Joyce Steel Erection, Ltd. v. Gordon Ray Bonner

Opinion

ACCEPTED 06-14-00064-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/26/2015 1:29:57 PM DEBBIE AUTREY CLERK

No. 06-14-00064-CV

FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS In The Sixth Court Of Appeals 3/26/2015 1:29:57 PM Texarkana, Texas DEBBIE AUTREY Clerk

JOYCE STEEL ERECTION, LTD., Appellant V.

GORDON RAY BONNER, Appellee

FROM THE 202ND JUDICIAL DISTRICT COURT, BOWIE COUNTY, TEXAS CAUSE NO. 11C0822-202 HONORABLE LEON F. PESEK JR., PRESIDING

APPELLANT’S OPENING BRIEF

NORTON ROSE FULBRIGHT US LLP NORTON ROSE FULBRIGHT US LLP J. Jeffery Richardson Rosemarie Kanusky State Bar No. 16864450 State Bar No. 00790999 jeff.richardson@nortonrosefulbright.com rosemarie.kanusky@nortonrosefulbright.com 2200 Ross Avenue, Suite 3600 300 Convent, Suite 2100 Dallas, Texas 78201 San Antonio, Texas 78205 Telephone: 214.855.8121 Telephone: 210.270.9362 Facsimile: 214.855.8200 Facsimile: 210.270.7205

Counsel for Joyce Steel Erection, Ltd.

ORAL ARGUMENT REQUESTED Identity of Parties and Counsel

Appellant/Defendant: Appellate Counsel:

Joyce Steel Erection, Ltd. NORTON ROSE FULBRIGHT US LLP J. Jeffery Richardson jeff.richardson@nortonrosefulbright.com 2200 Ross Avenue, Suite 3600 Dallas, Texas 78201 Telephone: 214.855.8121 Facsimile: 214.855.8200

NORTON ROSE FULBRIGHT US LLP Rosemarie Kanusky rosemarie.kanusky@nortonrosefulbright.com 300 Convent, Suite 2100 San Antonio, Texas 78205 Telephone: 210.224.5575 Facsimile: 210.270.7205

Trial Counsel:

ADKERSON, HAUDER & BEZNEY, P.C. Paul A. Bezney paul@ahblaw.net J. Kevin Kindred kevin@ahblaw.net 1700 Pacific Avenue, Ste. 4450 Dallas, Texas 75201 Telephone: 214.740.2500 Facsimile: 214.740.2501

2 Appellee/Plaintiff: Appellee’s Counsel:

Gordon Ray Bonner CLEMENTS & CLEMENTS Robert L. Clements Robert@clementslaw.com Kelly R. Clements Kelly@clementslaw.com 731 N. St. Paulus Ave. Dallas, Texas 75214 Telephone: 214.827.1122 Facsimile: 214.827.1126

MERCY CARTER TIDWELL, L.L.P John R. Mercy jmercy@texarkanalawyers.com 1724 Galleria Oaks Drve Texarkana, Texas 75503 Telephone: 903.794.9419 Facsimile: 903.794.1268

3 Table Of Contents

Identity of Parties and Counsel .................................................................................2

Table Of Contents .....................................................................................................4

Index Of Authorities .................................................................................................7

Statement Of The Case .............................................................................................9

Request For Oral Argument ....................................................................................10

Issues Presented ......................................................................................................10

1. When calculating plaintiff ’s recovery, Section 33.012 of the Texas Civil Practice and Remedies Code requires the trial court to subtract the value of the plaintiff ’s settlements from the “amount of damages to be recovered” by the plaintiff. Because this calculation starts with the “amount of damages to be recovered,” and not the “amount found by the jury,” the trial court should necessarily exclude damages attributed to a responsible third party. Did the trial court err by failing to exclude the damages attributable to the responsible third party?

2. When calculating prejudgment interest, the Texas Supreme Court requires the declining-principal formula. Did the trial court err by failing to follow this formula?

Statement Of Facts ..................................................................................................11

I. This case arises from Bonner’s construction accident. ......................11

II. The jury apportioned liability among Bonner, Joyce Crane, and a responsible third party. ....................................................................11

III. The trial court’s judgment in Bonner’s favor did not properly calculate the award. ............................................................................12

Summary Of The Argument ...................................................................................13

4 Argument.................................................................................................................14

I. Proper application of the proportionate responsibility statute requires a take-nothing judgment for Joyce Crane. ...........................14

A. The standard of review is de novo. ..........................................15

B. A responsible third party is not liable for damages. ................15

C. Section 33.012 limits Bonner’s recovery to the “amount of damages to be recovered by the claimant . ” .......................16

D. The judgment uses the “amount awarded by the jury,” not “the amount of damages to be recovered.” ........................17

E. “The amount of damages to be recovered” excludes the proportion of damages attributable to the responsible third party. ................................................................................19

II. Alternatively, the judgment should reduce prejudgment interest. .....21

A. The standard of review is de novo. ..........................................21

B. Prejudgment interest is calculated with the declining principal formula. .....................................................................22

C. The judgment does not follow the declining principal formula. ....................................................................................23

D. The declining principal formula reduces prejudgment interest to $12,769.13. ..............................................................23

E. Proper use of the formula reduces the judgment to $1,937,467.32...........................................................................26

Conclusion & Request For Specific Relief .............................................................26

Certificate Of Compliance & Service .....................................................................29

5 Appendices

Jury Charge (7CR3874-3884)

Amended Judgment (7CR4042-4043)

TEX. CIV. PRAC. & REM. CODE § 33.012

TEX. CIV. PRAC. & REM. CODE § 33.013

6 Index Of Authorities Page(s)

Cases Alvarez v. Garcia, 04-14-00142-CV, 2014 WL 6687529 (Tex. App.—San Antonio Nov. 26, 2014, no pet.).............................................21

Battaglia v. Alexander, 177 S.W.3d 893 (Tex. 2005) ..................................................................17, 22, 23

Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) ........................................................................21, 22

Dalworth Restoration, Inc. v. Rife-Marshall, 433 S.W.3d 773 (Tex. App.—Fort Worth 2014, pet. dism’d w.o.j.) ...............................................................................................21 In re M.N., 262 S.W.3d 799 (Tex. 2008) ..............................................................................15 Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998) ..............................................................................22

McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003) ..............................................................................15

Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) ..............................................................................15

Pilgrim’s Pride Corp. v. Cernat, 205 S.W.3d 110 (Tex. App.—Texarkana 2006, pet. denied) .............................16

Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003) ........................................................................16, 21

State v. Shumake, 199 S.W.3d 279 (Tex. 2006) ..............................................................................15

Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991).............................................................................15, 18

7 Utts v. Short, 03-03-00512-CV, 2004 WL 635342 (Tex. App.—Austin Apr. 1, 2004, pet. denied) ..................................................15

Valley Grande Manor v. Paredes, 13-11-00752-CV, 2013 WL 3517806 (Tex. App.—Corpus Christi July 11, 2013, pet. denied) ..............................17, 18

Rules and Statutes TEX. CIV. PRAC. & REM. CODE (Vernon 2015) § 33.001...............................................................................................................16 § 33.002...............................................................................................................16 § 33.003...............................................................................................................16 § 33.004(i) ...........................................................................................................16 § 33.004(i)(1) ......................................................................................................18 § 33.011...............................................................................................................16 § 33.012................................................................................ 10, 13, 16, 17, 18, 19 § 33.012(a) ....................................................................................................16, 20 § 33.0012(b) ..................................................................................................17, 20 § 33.013.........................................................................................................13, 18 § 33.013(a) ..........................................................................................................19

TEX. FIN. CODE (Vernon 2006) § 304.006.............................................................................................................22 § 304.102 .............................................................................................................22 § 304.103.............................................................................................................22 § 304.104.................................................................................................17, 22, 24 § 304.1045...........................................................................................................22

TEX. R. APP. P. 4.1 ...................................................................................................24

TEX. R. CIV. P. 4 .......................................................................................................24

Other Authorities Office of Consumer Credit Commissioner, Judgment Rate Summary 2014, available at www.occc.state.tx.us ............................................................22

8 Statement Of The Case

Nature Of The Case: Gordon Bonner was injured while assisting the crane lift of a large cement wall at a construction site. 5CR3276.

Trial Court Information: The Honorable Leon F. Pesek, Jr. 202nd Judicial District Court, Bowie County

Course Of Proceedings: The case was tried to a jury on a negligence theory. 7CR3878. The jury ascribed 33% fault to Bonner, 33% fault to Bonner’s employer (a responsible third party), 34% fault to Joyce Steel Erection, Ltd. (Joyce Crane), and 0% each to the two settling parties. 7CR3879. The jury awarded $7 million in damages. 7CR3880-3881.

Trial Court’s Disposition: The trial court signed a judgment against Joyce Crane, awarding Bonner over $2 million after subtracting $3.1 million in settlement credits from the jury’s award. 7CR3934-35.

Joyce Crane moved for a take-nothing judgment under Chapter 33 of the Civil Practice and Remedies Code regarding comparative fault. 7CR3959. Joyce Crane argued that the settlement credits should be subtracted from the amount recoverable, which does not include the amount attributable to the responsible third party. Id.

Alternatively, Joyce Crane asked the court to decrease court costs and to apply the declining principal calculation to prejudgment interest. 7CR3979-3985.

By amended judgment, the trial court effectively denied these motions while removing di minimus court costs that Bonner’s counsel agreed should not have been awarded. 7CR4042-43. Joyce Crane reurged its motions, which the trial court denied. 7CR4055, 4078, 4135-36. This timely appeal ensued. 7CR4147.

9 Request For Oral Argument

Joyce Crane respectfully requests oral argument to assist the Court in

applying Chapter 33 of the Texas Civil Practice and Remedies Code (comparative

responsibility, responsible third parties, and settlement credits), as well as the

calculation of prejudgment interest using the declining principal formula. The trial

court did not hear oral argument on these issues, which would benefit from

discussion.

Issues Presented

1. When calculating plaintiff ’s recovery, Section 33.012 of the Texas

Civil Practice and Remedies Code requires the trial court to subtract the value of

the plaintiff ’s settlements from the “amount of damages to be recovered” by the

plaintiff. Because this calculation starts with the “amount of damages to be

recovered,” and not the “amount found by the jury,” the trial court should

necessarily exclude damages attributed to a responsible third party. Did the trial

court err by failing to exclude the damages attributable to the responsible third

party?

2. When calculating prejudgment interest, the Texas Supreme Court

requires the declining-principal formula. Did the trial court err by failing to follow

this formula?

10 Statement Of Facts

I. This case arises from Bonner’s construction accident.

Gordon Bonner was hired by Premier Constructors to work on a building

project managed by Carothers Construction, Inc. at the Red River Army Depot.

5CR3275. Bonner was injured while helping to maneuver a concrete panel or tilt

wall that had been built by Self Concrete, Inc. and lifted by Joyce Crane.

5CR3275-76.

Bonner, who received worker’s compensation benefits from Premier, sued

Joyce Crane, Self Concrete, and Carothers Construction after sending a demand

letter. See 1CR6-10; 5CR3274-87, 3312; 7CR3952. Self Concrete and Carothers

Construction settled before trial for $3,100,000. 7CR4102-4103 (settlement dates

and amounts). Premier was designated as a responsible third party. 1CR137.

II. The jury apportioned liability among Bonner, Joyce Crane, and a responsible third party.

The jury was asked a negligence question and, based on that answer, was

further asked to apportion liability among Joyce Crane (34%), Bonner (33%), his

employer and responsible third party, Premier (33%), and both settling parties, Self

Concrete and Caruthers Construction (each 0%). 7CR3878-3879. The jury awarded

Bonner $7,000,000 in total damages, of which $3,500,000 represented past

damages. 7CR3880-3881. Additionally, Bonner and Joyce Crane had stipulated

11 prior to trial that Bonner’s past medical expenses were $358,205.52, and his past

lost wages were $147,633.29. 7CR3904.

III. The trial court’s judgment in Bonner’s favor did not properly calculate the award.

The trial court signed a judgment in Bonner’s favor against Joyce Crane, but

that award did not consider the effect of the jury’s apportionment of responsibility

against Premier. 7CR3934-3935, 3904. Nor did the judgment’s award of

prejudgment interest calculate the effect of settlement credits on accrued interest.

7CR3934-35, 3903.

Joyce Crane timely filed a combined motion for judgment notwithstanding

the verdict and for a take-nothing judgment based on the proper consideration of

proportionate responsibility when calculating the judgment amount. 7CR3957-

3966. Subject to this motion, Joyce Crane also filed a motion to amend or modify

the judgment to correctly calculate prejudgment interest and taxable court costs.

7CR3979-4016. In his response, Bonner conceded that portions of the court costs

were improper and asked the trial court to sign his proposed amended judgment.

