Hartford Fire Insurance Co v. City of Mont Belvieu, Texas

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Hartford Fire Insurance Co v. City of Mont Belvieu, Texas

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Case: 09-40586

Document: 00511171101

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Date Filed: 07/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 13, 2010 N o . 09-40586 Lyle W. Cayce Clerk

H A R T F O R D FIRE INSURANCE COMPANY, Plaintiff­Appellant v. C I T Y OF MONT BELVIEU, TEXAS, Defendant­Appellee

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges. E D I T H H. JONES, Chief Judge: A performance bond guarantees the timely completion of a construction p r o je c t for the benefit of the project's owner. The Hartford Fire Insurance C o m p a n y issued such a bond to a construction company on a project for the City o f Mont Belvieu, Texas. When the builder failed to complete punch list items a n d warranty work, the City sued Hartford for compensation under the bond, a n d a jury found in favor of the City, awarding nearly $500,000 in damages. Hartford now appeals the district court's denial of its motion for judgment as a m a t t e r of law. Because the City's claim was barred by the applicable statute of lim it a t io n s , and no act of Hartford excuses the City's failure to bring suit within

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No. 09-40586 t h e limitations period, we sustain Hartford's position and reverse and render the ju d g m e n t. I . BACKGROUND I n 1998, Hartford issued a payment bond and a performance bond to W illia m s Industries, a general contractor, for the construction of the Eagle P o in t e public recreational facility in Mont Belvieu. These bonds are required by Texas law for most public work contracts, and their terms are largely defined by s t a t u t e . TEX. GOV'T CODE § 2253.021 et seq. (Vernon 2008). T h e construction process was tumultuous, with many delays and change o r d e r s occasioned by architectural flaws and mid-course alterations to the plans. As the facility neared completion in mid-2001, the City issued a certificate of o c c u p a n c y and took possession in May. By July 2002, Eagle Pointe was open a n d operating. At that time, however, a number of "punch list" items--repairs and the lik e -- r e m a in e d incomplete. d iffic u ltie s . This was due in part to Williams's financial

In addition, the company had neglected to pay some of its

s u b c o n t r a c t o r s , and they filed payment bond claims with Hartford. Hartford t h e r e fo r e advised the City to "exercise reasonable caution in the payment of any fu r t h e r contract funds to Williams because of Williams' alleged non-payment of s u b c o n t r a c t o r s and suppliers." Hartford feared that Williams would go under, le a v in g it responsible for the bond claims. The document at the heart of this case is Change Order 67, executed by t h e City and Williams on July 2, 2002, to resolve the various disputes between t h e m . Under this agreement, the City paid Williams $674,628.50. That sum c o v e r e d the expense of changes requested by the City and included an "equitable a d ju s tm e n t ," subject to the following terms: W h e r e a s the City and Williams Industries have reached an a g r e e m e n t to cover the cost of all current and future claims which

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No. 09-40586 W i l lia m s Industries has or may have. And whereas Williams I n d u s t r ie s and in turn its Bonding Company -- The Hartford Fire In su ra n ce Company [--] have agreed that all warranties will remain in force. And also, that Williams Industries will pursue completion o f remaining punch list and/or warranty items or compensate the C it y for expenditures which the City may have to make to achieve t h e required repairs (with the exception of recently completed r e p a ir s at the Wave Pool caisson grates). The City agrees to pay W illia m s Industries an additional $214,359.29. I n calculating the total due Williams, Change Order 67 offset against the City's o b lig a t io n a charge of $231,000 in liquidated damages for Williams's delinquency in completing the project. To determine this charge, the change order stipulated t h a t , while the contract had mandated completion by February 14, 2001, "[t]he a c t u a l completion date was July 19, 2001." The cover page of the change order d e s c r ib e d this as the "date of Substantial Completion." On July 9, 2002, the City forwarded Change Order 67 to Hartford. Attached were a check for the full $674,628.50, made out to Williams and H a r t f o r d jointly, and a cover letter. The cover letter stated that the City "will c o n t in u e to look to Williams and ultimately the Hartford for any punch list items a n d warranty claims that remain unresolved." Hartford cashed the check and u s e d the proceeds to settle payment bond claims and reimburse its own a d ju s tm e n t costs. Over the following months, Williams continued to falter, ultimately failing t o complete many of the punch list items and warranty repairs that it had a g r e e d to do. On October 30, 2002, the City sent a letter to Hartford stating as m u c h , and after sending an engineer to assess the situation, Hartford responded in a March 19, 2003, letter by its attorney, James Cupples. The letter agreed to r e im b u r s e the City up to $32,000 to resolve several claims. For the other claims, it requested additional information from the City and stated that Hartford was " c o m m it t e d to investigate and provide the City its conclusions on the remaining

