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Reversed=20 and Rendered and = Opinion=20 filed August 7, 2008.

 

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-08-00013-CV

____________

 

CLEAR LAKE=20 CITY WATER AUTHORITY, = Appellant

 

V.

 

KIRBY LAKE=20 DEVELOPMENT, LTD., MITER DEVELOPMENT COMPANY, L.L.C., AND TAYLOR = LAKE,=20 LTD.,=20 Appellees

 

 

On Appeal from the = 113th District Court

Harris County, = Texas

Trial Court Cause = No. 2005-17524

 

 

O P I N I=20 O N

Appellant,=20 Clear Lake City Water Authority, appeals from a grant of summary = judgment=20 favoring appellees, Kirby Lake Development, Ltd., Miter = Development=20 Company, L.L.C., and Taylor Lake, Ltd., on appellees=3D = breach of=20 contract causes of action against the Water Authority.  = Appellees, a=20 group of real estate developers, alleged that the Water Authority = breached=20 contractual obligations to place a particular bond authorization = measure=20 on the ballot in every bond election it held until the measure=20 passed.  In its judgment, the trial court found that the = Water=20 Authority breached the agreements and awarded appellees damages = totaling=20 $1,307,956.  On appeal, the Water Authority argues that (1) = the trial=20 court did not have subject matter jurisdiction because = governmental=20 immunity from suit has not been waived, (2) the summary judgment = evidence=20 demonstrates that the Water Authority did not breach the = contracts, (3) a=20 fact issue exists regarding causation of damages, (4) the trial = court=20 erred in not considering new evidence attached to the motion for = new=20 trial, (5) the trial court miscalculated interest, and (6) the = trial=20 court=3Ds writ of=20 execution violates public policy.  Finding that the Water = Authority=20 did not breach the contracts, we reverse and render.

I. =20 Background

At the=20 heart of this case are four contracts between the Water Authority = and=20 appellees.  As part of constructing new residential = developments,=20 appellees built water and sewer facilities.  Pursuant to the=20 contracts between itself and each of the appellees, the Water = Authority=20 agreed to operate and maintain the facilities, at least initially = on a=20 rent-free basis.  The Water Authority also agreed to purchase = the=20 facilities, subject to certain conditions.  Among the = conditions were=20 the following:

The=20 Authority intends to call a bond election in the near future, but = is not=20 obligated to do so, and the Authority cannot predict when, if = ever, such=20 an election and bond sale will occur, or when, if ever the = Authority will=20 have other funds available and allocated for the Purchase of the=20 Facilities.  The Authority shall have the right to purchase = the=20 Facilities with funds available from a source other than a bond = sale for=20 such purpose, but shall have no obligation to do so.  The = Authority=20 does agree, however, that it shall include in any bond election it = does=20 hold subsequent to the effective date of this Agreement bond = authorization=20 in an amount sufficient to pay the purchase price of the = Facilities.[1]

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After the=20 contracts became effective, a bond authorization measure = sufficient to pay=20 for the facilities in question was placed on the very next bond = election=20 ballot, in May 1998, and yet again on the next ballot after that, = in=20 October 1998.  The authorization was soundly defeated in both = elections.[2]

Appellees=20 thereafter sued the Water Authority, alleging that the Water = Authority was=20 obligated to purchase the facilities from general revenues even = though the=20 bond measures had failed.  See Clear Lake Water Auth. v. = Kirby=20 Lake Dev., Ltd., 123 S.W.3d 735, 741 (Tex. App.CHouston=20 [14th Dist.] 2003, pet. denied) (Kirby Lake I). =  At the=20 conclusion of trial, a jury found that the Water Authority had = breached=20 the contract by failing to purchase the facilities.  = Id. =20 In its judgment, the trial court further declared that the = Authority was=20 obligated to purchase the facilities by whatever means = necessary. =20 Id. at 742.  When the Water Authority appealed the = judgment,=20 this court reversed, holding that the Water Authority was not = required to=20 purchase the facilities in the absence of voter approval of the = bond=20 measure.  Id. at 744-45.  In other words, such = voter=20 approval was a condition precedent on the Water = Authority=3Ds purchase=20 obligation.  Id. at 756.