7CR4019-4041.

Without the benefit of a requested hearing, the trial court signed Bonner’s

amended judgment. 7CR4042-4043, 4137-4145. The amended judgment

substantively denied Joyce Crane’s requested relief.

12 Joyce Crane then reurged its motions regarding proper calculation of the

judgment and prejudgment interest. 7CR4055-4076; 7CR4078-4118. By signed

orders, the trial court denied Joyce Crane’s post-judgment motions. 7CR4135-

4136. This timely appeal ensued, with Joyce Crane superseding the judgment.

7CR4119-30, 4147.

Summary Of The Argument

The correct application of settlement credits should result in a take nothing

judgment. The trial court calculated Bonner’s award by subtracting Bonner’s

percentage of responsibility and the amount of his settlements from the jury’s

award of damages (plus the stipulated damages for medical expenses and lost

wages).

Section 33.012 of the Civil Practice and Remedies Code, however, starts the

calculation from “the amount of damages to be recovered.” The “amount of

damages to be recovered” cannot include the percentage of damages attributable to

a responsible third party because responsible third parties are not, by statute, liable

for damages.

Similarly, Section 33.013 calculates a defendant’s liability from the amount

“for which the damages are allowed,” which again cannot include the percentage

of damages attributable to a responsible third party.

13 Once the percentage of damages attributable to the responsible third party

Premier is subtracted from the amount found by the jury, followed by reductions

for Bonner’s responsibility and the full settlement amounts, a negative figure

results. This negative figure supports a take-nothing judgment in Joyce Crane’s

favor. Accordingly, the Court should reverse the trial court’s judgment and render

a take-nothing judgment in Joyce Crane’s favor.

Alternatively, the judgment is fatally flawed because the trial court did not

follow Texas Supreme Court precedent and apply the declining-principle formula

to the prejudgment interest calculation. Under this formula, which operates like a

mortgage, settlement payments are credited first to accrued interest and then to

principal. Each credit then establishes a new interval for calculating prejudgment

interest.

While the trial court subtracted the settlement amounts periodically, it did

not credit them first to interest and then to principal. At a minimum, the judgment

should be modified to correct the erroneous prejudgment interest award.

Argument

I. Proper application of the proportionate responsibility statute requires a take-nothing judgment for Joyce Crane.

The judgment over calculates recoverable damages by ignoring the amount

of damages attributable to the responsible — but not liable — third party. Properly

14 applying the proportionate responsibility statute and pertinent settlement credits

yields a take-nothing judgment in favor of Joyce Crane.

A. The standard of review is de novo.

This Court reviews de novo the trial court’s construction and application of

the proportionate responsibility statute. McIntyre v. Ramirez, 109 S.W.3d 741, 745

(Tex. 2003); see also Utts v. Short, 03-03-00512-CV, 2004 WL 635342, *3 (Tex.

App.—Austin Apr. 1, 2004, pet. denied) (explaining that the standard of review

turns on whether the allocation of settlement credits involves factual questions or,

as here, statutory construction).

The Court construes every word, phrase, and expression in a statute as if it

were deliberately chosen, and presumes the words excluded from the statute are

done so purposefully. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). If the statute

is clear and unambiguous, the Court applies the words according to their common

meaning, without resorting to the rules of construction or extrinsic aids. Molinet v.

Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011); State v. Shumake, 199 S.W.3d 279,

284 (Tex. 2006).

B. A responsible third party is not liable for damages.

“Merely because actual damages are established by the jury does not

necessarily mean that the plaintiff may recover them.” Stewart Title Guar. Co. v.

Sterling, 822 S.W.2d 1, 9 (Tex. 1991). Recovery in tort cases, for example, is

15 governed by the proportionate responsibility statute. TEX. CIV. PRAC. & REM. CODE

§ 33.002.

Under this statute, the trier of fact determines the percentage of

responsibility for each claimant or plaintiff, each defendant, each settling person,

and each responsible third party “causing or contributing to cause in any way the

harm for which recovery of damages is sought.” Id. § 33.003; see also id. § 33.011

(defining “claimant” and other terms). The responsible third party, however, is not

subject to liability, even if the trier of fact assigns responsibility to it. Id.

§ 33.004(i).

C. Section 33.012 limits Bonner’s recovery to the “amount of damages to be recovered by the claimant . ”

If the jury attributes 50% or more of responsibility to the claimant, than the

claimant cannot recover any damages. TEX. CIV. PRAC. & REM. CODE § 33.001. If

the claimant’s responsibility is less than 50%, the claimant’s recovery is still

limited by the terms of Section 33.012 of the proportionate responsibility statute.

Roberts v. Williamson, 111 S.W.3d 113, 123 (Tex. 2003); Pilgrim’s Pride Corp. v.

Cernat, 205 S.W.3d 110, 118 & n.6 (Tex. App.—Texarkana 2006, pet. denied).

If the claimant’s percentage of liability is 50% or less, then the court must

reduce the “amount of damages to be recovered by the claimant ” by a percentage

equal to the claimant’s percentage of responsibility. Id. § 33.012(a) (emphasis

added). If the claimant settled with one or more persons, the court must further

16 reduce “the amount of damages to be recovered by the claimant” by the amount of

all settlements. Id. § 33.0012(b). The “amount of damages to be recovered by the

claimant” also includes prejudgment interest, discussed in more detail below. TEX.

FIN. CODE § 304.104; Battaglia v. Alexander, 177 S.W.3d 893, 908 (Tex. 2005).

D. The judgment uses the “amount awarded by the jury,” not “the amount of damages to be recovered.”

In calculating the amount of the judgment, the trial court started with the

total verdict of $7,000,000, to which stipulated damages and prejudgment interest

were added before making any deductions for both Bonner’s proportionate

responsibility and his settlements. 7CR3904. But Section 33.012 mandates a

calculation that starts with the “amount of damages to be recovered by the

claimant.” The starting point is not “damages found by the jury.”

“Damages found by the jury” are not necessarily the same as the “amount of

damages to be recovered.” For example, in Valley Grande Manor v. Paredes,

13-11-00752-CV, 2013 WL 3517806, *1 (Tex. App.—Corpus Christi July 11,

2013, pet. denied), the verdict was $275,000. Before applying a $10,000 settlement

credit, the trial court first reduced the jury award to $250,000 under the statutory

cap for health care liability claims. Id. The trial court then reduced that capped

amount by the $10,000 settlement credit. Id. Importantly, the trial court applied the

$10,000 settlement credit against $250,000 as the “amount of damages to be

17 recovered by the claimant” and not against $275,000 in “damages found by the

jury.” See id.