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No. 09-40586 w o r k items." The letter concluded with this statement: "it [Hartford] continues t o reserve all of its rights and defenses in this matter and it is without waiver o f same." On June 3, 2003, the City promised in writing to supply more details on it s claims and cost documentation, and it did so, in November 2003. According t o Hartford, the City's documentation stated claims that were far more e x t e n s iv e , amounting to nearly $500,000, than those the City had identified in 2 0 0 2 . Hartford did not respond to the City's documentation. The parties' next contact occurred in October 2004, in a letter from the C it y 's attorney to Hartford. It stated: T h e City of Mont Belvieu is concerned about the possible statute of lim it a t io n s and I am requesting a tolling agreement from you. If t h e r e is no agreement reached prior to October 30, 2004, I will be fo r c e d to file suit against Hartford for not performing under the b o n d . Please let me know if you are agreeable to entering into a t o llin g agreement and how quickly Hartford can process these c la im s and get them resolved. It has now been nearly two years s in c e the initial claim was made. C u p p le 's response was non-responsive. It stated that Hartford was still a w a it in g documentation on the City's actual expenditures and "stands ready to p r o c e e d with the process as soon as we can get the data." No mention was made o f the statute of limitations or tolling. S e t t le m e n t discussions between the City and Hartford were unsuccessful, a n d Hartford filed suit in July 2007, seeking a declaration that any claims on the p e r fo r m a n c e bond by the City were barred by the statute of limitations. The C it y counterclaimed for payment under the performance bond. Hartford moved u n s u c c e s s fu lly for summary judgment, and subsequently for judgment as a m a t t e r of law. The district court concluded that the City had raised genuine is s u e s of material fact on two potential defenses to the running of the limitations p e r io d : quasi-estoppel and promissory estoppel. The case proceeded to trial, and

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No. 09-40586 t h e jury found that Hartford had breached its performance bond; Mont Belvieu file d its claim more than one year after final completion of the Eagle Pointe p r o je c t; this failure was excused by both promissory estoppel and quasi-estoppel; a n d Mont Belvieu was due damages of $468,492.01. In addition, the district c o u r t awarded Mont Belvieu $218,747.65 in attorney's fees and $260,704.62 in p r e ju d g m e n t interest. Hartford timely appealed. I I . STANDARD OF REVIEW W h e n a case has been tried by a jury, a motion for judgment as a matter o f law is a challenge to the legal sufficiency of the evidence underlying the jury's v e r d ic t. Streber v. Hunter, 221 F.3d 701, 721­22 (5th Cir. 2000). Our review of a district court's ruling on a motion for judgment as a matter of law is de novo, a p p ly in g the same standard as used by the district court, and we consider the e v id e n c e , draw inferences from it, and resolve credibility determinations in the lig h t most favorable to the non-moving party. Id. The motion should be granted o n ly when the facts and inferences are so strongly and overwhelmingly in the m o v a n t 's favor that reasonable jurors could not reach a contrary verdict. Id. I I I . DISCUSSION H a r t fo r d raises several issues on appeal: that the evidence at trial was le g a lly insufficient to support the jury's finding that the City's failure to file its c la im within the limitations period was excused by promissory estoppel or quasie s t o p p e l; that the performance bond expired at the time of substantial c o m p le t io n , ending Hartford's obligation to the City; and that the district court e r r e d in its award of attorney's fees and calculation of prejudgment interest. The C it y responds that the limitations period never began to run. Because we find

