Hiddеn Oaks Limited (“Hidden Oaks”) and the City of Austin (the “City”) cross-appeal the district court’s entry of judgment for Hidden Oaks on claims of breach of contract and procedural due-process, its dismissal of Hidden Oaks’ substantive due process and takings claim's, and its award of $115,000 in attorney’s fees to Hidden Oaks. We affirm in part, reverse and vacate in part, and remand.
I
Hidden Oaks owns Stoneridge Apartments (“Stoneridge”), ah eight-building, 137-unit complex located in Austin, Texas. In August 1994, the City served on Hidden Oaks eight written Notices of Violation (one for each of the complex’s buildings) asserting that Ston-eridge'failed to comply with certain provisions of the' City Uniform Housing' Code (“housing code” or “code”). Specifically, the City alleged that some of the windows in Stoneridge were not large enough to serve as exit routes in case of a fire and also that certain exterior structures such as balconies and walkways were rotting and in need of repair. The notices advised that if Hidden Oaks “disagree[d] with these findings, [it] ha[d] appeal rights as set forth in the Housing Code,” which stated that “[a]ny person affected by any notice of substandard violations may request and shall be granted an appеal and hearing before the Building and Standards Commission.”
The notices also threatened that as long as Stoneridge remained in violation, of the code, the City “reservefd] the right to place a hold on all utilities,” meaning that once the current tenant moved out of a unit, the new tenant could not reconnect utility service. The notices did not specify the circumstances under which the City would exercise its right to impose a utility hold on.a property, but the City’s deputy building official, Stuart Hersch, testified at trial that his inspectors generally *1040 made these determinations based on factors such as the owner’s overall cooperativeness and willingness to make repairs.
The parties produced conflicting evidence at trial as to whether the City provided añy way to appeal a budding inspector’s imposition of a hold, separate and apart from the appeal procedure provided to challenge an inspector’s citation of a property as substandard. The City argued that even an owner who admitted the presence of code violations could appeal to the Building and Stаndards Commission (the “Commission”), seeking a reprieve or variance from the imposition of a hold — -just as the building inspector in the first instance might find code violations and yet refrain from placing the hold at all. Hidden Oaks, on the other hand, claimed that the City entrusted its building inspectors with final, unreviewable authority over which substandard buildings would suffer holds and which would not.
In any event, the parties did not dispute that the Commission routinely heard appeals related to the correctness of the building inspector’s citations, ie., the Notices of Violation. Indeed, shortly after receiving the notices at issue here, Hidden Oaks filed an appeal with the Commission, asserting that “our 30-year-old apartment complex meets the requirements” for egress windows and “retrofitting of buildings would not achieve a significant life/safety improvement and would place an undue financial hardship on [the] owner.” Hidden Oaks did not appeal the citations of the budding inspector regarding the condition of the balconies and walkways, nor did Hidden Oaks petition the Commission for a reprieve from the threatened holds.
Prior to the hearing on Hidden Oaks’ appeal, Hersch, along with another employee of the City, Terri Hasbrook, set up a meeting with Chip McLelland, an employee of Hidden Oaks, to discuss Hidden Oaks’ pending appeal. During the meeting, McLelland expressed his desire to cooperate fidly with the City and avoid the imposition of utility holds. The City, for its part, suggested that it might provide some fire-safety-related alternatives for Stoneridge, rather than insisting that Hidden Oaks essentially tear down the complex to expand the size of every window.
At the end of the meeting, McLelland asked Hersch to “put [their agreement] in writing.” Hersch suggested instead that McLelland draft a letter, which Hersch then would approve. McLelland sent the letter several days later, stating that Hidden Oaks was “requesting a postponement of [their] appeals to the Board,” and setting forth a proposal by which Hidden Oaks would install “hard wired smoke detector[s] with battery back-up[s] in each unit which has deficient egress” and “electronically interconnect smoke detectors in each sleeping room [of the] multi-bedroom units.” In closing, McLelland noted: “I believe this [proposal] addresses the major safety concerns expressed by your Cоde Enforcement inspector and along with the now completed electrical repairs, removed sign wiring, and the progress being made on A/C platform repair, will avoid any further necessity of threatened utility holds.” Hersch wrote “approved” in one corner, along with his signature, and placed the letter in Hidden Oaks’ file.