This result is consistent with Stewart Title Guar. Co. v. Sterling, 822 S.W.2d

1, 4 (Tex. 1991). There, the jury awarded $200,000 in actual damages for

defendant’s knowing violation of the Insurance Code, which triggers treble

damages. Id. The defendant argued that a $400,000 settlement credit should be

applied before trebling. Id. at 8. The Court applied the settlement credit after the

damages were trebled because the Insurance Code provides for the trebling of

“actual damages,” not for the trebling of “recoverable damages.” Id. at 9.

Under the plain and unambiguous language of Section 33.012, any

reductions for the claimant’s proportionate responsibility or settlements is made to

the amount of “damages to be recovered” not the amount of “damages sought” or

the “damages found by the jury.” Because the equally unambiguous

Section 33.004(i)(1) precludes liability against a responsible third party, the

amount of damages caused by the responsible third party are never “damages to be

recovered by the claimant” under Section 33.012. The words of the proportionate

responsibility statute were deliberately chosen and must mean what they say.

Consistent with Section 33.012, Section 33.013 limits a defendant’s liability

“only for the percentage of the defendant’s liability found by the trier of fact equal

to that defendant’s percentage of responsibility … for which the damages are

18 allowed.” TEX. CIV. PRAC. & REM. CODE § 33.013(a) (emphasis added). The plain

and unambiguous language does not mention damages “sought to be recovered” or

the “damages found by the jury.”

Because the jury’s finding against a responsible third party does not

establish liability for the damages caused by the responsible third party, such

damages are not allowed and are not included in determining another defendant’s

liability to pay money damages.

E. “The amount of damages to be recovered” excludes the proportion of damages attributable to the responsible third party.

Because the starting point is “the amount of damages to be recovered by the

claimant,” that figure cannot include the 33% of damages attributed to responsible

third party Premier, particularly when Joyce Crane is not jointly and severally

liable. Premier’s portion of the jury’s award and stipulated damages, plus

prejudgment interest (which Bonner lead the Court to miscalculate) is

$2,680,792.04 ($8,123,612.24 x 33%).

Ignoring for the moment the Court’s error in the calculation of prejudgment

interest, which is addressed in the second issue in this appeal, the “amount of

damages to be recovered by the claimant” for purposes of Section 33.012 (after

subtracting the responsible third party’s portion of the jury award) should be

$5,442,820.20 ($8,123,612.24 - $2,680,792.04).

19 This $5,442,820.20 in “damages to be recovered” by Bonner is first reduced

“by a percentage equal to the claimant’s percentage of responsibility.” TEX. CIV.

PRAC. & REM. CODE § 33.012(a). To make this reduction properly, Bonner’s

percentage of responsibility must be recalculated to maintain the same proportion

to the whole as existed before the responsible third party’s portion was removed.

Since the “damages to be recovered” are 67% of the “damages found by the jury,”

Bonner and Joyce Crane share responsibility for that 67% of the jury’s award.

Bonner’s percentage of responsibility for the “damages to be recovered”

would therefore be 33/67 (his 33% proportionate responsibility divided by the 67%

for which damages may be recovered) or .492537. (Joyce Crane’s share of the 67%

for which damages may be recovered would likewise be 34/67.)

Applying the 33/67 percentage (as “claimant’s percentage of responsibility”)

to the $5,442,820.20 “damages to be recovered,” the trial court was required to

reduce the $5,442,820.20 by $2,680,790.33 ($5,442,820.20 x .492537). TEX. CIV.

PRAC. & REM. CODE § 33.012(a). After this reduction, for claimant’s percentage of

responsibility, the “damages to be recovered by the claimant” becomes

$2,762,029.87 ($5,442,820.20 - $2,680,790.33).

This $2,762,029.87 figure is then reduced by the sum of all settlements

under Section 33.012(b). The total of the settlements here is $3,100,000.

7CR4103. Because the settlement amounts are greater than the reduced “amount of

20 damages to be recovered” by Bonner, there is no recovery for Bonner. See Roberts,

111 S.W.3d at 123 n.7 (“[A] defendant may incidentally benefit from a claimant’s

favorable settlement with others.”); Dalworth Restoration, Inc. v. Rife-Marshall,

433 S.W.3d 773, 781 (Tex. App.—Fort Worth 2014, pet. dism’d w.o.j.) (“When

the settlement-credit amount exceeds the plaintiff’s recovery against the

nonsettling defendant, the court must enter a take-nothing judgment.”).

As a matter of statutory construction and mathematical calculation, Joyce

Crane is entitled to judgment that Bonner take nothing. Accordingly, this Court

should reverse and render judgment in Joyce Crane’s favor.

II. Alternatively, the judgment should reduce prejudgment interest.

As an alternative to rendering judgment in Joyce Crane’s favor, this Court

should modify the judgment to correct the award of prejudgment interest.

The calculation of prejudgment interest is a question of law this Court

reviews de novo. See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 815-

16 (Tex. 2006); Alvarez v. Garcia, 04-14-00142-CV, 2014 WL 6687529, *1 (Tex.

App.—San Antonio Nov. 26, 2014, no pet.) (applying prejudgment interest to a

healthcare liability claim involving a percentage of settlements equal to the jury’s

liability finding rather than the dollar-for-dollar credit at issue here). Essentially,

the court makes the calculation the trial court should have made. See id.

21 B. Prejudgment interest is calculated with the declining principal formula.

Prejudgment interest is “compensation allowed by law as additional

damages for lost use of the money due as damages during the lapse of time

between the accrual of the claim and the date of judgment.” Battaglia, 177 S.W.3d

at 907. Texas law has two sources for the award of prejudgment interest: general

principles of equity and an enabling statute. Johnson & Higgins of Tex., Inc. v.

Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998).

Because this case involves personal injury, prejudgment interest accrues by

statute on past damages “during the period beginning on the earlier of the 180th

day after the date the defendant receives written notice of a claim or the date the

suit is filed and ending on the day preceding the date judgment is rendered.” TEX.

FIN. CODE. § 304.104; see also id. § 304.102, § 304.1045.

Unlike post-judgment interest, prejudgment interest is computed as simple

interest. Compare id. § 304.006 with id. § 304.104. The prejudgment interest rate,

however, is the same as post-judgment interest, which has been 5% since 2009. Id.

