Winograd v. Clear Lake City Water Authority
| Decision Date | 28 March 1991 |
| Docket Number | No. 01-89-00311-CV,01-89-00311-CV |
| Citation | 811 S.W.2d 147 |
| Parties | Dr. Eugene WINOGRAD, Trustee, Appellant and Cross-Appellee, v. The CLEAR LAKE CITY WATER AUTHORITY, David T. Riley, Lawrence A. Otto, Jr., Robert T. Saveley, James C. Smith, and Mrs. Lee Holley, Appellees and Cross-Appellants. (1st Dist.) |
| Court | Texas Court of Appeals |
Charles W. Kelly, J. Dougles Sutter, Houston, for appellant and cross-appellee.
W. James Kronzer, Leslie C. Taylor, Reginald H. Wood and Willia E. Schweinle, Houston, for appellees and cross-appellants.
Before DUGGAN, WARREN and MIRABAL, JJ.
This is an appeal of a final judgment non obstante veredicto signed by the trial court on November 29, 1988. We reform the judgment and affirm it as reformed.
The events leading up to this appeal began as far back as 1976 when Dr. Eugene Winograd, plaintiff below, became interested in developing a 65-acre tract of land in the jurisdiction of the Clear Lake City Water Authority ("Clear Lake" or "the Authority"), defendants. According to Winograd, he purchased the tract from Friendswood Development Company after October 5, 1976, the date on which Clear Lake unequivocally committed to providing water, sewage, and drainage facilities to the entire tract. Winograd's planned development of the tract included construction of high quality apartments as well as commercial and retail space.
In reliance on Clear Lake's commitment, Winograd proceeded to construct streets and curbing and to install drainage, sanitary sewer, and potable water pipes for the entire tract at his own expense. 1 In 1977, in keeping with a phasing map he had presented to the Authority, Winograd proceeded with construction of the first phases of his planned apartment community, Camino Village Phases I and II. Clear Lake provided utilities to these apartments as they came "on line."
In December 1978, Winograd appeared before the Authority's board of directors to request service to another, separate, eight-acre tract. After this request was approved, the directors allegedly made an unprecedented attempt to force Winograd to "choose" between development of the eight-acre tract or the 65-acre tract. The situation was ultimately resolved by Winograd's alleged agreement to suspend further development of the 65-acre tract until the spring of the next year, based on the board's representation that it would be prepared to supply service at that time. However, on October 9, 1979, the board refused to honor the commitment to provide sewer services to the 65-acre tract. The board continued thereafter to refuse to provide any further utilities to the tract.
In response to the Authority's breach of its commitment, Winograd filed suit in early 1980, seeking to enforce the commitment and naming Clear Lake City Water Authority and its individual directors as defendants. The defendants filed a motion for summary judgment on grounds that the 1976 commitment was not binding on the 1979 board of directors. On May 10, 1982, the trial court granted the motion. The summary judgment was overturned on appeal by the Fourteenth Court of Appeals. Winograd v. Clear Lake City Water Auth., 654 S.W.2d 862 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.).
On July 25, 1988, the case went to trial, where Winograd developed two main theories of recovery: (1) that he was entitled to damages for Clear Lake's breach of commitment; and (2) that he was entitled to damages under 42 U.S.C. § 1983, the Civil Rights Act of 1871, for Clear Lake's unlawful actions resulting in denial of his constitutionally protected rights to due process and equal protection.
Clear Lake's defense at trial involved claims that (1) the Authority did not and could not make a binding commitment such as that asserted by Winograd; (2) Winograd's timing of his development and his changes in plans and demands caused the termination of his project; (3) sewage capacity was over-committed and unavailable; (4) it became necessary to enforce a moratorium on all multi-family development; and (5) Winograd failed to comply with certain of the board's policies.
The jury returned a verdict in favor of Winograd on both of his theories of recovery, awarding him $7,350,000 in actual damages and $50,000 in punitive damages against each of three of the directors.
After the verdict, Clear Lake moved the court to disregard certain jury findings. The trial court entered judgment non obstante veredicto (JNOV) in which it (1) disregarded all of the jury's findings of liability for damages relating to Camino Village IV; (2) deleted the jury's award of punitive damages; and (3) refused to award prejudgment interest. Winograd filed a motion to modify, correct or reform the judgment. Clear Lake also moved to reform the judgment or, alternatively, for a new trial. Both motions were denied.