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No. 09-40586 a g a in s t the City on that issue, and in Hartford's favor on promissory estoppel a n d quasi-estoppel, we need not address the remaining issues.1 A . Statute of Limitations B e fo r e considering the City's defenses to Hartford's argument that its c la im s are time-barred, we must determine whether those defenses are n e c e s s a r y at all. If Williams never attained final completion of the Eagle Pointe p r o je c t, as the City asserts, the limitations period never commenced. Texas law mandates that a "governmental entity that makes a public work c o n t r a c t with a prime contractor shall require the contractor, before beginning t h e work, to execute to the governmental entity: (1) a performance bond if the c o n t r a c t is in excess of $100,000 . . . ." § 2253.021(a). This bond is "solely for the p r o t e c t io n of the state or governmental entity awarding the public work c o n t r a c t." § 2253.021(b). It is also, by statute, subject to a one-year limitations p e r io d on claims commencing from "the date of final completion, abandonment, o r termination of the public work project." TEX. GOV'T CODE § 2253.078(a). The City urges that the July 19, 2001, stipulated date of "substantial c o m p le t io n ," as used in Change Order 67, is not "final completion" and therefore d id not commence the running of the limitations period. Texas case law,

h o w e v e r , holds to the contrary. "It has been uniformly held that `substantial c o m p le t io n ' of a construction contract is regarded, in legal parlance, as `full p e r fo r m a n c e .'" Transamerica Ins. Co. v. Hous. Auth. of Victoria, 669 S.W.2d 818, 8 2 3 (Tex.App.­Corpus Christi 1984, writ ref'd n.r.e.). Further, "[i]t is well

s e t t le d that a surety on a performance bond is entitled to rely on the architect's C e r t ific a t e of Completion as the final discharge of its duty on the bond because

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Mont Belvieu does not challenge the district court's rejection of its equitable estoppel

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No. 09-40586 t h e architect is the agent and representative of the owner, and his r e p r e s e n t a t io n is the representation of the owner." Id. at 822.2 C h a n g e Order 67, which set the date of "substantial completion" as J u ly 19, 2001, was signed by the City's architect and its project manager, both a g e n t s of the City, several months after the City took occupancy of the facility. The limitations period therefore commenced on that date and concluded one year l a te r , on July 19, 2002, more than five years before the City filed its claim a g a in s t Hartford. Without some excuse, the City's claims were time-barred. B. Promissory Estoppel H a r t fo r d 's primary contention on appeal is that the evidence was legally i n s u ffic ie n t to support the jury's finding that promissory estoppel or quasie s t o p p e l excused the City's failure to file suit on its performance bond within the lim it a t io n s period. We address each defense in turn. P r o m is s o r y estoppel serves simply to "estop[] a promisor from denying the e n fo r c e a b ilit y of the promise." Wheeler v. White, 398 S.W.2d 93, 96 (Tex. 1966). U n d e r Texas law, promissory estoppel may serve as both a cause of action and, a s here, a defense to failure to fulfill a legal obligation. Rendon v. Roman C a th o lic Diocese of Amarillo, 60 S.W.3d 389, 391 (Tex.App.­Amarillo 2001, r e v ie w denied). The party asserting estoppel must prove four elements: (1) a p r o m is e (2) that the promisor should have expected would lead the promisee to s o m e definite and substantial injury, (3) that such an injury occurred, and (4 ) that injustice that may be remedied only by enforcing the promise. Nagle v. N a g le , 633 S.W.2d 796, 800 (Tex. 1982) (citing "Moore" Burger, Inc. v. Phillips P e tr o le u m Co., 492 S.W.2d 934, 937 (Tex. 1973).

Indeed, quasi-estoppel may bind the City from asserting otherwise due to the benefit it received from its settlement with Williams and, by extension, Hartford. See Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). 7