§ 304.103; see also Office of Consumer Credit Commissioner, Judgment Rate

Summary 2014, available at www.occc.state.tx.us.

To satisfy the purpose of prejudgment interest as compensation for lost use,

settlements must be considered, and credited periodically, in the calculation of

prejudgment interest. Brainard, 216 S.W.3d at 816 (applying the holding and

22 reasoning in Battaglia v. Alexander, 177 S.W.3d 893, 907-08 (Tex. 2005)). The

proper method of calculating prejudgment interest is called the declining principal

formula, which is similar to the method of paying mortgages. Id.

Under the declining principal formula, “[a] settlement payment should be

credited first to accrued prejudgment interest as of the date the settlement

payment was made, then to ‘principal,’ thereby reducing or perhaps eliminating

prejudgment interest from that point in time forward.” Id. (emphasis added). Thus,

each credit applies first to the accrued interest and then to the principal, with each

credit establishing a new interval. Id. At each new interval, interest continues to

accrue only on the remaining principal. Id.

C. The judgment does not follow the declining principal formula.

Here, the judgment applied a periodic credit for settlements received to

reduce the amount of principal in each interval, but the judgment failed to first

credit each settlement against accrued prejudgment interest, as expressly directed

by the Texas Supreme Court. See 7CR3903 (calculation for the initial judgment);

7CR4040 (calculation for the amended judgment). That mistake grossly overstates

the amount of prejudgment by more than $600,000.

D. The declining principal formula reduces prejudgment interest to $12,769.13.

Using the declining principal formula and beginning with $4,005,838.81 as

the initial principal (which Bonner erroneously asserts without considering the

23 effect of the responsible third party, as explained above (7CR3903)), prejudgment

interest totals only $12,769.13, rather than $621,744.31 alleged by Bonner and

included in the amended final judgment. 7CR4040-4042.

The calculation on the next page reflects the following factors relevant to

this Court’s de novo application of the declining principal formula:

 On July 10, 2010, before filing suit, Bonner sent Joyce Crane a demand letter, and 180 days thereafter was January 16, 2011, the start date for calculating prejudgment interest. 1CR6; 7CR3952; see also TEX. FIN. CODE. § 304.104.

 There were 1020 days from January 16, 2011 to Bonner’s receipt of the $1,000,000 settlement from Self Concrete on November 1, 2013. 7CR3955-56, 4102 (settlement dates); 7CR4103 (settlement amounts).

 There were 128 days from November 2, 2013 (so as not to double count November 1) to Bonner’s receipt of $2,100,000 in settlement from Caruther’s Construction on March 10, 2014. Id.

 There were 61 days from March 11, 2014 (so as not to double count March 10) to the day before the amended judgment was signed on May 12, 2014 (that is, May 11). See TEX. FIN. CODE. § 304.104.

 The first day of an interval was not included in computing the period, although the last day was included. TEX. R. CIV. P. 4; TEX. R. APP. P. 4.1.

 Calculations were limited to two decimal places throughout.

24 Explanation/Calculation Interest Principal First Interval Bonner’s calculation of total past damages: $4,005,838.81 $3,500,000 + $358,205.52 + $147,633.29 = Determine the amount of interest accruing on $559,725.00 total damages for 1020 days before the settlement with Self Concrete: $4,005,838.81 x .05 = $200,291.94 $200,291.94 ÷ 365 = $548.75 daily rate $548.75 x 1020 = $559,725.00 Apply the settlement with Self Concrete first to -$559,725.00 -$440,275.00 accrued interest, and remainder to principal: $1,000,000.00 - $559,725.00 = $440,275.00 Recalculate interest and principal balance: 0 $3,565,563.81 $4,005,838.81 - $440,275.00 = $3,565,563.81 Second Interval Determine the amount of interest accruing on $62,519.04 new principal for 128 days before the settlement with Caruthers Construction: $3,565,563.81 x .05 = $178,278.19 $178,278.19 ÷ 365 = $488.43 daily rate $488.43 x 128 = $62,519.04 Apply the settlement with Caruthers -$62,519.04 -$2,037.480.96 Construction first to accrued interest, and remainder to principal: $2,100,000 - $62,519.04 = $2,037,480.96 Recalculate interest and principal balance: 0 $1,528,082.85 $3,565,563.81 - $2,037,480.96 = $1,528,082.85 Third Interval Determine the amount of interest accruing on $12,769.13 new principal for 61 days until the day before the amended judgment was signed: $1,528,082.85 x .05 = $76,404.14 $76,404.14 ÷ 365 = $209.33 daily rate $209.33 x 61 = $12,769.13 Prejudgment interest to include in the judgment: $12,769.13

25 E. Proper use of the formula reduces the judgment to $1,937,467.32.

When the correct amount of prejudgment interest is applied to Bonner’s

calculation of the damage award, the total damage award (with prejudgment

interest) is reduced from $2,345,480.69 to $1,937,467.32:

Jury verdict plus stipulated damages: $7,000,000 + $358,205.52 + $147,633.29 = $7,505,838.81 Add prejudgment interest pursuant to declining principal +$ 12,769.13 formula (calculated on the prior page): Amount to which CPRC § 33.012 is applied: $7,518,607.94 Subtract Bonner’s 33% fault: -$2,481,140.62 $7,518,607.94 x .33 = $2,481,140.62 Subtotal: $5,037,467.32 Subtract total settlements: -$3,100,000.00 Net judgment amount applying declining principal formula: $1,937,467.32 Amount of erroneous amended judgment (7CR4042): $2,345,480.69

At minimum, the judgment should be modified to correct the erroneous

calculation of prejudgment interest. The modified judgment would award only

$1,937,467.32.

CONCLUSION & REQUEST FOR SPECIFIC RELIEF

For all the foregoing reasons, Joyce Crane respectfully prays that the Court

reverse the judgment of the trial court and render judgment that plaintiff Bonner

take nothing by his lawsuit because properly applying the jury’s proportionate

responsibility findings and applicable settlement credits eliminate Joyce Crane’s

liability. Additionally, Joyce Crane asks the Court to award it court costs and

26 release its surety Great American Ins. Co. for any obligations under Bond

No. 20500 and to further release its surety Westchester Fire Ins. Co. from any

obligations under Bond No. K08980354.

