Engelman Irr. Dist. v. Shields Bros., Inc.

• Decision Date: 18 December 1997
• Docket Number: No. 13-95-306-CV,13-95-306-CV
• Parties: ENGELMAN IRRIGATION DISTRICT, Appellant, v. SHIELDS BROTHERS, INC., Appellee.
• Court: Texas Court of Appeals

Page 343

960 S.W.2d 343

ENGELMAN IRRIGATION DISTRICT, Appellant, v. SHIELDS BROTHERS, INC., Appellee.

No. 13-95-306-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 18, 1997.

Rehearing Overruled Feb. 5, 1998.

R. Glenn Jarvis, Jarvis & Kittleman, McAllen, amicus curiae.

J. Arnold Aguilar, Law Office of J. Arnold Aguilar, Brownsville, for appellant.

David E. Wood, Garcia & Lopez, Edinburg, for appellee.

Before FEDERICO G. HINOJOSA, Jr., YANEZ and RODRIGUEZ, JJ.

OPINION ON MOTION FOR REHEARING

FEDERICO G. HINOJOSA, Jr., Justice.

After we issued our original opinion in this case, appellee, Shields Brothers, Inc., filed a motion for rehearing. We grant Shields Brothers' motion for rehearing, withdraw our original opinion, and substitute the following as the opinion of the Court.

Shields Brothers sued appellant, Engelman Irrigation District, for breach of contract for failing to deliver water. Shields Brothers alleged that it suffered extensive losses to its cotton, grain, and watermelon crops because it did not get irrigation water in a timely manner. Shields Brothers claimed that the Irrigation District did not comply with its own rules and regulations, specifically rules 3 ¹ and 7. ² After a jury trial, the trial court entered a judgment against the Irrigation District for actual damages, pre-judgment interest, and attorney's fees. The Irrigation District brings ten points of error. We affirm.

The jury found the parties had agreed (1) the Irrigation District would deliver water to Shields Brothers within a reasonable time, (2) Shields Brothers satisfied its obligations under the agreement, and (3) the District breached the agreement.

By its first point of error, the Irrigation District complains that the trial court erred in rendering judgment for Shields Brothers because the District is entitled to sovereign immunity.

The Irrigation District derives its authority and purpose from Article XVI of the Texas Constitution and as such, is a governmental agency of the State. TEX. CONST. art. XVI, § 59(a), (b). The Irrigation District contends that because Shields Brothers did not obtain consent from the State to sue the District, the District is immune from this suit. The Irrigation District also argues that the trial court did not have subject matter jurisdiction over Shields Brothers' complaint because it did not plead and prove the State's consent.

Shields Brothers cites us to section 58.098 of the Texas Water Code which provides that an irrigation district may sue and be sued in the courts of this state. TEX. WATER CODE ANN. § 58.098 (Vernon 1988); ³ see Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex.1970) (presenting the contention of consent for the first time during oral argument before the supreme court). By enacting section 58.098, the Legislature provided clear and unambiguous consent for the Irrigation District to be sued. See Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980); City of Corpus Christi v. Acme Mechanical Contractors, Inc., 736 S.W.2d 894, 906 (Tex.App.--Corpus Christi 1987, writ denied). Moreover, because the statute authorizes lawsuits against the Irrigation District, it was not necessary for Shields Brothers to allege and prove the statute. See Brownsville Navigation Dist., 453 S.W.2d at 814. The Irrigation District's first point of error is overruled.

By its fourth point of error, the Irrigation District complains that the trial court erred in rendering judgment against it because there is no evidence, or insufficient evidence, of an agreement between the parties for delivery of water within a reasonable time. ⁴ After reviewing the facts and circumstances of this case, we disagree.

