (4) SDHPT provided additional support for ATSPAC in the form of legal services and funding for extraordinary expenses, such as consultant’s fees. The Sierra Club supported these allegations by affidavits, deposition testimony, and documentation. The Sierra Club argued that since “SDHPT, Travis County, and City of Austin control absolutely [ATSPAC’s] existence, organization, and functions, and because SDHPT and Travis County supply by far the bulk of [ATSPAC’s] operating resources, all defendants should be held jointly and severally liable.”
The standards for reviewing a summary judgment are well established: (1) The movant for summary judgment has the burden of showing that no genuine issue of
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material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.
Nixon v. Mr. Property Management Co.,
SDHPT did not object to the summary-judgment proof the Sierra Club offered and did not file a response to the Sierra Club’s motion. Instead, SDHPT relied only on its previously filed motion for summary judgment that alleged that it was protected by governmental immunity and that the Sierra Club failed to allege a cause of action against SDHPT. Because SDHPT did not file a response to the Sierra Club’s motion for partial summary judgment, SDHPT is limited on appeal to a challenge of the legal sufficiency of the Sierra Club’s summary-judgment proof.
See City of Houston v. Clear Creek Basin Auth.,
Although SDHPT offered additional testimony at the jury trial concerning its relationship with ATSPAC, the partial summary judgment had established SDHPT’s joint and several liability for the jury award of attorney’s fees. Accordingly, the issue of the joint and several liability of SDHPT and the other defendants was not submitted to the jury. At the conclusion of the jury trial on the amount of attorney’s fees, the trial court merely incorporated its prior interlocutory ruling of joint and several liability into the final judgment. Therefore, we will not consider the jury-trial testimony in reviewing this point.
Gandara v. Novasad,
SDHPT has failed to bring a complete record of the summary-judgment proceedings on appeal. The transcript does not contain the depositions the Sierra Club presented to the court as summary-judgment proof. Therefore, we must presume that the omitted material supported the trial court’s judgment.
De Santis v. Wackenhut Corp.,
In the agreement, which is part of the record, SDHPT, the County, and the City, provided for joint participation, control, and sharing of the expenses of ATS-PAC by the parties. This evidence supports a finding that SDHPT entered into a joint venture in regard to ATSPAC. Under the presumption that the missing deposition evidence supports the judgment, we cannot conclude that the trial court erred in finding SDHPT jointly and severally liable as a matter of law. Accordingly, we overrule SDHPT's first point of error.
Finality of Prior Dismissal of SDHPT
In its third point of error, SDHPT argues that its prior dismissal from the suit was a final judgment and barred any further relief as to SDHPT. We disagree. In its order dismissing SDHPT from the suit, the court expressly removed “with prejudice to refile same” from the order, making the dismissal without prejudice. Thus, this order by its terms had no preclusive effect on the Sierra Club’s claims against SDHPT and the other dismissed defendants. The Sierra Club properly rejoined SDHPT to the lawsuit before the final judgment. We overrule SDHPT’s third point of error.
Attorney’s Fees on Appeal
In its twelfth point of error, ATSPAC argues that an award of attorney’s fees on appeal is not proper if the judgment below is reversed or reformed. Having found no reason to reverse or reform the trial court judgment, we overrule this point.
CONCLUSION
We affirm the judgment of the trial court.
Notes
. Now designated as the Texas Department of 843 S.W.2d — 16 Transportation.
. ‘In an action brought under this section, a court may assess costs of litigation and reasonable attorney’s fees incurred by a plaintiff or defendant who substantially prevails. In exercising its discretion, the court shall consider whether the conduct of the government body had a reasonable basis in law and whether the litigation was brought in good faith.” Tex.Rev.Civ. Stat.Ann. art 6252-17 § 3(b) (West Supp.1992) (emphasis added).
. Texas Const, art. I, § 16 provides: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligations of contracts, shall be passed."