City of Leon Valley Economic Development Corp. v. Larry Little

Opinion

ACCEPTED

04-15-00488-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

04-15-00488-CV 8/4/2015 8:27:38 PM KEITH HOTTLE

CLERK

CAUSE NO. 2011-CI-17823

FILED IN

LARRY LITTLE § 4th COURT IN THE DISTRICT COURTOF APPEALS SAN ANTONIO, TEXAS

§

vs. § 37TH JUDICIAL8/4/2015 DISTRICT8:27:38 PM KEITH E. HOTTLE

§ Clerk CITY OF LEON VALLEY § ECONOMIC DEVELOPMENT § CORPORATION § BEXAR COUNTY, TEXAS

NOTICE OF APPEAL OF DEFENDANT, CITY OF LEON VALLEY ECONOMIC DEVELOPMENT CORPORATION

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant, City of Leon Valley Economic Development Corporation, gives notice

of its desire to appeal the trial court's Final Judgment, signed on May 13, 2015. This

judgment was signed by the Honorable Antonia Arteaga, Judge of the 57th District Court,

sitting in Bexar County, Texas. The Final Judgment is attached to this Notice of Appeal.

This appeal is taken to the Fourth Court of Appeals for the State of Texas, sitting in San

Antonio, Texas. This is not an accelerated appeal.

Respectfully submitted, Law Office of Dan Pozza 239 E. Commerce St. San Antonio, TX 78205 (210) 226-8888 – Phone (210) 224-6373 – Fax danpozza@yahoo.com

By: /s/Dan Pozza

DAN POZZA State Bar No. 16224800

and

R. Gaines Griffin State Bar No. 08464500 Davidson, Troilo, Ream & Garza 7550 IH-10 West, #800 San Antonio, TX 78229 (210) 349-6484 – Phone (210) 349-0041 – Fax ggriffin@dtrglaw.com

ATTORNEYS FOR DEFENDANT, CITY OF LEON VALLEY ECONOMIC DEVELOPMENT CORPORATION

CERTIFICATE OF SERVICE

I hereby that a true and correct copy of the above and foregoing Notice of Appeal has been delivered via e-mail transmission on this 5th day of August, 2015 to:

Matthew F. Wymer Beirne, Maynard & Parsons, LLP 112 East Pecan Street, #2750 San Antonio, TX 78205 mwymer@bmpllp.com

ATTORNEY FOR LARRY LITTLE

/s/Dan Pozza DAN POZZA

CAUSE NO. 2011-CI-17823

LARRY LITTLE, § IN TIIE DJSTRICT COURT Plaintiff, § §

vs. § 37.,.11 JUDICIAL DISTRICT §

CITY OF LEON VALLEY ECONOMIC § DEVELOPMENT CORPORATION, § Defendant. § BEXAR COUNTY, TEXAS

FINAL JlJDGM.ENT

CAME ON April 6, 20 I 5, this case was called for trial. Plaintiff LARRY LITTLE

("Plaintiff'), appeared in person and through his attorney and announced ready for trial.

Defendant CITY OF LEON VALLEY ECONOMIC DEVELOPMENT CORPORATION

("Defendant"), appeared through its representative and through its attomey and announced

ready for trial.

After a jury was impaneled and swom, it heard the evidence and arguments of counsel.

On April 10, 20 I S, in response to the jury charge, the jury made findings that the Court received,

filed, and entered of record. The questions submitted to the jury and the jury's unanimous

findings am ntlnched as Exhibit A and incorporated by reference.

The Court hereby RENDERS judgment for Plaintiff:

IT TS HEREBY ORDERED, ADJUDGED and DECREED that Plaintiff shall h ave

judgment aga inst Dt:fendant, and therefore the Court orders that Plaintiff recovt:r damages from

Defendant in the sum of $2,220,454.00, plus prejudgment interest ·e.u...Jhol--s!Jlll, nt lhe annual Miz_.:.

rate~

of 5%, in the sum of $249,043.74 for a total of $2,469,497 .74 , postjudgmcnt interest on the total

sum at the annual rate of 5%, and com1 costs.

IT IS FURTHER ORDERED, ADJUDGED and DECREED, Plaintiff requested attorney

fees based on Texas Civil Practice & Remedies Code Chapter 38. The Court examined the file,

took judicial notice of the usual and customary attorney fees, and determined reasonable and

Larry Little v. LVEDC Final Judgment Plige I of2 necessary atlom ey fees, as was stipulated by the parties, to be $ 17 1, 754.50. T he Court Orders

Defendan! to pay Plainti ff $ 171.754.40 for attorney fees.