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No. 09-40586 N o t every representation, of course, constitutes a promise enforceable by t h is doctrine; rather, it is a limited exception to broader rules. "As a general r u le , the plaintiff has the full statutory period within which to bring suit. Consequently, delay in bringing suit ordinarily does not operate as an estoppel." Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162, 168 (Tex.App.­Houston 1 9 8 3 , no writ) (quoting 37 TEX.JUR.2d, Limitations of Actions, § 155). This e x c e p t io n , as applied to the timeliness of a claim, therefore encompasses a n a r r o w range of promises and promissory conduct: the "conduct or words u n d e r t a k e n by the prospective defendant must `amount[ ] to an affirmative i n d u c e m e n t to delay bringing the action.'" Rendon v. Roman Catholic Diocese o f Amarillo, 60 S.W.3d 389, 392 (Tex.App.­Amarillo 2001, writ denied) (quoting L a d d v. Knowles, 505 S.W.2d 662, 669 (Tex.Civ.App.­Amarillo 1974, writ ref'd n .r .e .)); see Dobbs v. Russell, 347 S.W.2d 796, 797 (Tex.Civ.App.­Fort Worth 1 9 6 1 ) (promissory estoppel applicable only to "promises or assurances that [the d e fe n d a n t ] will not take advantage of a statute of limitations"), aff'd, Russell v. D o b b s , 163 Tex. 282, 354 S.W.2d 373 (Tex. 1962). Thus, in Rendon, the court r e je c t e d the plaintiff's assertion of estoppel as a defense to the statute of lim it a t io n s for the reason that the representations of the defendant's a g e n t -- " t h a t no legal action . . . would be necessary" and that he "would take a c t io n to take care of the matter"--were not promises that "comprised in d u c e m e n t to delay initiation of a civil suit." Rendon, 60 S.W.3d at 392. Similarly, "the mere exchange of information between potential litigants should n o t suspend the running of the applicable limitation statute or estop a litigant fr o m asserting it as a defense" because it does not constitute a promise to waive lim it a t io n s . Phillips v. Sharpstown Gen. Hosp., 664 at 168. Thus, negotiations t o settle a claim were not promissory conduct that could establish estoppel. Id. I n the present case, the City presented evidence of three representations in support of estoppel: first, the statements in Change Order 67 that "all 8

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No. 09-40586 w a r r a n tie s will remain in force" and that "Williams Industries will pursue c o m p le t io n of remaining punch list and/or warranty items" or compensate the C it y for doing so itself; second, Hartford's March 19, 2003, letter offering to r e i m b u r s e the City for several of its claims and asserting Hartford's right to a d d r e s s warranty issues; and third, Hartford's October 2004 letter stating that it needed additional information and was "ready to proceed with the process." None of these representations, however, is legally sufficient to excuse the r u n n in g of the limitations period because none "amount[s] to an affirmative in d u c e m e n t to delay bringing the action." Rendon, supra. No provision of C h a n g e Order 67 speaks to the limitations period, and the statement that w a r r a n t ie s would "remain in force" does not purport to alter the substance of t h o s e warranties, including their ability to be enforced. The City contends that t h is clause must serve to extend the limitations period because, otherwise, H a r t fo r d 's duty on the performance bond would have expired within weeks of it r e c e iv in g the change order and payment from the City. This argument

o v e r lo o k s , however, Williams's obligations, per the terms of its contract with the C it y and the Change Order, to complete punch list and warranty items, even a ft e r the project reached substantial completion. In addition, Hartford remained lia b le to suppliers and subcontractors under the terms of the payment bond. TEX. GOV'T CODE § 2254.078(b). Further, this argument ignores the very purpose o f Change Order 67, which was to resolve dueling claims between Williams and t h e City by, inter alia, fixing the date of substantial completion and determining t h e two parties' obligations to each other under their prior agreements. The C h an g e Order does not suggest, in any way, that Hartford's collateral obligations w o u ld be altered, but merely that they would remain "in force." Finally, the C it y 's interpretation is weakened by the vagueness of the promise it asserts was m a d e . Does the waiver extend liability to post-completion issues, such as defects t o punch list work, unlike the usual performance bond? Did Hartford agree to 9

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No. 09-40586 w a iv e the limitations defense in perpetuity? If not, when did its waiver expire? That these questions remain open may be dispositive of the matter under Texas la w . Vastine v. Bank of Dallas, 808 S.W.2d 463, 464 (Tex. 1991) ("Guarantors a n d sureties are bound only by the precise terms of the contract they have s e c u r e d . . . "); Empire Steel Corp. v. Omni Steel Corp., 378 S.W.2d 905, 911 (T e x .A p p .-F o r t Worth 1964, writ ref'd n.r.e.) (where doubt and uncertainty exist a s to the meaning of a surety agreement, the interpretation favorable to the s u r e t y will be adopted). Cf. Transamerica, 669 S.W.2d at 822 (The limitations p e r io d "may be extended by the existence of an agreement to remedy defects . . . t h a t arise within a time period after the final acceptance." (emphasis added)). Estoppel may not be premised on so vague a promise, especially when it is ju x t a p o s e d against clear and unambiguous statutory text creating the li m it a t io n s period. Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141­42

