Jones v. Housing Authority of Kansas City

• Decision Date: 04 November 2003
• Docket Number: No. WD 61750.,No. WD 61700.,WD 61700.,WD 61750.
• Citation: 118 S.W.3d 669
• Parties: Kennedy F. JONES, Appellant-Respondent, v. HOUSING AUTHORITY OF KANSAS CITY, MISSOURI, Respondent-Appellant.
• Court: Missouri Court of Appeals

118 S.W.3d 669

Kennedy F. JONES, Appellant-Respondent, v. HOUSING AUTHORITY OF KANSAS CITY, MISSOURI, Respondent-Appellant.

No. WD 61700.

No. WD 61750.

Missouri Court of Appeals, Western District.

November 4, 2003.

Don A. Peterson, Kansas City, MO, for Appellant-Respondent.

Kevin R. Thomas, Kansas City, MO, for Respondent-Appellant.

Before BRECKENRIDGE, P.J., and EDWIN H. SMITH and HOWARD, JJ.

EDWIN H. SMITH, Judge.

Kennedy F. Jones (Jones) appeals from the summary judgment of the Circuit Court of Jackson County, Missouri denying his request for attorney fees in his action against the respondent, Housing Authority of Kansas City, Missouri (HAKC), for "mandamous (sic) and mandatory injunction," in which he sought, pursuant to the Missouri Sunshine Law, §§ 610.010-610.026,¹ access to certain records maintained by HAKC, concerning tenants who had participated in the Missouri Housing Development Commission (MHDC) and Section 8 housing assistance programs. HAKC cross-appeals from the trial court's summary judgment for Jones, ordering access to a portion of the records he sought from HAKC.

Jones raises two points on appeal claiming that the trial court erred in denying his request for attorney fees for violation of the Missouri Sunshine Law, as provided in § 610.027.3. HAKC raises one point in its cross-appeal, claiming that the trial court erred in sustaining Jones' motion for summary judgment for access to HAKC records, in accordance with the Missouri Sunshine Law.

We dismiss the appeal and cross-appeal for lack of jurisdiction.

Facts

On December 26, 2000, Jones sent a written request to Charmaine Johnson-Davis, Director of Section 8 housing for HAKC, seeking three categories of information on tenants and other persons involved in Section 8 and MHDC housing programs. First, with respect to one tenant, Jones sought the names and addresses of her employers for the past two years and asked HAKC to identify her residences for the past two years. Second, Jones sought the names, addresses, and telephone numbers of all landlords, owners, or property managers who had participated in Section 8 and MHDC housing programs since January 1, 1993. Third, Jones sought information on all the tenants who had participated in Section 8 and MHDC housing programs since January 1, 1993, including their names, dates of birth, and social security numbers; and, for each unit in which each tenant resided, the address of the unit, the landlord's name and telephone number, the dates on which the tenant moved in and out, and the amount of rent charged under the contract.

On December 29, 2000, Charmaine-Davis responded with a letter instructing Jones to re-direct his request to the custodian of records for HAKC. On January 4 2001, Jones sent a letter to the custodian of records, requesting the same information that was specified in his December 26, 2000 letter to Charmaine-Davis.

On January 19, 2001, counsel for HAKC replied by letter to Jones' request, declining to release any of the information sought by Jones. With respect to the information sought about tenants and their employers, HAKC asserted that releasing such information would constitute an unwarranted invasion of privacy pursuant to the Freedom of Information Act and the Privacy Act found at 5 U.S.C. § 552. With respect to the information sought about landlords, owners, and property managers, HAKC stated that it had questions about the legality and propriety of this request as well, and asked Jones to explain why he was seeking the information, so that HAKC could determine whether the information sought was subject to disclosure.

In a January 23, 2001 letter in response to counsel for HAKC, Jones asserted that HAKC was in violation of § 610.023 by failing to respond to his initial request within three business days. Jones again demanded the release of all the information he had previously requested, but did not explain why he wanted the information he was seeking on landlords, owners and property managers. Nevertheless, in his subsequent letter of January 30, 2001, counsel for HAKC no longer questioned the propriety of such a request, stating instead that such a request entailed a sizable amount of information that would require considerable time to reproduce, and stating that it would supply the requested information about landlords, owners, and property managers on or before February 13, 2001. The record indicates that HAKC did, in fact, provide Jones with the information requested pertaining to landlords, owners and property managers.