Shortly after sending the letter (“September 1994 letter agreement”), Hidden Oaks learned that the City in fact had placed a utility hold on Stoneridge, contrary to Hidden Oaks’ understanding of the meeting with Hersch and the subsequent September 1994 letter agreement. Following this discovery, Hidden Oaks continued to negotiate with the City for the removal of the hold, but the City did not release the last unit in Stoneridge until February 1996. 1
Hidden Oaks filed this suit in December 1995, alleging breach of contract, violation of the Fifth Amendment takings clause, and violation of various sections of the Texas Local Government Code. The district court dismissed the Fifth Amendment takings claim as unripe, and Hidden Oaks subsequently amended its complaint to include an inverse condemnation claim under Article I, § 17 of the Texas Constitution as well as several federal claims for violations of substantive аnd procedural due process. The ease proceeded to trial in late September 1996. At the close of Hidden Oaks’ presenta *1041 tion of evidence, the district court dismissed the substantive due process and inverse condemnation claims, finding that the City’s actions were “rationally related to ... protect[ing] [the] health and safety of citizens” and that “under the law, [the City] can’t be unreasonable when they are enforcing safety and health codes.”
The jury responded to interrogatories on the breach of contract and procedural due process claims, finding for Hidden Oaks in both instances. The jury awarded damages of $231,089 and attorney’s fees of $115,000 for the breach of contract claim, and nominal damages of $1 for the procedural due process violation. The district court entered judgment for a total sum of $346,090 plus interest and costs, and denied both parties’ requests for attorney’s fees pursuant to 42 U.S.C. § 1988. Both the City and Hidden Oaks filed timely appeals.
II
Before trial, the district court dismissed Hidden Oaks’ federal takings claim for lack of jurisdiction, relying on the two-prong ripeness test of
Williamson County Reg’l Planning Comm’n v. Hamilton Bank,
Here, the district court held that Hidden Oaks failed to satisfy the first prong of Williamson—-requiring that the City “arrive[ ] at a. final, definitive position regarding how it will apply the regulations at issue to the particular land in question”—because Hidden Oaks failed to petition the Commission for a reprieve or “variance” from the building inspector’s decision to impose a utility hold on Stoneridge.
Williamson,
We need not resolve this factual dispute,
2
particularly in light of Hidden Oaks’ failure to follow through with any formal process of appeal. Both parties agree that regardless of whether the Commission would hear a request for a reprieve' or variance from a utility hold, the Commission certainly would hear claims that a hold, had been wrongfully imposed,
ie.,
that the building in question was not substandard. To the extent that Hidden Oaks disputes the City’s characterization of Stoneridge as substandard or dangerous, this route of appeal offers a relevant form of review that Hidden Oaks admittedly abandoned, mandating that we dismiss for lack of jurisdiction under Williamson.
3
*1042
To the extent that Hidden Oaks claims to have admitted the presence of certain dangerous conditions, making this route of appeal irrelevant, it has no cause of action under the Fifth Amendment.
See United States v. Locke,
Ill
At the close of Hidden Oaks’ presentation of evidence, the district court granted the City’s motion for judgment as a matter of law with respect to Hidden Oaks’ claim for inverse condemnation under Article I, § 17 of the Texas Constitution. Finding as a matter of law that Hidden Oaks could demonstrate neither “actual physical appropriation” of its property, nor “unreasonable interference” with its use, the district court noted that “the City can’t be unreasonable when they are- enforcing safety and health codes.”
See generally Town of Sunnyvale v. Mayhew,
We review the district court’s grant of a motion for judgment as a matter of law
de novo. See Murray v. Red Kap Indus., Inc.,
In urging reversal of the district court’s judgment, Hidden Oaks relies primarily on the federal takings analysis conducted by the Supreme Court in
Lucas v. South Carolina Coastal Council,
At various stages of the proceedings below, Hidden Oaks argued alternatively that the district court should find an inverse condemnation because (1) as a matter of law, utility holds are not related to health and safety; (2) as a matter of law, utility holds should be placed only for reasons related to the safety of providing utilities; and (3) factually, the City placed and/or kept holds on units' in Stoneridge that were admittedly up to code.
