George D. Solomon and Wife, Jini Solomon v. Perry Steitler, D/B/A North East Texas Land & Timber, Larry Bullard, and Tina Bullard

Citation: Not availableDocket: 06-09-00031-CV

Court: Court of Appeals of Texas; April 22, 2010; Texas; State Appellate Court

Original Court Document: View Document

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In the Court of Appeals Sixth Appellate District of Texas, George D. Solomon and his wife, Jini Solomon, appealed against Perry Steitler, doing business as North East Texas Land and Timber, and Larry and Tina Bullard. The case originated from a breach of contract claim by Steitler against the Solomons for unpaid work related to the construction of various water-related structures on their property. The Solomons counterclaimed, alleging damage due to improper tree and stump removal and claiming the construction of a lake exceeded the agreed size, leading to flooding of the Bullards' property.

The Bullards, whose land was adversely affected by the flooding, sued the Solomons and Steitler for damages. The jury found that Solomon's actions diverted or impounded surface water, causing damage to the Bullards' property, violating the Texas Water Code. The jury ruled Solomon was negligent and grossly negligent, awarding the Bullards actual and exemplary damages totaling $50,000. The jury also ruled in favor of Steitler regarding the breach of contract claim against Solomon, awarding attorney’s fees to both the Bullards and Steitler.

The final judgment mandated a permanent injunction requiring Solomon to lower the levee level on his property to prevent further flooding of the Bullards' adjacent land. The trial demonstrated significant impacts on the Bullards’ property, including the destruction of mature trees intended for retirement income.

The jury determined that neither Steitler nor Solomon was negligent in causing damages to the Bullards' property, leading to Solomon's appeal. The trial court's judgment is affirmed for several reasons: 

1. Punitive damages can be imposed on the Solomons for gross negligence related to a violation of Section 11.086 of the Texas Water Code.
2. The Bullards' pleadings substantiate a claim for $15,300.00 in damages for loss of use of their property.
3. The directed verdict in favor of Steitler was appropriate.
4. The trial court did not abuse its discretion in granting a challenge for cause.
5. The award of appellate attorney's fees was conditioned on a successful appeal.
6. Solomon waived his objection regarding the injunction issuance.
7. Reevaluation of attorney’s fees is unnecessary.

Solomon argues that punitive damages require proof of actual damages and an independent tort, asserting that the jury's damage findings related solely to the Water Code violation do not support punitive damages. However, the jury found that Solomon's actions, which included diverting surface waters, caused damage to the Bullards' property. The jury concluded that Solomon's conduct constituted gross negligence, despite potential issues with the relation of the Water Code violation to negligence. The trial court's definitions and instructions regarding gross negligence were not challenged. Ultimately, the jury's findings connect Solomon's gross negligence to his violation of the Water Code.

Dutschmann is referenced regarding the principle that a statutory violation alone cannot justify a punitive damage award. In that case, the court upheld damage and attorney's fees based solely on a statutory violation due to the absence of a contract. The retaliatory discharge claim was based on a now-repealed statute, which allowed only for equitable relief, thus precluding punitive damages. The recodified statute, TEX. LABOR CODE ANN. 21.2585, similarly allows equitable relief but also permits compensatory and punitive damages. 

The determination in Dutschmann that punitive damages could not be awarded is not a blanket rule against punitive damages for statutory violations. The text allows individuals injured by an overflow to seek “remedies at law” and “damages,” raising the question of whether this includes punitive damages. The plaintiffs argue for the precedent set in Whole Foods Market Southwest, L.P. v. Tijerina, where the court found that exemplary damages could be awarded under specific statutory provisions if malice was demonstrated by the employer. 

The current issue revolves around whether the terms in Section 11.086 encompass punitive damages, a question that lacks direct precedent. However, cases like Planet Plows, Inc. v. Evans have established that punitive damages can be awarded for intentional violations of statutes, contradicting arguments against such recoveries.

The jury awarded both actual and exemplary damages, which the defendants contested on appeal, arguing that the pleadings were insufficient for exemplary damages. The court found that the pleadings supported the jury's inquiry about whether the defendant acted willfully and with malice in constructing a dam and channel, which the jury affirmed. Citing Bily v. Omni Equities, Inc., the court noted that punitive damages can be awarded under Section 11.086 without requiring a finding of negligence, as long as the jury finds intentional and unreasonable conduct with "heedless and reckless disregard" for the rights of others. The definition of "heedless and reckless disregard" indicates a complete lack of care and conscious indifference to the affected parties’ rights and safety. Additionally, in Boatman v. Lites, the appellate court upheld punitive damages awarded for gross negligence, defined as actions exhibiting extreme risk and conscious indifference. In the current case, the jury determined George Solomon acted with conscious indifference to the Bullards' rights, and the court charged the jury to assess whether there was clear and convincing evidence of Solomon's gross negligence, defined by both the extreme risk involved and Solomon’s subjective awareness of that risk.