As to the other two categories of information sought (the one particular tenant and tenants in general), the counsel for HAKC maintained in his January 30, 2001 letter that it could not release such information because of the previously stated privacy concerns. Counsel also argued that such release was barred by § 610.021, which he stated authorized the HAKC to close records that relate to "[w]elfare cases of identifiable individuals."

On June 4, 2001, Jones filed a petition for mandamus and mandatory injunction, seeking to compel the HAKC to permit him access to the tenant information he had requested. On February 1, 2002, HAKC filed a motion for partial summary judgment, in which it stated:

Defendant HAKC asserts that the court can adjudicate the main issue in this lawsuit, through partial summary judgment, by answering the following question:

DOES THE MISSOURI SUNSHINE LAW (Chapter 610 Missouri Revised Statutes) REQUIRE DEFENDANT HAKC TO ALLOW PLAINTIFF THE EXAMINATION AND THE PHOTOCOPYING OF THE INFORMATION REQUESTED [pertaining to the one particular tenant and tenants in general] IN ... THE PLAINTIFF'S WRITTEN REQUEST FOR RECORDS CONTAINED IN HIS LETTER DATED JANUARY 4, 2001[?]

On March 1, 2002, Jones filed his motion for summary judgment, claiming that, as a matter of law, the information he requested from HAKC was not exempt from the provisions of the Sunshine Law by § 610.021(8), which closes records that relate to "[w]elfare cases of identifiable individuals." The motion further asserted that "Defendant disputes that Plaintiff is entitled to an award of attorney fees and statutory penalties pursuant to § 610.027(3) R.S.Mo. and summary judgment is not sought by either party on this issue."

On April 10, 2002, the trial court entered an order denying both motions for summary judgment, stating:

There remain issues of fact for determination in this case. Specifically, the application of Chapter 610 to plaintiff's requests in view of the exemption under Mo.Rev.Stat. § 610.021(8) and the determination of the claim of attorney's fees pursuant to Mo.Rev.Stat. § 610.027.3 remains as issues of fact.

Then, on June 20, 2002, the trial court entered a judgment stating that it had reconsidered its April 10, 2002 order, and was sustaining Jones' motion for summary judgment. The court further stated that, "[I]n addition, the Court finds no purposeful violation, and therefore DENIES attorney's fees." The judgment ordered HAKC to provide the information requested by Jones.

This appeal and cross-appeal followed.

I.

In Point I of his appeal, Jones claims that the trial court erred in entering summary judgment denying his request for attorney fees, pursuant to § 610.027.3, in his underlying action for mandamus and mandatory injunction, because the issue was not before the court in accordance with Rule 74.04,² governing summary judgment, in that, in his motion, he neither alleged facts nor requested summary judgment on the issue of attorney fees. We agree.

In his petition, in addition to seeking access to certain of the records maintained by HAKC, as provided in the Missouri Sunshine Law, Jones sought attorney fees, as provided in § 610.027.3. Section 610.027.3, governing "Violations—remedies, procedure, penalty—validity of actions by governing bodies in violation— governmental bodies may seek interpretation of law, attorney general to provide," reads:

Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has purposely violated sections 610.010 to 610.027, the public governmental body or the member shall be subject to a civil fine in the amount of not more than five hundred dollars and the court may order the payment by such body or member of all costs and reasonable attorney fees to any party successfully establishing a violation of sections 610.01 to 610.026.

Thus, to be entitled to attorney fees under this section as requested, Jones was required to prove not only a violation of Missouri's Sunshine Law, but a purposeful violation. Spradlin v. City of Fulton, 982 S.W.2d 255, 264 (Mo. banc 1998).

Summary judgment is proper where the motion for summary judgment and the response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 74.04(c); ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993). Where the movant is a plaintiff, as Jones was here, to make a prima facie case for summary judgment he is required to state with particularity in his motion all the undisputed material facts necessary to establish each and every element of his claim, referencing the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue as to those facts. Rule 74.04(c)(1); ITT Commercial Fin., 854 S.W.2d at 381.

In his motion for summary judgment, Jones requested summary judgment on the sole issue of his right to access to certain records maintained by HAKC. He made it crystal clear in his motion that he was not seeking summary judgment on the issue of attorney's fees, asserting: "[HAKC] disputes that [Jones] is entitled to an award of attorney fees and statutory penalties pursuant to § 610.027(3) (sic) R.S.Mo. and summary judgment is not sought by either party on this issue." And, as asserted by Jones, HAKC, likewise, did not seek...