*1043
The first and second of these arguments merit little discussion. As a matter of law, placing utility holds on substandard property qualifies as a reasonable, non-arbitrary decision designed to accomplish the “legitimate goal” of keeping substandard housing unoccupied.
See Nash v. City of Lubbock,
Hidden Oaks argues in response that utility holds cannot be “reasonably related” to health and safety because they do not immediately protect the current tenant from the allegedly substandard conditions,. and because a landlord may avoid the impact altogether by placing utilities in its own name. Yet simply demonstrating that a particular regulation is imperfectly adapted to its end, or contains loopholes through which one might avoid the desired impact, does not mean that the mechanism is unreasonable, or, more to the point, arbitrary.
See Hunt v. City of San Antonio,
Hidden Oaks’ remaining allegation— that the -City placed utility holds on non-substandard units in an effort to force Hidden Oaks to bring other units in Stoneridge up to code — presents a more troubling scenario, and a closer question of “unreasonableness” under state law.
See City of Pharr v. Pena,
The record reveals, however, that Hidden Oaks presented no clear evidence at trial as to when particular units suffered the imposition of utility holds, much less if those particular units, at that particular time, met all applicable sections of the housing code. On cross-examination, Hidden Oaks’ witness Brian Cunningham admitted that he had records indicating when the City placed and released holds on various units. Inexplicably, however, Hidden Oaks failed to introduce that evidence and therefore failed to demonstrate that any unit in Stoneridge suffered a utility *1044 hold at the same time that it satisfied all sections of the City housing code. 4
As a result of this failure of proof, we see no substantial evidence that would enable a reasonable juror to determine that Hidden Oaks suffered an inverse condemnation of its property. We therefore hold that the district court did not err in granting judgment as a matter of law with respect to this claim.
IV
Following Hidden Oaks’ presentation of evidence, the City also moved for judgment as a matter of law on Hidden Oaks’ claim for damages, under 42 U.S.C. § 1983, based on a denial of substantive due process. The district court granted the motion, finding as a matter of law that the City’s actions were “rationally related to protecting the health and safety of citizens.”
See FM Properties Operating Co. v. City of Austin,
In arguing that the district court erred in finding a rational relation between the City’s placement of utility holds and the protection of health and safety, Hidden Oaks does not appear to appreciate the limited range of a substantive due process analysis.
See, e.g., Shelton v. City of College Station,
In support of this proposition, Hidden Oaks cites
International Shoe Co. v. Washington,
Given the limited nature of our review, we agreе with the district court that the City’s actions were “rationally related to the protection of [the] health and safety of citizens” and therefore not actionable as violations of the Fourteenth Amendment. Accordingly, we hold that the district court did not err in granting judgment as a matter of law on this claim. 5
V
At the close of all the evidence, the jury found for Hidden Oaks on both the procedur *1045 al due process and breach of contract claims. In framing these issues for the jury, Hidden Oaks argued that the September 1994 letter agreement formed an enforceable contract, in which Hidden Oaks agreed to withdraw its appeal of the window-size violations as consideration for the City’s promise not to place a utility hold on Stoneridge. Hidden Oaks also alleged that the City violated Hidden Oaks’ due process rights by performing a sort of “bait and switch” with the appeal of the underlying violations — convincing Hidden Oaks to withdraw its appeal in exchange for a promise that no holds would be imposed, and then breaching that agreement after the deadline for appeal had passed.
The City asserted at the charge conference that these theories of recovery were inconsistent. Either the City took away Hidden Oaks’ right to appeal, or Hidden Oaks surrendered it voluntarily as consideration for certain benefits from the City. The district court admitted the possibility of a conflict, but decided to wait for the jury’s verdict before ruling on the City’s objection. Once the jury returned, however, having found for Hidden Oaks on both claims, the district court denied the City’s motion for a new trial and renewed motion for judgment. The City appeals the denial of these motions on the grounds that (1) Hidden Oaks failed to prove a protected property interest either in continued utility service or in renting the units at Stoneridge, (2) no valid contract existed because the City Council never ratified the September 1994 letter agreement, (3) the contract as found by the jury would be unenforceable, and (4) neither the text of nor the circumstances surrounding the September 1994 letter agreement demonstrated mutual assent to remove utility holds from Stoner-idge. 6 .