When we review a "no evidence" or legal sufficiency of the evidence point, we consider only the evidence and reasonable inferences that tend to support the jury's finding, and we disregard all evidence and inferences to the contrary. Responsive Terminal Sys. Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex.1989). A legal sufficiency point must and may only be sustained when the record discloses: 1) a complete absence of evidence of a vital fact; 2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; 3) the evidence offered to prove a vital fact is no more than a mere scintilla; and 4) the evidence established conclusively the opposite of the vital fact. Juliette Fowler Homes, Inc. v. Welch Assoc., 793 S.W.2d 660, 666 n. 9 (Tex.1990). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con-Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). The test for the application of this no evidence/scintilla rule is: if reasonable minds cannot differ from the conclusion, then the evidence offered to support the existence of a vital fact lacks probative force, and it will be held to be the legal equivalent of no evidence. Id.

When we review an "insufficient evidence" or factual sufficiency of the evidence point, we consider, weigh, and examine all of the evidence which supports or undermines the jury's finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We review the evidence, keeping in mind that it is the jury's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Corpus Christi Teachers Credit Union v. Hernandez 814 S.W.2d 195, 197 (Tex.App.--San Antonio 1991, no writ). We then set aside the verdict only when we find that the evidence standing alone is too weak to support the finding or that the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The question of whether a contract is ambiguous is one of law for the court. Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996); R & P Enter. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex.1980). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Heritage Resources, Inc., 939 S.W.2d at 121; Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983).

When a contract contains an ambiguity, its interpretation becomes a question of fact for the jury. Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987); Pitman v. Lightfoot, 937 S.W.2d 496, 517 (Tex.App.--San Antonio 1996, writ denied). Whether parties intended to make an agreement is an issue of fact to be drawn from the facts and circumstances of the case. Scott v. Ingle Bros. Pac., Inc., 489 S.W.2d 554, 556-57 (Tex.1972); Lone Star Steel Co. v. Scott, 759 S.W.2d 144, 156 (Tex.App.--Texarkana 1988, writ denied).

Generally, where no time for performance is stated, it will be presumed that the agreement is to be performed within a reasonable time. Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940, 942 (1944); Fitzsimmons v. Anthony, 716 S.W.2d 719, 720 (Tex.App.--Corpus Christi 1986, no writ); Joines v. Burke, 540 S.W.2d 798, 801 (Tex.Civ.App.--Corpus Christi 1976, no writ). What is a reasonable time should be determined from the facts and circumstances of the case. Wade Contractors, Inc. v. C.W. & A., Inc., 589 S.W.2d 505, 507 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.).

The record reflects that in 1990 and 1991, Shields Brothers was a farming enterprise with fields located within the Irrigation District, and Shields Brothers relied on water from the District to irrigate those fields. The Irrigation District received most of its water from the Donna Irrigation District, and any water the Irrigation District could provide to Shields Brothers came from that source. In order to obtain water from the Irrigation District, Shields Brothers had to apply ⁵ for water, pay an assessment, and arrange for delivery of the water. According to the water ticket, acceptance of the application was subject to the applicant's compliance with the Irrigation District's rules and regulations.

Aaron Shields, one of appellee's owners, testified that even though Shields Brothers complied with the Irrigation District's rules and regulations during 1990 and 1991, the District failed to deliver water in a timely manner or in accordance with its rules and regulations. Shields testified that he considered the water ticket, together with the Irrigation District's rules and regulations, to be a contract between Shields Brothers and the District. Shields claimed that the Irrigation District breached the contract when it violated rules 3 and 7. Shields testified that other Irrigation District users applied for water after Shields Brothers, but that those users received their water first, in direct violation of rule 7. Shields contended that by delivering water to the other users out of order, the Irrigation District breached the contract.

The water tickets specify the date of application, the acreage to be irrigated, the location for delivery, the crop to be irrigated, and the amount paid for the water. Although no specific time for delivery was stated on the application, the Irrigation District's rules and regulations required that it deliver water on a "first come, first serve" basis, within a reasonable time from the application, and in a manner consistent with economical delivery.

We conclude that the water tickets and the Irrigation District's rules and regulations, taken together, are more than a scintilla of evidence of an agreement. Accordingly, we hold that the evidence is legally sufficient to support the jury's finding of...