(T e x .A p p .­ H o u s to n 1999, review denied); see TEX. GOV'T CODE § 2253.078(a). T h is vagueness speaks, as well, to the reasonableness of the City's reliance on the promise. Texas courts "have emphasized that `estoppel requires a

r e a s o n a b le or justified reliance on the conduct or statement of the person sought t o be estopped by the person seeking the benefits of the doctrine.'" Allied Visa, I n c ., 987 S.W.2d at 142 (Tex.App. 1999) (quoting Simpson v. MBank Dallas, N .A ., 724 S.W.2d 102, 108 (Tex.App.­Dallas 1987, writ ref'd n.r.e.)) (emphasis in original). In Allied Vista, the plaintiff relied on a promise by his former e m p lo y e r to supply him with equipment for a new recycling plant. The parties n e v e r discussed what items of equipment would be forthcoming or what specific t e r m s , such as pricing and payment, would apply. Id. at 140. The appeals court fo u n d that the promise was "too vague to support detrimental reliance" and, a c c o r d in g ly , that the plaintiff's reliance "was not reasonable or justified as a m a t t e r of law." Id. It therefore reversed a jury verdict in favor of the plaintiff.

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No. 09-40586 U n d e rm in in g the reasonableness of any reliance by the City, the purported p r o m is e in the present case is even less certain than that in Allied Vista. When c la im in g estoppel as a defense to the running of a limitations period, "[a] p la in t iff may not `blindly rel[y] upon a situation as being what it seemed rather t h a n as being what it in reality was.'" Dean v. Frank W. Neal & Assocs., Inc., 1 6 6 S.W.3d 352, 358 (Tex.App.­Fort Worth 2005, no writ) (quoting Neal v. P ic k e tt, 280 S.W. 748, 753 (Tex.Comm.App. 1926, jdgmt. adopted)). The City's d e la y must be "unmixed with any want of diligence on their part." Id. The City o f Mont Belvieu is a legally sophisticated party and, as a municipality, k n o w le d g e a b le in Texas's law of public project bonds. If the City relied upon the t e r m s of Change Order 67 to delay filing suit for years after the substantial c o m p le t io n of the Eagle Pointe project, its reliance was neither reasonable nor ju s tifie d . N o r are the letters cited by the City availing to it. Initially, neither of t h e s e letters evinces a promise by Hartford to relinquish, modify, or otherwise a ffe c t the state of limitations; as with Change Order 67, they are too vague to s u p p o r t promissory estoppel. Equally critical, promissory estoppel cannot revive a claim that has already expired at the time of the promise. Moore, 492 S.W.2d 9 3 4 , 936 (estoppel "only prevents a party from insisting upon his strict legal r ig h t s when it would be unjust to allow him to enforce them"); Sun Oil Co. (D e la w a r e ) v. Madeley, 626 S.W.2d 726, 734 (Tex. 1981) ("Estoppel . . . is a d e fe n s iv e theory. It does not create a contract right that does not otherwise e x is t ." ). Because the City is unable to establish promissory estoppel with respect t o Change Order 67, the limitations period ran well before Hartford's 2003 and 2 0 0 4 letters. These letters, and any promises they contain, are therefore

in c a p a b le of reviving the City's claims. To hold otherwise would be to eviscerate t h e statute of limitations that applies to public project bonds, to the ultimate d e t r im e n t of Texas municipalities. 11

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No. 09-40586 V ie w in g the evidence in the light most favorable to the City, it is legally in s u ffic ie n t to establish promissory estoppel. C. Quasi-Estoppel U n d e r Texas law, quasi-estoppel "precludes a party from asserting, to a n o t h e r 's disadvantage, a right inconsistent with a position previously taken. The doctrine applies when it would be unconscionable to allow a person to m a in t a in a position inconsistent with one to which he acquiesced, or from which h e accepted a benefit." Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 8 6 4 (Tex. 2000) (citations omitted). Put otherwise, it "forbids a party from a c c e p t in g the benefits of a transaction or statute and then subsequently taking a n inconsistent position to avoid corresponding obligations or effects." Atkinson G a s Co. v. Albrecht, 878 S.W.2d 236, 240 (Tex.App.­Corpus Christie 1994, writ d e n ie d ). Unlike other species of estoppel, quasi-estoppel "requires no showing of m is r e p r e s e n t a t io n or detrimental reliance." Id. It does, however, assume

d e t r im e n t and requires the inconsistency to be a cause of that detriment. Cook C o m p o s ite s , Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 136

