ACCEPTED 06-14-00064-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 4/27/2015 3:24:45 PM DEBBIE AUTREY CLERK
NO. 06-14-00064-CV FILED IN IN THE COURT OF APPEALS FOR THE6th COURT OF APPEALS TEXARKANA, TEXAS SIXTH DISTRICT OF TEXAS 4/27/2015 3:24:45 PM DEBBIE AUTREY AT TEXARKANA Clerk
JOYCE STEEL ERECTION, LTD. APPELLANT
VS.
GORDON RAY BONNER APPELLEE
Appeal from the District Court of Bowie County, Texas 202nd Judicial District, Honorable Leon Pesek, Jr. Presiding
BRIEF OF APPELLEE
John R. Mercy Kelly Clements Texas State Bar No. 13947200 Texas State Bar No. 17098500 MERCY p CARTER p TIDWELL, L.L.P. Robert Clements 1724 Galleria Oaks Drive Texas State Bar No. 00789785 Texarkana, TX 75503 CLEMENTS & CLEMENTS Telephone: (903) 794-9419 731 N. Paulus Facsimile: (903) 794-1268 Dallas, TX 75214 E-mail: jmercy@texarkanalawyers.com Phone: (214) 827-1122 Fax: (214) 827-1126 Email: kelly@clementslaw.com Email: robert@clementslaw.com
ATTORNEYS FOR APPELLEE
Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee
lists below the names and addresses of all parties to the trial court’s final judgment
together with their counsel in the trial court. This list is provided so that the justices
of this Court may evaluate possible disqualification and recusal, and so that the Clerk
of the Court of Appeals may notify all parties of this Court’s final judgment.
Joyce Steel Erection, Ltd.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellant
J. Jeffery Richardson NORTON ROSE FULBRIGHT 2200 Ross Avenue, Suite 3600 Dallas, TX 75201.. . . . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellant
Rosemarie Kanusky NORTON ROSE FULBRIGHT US LLP 300 Convent, Suite 2100 San Antonio, TX 75205.. . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellant
Paul. A. Bezney J. Kevin Kindred ADKERSON, HAUDER & BEZNEY, P.C. 1700 Pacific Avenue, Suite 4450 Dallas, TX 75201-3005. . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellant
Gordon Ray Bonner.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellee
Kelly Clements Robert Clements CLEMENTS & CLEMENTS 731 N. Paulus Dallas, TX 75214.. . . . . . . . . . . . . . . . . . Trial and Appellate Counsel for Appellee
i John R. Mercy MERCY p CARTER p TIDWELL, L.L.P. 1724 Galleria Oaks Drive Texarkana, TX 75503. . . . . . . . . . . . . . . Trial and Appellate Counsel for Appellee
ii TABLE OF CONTENTS Page
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Response to Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsive Issue No. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Statutory Scheme for Calculating Damages. . . . . . . . . . . . . . . . . . . . . . . 9
Appellant’s Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Proper Calculation of Damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Responsive Issue No. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Prejudgment Interest with a Liable Defendant that is Not Jointly and Severally Liable. . . . . . . . . . . . . . . . . . . . . . . . . 17
Joyce Crane’s Liability for Prejudgment Interest. . . . . . . . . . . . . . . . . . 18
iii Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
iv INDEX OF AUTHORITIES
Cases: Page
Battaglia v. Alexander, 177 S.W.3d 893 (Tex. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Cordillera Ranch Ltd. v. Kendall County Appraisal District, 136 S.W.3d 249 (Tex. App. – San Antonio 2004, no pet.).. . . . . . . . . . . . . . . . . . 10
Fitzgerald v. Advanced Spine Fixation System, Inc., 996 S.W.2d 864 (Tex. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Lippincott v. Whisenhunt, _ _S.W.3d_, Tex. Sup. Ct. 13-0926, April 24, 2015. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Martin K. Eby Const. Co. v. Lan/Stv, 350 S.W.3d 675 (Tex. App. – Dallas 2011, rev’d on other grounds).. . . . . . . . . . 11
MCI Sales and Service, Inc. v. Hinton, 329 S.W.3d 475 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Pilgrim’s Pride Corporation v. Cernat, 205 S.W.3d 110 (Tex. App. – Texarkana 2006, pet. denied). . . . . . . . . . . . . . 11, 12
Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Texas West Oaks Hosp. v. Williams, 371 S.W.3d 171 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
v Valley Grande Manor v. Pasedes, 2013 WL 3517806 (Tex. App. – Corpus Christi - 2013, pet. denied). . . . . . . . . . 13
Warner v. Glass, 135 S.W.3d 681 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Statutes:
Tex. Civ. Prac. & Rem. Code:
§33.003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 §33.003(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 §33.012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 13 Passim §33.012(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15 §33.012(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 16 §33.013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 15, 16 §33.013(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14 §33.013(b)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Tex. Finance Code §304.105.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Tex. Gov’t Code Anno. §311.011(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
vi NO. 06-14-00064-CV IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA JOYCE STEEL ERECTION, LTD. APPELLANT
VS.