In=20 September 2004, the Water Authority again held a bond = election.  The=20 Water Authority placed a measure on the ballot seeking authority = to issue=20 $29.1 million in bonds; however, the measure did not include any = amount=20 related to the facilities at issue here.  The September 2004 = bond=20 measure passed handily.

Appellees=20 then filed the present lawsuit, alleging that the Water Authority = breached=20 the agreements by failing to include a bond authorization = sufficient to=20 pay for the facilities on the September 2004 ballot.  Both = sides=20 filed motions for summary judgment.  In the first set of=20 cross-motions, the Water Authority argued, among other things, = that as a=20 matter of law it satisfied its obligations under the agreements by = submitting the bond authorization to voters a single time.  = In=20 response, appellees urged the trial court to hold that the Water = Authority=20 breached the agreements as a matter of law by failing to place the = authorization on a third consecutive ballot.  The trial court = denied=20 the Water Authority=3Ds initial=20 motion and granted a partial summary judgment favoring appellees = on the=20 issue of liability.

In the=20 second set of cross-motions, the Water Authority asserted = governmental=20 immunity as a bar to the suit.  Appellees moved for judgment = on=20 causation.  The trial court again denied the Water=20 Authority=3Ds motion=20 and granted a final judgment favoring appellees for = $1,307,956. =20 Prior to the final judgment being signed, the Water Authority = called=20 another election, which again included a bond authorization = measure for=20 purchase of the facilities.  The election was held on = November 7,=20 2006, after the judgment was signed on September 5, 2006, and the = measure=20 again failed.[3] =20 The Water Authority attached the election results to its motion = for=20 rehearing.  The trial court refused to consider any evidence = relating=20 to the November 2006 election and denied the motion for=20 rehearing.

As stated=20 above, on appeal, the Water Authority contends that (1) the trial = court=20 lacked subject matter jurisdiction, (2) as a matter of law, the = Water=20 Authority did not breach the agreements, (3) a fact issue exists = on=20 causation, (4) the trial court erred in not considering the new = evidence,=20 (5) the trial court miscalculated interest, and (6) the writ of = execution=20 violates public policy.

II. =20 Jurisdiction

In its=20 first issue, the Water Authority argues that the trial court did = not have=20 subject matter jurisdiction because governmental immunity from = suit has=20 not been waived.  However, in a practically identical case = (at least=20 in regard to the jurisdictional issue), a separate panel of this = court has=20 held that immunity from such suits has been waived under section = 271.152=20 of the Local Government Code.  Tex. Loc. Gov=3Dt Code=20 ' = 271.152;=20 Clear Lake City Water Auth. v. Friendswood Dev. Co., Ltd., = No.=20 14-07-00096-CV, 2008 WL 2130435, at *12 (Tex. App.CHouston=20 [14th Dist.] May 22, 2008, no pet. h.).  For the reasons = expressed in=20 that opinion, we overrule the Water Authority=3Ds first=20 issue and proceed to consider the substantive issues.

III. =20 Breach

In its=20 second issue, the Water Authority contends that the trial court = erred in=20 holding that the Water Authority breached the agreements as a = matter of=20 law and in refusing to hold that the Water Authority did not = breach the=20 agreements as a matter of law.  More specifically, the Water=20 Authority argues that the agreements required it to place the bond = authorization proposal on an election ballot only one time, and = not on=20 every subsequent ballot until the measure passed, as argued by = appellees=20 and found by the trial court.  It is undisputed that the = Water=20 Authority placed a proposal on the first two election ballots = occurring=20 after the agreements became effective but then failed to do so in = a third=20 election.  Thus, the key question here is one of contract=20 interpretation.