Alternatively and without waiver or prejudice to Joyce Crane’s right to seek

further review, Joyce Crane prays that the Court reverse the prejudgment interest

award and modify the judgment to reflect a proper calculation of prejudgment

interest. Joyce Crane specifically disclaims any request for new trial relief. In the

event of modification, Joyce Crane asks the Court to award it appellate court costs

and release its surety Great American Ins. Co. for any obligations under Bond

No. 20500 and to further release its surety Westchester Fire Ins. Co. from any

Joyce Crane also prays for all other relief to which it may be entitled.

Respectfully submitted,

NORTON ROSE FULBRIGHT US LLP

By: /s/ Rosemarie Kanusky Rosemarie Kanusky State Bar No. 00790999 rosemarie.kanusky@nortonrosefulbright.com 300 Convent, Suite 2100 San Antonio, Texas 78205 Telephone: 210.224.5575 Telecopier: 210.270.7205

and

27 NORTON ROSE FULBRIGHT US LLP J. Jeffery Richardson Jeff.Richardson@Nortonrosefulbright.com 2200 Ross Avenue, Suite 3600 Dallas, Texas 78201 Telephone: 214.855.8121 Facsimile: 214.855.8200

Counsel for Appellant, Joyce Steel Election, Ltd.

28 Certificate Of Compliance & Service

I certify that this brief complies with type-face and type-volume

requirements. The document contains 3,991 words in total.

I certify that a copy of this brief was emailed to the following:

Robert L. Clements John R. Mercy Robert@clementslaw.com jmercy@texarkanalawyers.com Kelly R. Clements MERCY CARTER TIDWELL, L.L.P Kelly@clementslaw.com 1724 Galleria Oaks Drive CLEMENTS & CLEMENTS Texarkana, Texas 75503 731 N. St. Paulus Ave. Counsel for Appellee, Dallas, Texas 78214 Gordon Ray Bonner Counsel for Appellee, Gordon Ray Bonner

Paul A. Bezney paul@ahblaw.net J. Kevin Kindred kevin@ahblaw.net Adkerson, hauder & Bezney, p.c. 1700 Pacific Avenue, Ste. 4450 Dallas, Texas 75201 Counsel for Appellant, Joyce Steel Election, Ltd. /s/ Rosemarie Kanusky March 26, 2015 41544615

29 - , '

CAUSE NO. 11C0822-202 - r-- DR i1 ECrJ '~. _ -

GORDON RAY BONNER. § IN THE DISTRICT ~pjf;f{,P. -3 PM 4: 27 Plaintiff § ~ ;-;:;1 J ·-; ;:,·-v § '~TRICTfliEKi\ BOWl~ r.o rc VS. § 202"u JUDICIA0 I (Ill\ J-l1, rr /T~I l11 n~purv § JOYCE STEEL ERECTION, LTD. § f'\ ' tJ 1'1..111 • v ~ '

Defendant. § BOWIE COUNTY,\] E" As

CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JURY:

After the closmg arguments, you will go to the jury room to decide the case, answer the

questions that are attached, and reach a verdict. You may discuss the case with other jurors only

when you are all together in the jury room.

Remember my previous inshuctions. Do not discuss tlie case with anyone else, eittJ.er in

person or by any other means. Do not do any independent investigation about the case or conduct

any research. Do not look UJl any words in dictionaries or on the Internet Do not post

information 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

oeh5eraflons for any reason.

This case is submitted to you by asking questions about the facts, which you must decide

from the evidence you have heard in this trial. You are the sole judges of the credibility of the

witnesses and the weight to be given their testimony, but in matters of lffi>v, you llltlst be

governed by the instructions in this charge. In discharging your responsibility on this jury, you

will observe all the instructions which have previously been given you. I shall now give you

additional instructions which you should carefully and strictly follow during your deliberations.

CHARGE OF THE COURT PAGE I 3874 --

I. Do not let bias, prejudice, or sympathy play any part in your deliberations.

2. In arriving at your answers, consider only the evidence introduced here under oath and

such exhrbrts, If any, as have been mtroduced for your consideration under the rulings of the

Court, that is, what you have seen and heard in this courtroom, together with the law as given

you by the Court. In your deliberations, you will not consider or discuss anything that is not

reptesented by the evidence in this case.

3. Since every answer that is required by the charge is important, no juror should state or

consider that any reguired answer is not imnortant.

4. You must not decide who you think should win and then try to answer the questions

according! y. Simply answer the questions, and do not discuss nor concern yourselves with the

effect of your answers.

5. You will not decide the answer to a question by lot or by drawing straws, or by any other

method of chance.

6. Some questions might ask you for a dollru runount. Do not agree in advrurce tu decide on

a dollar amount by adding up each juror's amount and then figuring the average.

7. Do not do an;r trading on ;tour answers; that is, one juror should not agree to answer a

certain question one way if others agree to answer another question another way.

8. Unless instructed otherwise, you may render your verdict upon the vote of ten or more

members of the j rn y. "fhe same ten or more of you mast agree upon all of the answers made ana

to the entire verdict. You will not, therefore, enter into an agreement to be bound by a majority

or any other vote of less than ten jurors. If the verdict and all of the answers therein are reached

b~' unanimous agreement, the presiding jumt shall sign th.: >c.:tdi.:t fut- th.: .:ntif<: jllfj'. 1:1' aJJy

CHARGE OF THE COURT PAGE2 3875 juror disagrees as to any answer made by the verdict, those jurors who agree to all findings shall

each sign the verdict.

9. Ihese mstructwns are given you because your conduct is subject to review the same as

that of the witnesses, parties, attorneys, and the judge. If it should be found that you have

disregarded any of these instructions, it will be jury misconduct and it may require another trial

by anothet jmy, then all of om time will have been wasted.

10. The presiding juror or any other who observes a violation of the Court's instructions shall

immediately warn the one who is violating the same and caution the juror not to do so again

II. When words are used in this charge in a sense which varies from the meaning commonly

understood, you are given a proper legal definition, which you are bound to accept in place of

any o er meanmg.

12. Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer

must be based on a preponderance of the evidence unless you are told otherwise. Whenever a

question requires an answer other than "yes" or "no," yow answer rnust be based on a

preponderance of the evidence unless you are told otherwise. If you do not find that a

preponderance of the evidence supports a "Yes" answer, then answer "No".

13. 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

CHARGE OF THE COURT PAGE3 3876 --

I. JURY DEFINITIONS

"Negligence,'" means the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that wnicn a person of oriimary pruoence wouiG not nave aone unoer tfie same or stmtlar ctrcumstances.

"Ordinary care," means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.