For reasons unclear to us, the City did not raise the issue of an inconsistent verdict in its brief to this court. We therefore deem that issue waived.
See Melton v. Teachers Ins. and Annuity Ass’n of Am.,
A
The City asserts that, as a matter of law, Hidden Oaks has demonstrated no valid property interest either in continued utility service or in lost rent. We disagree on both counts. The Fourteenth Amendment to the United States Constitution provides, in relevant part, that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV. In order to assert a violation of this amendment, one must at least demonstrate the deprivation of a protected “property interest” established through “some independent source such as state law.”
Board of Regents v. Roth,
Texas law mandates that all utility providers “shall serve every consumer within [their] certified area and shall rеnder continuous and adequate service.” Tex. Water Code Ann. § 13.250. Additionally, Texas law declares that utility providers “may not discontinue, reduce, or impair service to any part of [a] certificated service area except for: (1) nonpayment of charges; (2) nonuse; or (3) another similar reason that occurs in the usual course of business.” Tex. Util. Code Ann. § 37.152.
8
We find that these provisions demonstrate an entitlement to continuous and adequate utility service, which may be removed only “for cause.”
See Burgess v. City of Houston,
The City claims, however, that this entitlement proves irrelevant here because the City is not disconnecting service to Hidden Oaks, but merely refusing to connect service to the incoming tenant. We find no merit in this distinction. This hypothetical incoming tenant, after all, has nothing to do with the City’s decision not to provide utilities to the unit in question. Rather, it is the building’s owner, Hidden Oaks, that is the cause of the denial of connection. In this context, the City can hardly claim that it is depriving the teiiant, and not Hidden Oaks, of “continuous service” to its building.
We also find no merit in the City’s assertion that Hidden Oaks has no constitutionally protected property interest in leasing Stoneridge. Indeed, Texas recognizes that the ability to collect rent for the use of one’s land is one of the most fundamental sticks in the bundle of rights termed “property.”
See F. Groos & Co. v. Chittim,
As a matter of law, therefore, Texas recognizes entitlements both to continuous utility service and to .“the rents accruing from land.” Given this holding, the district court did not err in denying the City’s motion for judgment or abuse its discretion in denying the City’s request for a new trial on this ground.
B
Moving to the jury’s contract findings, the City cites several Texas cases in support of the proposition that, as a matter of law, contracts with the City are invalid until explicitly authorized by the City Council.
See;, e.g., City of Greenville v. Emerson,
The support for this assertion in the record could not be more clear. At the charge conference, the district court suggested instructing the jury that “the City- of Austin denies that any contract was ever formed between the City and the Plaintiff in September of 1994.” The City objected. Explicitly asserting “that’s not true,” the City went on to explain that “the City is not contending that we didn’t form a contract with the Plaintiff.” Instead, the City asserted, “the issue [was] not did we' have a contract, but what did the contract require.”
Curiously, Hidden Oaks provides us with no authority indicating the legal consequences of this exchange. We find, however, that given the City’s clear concession, made in open court and with the explicit intent to induce the district court’s reliance, the City is judicially estopped from asserting that no contract existed.
See Ergo Science, Inc. v. Martin,
C
The City also claims that even if the jury correctly found that a contract existed, the contract as found by the jury could not be enforceable because it would bargain away the City’s governmental power tо enforce the housing code.
See Clear Lake City Water Auth. v. Clear Lake Utils. Co.,
Not every contract made by a municipality relating to its governmental functions violates the rule .of
Clear Lake City.
Instead, the ultimate test concerns whether the contract at issue will, as a matter of law, “potentially control or embarrass the City in the exercise” of these powers.
Cibolo Creek Mun. Auth. v. City of Universal City,
In addition, because Hidden Oaks, as the owner of the apartment complex, is an “end user” of the City’s utility service, the rule of
*1048
Clear Lake City
would not apply.
