CAREFLITE, Appellant v. RURAL HILL EMERGENCY MEDICAL SERVICES, INC., Appellee.
No. 11-10-00306-CV.
Court of Appeals of Texas, Eastland.
Aug. 23, 2012.
381 S.W.3d 132
This Court‘s Ruling
The judgment of the trial court is affirmed.
Michael G. Cosby, Waco, for Appellee.
Panel consists of: WRIGHT, C.J., McCALL, J., and KALENAK, J.
OPINION
JIM R. WRIGHT, Chief Justice.
CareFlite sought a writ of mandamus against Rural Hill Emergency Medical Services, Inc., seeking to compel Rural Hill to рroduce information requested under the Texas Public Information Act (TPIA),
CareFlite contends in two issues that (1) the trial court еrred when it granted summary judgment and attorney‘s fees for Ru
Rural Hill is a not-for-profit corporation that provides emergency medical transportation and related services exclusively in Hill County. It has contracts with the cities of Mt. Calm and Hubbard to make those services available twenty-four hours a day, seven dаys per week. Rural Hill derives its revenue in three ways: (1) monthly payments from the City of Mt. Calm; (2) monthly payments from the City of Hubbard; and (3) payment from the patients for whom it renders specific medical transportation and related services. The monthly payments Rural Hill receives from each of the cities are calculated according to a formula set forth in each city‘s respective contract. In addition to the monthly payment, the contract between Rural Hill and the City of Hubbard also provides that the city will provide Rural Hill with a facility and utilities. Several years after the contract‘s execution, Rural Hill moved into its own building, at which point the City of Hubbard began to pay Rural Hill an additional monthly payment of $800 in lieu of providing the facility and utilities.
CareFlite is also a not-for-profit provider of emergency medical services. Through its attorney, CareFlite sent a letter to Rural Hill requesting, pursuant to the TPIA, that Rural Hill produce the following documents: “(1) financial records (balance sheets, income statements, listings of expense, and collections), (2) standard service rates, (3) actually billed rates or charges for any and all services, and (4) tax returns and schedules, including Form 990‘s.” When Rural Hill did not produce the requested information and did not request a ruling concerning the request from the attorney general, CareFlite filed a petition for writ of mandamus, in which it аsked the trial court to compel Rural Hill to provide the information.
Both of the motions for summary judgment were traditional ones.
Once the movant establishes a right to summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). When reviewing a traditiоnal summary judgment, the appellate court considers all the evidence and takes as true evidence favorable to the nonmovant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The appellate court “must consider wheth
When both parties move for summary judgment on the same issues and the trial court grants one motion and denies the other, we consider the summary judgment evidence presented by both sides and determine all questions presented. If we determine that the trial court erred, we must render the judgment that the trial court should have rendered. Valence Operating, 164 S.W.3d at 661. When a trial сourt does not specify the grounds it relied upon to grant the summary judgment, we must affirm the summary judgment if any of the grounds stated in the motion for summary judgment are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000).
In its second issue, CareFlite maintains that the trial court erred when it granted Rural Hill‘s motion for summary judgment and denied its motion for summary judgment. It contends Rural Hill is a governmental body subject to the TPIA. CareFlite bases its argument, in part, on the proposition that Rural Hill was supported in whole or in part by public funds because the contracts Rural Hill had with the cities were not arms-length transactions. It additionally argues that Rural Hill comes under the TPIA for two reasons: first, because the services contemplated by the contracts traditionally have been provided by government and, second, because Rural Hill and the cities have a common objective or purpose.
We begin our analysis of the matters set forth in CareFlite‘s second issue with a recognition that the underlying purpose of the TPIA is to provide transparency in governmental affairs. Thus, the TPIA begins in
(a) Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete informatiоn about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
(b) This chapter shall be liberally construed in favor of granting a request for information.
CareFlite filed its original petition for writ of mandamus, in which it sought an order to compel Rural Hill to produce information under the TPIA.
The TPIA contains provisions that pеrtain to the required disclosure of certain information by a governmental body when that governmental body is requested to do so in accordance with the TPIA. Our concern in this case is whether Rural Hill is a governmental body.
There are several definitions of “governmental body” within the TPIA, but the only one that is at issue in this appeal is this one that makes an entity a governmental body as to: “the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds.”
It is undisputed that Rural Hill receives public funds. We hаve set forth the sources of Rural Hill‘s revenue earlier in this opinion, and a portion of that revenue comes from public funds supplied by the City of Hubbard and the City of Mt. Calm.
But, the fact that Rural Hill receives public funds does not make it a governmental body under the TPIA automatically. To be considered a governmental body, the public funds that it receives must be the type of “support” that places Rural Hill within the purview of the TPIA.