"~roximate cause" means a cause that was a substantia] factor in bringing abo11t an ellent, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

CHARGE OF THE COURT PAGE4 3877 II. JURY QUESTIONS

Question No.1

Bid the negligence, if any, of those named below proximately cause the occurrence m

Answer "Yes" or "No" for each of the following:

I. Joyce Steel Erection, Ltd feS 2. Gordon Bonner Y~"',2_

3. Carothers Construction, Inc. ,()o

4. Self Cone1ete, Inc. 11/o

5. Premier Constructors I Ye-S

CHARGE OF THE COURT PAGES 3878 Question No. 2

If you have answered "Yes" to Question No. I for more than one of those named below, then answer the following question. Otherwise, do not answer the following question.

Assign pereentages of negligence only to those you fomrd caused or contributed to cause the occurrence. The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The percentage of negligence attributable to any one is not necessarily measured by the number of acts or omissions found. The percentage attributable to a {Jerson need not be the same Jlercentage attributed to that verson in answering another question

For each person you found caused or contributed to cause the occurrence, find the percentage of negligence attributable to each:

I. Joyce Steel Erection, Ltd 3'1 %

7 r.. -~ ~ ")"2., 0/~

3. Carothers Construction, Inc. 0 %

4. Self Concrete, Inc. cJ %

5. Premier Constructors 3) %

Total 100 %

CHARGE OF THE COURT PAGE6 3879 Answer Question No. 3 if you answered "Yes" for Joyce Steel Erection, Ltd to Question No. I and answered:

I. "No" for Gordon Bonner to Question No. I or

2. 50 pet cent ot less for Gordon Bonner to Question No. 2

Otherwise, do not answer Question No.3.

Question No.3

What sum of money, if paid now in cash, would fairly and reasonably compensate Gordon Bonner for his injuries, if any, that resulted from the occurrence in question?

Do not include an¥ amount for anJ' condition resulting fl"gm th0 failm~J, if any, ef Gefden Bonner to have acted as a person of ordinary prudence would have done under the same or similar circumstances in caring for and treating his injuries, if any, that resulted from the occurrence in question.

Gensider the elements of damages listed below and nmre other. eonsider each element sepru at ely . Do not awrud any sum of money on any element tf you have otherwtse, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not including interest on any amount of damages you find. Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts if any, m your answers because of the negligence of, if any, of Gordon Bonner. Anx recover will be determined by the court when it applies the law to your answers at the time of judgment.

a. Physical pain and mental anguish sustained in the past.

Amwer ~ ,l,ee.lil.t()()a ~ ' b. Physical pain and mental anguish that, in reasonable probability, Gordon Bonner will sustain in the future. DSJ.- Answer: ~ } 1000 ( (}()0

c. Loss of earning capacity that, in reasonable probability, Gordon Bonner will sustain th . f, .

Answer: ..f/-5oo 000 1

CHARGEOFTHECOURT PAGE7 3880 ----

..

d. Disfigurement sustained in the past.

Answer:$} ,11 tJCJ(JI tl:k:J (/;!2--

e. Disfigurement that, m reasonal:ile prol:ial:iihty, Gori:lon Bonner will sustain in the future.

Answer: fii f. Phy sieal impait mcnt sustained in the past.

AnswerJ/J. 5oo t 00 CJ

g. Ph)'sical impairment that, in reasonable prohahilit}', Gordon Bonner :wi11 sustain in the future.

Answer: (J' h. Mediciil care expenses that, m reasonable medical probability, Gordon Bonner will incur in the future.

Answer: /J2 OO() l O()J 1

CHARGEOFTHECOURT PAGES

3881 ..

III. PRESIDING JUROR INSTRUCTIONS

After you retire to the jury room, you will select your own presiding juror. The first thing

the prt:siding juror will do is have rhis complete charge reao alouo ana tfien you Will a:eh5erate

upon your answers to the questions asked.

It is the duty of the presiding juror:

1. To preside during your deliberations;

2. To see that your deliberations are conducted Ill an orderly marmer and Ill accordance with the instructions in this charge:

3. To write ouf ano llano fo tile Bmhff any commumcatwns concemmg tlie case !Fiat you desrre to nave delivered to tlie judge;

4. To vote on the questions;

5. To write your answers to the guestions in the space 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 the verdict is less than unanimous.

When you have answered all the questions you are required to answer under tire

instructions of the judge and your presiding juror has placed your answers in the spaces provided

and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at

the door of the jmy room that you have reached a verdict, and then yon will return into the court

with your verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

CHARGE OF THE COURT PAGE9 3882 .,

IV. INSTRUCTIONS FOR SIGNING THE VERDICT CERTIFICATE

I. Unless you are instructed otherwise, you must answer the questions on a vote of

ten jarms. 'fhe same ten jmms mast agrt:e on every answer in the cl!arge. Tl!is means you may

not have one group of ten jurors agree on one answer and a different group of ten jurors agree on

another answer.

2. If ten jw-ors agf€€ on €Y€1')' answ€r, those ten jurors sign the verdict. If eleven

jurors agree on every answer, those eleven jurors sign the verdict. If all twelve of you agree on

every answer, you are unanimous and only the presiding juror signs the verdict.

3. All jurors should deliberate on every question. You may end up with all twelve of

you agreeing on some answers, while only ten or eleven of you agree on other answers. But

when yon sign the verdict, only those ten who agree on every answer will sign tire verdict.

Do you understand these instructions? If you do not, please tell me now.

/ ,;1 \., u'l /1

~f~~ i~

CHARGEOFTHECOURT PAGEIO 3883 .. . ~

V. VERDICT CERTIFICATE FOR QUESTIONS 1-3

Check one:

Our verdict IS unammous as to Question No. I through No. 3. All twelve of us have agreed to each and every answer. The presiding juror has signed the certificate for all twelve of us.

_ _ Our verdict is not unanimous as to Question No. I through No. 3. Eleven of us have agreed to each and every answer and have signed the certificate below.

/Our verdict is not unanimous as to Question No. I through No. 3. Ten of us have agreed to each and every answer and have signed the certificate below

Signature Printed Name 1/,

C::::· ~\ ·" _.,.\\

.r rlriOH t1 I 01 kn. r --= 1 I v v (~ /V[Ql \.()

F , f. //"'Y 0 if. r?f'1. LJo / ~ /)// I I

9. K .o. '\>~

CHARGE OF THE COURT PAGE II

3884 NO. II C0822-202

GORDON RAY BONNER, ) Plaintiff ) ) VS. ~ ) JOYCE STEEL ERECTION, LTD. Defendant. ) BOWIE COUNTY. TEXAS

AMENDED FINAL JUDGMENT

On March 24, 2014 this case was called for trial. Plaintitl~ GORDON RAY BONNER,

appeared in per~on and announced ready for trial Defendant lOYCE STEEl ER FCTJON I TD

appeared in person and announced ready for trial.