(T e x .A p p .­ H o u s to n 2000, writ denied) (testimony of the defendant's executive w a s not a cause of the plaintiff's pre-litigation detriment); Maguire Oil Co. v. C ity of Houston, 69 S.W.3d 350, 367 (Tex.App.­Texarkana 2002, writ denied) (a p a r ty "should not be permitted to adopt an inconsistent position and thereby c a u s e loss or injury to the other"). Reliance is therefore relevant where it speaks s t r o n g ly to causation and unconscionability. Consequently, where a party

a s s e r t s quasi-estoppel as an excuse for its failure to file a claim in a timely fa s h io n , unconscionability "necessarily requires a reliance component." Douglas v . Moody Gardens, Inc., No. 14-07-00016-CV, 2007 WL 4442617, *4 (T e x .A p p .­ H o u s to n Dec. 20, 2007, no writ) (unpublished). In Douglas, when an e m p lo y e e failed to file a worker's compensation claim within the applicable time 12

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No. 09-40586 li m i t , quasi-estoppel could not lie in her employer's changed position as to w h e t h e r her injury had occurred within the course of employment. The plaintiff " h a d her own attorney to advise regarding her rights and responsibilities" under t h e law, "including the need to timely file a workers' compensation claim." Id. She was "not denied recovery for her injury based on Moody's inconsistent p o s it io n s ," but "because she elected not to timely pursue a workers' c o m p e n s a tio n claim." Id. In these circumstances, there was neither causation n o r unconscionability. Similarly, inconsistency can be determined as a matter of law. For in sta n c e , "rights expressly secured by contract" ordinarily cannot be "dissolve[d]" b y quasi-estoppel because a party may, pursuant to a contract and for legitimate r e a s o n s , have the right to assert superficially inconsistent positions at different t im e s . Neiman-Marcus Group, Inc. v. Dworkin, 919 F.2d 368, 371 (5th Cir. 1 9 9 0 ); Fasken Land & Minerals, Ltd. v. Occidental Permian Ltd., 225 S.W.3d 5 7 7 , 594 (Tex.App.­El Paso 2005, petition denied) ("We simply fail to see how a g r e e in g to the parties' contract amounts to an inconsistent position with OPL's la t e r assertion of its voting rights under that same contract . . . ."). That party c a n n o t "be equitably charged with choosing to accept benefits in a manner g e n u in e ly inconsistent with his subsequent claim." Neiman-Marcus, 919 F.2d at 3 7 1 (emphasis added). In such a case, the party has not acted to "avoid Fasken,

c o r r e s p o n d in g obligations" but merely to assert its legal rights.

2 2 5 S.W.3d at 593. Were the law otherwise, settlement negotiations would all b u t compel a finding of liability, and no contract claim could be subject to a lim it a t io n s period. Hartford's performance bond incorporated Texas statutory law, which in c lu d e s a limitations period that runs for one year following completion of the b o n d e d project. After that period, a claim is time-barred. To establish quasie s t o p p e l as a defense to that bar, a party must show a statement or conduct by 13

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No. 09-40586 t h e opposing party prior to the running of the limitations period waiving its right t o assert that bar. The City has made no such showing here. As discussed a b o v e , Change Order 67 does not speak to the limitations period or suggest any a g r e e m e n t to waive or extend it. The City presented no other evidence of r e p r e s e n t a t io n s or conduct arguably concerning the limitations period before its n a t u r a l expiration. The City concedes, in fact, that its next contact with

H a r t fo r d was its letter of October 30, 2002, complaining of Williams's failure to c o m p le t e punch list items. That communication, and others made after the lim i t a t io n s period had run, cannot establish an inconsistency regarding H a r t fo r d 's liability under the performance bond. Hartford's later assertion of its r ig h t s created no inconsistency at all, but flowed from Texas law and its contract w it h Williams. As a matter of law, the City failed to present legally sufficient evidence to s u p p o r t its defense of quasi-estoppel. IV. CONCLUSION W e are exceedingly reluctant to overturn a jury's verdict and will do so o n ly when "there is no legally sufficient evidentiary basis for a reasonable jury t o have found for the prevailing party." Johnson v. Louisiana, 369 F.3d 826, 830 (5 t h Cir. 2004). This is such a case. The City's position is simply unsupported b y Texas law. RENDERED. The judgment against Hartford is REVERSED and

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