IT IS FURTHER ORDERED, ADJUDGED and DECREED, that in the event of an

appeal by the Defendants in which the Plaintiff prevails, the reasonab le attorney fees arc;

1. For representation through appeal to the court of appeals to be $20,000.

2. For representation tlu·ough the comple tion of appeal to the Supreme Court of Texas to be $20,000.

IT IS FURTHER ORDERED, ADnJDGED and DECREED, that P laintiff is allowed

such writs and processes as may be n ecessary in the enforcement and collection of this

Jud&1111ent. The Court orders execution to issue for this Judgment.

All other relie f not expressly gran~ this Judgment is hereby DENIED.

Sl GNED and ENTERED this~ day of May 2015. _..--.......__

JUDGE,ANTON

Agreed to form: 0 N ~ CITY OF LEON VAL LEY ECONOMIC DEVELOPMENT CORPORATION

L_~fl-v- . _ Counsel for Defendant, C ITY OF LEON VALLEY ECONOMIC DEVELOPMENT CORPORATION

Agreed to Substance and Fann;

W\;{)JJUl fmf AAC/1y_ ,..-

counse1 for Plaintiff; LA~E

Larry Lillie v. LVEDC Final Judgment Page 2 of2 2 160888v.I 0051011106034

CHARGE OF THE COURT

MEMBERS OF THE JURY: '-\ \

After the closing arguments, you will go to the jury room to decide the cast;, answer~ the questions that are attached, and reach a verdict. You may discuss the case with other jurors only when you are all together ln the jury room.

Remember my previous instructions: Do not discuss the case with anyone else, either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in di ctionaries or on the Internet. Do not post infonnation about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason . I will give you a number where others may contact you in case of an emergency.

Any notes you have taken are for your own personal use. You may take your notes back into the jury room and consult them during deliberations, but do not show or read your notes to your fellow jurors during your deliberations.· Your notes are not evidence. Each of you should rely on your independent recollection of the evjdence and not be influenced by the fact that another juror has or has not taken notes.

You must leave your notes with the bailiff when you are not deliberating. The bailiff will give your notes to me promptly after collecting them from you. I will make sure your notes are kept in a safe, secure location and not disclosed to anyone. After you complete your deliberations, the bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly destroy your notes so that nobody can read what you wrote.

Here are the instructions for answering the questions.

1. Do not let bias, prejudice, or sympathy play any part in your decision.

2. Base your answers only on the evidence admitted in court and on the Jaw that is in

Lany Little v. LVEDC Jury Charge EXHIBIT A

DOCUMENT SCANNED AS FI LED

these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom.

3. You are to make up your own minds about the facts. You are the sole judges of the credibility of the witnesses and the weight to give their testimony. But on matters of law, you must follow all of my instructions.

4. If my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any ·question or answer is not important.

6. All of your answers must be based on a preponderance of the evidence. The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case. If you do not find that a preponderance of the evidence supports a "yes" answer, then answer "no." A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.

7. Do not decide who you think should win before you answer the questions and then just answer the questions to match your decision. Answer each question carefully without considering who will win. Do not discuss or consider the effect your answers will have.

8. Do not answer questions by drawing straws or by any method of chance.

9. Some questions mi ght ask you for a dollar amount. Do not agree in advance to decide on a dollar amount by adding up each juror's amount and then figuring the average.

10. Do not trade your answers. For example, do not say, "I will answer this question your way if you answer another question my way."

11. The answers to the questions must be based on the decision of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do not agree to be bound by a vote of anything less than ten jurors, even if it would be a majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror misconduct, and I might have to order a new trial and start this process over again. This would waste your time and the parties' money, and would require the taxpayers of this county to pay for another trial. If a juror breaks any of these rules, tell that person to stop and report it to me immediately.

Lorry Litt le v. LVEDC Ju ry Charge EXHIBIT A

DOCUMENT SCANNED AS FILED

DEFINJTlONS

"Plaintiff" means Mr. Larry Little.

"Defendant11 means the City of Leon Valley Eco110mic Development Corporation ("L VEDC").

"Contiguous" Touching at a point or along a boundary; adjoining (Texas and Oklahoma are contiguous).

"Foreseeable" Being such as may be reasonably anticipated.