Neither our research nor that of either party has uncovered an opinion published by a Texas court that directly addresses the definition of “support” under the TPIA. However, in 1988, the United States Court of Appeals for the Fifth Circuit addressed this issue in Kneeland v. National Collegiate Athletic Association, 850 F.2d 224 (5th Cir. 1988). In Kneeland, the court analyzed similar language of the TPIA predecessor, the Texas Open Records Act (TORA). 850 F.2d at 228. Like this court, the Fifth Circuit noted that there were no Texas cases directly on point. Id. To inform its decision, the court looked to formal opinions of the Texas Attorney General. Id. Then, with the TORA, as now, with the TPIA, the Texas Attorney General is charged with issuing opinions concerning its interpretation of the provisions of the act when requested. Id.;
In Open Records Decision No. 228, the attorney general was called upon to determine whether the North Texas Commission was a governmentаl body for purposes of the TORA.
The attorney general concluded that the contract between the City of Fort Worth
In 1982, the attorney general issued Open Records Decision No. 302.
In ORD-302, the attorney general compared the Brazos County Industrial Foundation with the North Texas Commission in ORD-228.
Ambulance activity reports of Amarillo Medical Service were, in part, the subject of Attorney General Open Records Decision No. 343.
In Opinion No. JM-821, the attorney general cautioned against relying on the outcome in the Amarillo Medical Service case.
The inquiry in Attorney General Opinion No. JM-821, to which we just referred, was whether the Cy-Fair Volunteer Fire Department, a nonprofit corporation, was subject to the TORA as a governmental body.
Under the contract between the Cy-Fair Volunteer Fire Department and the Harris County Rural Fire Prevention District No. 9, the bulk of the funds received by the district from tax collections, less costs associated with administration, were transferred by the district to the department.
The attorney general also noted that volunteer firefighters have a closer relationship with governmental bodies than others.
The contract between the Cy-Fair Volunteer Fire Department and the Harris County Rural Fire Prevention District No. 9 provided: “The Department will provide the emergency ambulance services, the fire prevention services, the fire fighting services in the geographic District and will not look to the District to provide any services whatsoever except for the providing of funds to enable the Department to carry on its duties and responsibilities.”
In another attornеy general opinion, LO-93-55, the attorney general responded to the issue of whether certain chamber of commerce subdivisions were governmental bodies subject to the Open Meetings Act.
In its opinion in Kneeland, the Fifth Circuit explained that, in its review of the Texas Attorney General opinions, it perceived “three distinct patterns of analysis” in regard to this issue. Kneeland, 850 F.2d at 228. First, “an entity receiving public funds becomes a governmental body under the Act, unless its relationship with the government imposes ‘a specific and definite obligation ... to provide a measurable amount of service in exchange for a certain amount of money as would be expected in a typical arms-length contract for services between a vendor and purchaser.‘” Id. (quoting
We do not disagree with the “patterns” or issues that the Fifth Circuit gleaned from a study of the attorney general opinions, but we believe that there are sub-patterns or sub-issues within each pattern or issue. We also believe that no one sub-pattern or sub-issue in and of itself is dispositive of the main pattern or issue of whether a particular entity, in a particular circumstance, is or is not a governmental body. We believe that the overarching consideration is, in these sub-issues, as indicated by the attorney general in Opinion No. JM-821, whether the overall nature of the relationship created by the contract is such that the private entity is “so closely associated with the governmental body that the private entity falls within the Open Records Act.”
We will take CareFlite‘s arguments each in turn with an eye toward the stated purpose of the TPIA and the various standards set forth in the attorney general opinions. As we do that, we do so realizing that no one standard or sub-pattern or sub-issue is dispositive and that it is relevant to look at the circumstances of this case on an individual basis to determine whether Rural Hill is “so closely associated with the governmental body thаt the private entity falls within the Open Records Act.”
CareFlite argues that the contracts between the cities and Rural Hill do not provide for an arms-length commercial services contract as would normally exist between a vendor and a purchaser. CareFlite advances four reasons in support of its argument.
We will address CareFlite‘s first and third arguments under its second issue on appeal together. First, CareFlite maintains that the contracts between Rural Hill
We agree that Rural Hill does provide services to its patients in exchange for the payments it receives from them. However, the contracts between Rural Hill and the cities also list additional specific services that Rural Hill is obligated to provide in exchange for the payments it receives from the cities. For example, the contracts obligate Rural Hill to “[a]ssure [Rural Hill] and its personnel are appropriately trained, licensed, and certified for the levels of sеrvice provided” and “[a]ssure ... that qualified personnel are available to respond to each emergency call on which [Rural Hill] is dispatched.” The services that Rural Hill is to provide to the cities under its contracts, as far as the cities are concerned, are not solely the individual emergency responses but also include continuous emergency services supported with adequate equipment and adequately trained and qualified personnel, the minimum standards of and for which are stated in the contracts. Additionally, these minimums should be readily ascertainable from industry standards. We believe that this constitutes a sufficient quid pro quo as is referred to in LO-93-55. Therefore, we disagree with CareFlite‘s first and third arguments under its second issue on appeal.
