Browning-Ferris Industries, Inc. v. Lieck
| Citation | 845 S.W.2d 926 |
| Decision Date | 19 November 1992 |
| Docket Number | BROWNING-FERRIS,No. 13-90-364-CV,13-90-364-CV |
| Court | Court of Appeals of Texas |
| Parties | INDUSTRIES, INC., and James R. Meszaros, Appellants, v. Kenneth J. LIECK and Nydia Hinojosa Lieck, Appellees. |
Lisa D. Powell, Charles C. Murray, Atlas & Hall, McAllen, Professor William Powers, The University of Texas, School of Law, Austin, Roger Townsend, Fulbright & Jaworski, Houston, for appellants.
Norton A. Colvin, Jr., Rodriguez, Colvin & Chaney, Brownsville, Gordon L. Briscoe, Harlingen, Neil E. Norquest, McAllen, for appellees.
Before the Court En Banc. 1
MAJORITY OPINION
Kenneth and Nydia Lieck filed suit alleging that Browning-Ferris Industries, Inc. (BFI), through its agent, James Meszaros, made false and incomplete statements which caused a criminal prosecution to be filed against Kenneth Lieck, and that the statements were made with malice and without probable cause to believe that a crime had been committed. The jury agreed, and found BFI and Meszaros liable for malicious prosecution and loss of consortium, and awarded damages to Kenneth and Nydia Lieck. The trial court granted judgment non obstante veredicto against Nydia Lieck's loss of consortium claim. By thirty points of error appellants, James Meszaros and Browning-Ferris Industries, Inc., seek reversal and rendition of the trial court's judgment. Appellant, Nydia Lieck, seeks reversal of the trial court's judgment non obstante veredicto against her. We modify and affirm Kenneth Lieck's judgment and reverse and render judgment in favor of Nydia Lieck.
In 1985 the City of Brownsville sought to privatize garbage collection. At a public meeting on January 22, 1985, James Meszaros, a BFI employee, appeared and promoted an exclusive ten-year contract between BFI and the City. He wanted the contract awarded with no competitive bidding. Meszaros handed out copies of BFI's standard-form contract as an example of what BFI and the City should execute.
The City Charter prohibited exclusive contracts. Accordingly, Kenneth Lieck, the City Manager, requested proposals from several garbage collection companies. After analysis, the matter was tabled, in part, because of an upcoming city election.
During the election, BFI attempted to make a "campaign contribution" to one of the Brownsville City Commission members, Jesse Sloss. Although the facts were controverted, some evidence showed that the Commissioner refused the contribution because the garbage contract was pending and BFI was a competitor. At trial Meszaros stated that the campaign contribution was solicited by Emilio Hernandez, who was the mayor. Hernandez denied requesting the contribution.
On January 21, 1986, after the city election, the City Commission decided to move forward on privatization. More proposals were requested and submitted. On February 25, 1986, the City Commission met to consider four proposals from garbage collection companies, including one from BFI. Before the meeting, Lieck analyzed, summarized, and compared each proposal, and developed a packet of information. The City's policy was to distribute this information to the Commission members and the news media, and to keep a copy on file for During this meeting, Robert Torres, a representative from Garbage Management Services (GMS), appeared and urged the Commission to consider his company. He argued that GMS could provide lower rates for service than BFI, and would offer more for the City's old equipment. The Commission, however, voted four to one to instruct Lieck to negotiate a contract with BFI.
the public. 2
BFI had a form contract, plaintiffs' exhibit 70, which was, with minor variations, in effect in many cities in Texas. Meszaros admitted that this was a public document. In fact, the evidence showed that he had distributed this contract to members of other city commissions as a proposed form contract between BFI and the cities he solicited. He also distributed this document to members of the Brownsville City Commission. BFI's competitors used an almost identical form contract.
The City and BFI negotiated minor changes to this form contract by inserting a fee for use of the City's landfill, a billing fee, and by making several other changes. A final draft was prepared.
At this point, the rates in the contract had been discussed and accepted by the Commission. These rates were $8.00 per ton for use of the landfill and a 3% billing fee. The rates concerning insurance coverage, the surety bond, and the 5% franchise fee were part of the form contract, and were not changed from the form. The disposal and billing fees were public information because they were debated and discussed at the City Council's open meetings, and they were part of a contract which was made available to the public.
