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Terrace v. City of Texarkana6/21/1999
Tanglewood Terrace, Ltd. (TTL), builder and owner of the Tanglewood Terrace apartment complex, sued the City of Texarkana, Texas d/b/a Texarkana Water Utilities (TWU) for $54,211.30 in alleged overcharges for the period covering 1976 to 1993. TTL appeals from a judgment awarding it $1,939.50 and contends the district court erred in: (1) granting TWU's motion for partial summary judgment; (2) prohibiting TTL from admitting evidence of all overcharges from 1976 to 1993; (3) prohibiting TTL from admitting evidence of the amount of interest lost as a result of the overcharges; and (4) granting TWU's motion to disregard jury finding or for judgment notwithstanding the verdict. We sustain TTL's first and second points, reverse the judgment, and remand for a new trial on TTL's money had and received cause of action. In the interest of Justice, we will address TTL's third point of error, but find it unnecessary to consider its fourth point.
Background
In 1972, TTL built the Tanglewood Terrace Apartments, a 196-unit complex in Texarkana. In the same year, TWU installed a water meter at the complex, which was identified as servicing 164 apartments, and in 1973, TWU installed a second meter, identified as servicing 32 apartments. In 1976 and 1980, TWU installed third and fourth water meters, respectively, which were incorrectly classified and billed as commercial meters, not residential meters. This billing error resulted in overcharges. Additionally, after the installation of these third and fourth meters, the 1972 meter continued to be listed as servicing 164 apartments when it actually serviced only 64 apartments. This too resulted in overcharges. The total alleged overcharges from December 1976 through February 1993 equaled $54,211.30. Neither TTL nor TWU was aware of these overcharges until TWU's finance director, Web Stanley, performed an analysis of TTL's account history in assisting TTL to locate potential water leaks.
On December 16, 1994, TTL filed suit against TWU for breach of contract, seeking damages for the alleged overcharges dating from 1972 and alleging that it did not discover its damages until 1993. In its original answer, TWU pled a four-year statute of limitations as an affirmative defense, and in October 1996, it filed a motion for partial summary judgment based upon, among other things, the defense of limitations. TTL filed a response to the motion for partial summary judgment in which it again asserted that it did not discover the overcharges until 1993. On December 5, 1996, TTL filed its amended response to the motion for partial summary judgment in which it more specifically raised the discovery rule in opposition to the motion. On the same date, TTL also filed its first amended original petition which, in addition to its contract claim, asserted new claims against TWU for negligence and for money had and received. On December 16, 1996, the court heard TWU's motion for partial summary judgment but did not rule on that motion. On March 10, 1997, TWU filed special exceptions to TTL's first amended original petition. Upon consideration of these exceptions, the trial court struck TTL's negligence claim from the lawsuit. On March 17, 1997, TTL filed a second amended original petition alleging only claims for breach of contract and for money had and received. On March 25,1997, TWU filed what it styled as a third amended original answer in which it pled generally, among other things, the affirmative defense of "statute of limitations." On October 27, 1997, a day before trial, the court granted TWU's motion for partial summary judgment. The court's order merely states that the motion is granted "in all respects." Based upon this ruling, the court limited TTL's proof
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