See Brubaker v. Brookshire Mun. Water Dist.,
D
Even assuming that a contract did exist, however, and that it could be enforced, the City asserts that the text and surrounding circumstances of the September 1994 letter agreement support only a finding that the City agreed to refrain from placing “any further” utility holds on Stoneridge, not that the City agreed to remove any utility holds already in place. As a general rule, “the interpretation of a contract is a question of law, not fact.”
Thornton v. Bean Contracting Co.,
Here, the district court made an implicit finding of legal ambiguity by instructing the jury that “[i]n deciding whether the parties reached an agreement, you may consider what they wrote, said and did in light of the surrounding circumstances, including any earlier course of dealing.” Moreover, in attempting to clarify the parties’ positions for the jury, the district court noted that Hidden Oaks interpreted the September 1994 letter agreement to mean that the City, in return for certain promises from Hidden Oaks, generally would not “use” utility holds on Ston-eridge in order to force compliance with the outstanding notices of violation. The City, on the other hand, interpreted the September 1994 letter agreement to mean only that the City would not use the outstanding notices of violation to place additional holds on Stoneridge, beyond those holds already imposed as of the date of the agreement.
Applying these instructions to the facts, the jury found both that a contract existed and that the City had breached that contract by refusing to remove utility holds from Stoneridge. In doing so, the jury rejected the City’s characterization of the September 1994 letter agreement — specifically, the City’s suggestion that it had promised only to refrain from placing future holds and not to rеmove any holds already in place.
Insofar as the City relies on the text of the September 1994 letter agreement to support a reversal of the jury’s verdict, we construe this argument as an attack on the district court’s legal conclusion that the language of the September 1994 letter agreement was ambiguous, and in need of extrinsic evidence to determine the true intent of the parties. So construed, we find the City’s argument meritless. As the ambiguity of a contract is a question of law, we review the district court’s determination
de novo. See Jhaver v. Zapata Off-Shore Co.,
The September 1994 letter agreement reads, in relevant part: “this proposal will ... avoid any further necessity of threatened utility holds.” Depending on whether one emphasizes the words “any further” or the word “threatened,” one might come to different conclusions about the content (and timing) of the City’s promise. “Any further” tends to indicate that some holds might already be in place, while “threatened” as a modifier of “utility holds” tends to indicate quite the opposite. We therefore affirm the district court’s holding that thе contract .is ambiguous.
Insofar as the City also challenges the verdict by asserting error in the district court’s denial of its motion for judgment as a matter of law, we construe this assertion of error as a challenge to the legal sufficiency of the evidence.
See Hiltgen v. Sumrall,
The testimony at trial established that the City’s original hold, placed on or about the date of the September 1994 letter agreement, covered every unit in the Stoneridge complex. Based on this fact, the jury might reasonably infer that a promise merely not to impose “further” or “additional” holds on Stoneridge would make no sense. At that point, after all, the City could do nothing “further” in the way of utility holds but remove them. In addition, the testimony at trial also established that at the time the parties executed the September 1994 letter agreement, neither McLelland nor Hersch understood that Stoneridge already suffered from a utility hold. Based on this fact, the jury again might reasonably infer that the distinction proffered by the City — between holds already imposed and holds yet to be imposed — was not what the parties had in mind when they formed the September 1994 letter agreement.
Because these factual inference are reasonable and supported by the evidence, we do not find it implausible that a reasonable jury would determine, as this jury did, that the City promised in the September 1994-letter agreement to remove any utility holds already in place. We therefore hold that the district court did not err in denying the City’s motion for judgment as a matter of law with respect to the contract claim. 10
With- regard to the district court’s denial of the City’s motion for a new trial on the breach of contract claim, we note that our standard of review here is even more deferential than our review of the denial of a motion for judgment as a matter of law.
See Hiltgen,
VI
Having found that the City had breached its contract with Hidden Oaks, the jury returned a verdict for $231,089 in. damages, which was precisely the amount Hidden Oaks claimed it had suffered in lost rent. Both the City and Hidden Oaks appeal this award — the City alleging that the jury had insufficient evidence on which to base its decision and Hidden Oaks arguing that the district court erroneously limited the types of damage the, jury could consider in arriving at its final figure. We find no merit in Hidden Oaks’ allegations of error, but agree with the City that insufficient evidence supports the jury’s vеrdict on damages.