A. =20 Standards of Review

We analyze=20 the grant of a traditional motion for summary judgment under=20 well‑established standards of review.  See generally = Tex. R.=20 Civ. P. 166a; Nixon v. Mr. Prop.  Mgmt. Co., Inc., 690 = S.W.2d=20 546, 548‑49 (Tex. 1985).  The movant bears the burden = to show that=20 there is no genuine issue of material fact and that it is entitled = to=20 judgment as a matter of law.  Tex. R. Civ. P. 166a(c).  = We=20 review the motion and the evidence de novo, taking as true all = evidence=20 favorable to the nonmovant, and indulging every reasonable = inference and=20 resolving any doubts in the nonmovant=3Ds=20 favor.  Valence Operating Co. v. Dorsett, 164 S.W.3d = 656, 661=20 (Tex. 2005).  Where, as here, both sides filed motions = seeking=20 summary judgment on the same issue, and the trial court granted = one while=20 denying the other, we review both sides=3D = summary=20 judgment evidence, determine all questions presented, and, if the = trial=20 court erred, render the judgment the trial court should have=20 rendered.  Id.

In=20 construing a contract, our primary concern is to ascertain the=20 parties=3D = intent as=20 expressed in the instrument.  Seagull Energy E & P, = Inc. v.=20 Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006)  To = ascertain=20 those intentions, we examine the entire contract in an effort to = harmonize=20 and give effect to all of its provisions so that none will be = rendered=20 meaningless.  Id.  No single provision should be = given=20 controlling effect, but all provisions must be construed in = reference to=20 the whole.  Id.  When a written contract is so = worded=20 that it can be given a certain or definite legal meaning or=20 interpretation, it is not ambiguous, and the court construes it as = a=20 matter of law.  Am. Mfrs. Mut. Ins. Co. v. Schaefer, = 124=20 S.W.3d 154, 157 (Tex. 2003).  A contract is ambiguous when = its=20 meaning is uncertain and doubtful or is reasonably susceptible to = more=20 than one interpretation.  Heritage Res., Inc. v. = NationsBank,=20 939 S.W.2d 118, 121 (Tex. 1996).

B. =20 Analysis

The=20 agreements at issue here obligated the Water Authority to place = the bond=20 authorization issue on Aany bond=20 election it [holds] subsequent to the effective date of [the]=20 Agreement.@  Put=20 quite simply, the Water Authority interprets this sentence as = requiring it=20 to place the measure on only the very next ballot, while appellees = interpret it as requiring the measure to be repeatedly placed on = ballots=20 until approved.

In support=20 of their position, appellees cite a few cases in which courts have = interpreted phrases using the term Aany@ = in a=20 plural sense, i.e., to mean Aevery,@ = Aeach,@ = or=20 Aall.@ =20 See = Hime v.=20 City of Galveston, 268 S.W.2d 543 = (Tex. Civ.=20 App.CWaco 1954, writ = ref=3Dd n.r.e.); Branham = v.=20 Minear, 199 S.W.2d 841 (Tex. Civ. App.CEastland 1947, writ=20 ref=3Dd n.r.e.); Doherty = v.=20 King, 183 S.W.2d 1004 (Tex. Civ. App.CAmarillo 1944, writ=20 dism=3Dd).  However,=20 these and other authorities generally recognize that depending on = the=20 context, Aany@ = can also=20 be used in a singular sense, i.e., to mean Aone@ = or even=20 Athe next=20 one.@[4]  The=20 ultimate question, therefore, is:  what does the phrase in = question=20 mean in the context of the agreement at issue in this case?  = The=20 paragraph in which it occurs bears repeating:

The=20 Authority intends to call a bond election in the near future, but = is not=20 obligated to do so, and the Authority cannot predict when, if = ever, such=20 an election and bond sale will occur, or when, if ever the = Authority will=20 have other funds available and allocated for the Purchase of the=20 Facilities.  The Authority shall have the right to purchase = the=20 Facilities with funds available from a source other than a bond = sale for=20 such purpose, but shall have no obligation to do so.  The = Authority=20 does agree, however, that it shall include in any bond election it = does=20 hold subsequent to the effective date of this Agreement bond = authorization=20 in an amount sufficient to pay the purchase price of the=20 Facilities.