After a jury was impaneled and sworn it heard the evidence and arguments of counsel. 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 findings are attached as Exhibit '·A"' and

incorporated by reference. Plaintiff filed a motion fm judgment on the ve1dict. This com t signed a

final judgment on April II, 2014. This judgment amends that judgment.

The Court hereby renders judgment for Plaintiff.

I. Aeeorclingly, the Court orders tliat Plaintiff reeover the following from Defendant:

a) Actual damages in the amount of $2,345,480.69, which includes

prejudgment interest on the actual damages awarded at the rate of five

percent (5%) from January 16,2011 until the date of this judgment,

a deduction for Plaintiffs 33% negligence, and credit for Plaintiffs

settlement u;jtb other Defendants·

b) Court costs in the amount of$67,574.23;

4042 c) Post-judgment interest on all of the above at the rate of five percent

(5%), compounded annually, from the date this judgment is entered

until all amounts are paid in full.

2. This judgment finally disposes of all claims and all parties, and is appealable.

3. The Court orders execution to issue for this judgment.

SIGNED on May /Z. '2014

District Court

Amended Final Judgment- Page 2

4043 § 33.012. Amount of Recovery, TX CIV PRAC & REM § 33.012

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos) Title 2. Trial, Judgment, and Appeal Subtitle C. Judgments Chapter 33. Proportionate Responsibility (Refs & Annos) Subchapter B. Contribution

V.T.C.A., Civil Practice & Remedies Code § 33.012

§ 33.012. Amount of Recovery

Effective: September 1, 2005 Currentness

(a) If the claimant is not barred from recovery under Section 33.001, the court shall reduce the amount of damages to be recovered by the claimant with respect to a cause of action by a percentage equal to the claimant's percentage of responsibility.

(b) If the claimant has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by the sum of the dollar amounts of all settlements.

(c) Notwithstanding Subsection (b), if the claimant in a health care liability claim filed under Chapter 74 has settled with one or more persons, the court shall further reduce the amount of damages to be recovered by the claimant with respect to a cause of action by an amount equal to one of the following, as elected by the defendant:

(1) the sum of the dollar amounts of all settlements; or

(2) a percentage equal to each settling person's percentage of responsibility as found by the trier of fact.

(d) An election made under Subsection (c) shall be made by any defendant filing a written election before the issues of the action are submitted to the trier of fact and when made, shall be binding on all defendants. If no defendant makes this election or if conflicting elections are made, all defendants are considered to have elected Subsection (c)(1).

(e) This section shall not apply to benefits paid by or on behalf of an employer to an employee pursuant to workers' compensation insurance coverage, as defined in Section 401.011(44), Labor Code, in effect at the time of the act, event, or occurrence made the basis of claimant's suit.

Credits Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.08, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, § 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, §§ 4.06, 4.10(4), eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 277, § 1, eff. June 9, 2005; Acts 2005, 79th Leg., ch. 728, § 23.001(6), eff. Sept. 1, 2005.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 33.012. Amount of Recovery, TX CIV PRAC & REM § 33.012

Notes of Decisions (134)

V. T. C. A., Civil Practice & Remedies Code § 33.012, TX CIV PRAC & REM § 33.012 Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 33.013. Amount of Liability, TX CIV PRAC & REM § 33.013

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos) Title 2. Trial, Judgment, and Appeal Subtitle C. Judgments Chapter 33. Proportionate Responsibility (Refs & Annos) Subchapter B. Contribution

V.T.C.A., Civil Practice & Remedies Code § 33.013

§ 33.013. Amount of Liability

Effective: September 1, 2007 Currentness

(a) Except as provided in Subsection (b), a liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant's percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed.

(b) Notwithstanding Subsection (a), each liable defendant is, in addition to his liability under Subsection (a), jointly and severally liable for the damages recoverable by the claimant under Section 33.012 with respect to a cause of action if:

(1) the percentage of responsibility attributed to the defendant with respect to a cause of action is greater than 50 percent; or

(2) the defendant, with the specific intent to do harm to others, acted in concert with another person to engage in the conduct described in the following provisions of the Penal Code and in so doing proximately caused the damages legally recoverable by the claimant:

(A) Section 19.02 (murder);

(B) Section 19.03 (capital murder);

(C) Section 20.04 (aggravated kidnapping);

(D) Section 22.02 (aggravated assault);

(E) Section 22.011 (sexual assault);

(F) Section 22.021 (aggravated sexual assault);

(G) Section 22.04 (injury to a child, elderly individual, or disabled individual);

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 33.013. Amount of Liability, TX CIV PRAC & REM § 33.013

(H) Section 32.21 (forgery);

(I) Section 32.43 (commercial bribery);

(J) Section 32.45 (misapplication of fiduciary property or property of financial institution);

(K) Section 32.46 (securing execution of document by deception);

(L) Section 32.47 (fraudulent destruction, removal, or concealment of writing);

(M) conduct described in Chapter 31 the punishment level for which is a felony of the third degree or higher; or

(N) Section 21.02 (continuous sexual abuse of young child or children).

(c) Repealed by Acts 2003, 78th Leg., ch. 204, § 4.10(5).

(d) This section does not create a cause of action.

(e) Notwithstanding anything to the contrary stated in the provisions of the Penal Code listed in Subsection (b)(2), that subsection applies only if the claimant proves the defendant acted or failed to act with specific intent to do harm. A defendant acts with specific intent to do harm with respect to the nature of the defendant's conduct and the result of the person's conduct when it is the person's conscious effort or desire to engage in the conduct for the purpose of doing substantial harm to others.

(f) The jury may not be made aware through voir dire, introduction into evidence, instruction, or any other means that the conduct to which Subsection (b)(2) refers is defined by the Penal Code.

Credits Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.09, eff. Sept. 2, 1987; Acts 1995, 74th Leg., ch. 136, § 1, eff. Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, §§ 4.07, 4.10(5), eff. Sept. 1, 2003; Acts 2007, 80th Leg., ch. 593, § 3.02, eff. Sept. 1, 2007.

Notes of Decisions (56)

V. T. C. A., Civil Practice & Remedies Code § 33.013, TX CIV PRAC & REM § 33.013 Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2