In attacking the damage award, Hidden Oaks asserts that the district court’s instructions and evidentiary rulings prevent
*1050
ed the jury from considering two additional types of damage: (1) lost re-sale value of the property because of the “stigma” of the utility holds, and (2) unnecessary repairs made in an effort to convince the City to lift the holds. We review challenges to the district court’s .jury-instructions in order to determine .if “the charge as a whole” creates a “substantial” doubt, incapable of eradication, as to whether the jury has been “properly guided in its deliberations.”
Russell v. Plano Bank and Trust,
In instructing the jury on breach-of-eontraet damages, the district court directed that the jury should “consider only the ... [r]ents lost, if any, between the day the contract was breached and the day the utility holds that were placed on Stoneridge in August or September 1994 were released.” Hidden Oaks complains that this instruction prevented the jury from considering the evidence introduced at trial as to unnecessary repairs. Because Hidden Oaks failed tо object to this instruction at trial, it has waived this claim.
See Tandy Brands Inc. v. Harper,
With regard to the lost value claim, Hidden Oaks argues that the district court erred in refusing to permit the opinion testimony of Jim Maloney as to how the City’s wrongful imposition of utility holds had lowered Ston-eridge’s market value below what it would have been without the holds. The district court consistently sustained the City’s objections to this testimony because the court found Maloney unqualified to testify as an expert in appraising property.
In challenging this decision, Hidden Oaks bears a heavy burden. Trial courts have “wide discretion” in deciding whether or not a particular witness qualifies as an expert under the Federal Rules of Evidence.
See
Fed. R. Evid. 702 (providing that a witness may qualify as “expert” through “knowledge, skill, experience, training, or education.”);
Ellis v. K-Lan Co.,
Hidden Oaks argues in the alternative that the district court erred by not permitting Maloney to testify at least as an owner regarding the value of the property at different times. Hidden Oaks correctly points out that we adhere to the general rule that an owner always may testify as to value, whether assessed as of the time of trial, or at some definitive point in the past.
See United States v. 329.73 Acres of Land,
Here, however, the trial court not only permitted Hidden Oaks to ask Maloney, as an owner, what he thought the property was worth today, but also ruled that Hidden Oaks could ask Maloney what he, as an owner, thought the property was worth in 1994, before the utility holds went on. Hidden Oaks nevertheless made a deliberate decision not to ask Maloney about the property value in 1994, and even objected when the City attorney attempted to cross-examine Malo-ney on this issue. 12 Having made such a choice at trial, Hidden Oaks hardly can request now that we reverse and rеmand in order for it to reassess its earlier strategy.
The City, on the other hand, urges that the district court erred in denying its motion for a new trial on damages because the award was speculative and supported by “no evidence.” As noted above, we will reverse a district court’s denial of a motion for a new trial only upon a “clear showing of an abuse of discretion.”
See Dawsey,
Here, in support of its request for $231,089 in damages flowing from lost rent, Hidden Oaks relied solely on the testimony of Jim Maloney, senior vice-president of Cunningham Capital Corporation. Maloney testified that he arrived at the $231,089 figure by calculating the rent Hidden Oaks should have been able to collect from September 1994 to December 1995 and then subtracting out Hidden Oaks’s actual gross receipts for that time period. From September through December 1994, Maloney calculated the rent Hidden Oaks should have received by multiplying the rentable square footage at Stoner-idge times $.74, which was the rent per square foot being charged at Stoneridge in July 1994. For January through December 1995, Maloney multiplied the rentable square footage at Stoneridge times $.78 per square foot, which Maloney alleged was the “market rent” during this time period. The resulting amounts represented what Hidden Oaks should have made per month during the relevant time period if Stoneridge had (a) been able to charge the “average” rate for its apartments throughout 1995 and (b) enjoyed a 100% occupancy rate. These monthly figures, added together, represented the total amount that Hidden Oaks thought it should have taken in from September 1994 to December 1995.