Taken in=20 isolation, the sentence emphasized by appelleesCAThe=20 Authority does agree . . . that it shall include in any bond = election it=20 does hold subsequent to the effective date of this Agreement . .=20 .@Ccould=20 reasonably be interpreted either way, as requiring the issue to be = on=20 every bond election ballot until it passes or just on the = next such=20 ballot.  However, the balance of the paragraph clearly = indicates that=20 only one election was contemplated.  See Seagull = Energy, 207=20 S.W.3d at 345 (stating that no single provision of a contract = should be=20 given controlling effect, but all provisions must be construed in=20 reference to the whole); see also Schriewer, 38 S.W.2d at=20 144-45.  The paragraph=3Ds first=20 sentence states that the Water Authority Aintends to=20 call a bond election@ = but it=20 cannot predict when or if Asuch=20 an election . . . will occur.@ =20 Unlike Aany,@ = the words=20 Aa@ = and=20 Aan@ = are=20 always singular.  See The American = Heritage=20 Dictionary 66,=20 105 (2d College ed. 1991). =20 Furthermore, use of the phrase Ain the=20 near future,@ = additionally indicates that a single election was intended.  = If=20 repeated ballot placement was intended by the parties, a reference = to=20 a probable election Ain the=20 near future@ = would be=20 out of place.  In context, the sentence containing the phrase = Aany bond=20 election@ = clearly=20 refers to the next election held after the effective date of the=20 agreement.

It is also=20 worth noting what the agreement does not say.  Had the = possibility of=20 repeated ballot placement been contemplated, the parties likely = would have=20 stated so in express terms.  The agreement uses the noun = phrase=20 Aany bond=20 election,@ = which is=20 singular, rather than the phrase Aany bond=20 elections,@ = which is=20 plural.  See William A. Sabin, = The Gregg=20 Reference Manual 238, 259 (9th ed. 2001).  The=20 agreement also does not state that a bond measure would be = submitted to=20 voters repeatedly until approved.  To the contrary, the = central point=20 of the paragraph, as explained above, is that the bond measure = would be=20 included on the very next bond proposal ballot.  We therefore = find=20 the agreement to be unambiguous in obligating the Water Authority = to place=20 the measure only on the next ballot after the effective date of = the=20 agreement.

As=20 mentioned above, it is undisputed, and has been conclusively = established,=20 that the Water Authority placed a bond proposal sufficient to pay = for the=20 facilities on the very next bond election ballot after the = agreement was=20 signed.  Accordingly, we find that as a matter of law, the = Water=20 Authority did not breach the agreement.  The trial court = erred in=20 holding otherwise.  We thus sustain the Water = Authority=3Ds second=20 issue.[5]

<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: = Shruti">

IV. =20 Remaining Issues

In four=20 additional issues, the Water Authority contends that (1) a fact = issue=20 exists on causation, (2) the trial court erred in not considering = new=20 evidence attached to the motion for new trial, (3) the trial court = miscalculated interest, and (4) the trial court=3Ds writ of=20 execution violates public policy.  Because we have resolved = the Water=20 Authority=3Ds second=20 issue in its favor, we need not address the remaining = issues. =20 Accordingly, issues three through six are overruled.

V. =20 Disposition

The trial=20 court erred in granting summary judgment favoring appellees and in = refusing to grant summary judgment favoring the Water = Authority.  We=20 therefore reverse the trial court=3Ds judgment=20 and render judgment that appellees take nothing on their breach of = contract causes of action against the Water Authority.