In its second argument under its second issue on appeal, CareFlite maintains that, because the contracts set the amount of payment to Rural Hill at an amount that is based on annually appraised property values, which may fluctuate, the services are not in exchange for a “certain amount of money.” The Hubbard contract provides the following:
The length of this agreement is for a five year term with monies for the first year to be calculated based on $.07 per 100 dollars taxable value for the City of Hubbard and its [extra territorial jurisdiction]. This amount of monies will be calculated each year of this contracts [sic] term on the date set forth by the Hill County Appraisal District on which the Hill County Appraisal District certifies the tax role. For each additional year the amount is not to exceed $32,000 per year unless agreed upon by the council for the City of Hubbard during the annual budget process.
The Mt. Calm contract contains similar language.
Because appraised property values fluctuate, CareFlite argues, the contracts do not require the cities to provide Rural Hill with a certain amount of money. Therefore, asserts CareFlite, Rural Hill does not meet that part of the criteria for an arms-length transaction.
Rural Hill argues that the potential fluctuation under the сontracts do not mean that the contracts fail to require payment of a certain amount of money. Rather, drawing the comparison to an attorney working under a contingent fee agreement, Rural Hill argues that, although the revenue may fluctuate, the amount is discernible against a measurable baseline.
Neither party cites to any source to support its arguments of what qualifies as a “certain amount of money.” After the Kneeland court reviewed three attorney general opinions where the contractual obligations imposed were not specific enough to fall under the exception, the court discussed ORD-343 in which an obligation to provide sрecific measurable services in ex
In its fourth argument under its second issue on appeal, CareFlite maintains that the contracts do not constitute an arms-length transaction because the contracts’ provisions providing for the cities’ review of Rural Hill‘s budget and for the City of Hubbard‘s supplying free rent and utilities are not what “would be expected in a typical arms-length contract for services.” Both of the cities’ contracts specify that Rural Hill will “[p]rovide the city with a quarterly budget and service report to the council and verbal reports as requested.”
In support of this part of its argument that this is not typical of an arms-length contract, CareFlite directs us to the Cy-Fair Volunteer Fire Department opinion that we have discussed above.
Additionally, CareFlite argues that the contract cannot be an arms-length transaction because the City of Hubbard agreed to supply free rent and utilities and that such an agreement would not be expected in a typical arms-length contract for services. We have found no authority that requires that а governmental body‘s part of a quid pro quo be satisfied exclusively with dollars. Consideration can take many forms. See generally Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991) (discussing consideration). In any event, we do not find the form of consideration to be solely dispositive of the “arms-length transaction” issue.
Our review of this case in light of the attorney general opinions that we have discussed leads us to hold that the transactions between the cities and Rural Hill were arms-length ones. The contracts imposed upon Rural Hill the obligation to provide a measurable amount of service in exchange for a certain amount of money as
In its second issue, CareFlite presents other arguments not related to its arms-length transaction ones. CareFlite argues that Rural Hill comes within the definition of a governmental body because both the cities and Rural Hill share the “common purpose or objective” of locally providing emergency medical services to residents. See Kneeland, 850 F.2d at 228.
CareFlite additionally argues in Issue Two that emergency medical services are “services traditionally provided by governmental bodies” and that, therefore, Rural Hill should be considered a governmental body under the TPIA. See Kneeland, 850 F.2d at 228. In support of this argument, CareFlite directs our attentiоn to a 2003 Attorney General Open Records Letter Ruling, which noted “that emergency medical services are ‘traditionally provided by governmental bodies.‘”
CareFlite has not directed us to, and we have not found, any authority, primary or persuasive, that stands for the proposition that, if a private entity and a governmental body share a common purpose or objective, the private entity is automatically a governmental body for purposes of the TPIA. Neither are we aware of any like authority when an entity provides services traditionally provided by governmental bodies. Nor, with the modern changes in the way emergency services are delivered, can we say categorically that emergency medical services are traditionally provided by governmental bodies. In ORD-2402, the attorney general does not include the statement “‘that emergency medical services are ‘traditionally provided by governmental bodies‘” in its analysis of the facts or its conclusion. We are aware, however, of the statements of the attorney general that each situation is to be examined on a case-by-case basis and that the overall nature of the relationship is relevant in a determination of whether a private entity is a governmental body for purposes of the TPIA.
In its first issue, CareFlite complains that the trial court erred when it granted Rural Hill‘s motion for summary judgment. It argues that Rural Hill could not obtain a judgment under the UDJA when it sought nothing more than a favorable ruling on a defense to CareFlite‘s right to mandamus relief. However, seeking declaratory relief that an entity is not a governmental body as set forth under the TPIA and mandamus relief under the same are not mutually exclusive. See, e.g., Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353 (Tex. App.—Waco 1998, pet. denied). CareFlite is correct in its assertions that, generally, a UDJA counterclaim may not be asserted on a claim already pending before the court, Staff Industries, Inc. v. Hallmark Contracting, Inc., 846 S.W.2d 542, 547 (Tex. App.—Corpus Christi 1993, no writ), nor may a UDJA counterclaim be creatively asserted to contend that a plaintiff can
The judgment of the trial court is affirmed.