Solomon argues against the award of exemplary damages, claiming that such damages require an independent tort with actual damages. The court disagrees, stating that intentional or grossly negligent violations of Section 11.086 of the Texas Water Code can justify exemplary damages. 

Regarding the Bullards’ claim for $15,300 in damages for loss of use of real property, Solomon asserts that the trial court erred by awarding more than the $12,000 they pleaded. However, the Bullards argue their pleadings did not cap damages at $12,000, as they stated the amount was "to be determined by the jury within the jurisdictional limits," allowing for a higher award. Citing *City of Wichita Falls v. Dye*, they maintain that language indicating a minimum amount supports a larger verdict. The court finds the jury's award valid under the pleadings presented.

Lastly, Steitler received a directed verdict against Solomon's breach of contract claim, which alleged improper removal of tree stumps. The court ruled that Solomon did not provide sufficient evidence of damages, despite claiming that evidence of purchasing a chain saw constituted proof. The directed verdict was upheld, as the evidence was insufficient to create a factual issue for the jury.

The issue of waiver was not found, as neither a formal exception to a trial court ruling nor a signed order is necessary to preserve a complaint for appeal. A complaint regarding a directed verdict can be reviewed on appeal despite the absence of an exception. The evidence presented regarding damages from the alleged breach was insufficient; specifically, there was no established connection between the breach of leaving stumps over four inches high and the necessity to purchase a chain saw, which was intended for general stump cutting. Solomon failed to provide adequate evidence to support a material fact issue essential for recovery, leading to the trial court's proper direction of a verdict against him. 

Regarding the challenge for cause, a juror is disqualified if they exhibit bias or prejudice towards a party. The trial court's decisions on such challenges are reviewed under an abuse-of-discretion standard. Solomon contended that the trial court incorrectly granted a challenge for cause against venireperson Evelyn Riepe based on a misinterpretation of her response about her relationship with the Russells. Riepe acknowledged that her past contact with them might influence her judgment, prompting the court to grant the challenge. The court's discretion was not abused as there was reasonable evidence supporting the decision.

Counsel for Bullard engaged in a discussion regarding juror Evelyn Riepe, specifically addressing her ability to be impartial due to her friendship with Russell. Solomon argued that the trial court misinterpreted Riepe’s affirmative response to a negative question, suggesting it indicated her impartiality. However, Steitler contended that Solomon did not preserve this issue for appellate review and that any potential error was harmless, emphasizing the requirement for timely and clear voir dire objections. The court ruled that there was no reversible error since Solomon's attorney did not object to any juror, implying that Solomon received a fair jury. Consequently, the trial court did not abuse its discretion in dismissing Riepe.

Regarding appellate attorneys' fees, the jury awarded fees to the Bullards and Steitler, which were included in the final judgment. Solomon claimed the fee awards were void since they were conditioned solely on an appeal being filed, not on a successful appeal. The court acknowledged that awards for appellate fees must be contingent upon success to avoid penalizing parties pursuing valid appeals. While the judgment did not explicitly state this condition, it was deemed implicitly required based on precedent. The court decided to reform the judgment to clarify that the fee awards were conditional on a successful appeal.

Lastly, Solomon contested the issuance of a permanent injunction, arguing it violated the one satisfaction rule due to overlapping damage awards. The Bullards maintained that this issue was not preserved for appeal and was therefore waived.

Under the one satisfaction rule, a plaintiff can only recover damages once for any injuries sustained, regardless of whether multiple defendants were involved or if different acts caused a single injury. This rule aims to prevent double recovery for actual damages. To preserve issues for appellate review, a party must timely present specific objections or motions to the trial court, including objections to judgments. In a recent case, the record indicated that no objections were raised regarding the issuance of injunctive relief by the Solomon party during trial, nor was the issue contested through a motion to amend or for a new trial. Solomon argued that since the permanent injunction issue was tried in the trial court, he was exempt from error preservation requirements, citing Rule 33.1(d) allowing certain complaints to be raised for the first time on appeal. However, his appeal did not question the sufficiency of the evidence for the injunction but instead raised a legal issue regarding the compatibility of the injunction and monetary damages with the one satisfaction rule. This legal question was not preserved for appeal, as it had not been raised in the trial court. Additionally, Solomon's request for reconsideration of attorney’s fees was rendered moot since all his appellate points were overruled. Consequently, the appellate court affirmed the trial court's judgment, modifying it to condition recovery of appellate attorney’s fees on a successful appeal.