GORDON RAY BONNER APPELLEE
BRIEF OF APPELLEE
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellee, GORDON RAY BONNER, and files this his brief
in response to Appellant’s brief, and would show unto the Court the following.
Statement of the Case
Nature of the Case Gordon Bonner suffered catastrophic injuries when a crane operator, with no prior tilt wall experience, crushed him between a 150,000 pound tilt wall and a concrete wall.
Trial Court Information 102nd Judicial District Court, Bowie county, Texas, Honorable Leon F. Pesek, Jr.
Course of Proceedings The case was tried to a jury which found Joyce Steel Erection, Ltd. 34% responsible, Bonner 33% responsible, and Bonner’s employer (a responsible third party) 33% responsible . (7 CR 3879). The jury awarded $7,000,000.00 in damages. (7 CR 3880-3881). Joyce Crane had
1 stipulated to an additional $358,205.52 in medical expenses and $147,663.29 in lost wages. (7 CR 3904).
Trial Court’s Disposition The trial court entered a judgment against Joyce Crane after properly calculating percentages and credits under Chapter 33 of the Texas Civil Practice & Remedies Code in the amount of $2,345,480.69. (7 CR 4042).1
1 Appellant, Joyce Steel Erection, Ltd., will be referred to as “Joyce Crane”, and Appellee, Gordon Ray Bonner, will be referred to as “Bonner.” The Clerk’s Record will be cited as (_ CR p. __) and the Reporter’s Record will be cited as (__ RR p. __). Plaintiff’s exhibits will be cited as (P. Ex. __).
2 STATEMENT REGARDING ORAL ARGUMENT
The Court should grant oral argument for the following reasons:
a) Oral argument would give the Court a more complete understanding of the facts presented in this appeal. Tex. R. App. P. 39.1(c).
b) Oral argument would significantly aid the Court in deciding the case. Tex. R. App. P. 39.1(d).
3 RESPONSE TO ISSUES PRESENTED
Responsive Issue No. 1
The trial court properly followed the statutory scheme for calculating a judgment under Chapter 33 of the Texas Civil Practice & Remedies Code. In doing so, the court properly used only the jury’s verdict, the Plaintiff’s percentage of responsibility, and the settlement credits.
Responsive Issue No. 2
The declining principal formula only applies when the liable defendant is jointly and severally liable. Joyce Crane was not jointly and severally liable; therefore, the court properly calculated prejudgment interest.
4 STATEMENT OF FACTS
On June 23, 2009 Gordon Ray Bonner’s life was changed forever. Bonner was
an iron worker employed by Premier Contractors. (5 RR p. 3275). He was assigned
to a job at the Red River Army Depot. (5 RR p. 3275; 9 RR p. 25-28). Premier
Contractors also hired Joyce Crane to lift 150,000-pound concrete tilt wall panels on
the Red River Army Depot job. (4 RR p. 19). On June 23, 2009 Joyce Crane sent a
crane operator and a flagger, both of whom who had no prior tilt wall experience, to
perform the tilt wall lifts.(4 RR p. 180-181; 5 RR p. 93; 8 RR p. 11). Bonner was
responsible for holding a brace attached to the tilt wall while the Joyce Crane operator
lifted and swung the tilt wall into place. (9 RR p. 32-34). The Joyce Crane operator
and flagger lost control of the tilt wall during the lift causing Bonner to be crushed
between the 150,000-pound tilt wall and a nearby concrete wall. (9 RR p.35-39).
The tilt wall crushed Bonner’s pelvis, arteries, genitals, bladder, urethra, and
right leg. (7 RR p. 100-103). Ultimately, Bonner endured forty surgeries, including
a prosthetic penile implant, reconstructive surgery of his right leg, arteries and
urethra, and fixation of his pelvis. (P. Ex. 150). Additionally, at the time of trial
Bonner’s doctors were recommending that his right leg be amputated. (9 RR p. 113-
117).
The case was tried to a Bowie County jury which apportioned responsibility
for Bonner’s injuries among the parties. (7 RR p. 3878-3879). The jury found Joyce
5 Crane 34% responsible, Bonner 33% responsible, Premier (Bonner’s employer who
had been named as a responsible third party by Joyce Crane) 33% responsible, and
two settling parties, Self Concrete and Carothers Construction each 0% responsible.
(7 CR 3877-3879). The jury awarded Bonner $7,000,000.00 in damages. (7 CR
3880-3881). Additionally, Joyce Crane had stipulated that Bonner’s past medical
expenses were $358,205.52, and his past lost wages were $147,633.29. (7 CR 3904).
