APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX; CHRISTIANSTED JURISDICTION D.C. CIVIL No. 78-00003
Before Hunter, Van Dusen and Sloviter, Circuit Judges.
Defendant Virgin Islands Water and Power Authority ("WAPA") appeals a jury verdict of $22,000 awarded to plaintiff Donald Williams in a breach of contract suit arising out of WAPA's act in ceasing to provide electrical service to certain rental units owned by plaintiff at Nos. 5 and 8 Grove Place ("Nos. 5 and 8," "rental units").*fn1 We will reverse, for the following reasons:
A. The evidence showed that there was no contract between WAPA and Mr. Williams for the provision of power to the rental units at No. 5.
B. The evidence introduced by defendant showed that there was a contract between WAPA and Mr. Williams for the provision of electrical power to a pump at No. 8. Plaintiff introduced insufficient evidence of a contract between WAPA and Mr. Williams for the provision of power to the rental units at No. 8 to allow the jury to find that such a contract existed and to award damages based on is breach.
C. Plaintiff's evidence as to damages was insufficient, as a matter of law, to justify any award to Mr. Williams by the jury.
I. Procedural History Prior to the Trial in Civil No. 78/3
The suit now before us began on January 6, 1978, when plaintiff/appellee Donald Williams filed a complaint alleging that WAPA breached its contracts with plaintiff when WAPA ceased on October 30, 1973, to provide electrical power to the rental units at Nos. 5 and 8. Mr. Williams seeks damages for lost rentals allegedly caused by the breach. This suit, Civil No. 78/3, was based solely upon WAPA's alleged breach of contract.
On or about July 17, 1974, Mr. Williams had filed a complaint against WAPA seeking, inter alia, damages for WAPA's actions in ceasing on October 30, 1973, to provide electrical power to Nos. 5 and 8 (Civil No. 74/363). In the 1974 complaint, Mr. Williams alleged that WAPA's actions were "in violation of Plaintiff's contractual rights" and "a deprivation under color of law of Plaintiff's constitutional rights to due process, i.e., notice and hearing." Appendix at 397-98; paragraphs 7 and 10 of the amended complaint in 74/363. Plaintiff was represented by counsel in Civil No. 74/363.
WAPA moved to dismiss Civil No. 78/3 on res judicata grounds, arguing that Civil No. 74/363 barred this action. The trial court denied the motion stating:
Review of the file in Civil No. 74/363 reveals that it was an action both in contract and under 42 U.S.C. Sec. 1983. By order of this Court dated 10 July, 1975, that action was dismissed with prejudice as to the Sec. 1983 claim, but with leave to amend the complaint so as to restate an action in contract. Because an amended complaint was not filed in that action, Civil No. 74/363 was dismissed for lack of prosecution on 22 November, 1978.
The present action, Civil No. 78/3 was commenced 6 January, 1978, approximately six (sic) months after Civil No. 74/363 was dismissed with leave to amend. Although Civil No. 74/363 was eventually dismissed unconditionally for reasons of judicial economy, this did not occur until some twenty-two (22) (sic) months after commencement of the present action. It necessarily follows that the case at bar was initiated at a time when the contract action remained viable and that the subsequent final dismissal of Civil No. 74/363 did not act to bar the prosecution of this action.
In 1978, Mr. Williams filed a pro se action alleging damages based upon WAPA's action in turning off the power to Nos. 5 and 8 (Civil No. 78/190). On May 30, 1980, the trial court dismissed Civil No. 78/190 with prejudice on res judicata grounds. Appendix at 403. In its order, the trial court stated that "the complaint (in 78/190) is essentially identical to that of a prior action brought by plaintiff under 42 U.S.C. Section 1983 in Civil No. 74/363. That action was dismissed on the merits by order of this Court dated 10 July, 1975." Id.
Civil No. 78/3 seeks damages solely for breach of contract. Plaintiff does not seek damages herein based on any theory that his constitutional rights were violated by WAPA, and it is clear from the history of this case that any such claim would be barred by the doctrine of res judicata.*fn2
II. The Trial in Civil No. 78/3
Because we must determine whether the evidence was sufficient to allow the jury to award damages to plaintiff, it is necessary to review in detail the evidence adduced at trial.
The first witness called by plaintiff was George Suarez, an employee of the Department of Public Works ("DPW"). He testified that DPW enforces the Building Code (29 V.I.C. §§ 291-312, effective May 1, 1964) and the Housing Code (29 V.I.C. §§ 330-334, effective May 1, 1964).*fn3 He inspected Nos. 5 and 8 Grove Place in 1973, and found violations of the Building Code. In the course of his inspection, Mr. Suarez discovered "that the two meters (on the lots) were being used in violation of their intended use," appendix at 79. The violation "dealt with an interdepartmental agreement that Public Works would notify WAPA any time someone who got a temporary permit to get electrical power for construction purposes or who was using-who had power connection for the use of a well or something like that that has changed-(.)" Id. Mr. Suarez also testified that "(t)he violation was that the intended use of the power was violated," and that it is "(DPW's) responsibility" to notify WAPA of such violations. Appendix at 80.
Plaintiff next called Bodil Simmons, a WAPA employee. She testified that she had no documents with her which would show whether or not there was any delinquency in Mr. Williams' accounts for Nos. 5 and 8 Grove Place as of October 1973. Appendix at 87-88.*fn4 During her testimony, plaintiff's Exhibits 3 and 4, the notices from DPW to WAPA of impermissible use of electrical connections at Nos. 8 and 5, respectively, were admitted on motion by plaintiff.
Plaintiff's third witness was Hector Rodriguez, a WAPA employee.*fn5 He testified that WAPA does not inspect property before installing a meter on that property, because it is DPW's responsibility to inspect buildings, and not WAPA's. Appendix at 92. He further testified that DPW "order(ed)" WAPA to turn off the electricity, appendix at 93, and that WAPA was obligated to comply, appendix at 93-94. On cross-examination, Mr. Rodriguez testified that, once a meter is installed, it is the responsibility of the owner to wire the meter to the property.
The next witness called was Donald Farrelly.*fn6 A DPW employee, he testified to the existence of electrical deficiencies at Nos. 5 and 8. The power was off at the time of his inspection. During his testimony, several of defendant's exhibits concerning the condition of the rental units were admitted upon motion by defendant.
Plaintiff next called Simon Montoute.*fn7 Mr. Montoute testified that he was a tenant at No. 8 from 1970 to November 1974, more than a year after electrical service was terminated on October 30, 1973. Appendix at 107-08. He paid his own rent and helped Mr. Williams to collect rent from others. He testified that the total rent from all tenants on No. 8 was not less than $800 per ...