Maloney then subtracted 5% off this total, making the assumption that throughout the period of damage, Hidden Oaks would have enjoyed a 95% rather than a 100% occupancy rate. On cross-examination, Maloney admitted that Stoneridge was only 60% occupied when Cunningham bought the property and reached a high of only 93% occupancy before the imposition of the utility holds. Nevertheless, Maloney defended his assumption of 95% occupancy by pointing to the market average in Austin at the time of trial.
At the outset, we question whether these calculations accurately depict the gross income Hidden Oaks could have expected to receive from September 1994 to December 1995. Hidden Oaks introduced no evidence at trial that’ Stoneridge ever had enjoyed an occupancy rate as high as 95%, or had occupancy rates comparable to the market average. Indeed, all the testimony regarding occupancy rates indicated that Stoneridge had a history of severe problems filling its units.
More problematic is Hidden Oaks’s complete lack of evidence tying the unrented apartments to the City’s imposition of utility holds. Given that the property had not performed to market expectations in the past, Hidden Oaks could not simply cite market statistics and assume that any differentiation
*1052
in actual income was the result of the utility holds.
See City of Denton v. Weems,
Thus, because Hidden Oaks produced “absolutely no evidence” indicating that the vacancies at Stoneridge were due solely or even primarily to the City’s imposition, of utility holds, we reverse the district court’s denial of the City’s motion for a new trial on contract damages. On remand, Hidden Oaks should produce whatever evidence it may have in its possession relating to which units at Stoner-idge remained vacant and why. Without this information, we cannot allow the jury to simply assume that a complex with a history of vacancy problems suddenly would perform uр to market standards, but for the City’s breach of contract. We therefore vacate the contractual damage award and remand for further proceedings in accordance with this opinion.
VII
After the jury returned its verdict, both the City and Hidden Oaks moved for an award of attorney’s fees under 42 U.S.C. § 1988, both parties alleging that they had prevailed on the claim of procedural due process and the City requesting additional fees as the prevailing party on Hidden Oaks’s claims under the federal takings clause and the substantive component of the due process clause. The district court denied the motions of both parties, and we affirm.
Section 1988 provides that a court “in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988. Even a plaintiff who wins only nominal damages qualifies as such a “prevailing party.”
Farrar v. Hobby,
With regard to Hidden Oaks’s request for fees as a prevailing party on the procedural due process claim, we find that the district court acted well within its discretion by denying this request. The district court instructed the jury to award only nominal damages on this claim because Hidden Oaks produced no evidence at trial indicating any damage specifically arising from the procedural due process violation.
See Farrar,
The City also alleges error in the district court’s § 1988 rulings, claiming that the City should receive fees as the “prevailing party” on Hidden Oaks’s claims under the federal takings clause and the substantive component of the due process clause. Unlike prevailing plaintiffs, however, who are generally entitled to § 1988 fees absent special circumstances, prevailing defendants cannot recover § 1988 fees without demonstrating that the plaintiffs underlying claim was frivolous, unreasonable or groundless.
See United States v. Mississippi
Here, the City noted in its motion for attorney’s fees that the district court granted both its motion to dismiss Hidden Oaks’s federal takings clаim, and its motion for judgment as a matter of law with respect to Hidden Oaks’s claim for a violation of substantive due process. . These rulings, however, do not establish that the underlying claims were “frivolous, unreasonable or groundless.”
See Hughes v. Rowe,
VIII
In summary, we affirm the district court in all respects except in its denial of the City’s motion for a new trial on contract damages. Thus, we affirm the district court’s dismissal without prejudice of Hidden Oaks’s federal takings claim; we affirm the district court’s dismissal with prejudice of Hidden Oaks’s claims' under Article I, § 17 of the Texas Constitution and the substantive component of the Fourteenth Amendment due process clause; we affirm the judgment of the district court as to liability and attorney’s fees on the breach of contract claim; we affirm the judgment of the district court as to liability and damages on the procedural due process claim; and we affirm thе judgment of the district court as to attorney’s fees under § 1988. With regard to the district court’s judgment as to damages on Hidden Oaks’s breach of contract claim, however, we reverse the court’s decision to deny the City’s motion for a new trial on damages, vacate the damage award, and remand to the district court for further proceedings consistent with this opinion.