The next meeting was set for March 4, 1986. At trial, Lieck testified that, as in the previous meeting, a packet of information was distributed to the Commissioners, the news media, and the public. Significantly, the packet contained the proposed contract between BFI and the City. Lieck testified that at that point the contract, and the figures it contained, was a public document, and not confidential. At the meeting the Commission voted to table the negotiations.
Robert Torres, the GMS representative, testified that, in the meantime, he obtained information regarding other competitors' proposals and, based on this information, he prepared a comparative analysis of all bids. This analysis, which he submitted to the City, showed GMS offering the City a better deal.
On March 17, 1986, Lieck wrote a letter to the Commissioners detailing, analyzing, and comparing the rates offered by each company, including those offered by BFI. The letter disclosed that GMS offered $100,000 more for the City's old equipment than BFI offered. This letter was made public pursuant to the City's policy of releasing information to the press. The next day, the Commission voted to cancel contract negotiations with BFI and to initiate negotiations 3 with GMS. As before, the rates for the services, i.e., insurance coverage, the surety bond, the landfill fee of $8.00, the franchise fee of 5%, and the billing fee of 3% were set by the Commission. Only the residential and commercial pickup rates and other details of the contract needed to be negotiated.
After the vote, Torres asked Lieck whether GMS or the City would provide an initial draft of the proposed contract between GMS and the City. Lieck responded that the City would provide the contract. On April 7, 1986, Lieck gave Torres a slightly modified version of the contract he negotiated with BFI. This contract was based on BFI's form contract. It included terms covering the fees, the insurance and the bond, all of which were public information. This is plaintiffs' exhibit 79. GMS, of course, had its own residential and commercial rate schedule, which became part of the negotiation. This contract was almost identical in its relevant portions to the contract earlier negotiated between BFI and the City, plaintiffs' exhibit 5A, and the form contract, plaintiffs' exhibit 70. Plaintiffs' exhibit 79 and plaintiffs' exhibit 5A included the franchise fee, the billing fee, and the disposal fee, as well as the boilerplate terms of the contract. The contract Lieck gave to Torres, plaintiffs' exhibit 79, formed the basis of the negotiations between GMS and the City.
Meszaros tried to turn things around. He made phone calls and sent letters to Commission members. He was successful, and on April 29, 1986, the City solicited a last round of proposals. The request for proposals was specifically based on BFI's contract, including the franchise fee, the billing fee, the disposal fee, and the other contract terms. The City Commission awarded the contract to GMS.
Subsequently, the Texas Rangers initiated an investigation of the purchasing department in the Brownsville City Government. The evidence showed that Meszaros was aware of the investigation and feared that his attempted campaign contribution to Sloss would be discovered. He asked one of his employees to relay all news reports and other information to him. Meszaros also asked Dan North, a BFI employee and past Texas Ranger, to inquire into the investigation. North called Rudy Rodriguez, a Texas Ranger involved in the investigation. North set up a meeting with Rodriguez.
Two days later, on December 17, 1986, Ranger Rodriguez and Joe Garza, an investigator from the Cameron County District Attorney's office, traveled to Houston to meet with Meszaros. Meszaros brought up the issue of the garbage contract. When the investigators informed Meszaros that Lieck gave the contract to Torres, he told the investigators the contract was confidential. North provided a copy of a law book to Rodriguez and Garza, and they concluded Lieck violated the law by disclosing the contract. Meszaros did not notify the investigators that the contract was public information or that he thought Lieck was innocent, although he admitted at trial that he always believed Lieck was innocent, and that he knew that the form contract was public information.
At the meeting, Meszaros signed a statement detailing his version of the events. This statement concluded: "The contract of BFI was solely to be used by the City of Brownsville for their own use in reaching an agreement on the contract between BFI and the City of Brownsville and nobody else."
Later, on January 30, 1987, Meszaros swore in an affidavit that:
My name is James R. Meszaros. I am employed as Director of Marketing, Southwest Region for the Browning-Ferris Industries (BFI) in Houston, Texas.
On December 18, 1986, I gave a statement to Investigator Joe V. Garza about the garbage contract that B.F.I. had been negotiating with the City of Brownsville. At this time, I would like to add to this statement that during the time that I was negotiating...
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