Larry Little v. LYEDC Jury Charge EXHIBIT A

DOCUMENT SCANNED AS F ILED

QUESTIONS

QUESTION NO. 1

Did Lairy Little and the City of Leon Valley Economic Development Corporation intend to be bound by agreements relating to the Larry Little-Leon Valley Town Center project without the execution of a written agreement? ·

Answer: "Yes" or "No'1

Answer: ~· s_

Larry Little v. LVE DC Jury Charge EXHJBIT A

DOCUMENT SCANNED AS FILED

If you answered "Yes" to Question l, then answer the following question. Otherwise, do not answer the following question.

QUESTJON NO. 2

Did the City of Leon Valley Economic Development Corporation fail to comply with the agreement?

Answer: "Yes" or "No"

Answer:~

Larry Little v. LVEDC_ _ _ _ _ Jury Charge EXHIBIT A

DOCUMENT SCANNED AS FILED

If you answered "Yes" to Question 2, then answer the followjng question. Otherwise, do not answer the following question.

QUESTION NO. 3

What sum of money, if any, if paid now in cash, would fa irly and reasonably compensate Larry Little for his damages, if any, that resulted from such fa ilure to comply?

Consider the following elements of damages, if any, and none other.

Do not add any amount for interest on damages, if any.

Answer separately in dollars and cents for damages.

a) The value of the land the City of Leon Valley Economic Development Corporation agreed to give to Larry Little for the Town Center Project.

Answer~ (g ~ 5. ODD, O.:'

I

b) Expenditures made in performance of the agreement.

Answer:

1

j bl, (p1j, 0 0

c) Lost past profits sustained in the past that were as a natural, probable and foreseeable consequence .of the City of Leon Valley Economic Development Corporation's failure to comply.

Answer:

$70-b ' ov

7 } 58'5,

d) Lost future profits reasonably expected to be sustained in the foture as a natural, probable and foreseeable consequence of the City of Leon Valley Economi c Development Corporation's failure to comply.

Answer:-'053,r l'l~ -

,"()

Larry Little v. LVEDC Jury Charge EXHIBIT A

DOCUMENT SCANNED AS FILED

After you retire to the jury room, you will select your own presiding juror. TI1e first thing the presiding juror will do is to have this complete charge read aloud and !hen you will deliberate upon your an~wers to the questions asked .

lt is the duty of the presiding juror-

1. to preside during your deliberations,

2. to see that your deliberations are conducted in an orderly manner and in accordance with the instructions in this charge,

3. to wdte out and hand to the bailiff any communications concerning the case that you desire to have delivered to the judge,

4. to vote on the questions,

5. to write your answers to the questions in the spaces provided, and

6. to certify to your verdict in the space provided for the presiding juror's signature or to obtain the signatures of all the jurors who agree with the verdict if your verdict is Jess than unanimous.

You should not discuss the case with anyone, not even with other members of the jury, unless all of you are present and assembled in the jury room. Should any one attempt to talk to you about the case before the verdict is returned, whether at the courthouse, at your home, or elsewhere, please inform the judge of this fact. When you have answered all the questions you are required to answer under the instructions of the judge and you.r presiding juror has placed your answers in the spaces provided and signed the verdict as presiding juror or obtained the signatures, you will infonn the bailiff at the door of the jury · room that you have reached a verdict, and then you will return into court with your verdict.

Larry Linle v. LVEDC · Jury Charge EXHIBIT A

DOCUMENT SCANNED AS FILED

VERDICT CERTIFICATE

Check one:

V Our verdict is unanimous. All 12 of us have agreed to each and eve1y answer. The presiding juror has signed the certificate for all 12 of us.

jj_~~dw-ub.~'.f(../ Signature of Pr1..-siding .Juror a1enc/_a g,'cftad~- Printed Name of Presiding Juror

_ _ Our verdict is not unanimous. Eleven of us have agreed to each and every answer and have signed the certificate below.

_ _ Our verdict is not unanimous. Ten ofuse have agreed to each and every answer and have . signed the certificate below.

Jurors' Signatures Jurors' Printed Names

1. 2. 3._ _ __ _ ___ __ _ __ _

4.- -- · 5. 6.

7.~------------ 8.

~------------

9. 10._ _ _ __ _ _ __ __ _ 11.

Larry Linie v. LYEDC Jury Chcirgc EXHlBJT A

DOCUMENT SCANNED AS FILED