Notes
. Although the City placed the original hold on the entire complex, releases occurred first on a building-by-building and then eventually on a unit-by-unit basis.
. In its order of April 8, 1996, dismissing Hidden Oaks’ federal takings claim for lack of jurisdiction, the district court resolved this factual dispute by explicitly crediting the affidavit of Stuart Hersch, the City’s deputy building official, for the proposition that "utility holds may be appealed to the Building and Standards Commission." Subsequent events at trial, however, raised serious questions regarding Hersch's credibility. At the close of Hidden Oaks' presentation of evidence, the district court expressed concern over the fact that ”[w]e have disputed evidence as to whether or not there is in effect any appeal with regard to the utility hold.” At that point, even the City agreed that the factuаl question of whether the City provided an appeal on that issue was disputed and in need of resolution by the jury. For various reasons not relevant here, this issue never reached the jury, ostensibly leaving the district court’s April 1996 order of dismissal as the final factual determination regarding what methods of appeal the City provided.
. In its brief to this court, Hidden Oaks attempts to evade the issue of ripeness by recharacterizing its allegations as fitting within the "temporaiy takings” analysis of
First Evangelical Lutheran Church v. County of Los Angeles,
. Hidden Oaks did attempt to demonstrate this point by eliciting testimony that (1) a substantial number of the units in Stoneridge were efficiеncies, (2) the alleged code violations relating to window size would not apply to efficiencies, and (3) the entire complex of Stoneridge suffered a utility hold for some period of time. As the district court noted, however, this argument ignores the other code violations alleged by the City, which were not necessarily inapplicable to efficiencies.
. To the extent that Hidden Oaks may have stated a moré plausible claim for a violation of its right to substantive due process by demonstrating that the City placed holds on non-substandard units, we note again that we will not address the legal merits of this claim in light of Hidden Oaks’ failure to prove the necessary, underlying facts. See supra at 1043.
. The City also alleges two additional points of error, which we find unworthy of textual discussion. The first involves the City's allegation, raised for the first time in its reply brief, that insufficient evidence supports the jury’s finding of a procedural due process violation. Not only is this point of error untimely,
see United States v. Green,
The second point involves the City's assertion that Hidden Oaks' procedural due process claim is unripe, citing
Williamson County Reg'l Planning Comm'n
v.
Hamilton Bank,
. We have found no case permitting us to raise the issue of inconsistent verdicts
sua sponte
on appeal. In
Brunner v. Maritime Overseas Corp.,
. The entirety of § 37.152 reads:
(a) Unless the commission issues a certificate that the present and future convenience and necessity will not be adversely affected, a certificate holder may not discontinue, reduce, or impair service to any part of the holder's certificated service area except for: (1) nonpayment of charges; (2) nonuse; or (3) another similar reason that occurs in the usual course of business.
(b) A discontinuance, reduction, or impairment of service must be in compliance with and subject to any condition or restriction the commission prescribes.
. Hidden Oaks also invites-us to reject the City’s claim of invalidity because the City has disingenuously asserted it for the first time on appeal. "Such infidelity," Hidden Oaks opines, “mocks the orderly administration of justice, and calls into question the candor of its proponent.” While articulated with admirable fervor, Hidden Oaks might wish to save such righteous indignation for a nobler cause. The City did, in fact, raise this argument below, not only in its pretrial Reply to Plaintiffs’ Original Complaint, but also in its post-trial Motion for New Trial and Renewed Motion for Judgment.
. In support of its claim of legally insufficient evidence, the City also cites
Gulf Coast Farmers Coop. v. Valley Co-op Mill,
.
RussellAso
provides that even assuming we find such doubt, "we will not reverse if we determine, based upon the entire record, that the challenged instruction could not have affected the outcome of the case.”
Id.
at 719 (quoting
FDIC v. Mijalis,
. The reason for this omission appears to lie in the fact that the resale value of Stoneridge had in fact increased from 1994 to the time of trial, just not as much as Hidden Oaks would have expected.