 

 

 

/s/     =20 Adele Hedges

Chief = Justice

 

 

 

 

Judgment=20 rendered and Opinion filed August 7, 2008.

Panel=20 consists of Chief Justice Hedges, Justice Boyce, and Senior = Justice=20 Hudson.[6]


[1]  Three of the agreements between = the Water=20 Authority and appellees contained this language in italics and = bold faced=20 type.  The fourth agreement, the 1994 agreement between the = Water=20 Authority and Taylor Lake, Ltd., contained the language in a = regular=20 font.  This particular agreement also contained the phrase=20 Ain March or May 1994,@ dealing with the intention to call a = bond=20 election, instead of the phrase Ain the near future.@

[2]  In the May 1998 election, a = single bond=20 proposal was placed on the ballot covering both amounts for Water=20 Authority infrastructure improvements and maintenance and amounts = for=20 purchasing facilities from developers.  In the October 1998 = election,=20 the ballot contained separate proposals for Water Authority = projects and=20 purchases from developers.

[3]  The trial court signed an Amended = Final=20 Judgment Nunc Pro Tunc on January 29, 2007, because  the = original=20 judgment provided an incorrect year of signing.

[4]  In Hime, the court = interpreted a=20 statutory phrase containing the term Aany@ to mean Aevery@ or Aall@ in light of the general intent of the = statute and=20 the rule of statutory construction requiring a liberal = construction to=20 promote justice.  268 S.W.2d at 545.  The court in=20 Branham acknowledged that Aany@ may have different meanings in = different contexts=20 but then rather summarily found that the statute at issue used the = term as=20 synonymous with Aevery.@  199 S.W.2d at 845-46.  In=20 Doherty, the court acknowledged that Aany@ was derived from Aone@ and may in certain contexts be = synonymous with=20 Aa@ or Aan@; however, after examining the context = of the=20 statute in which it was used, the court determined that its plural = meaning=20 was intended.  183 S.W.2d at 1007.  Additionally, in = Texas=20 Co. v. Schriewer, the court examined the context and intent of = a=20 statute in determining that Aany@ was used in the statute to mean = Aone.@  38 S.W.2d 141, 144-45 (Tex. Civ.=20 App.CWaco 1931), aff=3Dd in part, rev=3Dd in part sub nom. Smith v. Tex.=20 Co., 53 S.W.2d 774 = (Tex.=20 Comm=3Dn App. 1932).

The term Aany@ is an indefinite pronoun that can be = singular or=20 plural depending on the context in which it is used.  = See=20 William A. Sabin, The Gregg Reference Manual 238, 259 (9th = ed.=20 2001); see also Webster=3Ds Third New International Dictionary=20 97 (1993);=20 Black=3Ds Law Dictionary 86 (5th ed. 1979).  The term itself = is=20 singular as used in the quoted sentence because the noun that it = modifies,=20 Abond election,@ is singular.  See Sabin,=20 supra, at 238, 259   However, this is not = necessarily=20 determinative of the issue before us.

[5]  The developers also contend that=20 interpreting the agreement as requiring a single vote runs counter = to the=20 opinion in Kirby Lake I, wherein it was suggested that the = Water=20 Authority was not excused from performance under the agreements = when=20 voters failed to approve a bond measure Ain a particular election.@  123 S.W.3d at 745.  However, = the point=20 of the discussion in the cited portion of Kirby Lake I was = that=20 voter approval was a condition precedent to the Water=20 Authority=3Ds obligation to purchase the = facilities. =20 Id.  The issue of whether the Water Authority was = obligated to=20 place the bond measure in every election until it passed was not = directly=20 before us in Kirby Lake I; therefore, the suggestion = referenced by=20 appellees is not controlling of the issue.

[6]  Senior Justice J. Harvey Hudson = sitting by=20 = assignment.

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FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0009_01C8F87F.8A094EE0--