Both plaintiff and defendants appealed the JNOV. Each has filed an initial appellant's brief, an appellee's response, a "reply" brief, and a post-submission brief. This configuration precludes analysis by the commonly utilized "point-counterpoint" method.
To bring order to the issues raised, we will first review the court's charge, the jury's answers, and the judgment non obstante veredicto rendered by the trial court. Points of error, reply points, and counter points, regardless of which party raised them, will be grouped according to the substantive issues raised by the parties' claims of error in the charge and the JNOV. Finally, we will consider two "miscellaneous" points of error that we find irrelevant to the disposition of this appeal.
Following "boilerplate" instructions, the trial court's charge included general instructions and jury questions which elicited answers as follows:
"Dr. Winograd" means Dr. Eugene Winograd, Trustee, who is the Plaintiff, acting in person or through employees or agents.
"Clear Lake" means the Defendant Clear Lake City Water Authority, acting through its board of directors, general manager, employees and agents.
"Directors" means Defendants David T. Riley, Lawrence A. Otto, Jr., Robert T. Saveley, James C. Smith and Mrs. Lee Holley, the individuals who constituted the board of directors of Clear Lake City Water Authority in their official capacity at the time that the transactions in this case occurred.
David T. Riley, Lawrence A. Otto, Jr. and Robert T. Saveley mean those Directors of Clear Lake in their individual capacity.
You are instructed that Clear Lake is a political subdivision of the state of Texas charged with providing water, sewage and drainage services. Clear Lake is under a duty to serve its customers without unreasonable discrimination. It must not act illegally or arbitrarily. This duty, however, does not provide an absolute right to unqualified service and this duty must be qualified by Clear Lake's greater duty to enact and enforce rules and orders designed to protect the entire system and its users. Clear Lake has no authority or legal right to zone or regulate land use with respect to architectural significance, esthetics, height or size of buildings, size of lots, density of population, location of buildings by purpose, or the particular use of a structure. Clear Lake may enter into contracts with landowners or developers as may be necessary to a continuing and orderly plan of development of such lands and property so that, to the greatest extent reasonably possible, considering sound engineering and economic practices, all such lands may be placed in position ultimately to receive services.
Do you find from a preponderance of the evidence that Clear Lake breached its obligations with respect to the following projects?
Answer "Yes" or "No":
CAMINO VILLAGE III yes
CAMINO VILLAGE IV yes
CAMINO VILLAGE TOWER yes
You are instructed that there was a commitment to provide sewage to the 65-acre tract. You are further instructed that there is a dispute as to the scope of the obligations of Clear Lake under that commitment.
You are instructed that breach means a failure to perform any obligation which forms all or part of a commitment.
If your answer to any part of Issue No. 1 was "Yes," on what date did the breach of breaches (sic) occur:
Answer by month, day and year for each "Yes" response to Issue No. 1.
CAMINO VILLAGE IV 10/9/79
If you answered any part of Issue No. 1 "yes," then answer Issue No. 3.
Do you find from a preponderance of the evidence that Clear Lake's breach of the obligations under its commitment was accompanied by malice with respect to the following projects?
CAMINO VILLAGE III yes
CAMINO VILLAGE IV yes
CAMINO VILLAGE TOWER yes
You are instructed that the term "malice" or "maliciously" is defined as ill will, bad or evil motive, or such gross indifference to or reckless disregard of the rights of others as will amount to a willful or wanton act.
Equal protection of the laws requires that the government base any differences in treatment of applicants on rational criteria that are reasonably related to a governmental function of that particular governmental unit.
This would prohibit the application of otherwise proper standards if they are not customarily applied in the same fashion to all similar applicants.
Mere mistakes or errors in judgment are not a denial of equal protection. If the evidence of this case shows that there was a factual basis for the specific decision made, then there is no denial of equal protection.
Do you find from a preponderance of the evidence that Clear Lake failed to afford Winograd equal protection of the laws with respect to any of the following matters?
CAMINO VILLAGE III yes
CAMINO VILLAGE IV yes
CAMINO VILLAGE TOWER yes
If you answered Issue No. 4 "yes," then answer Issue No. 5.
Do you find from a preponderance of the evidence that the denial of equal protection proximately...
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