The court ultimately entered judgment after applying the legislative scheme under
Chapter 33 of the Texas Civil Practice & Remedies Code for Bonner in the amount
of $2,345,480.69. (7 CR p. 4042).
6 SUMMARY OF THE ARGUMENT
The trial court followed the legislatively mandated scheme to formulate the
correct judgment. The method of calculating the judgment proffered by Joyce Crane
is not supported by any case law or statutory authority. Proper calculation of the
judgment is governed by §33.012 Tex. Civ. Prac. & Rem. Code. The amount of
recovery is reduced only by Bonner’s percentage of responsibility (33%) and the
amount of the settlement credits. Nothing else! The trial court was correct.
Joyce Crane was not jointly and severally liable. Therefore the trial court
correctly calculated prejudgment interest under the Finance Code.
The judgment should be affirmed.
7 ARGUMENT AND AUTHORITIES
Responsive Issue No. 1
The trial court properly followed the statutory scheme for calculating a judgment under Chapter 33 of the Texas Civil Practice & Remedies Code. In doing so, the court properly used the jury’s verdict, the Plaintiff’s percentage of responsibility, and the settlement credits.
“I don’t know what you mean by ‘glory,’ ” Alice said. Humpty Dumpty smiled contemptuously. “Of course you don’t – till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ” “But ‘glory’ doesn’t mean ‘a nice knock-down argument,’ ” Alice objected. “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.” “The question is,” said Alice, whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all.” Alice was too much puzzled to say anything; . . .
Through the Looking Glass, Lewis Carroll.
Much like Humpty Dumpty, Appellant fabricates an argument to attempt to
achieve the desired result, a take-nothing judgment. The argument is not based upon
any statutory or case law. A proper application of statutory law clearly shows the trial
court correctly entered judgment.
Standard of Review
This Court is to review the trial court’s interpretation of §33.012 Tex. Civ.
Prac. & Rem. Code under a de novo standard. Lippincott v. Whisenhunt, _ S.W.3d_,
Tex. Sup. Ct. 13-0926, April 24, 2015; MCI Sales and Service, Inc. v. Hinton, 329
8 S.W.3d 475, 499 (Tex. 2010). When interpreting statutory provisions this Court is
to attempt to find and apply the intent of the legislature. Texas West Oaks Hosp. v.
Williams, 371 S.W.3d 171, 177 (Tex. 2012). Warner v. Glass, 135 S.W.3d 681, 983
(Tex. 2004). If the language of the statute is unambiguous the court is to give it the
interpretations supported by the plain meaning of the provision’s words and terms.
Fitzgerald v. Advanced Spine Fixation System, Inc., 996 S.W.2d 864, 865 (Tex.
1999). This Court should construe terms consistent with the plain and common
meaning of the statute’s words. Tex. Gov’t Code Anno. §311.011(a) (words and
phrases shall be read in context and construed according to the rules of grammar and
common usage). This Court should read every word, phrase and expression as if it
was deliberately chosen, and that words that are excluded from the statute are done
so purposefully. Cordillera Ranch Ltd. v. Kendall County Appraisal District, 136
S.W.3d 249, 254 (Tex. App. – San Antonio 2004, no pet.).
Statutory Scheme for Calculating Damages
Chapter 33 of the Civil Practice and Remedies Code sets out the legislative
scheme for determining proportionate responsibility. The damages to be recovered
depend on the amount of damages found by the jury, the application of credits for
claimant’s percentage of responsibility, settlement credits, and the liable defendant’s
percentage of responsibility. The steps to determine a plaintiff’s recovery are
mandatory.
9 First, the jury must assess percentages of responsibility to the claimants,
defendants, settling persons, and responsible third parties. §33.003 Tex. Civ. Prac.
& Rem. Code. This assessment is with respect to “each person’s causing or
contributing to cause in any way the harm ‘for which recovery for damages is
sought.’” 33.003(a) Tex. Civ. Prac. & Rem. Code. The effect of §33.003(a) is to
allow a liable defendant to reduce his percentage of responsibility by shifting blame
to other parties.
Second, the calculation of damages to be recovered by the claimant starts with
the amount of damages found by the jury. The jury is asked to determine what sum
of money if paid now in cash would fairly and reasonably compensate the claimant
(Bonner) for his injuries. (7 CR 3880). The jury is told not to make any reductions
to the recovery, but that the trial court will determine what the recovery would be by
applying the law. (7 CR 3880). The jury’s determination of the amount of damages
gives the trial court its starting point for all subsequent damage calculations and
reductions.
Third, from that starting point the legislature requires that the amount of
damages be reduced by the percentage equal to the claimant’s percentage of
responsibility. §33.012(a) Tex. Civ. Prac. & Rem. Code. The legislature also
mandates that the amount be further reduced by the dollar amounts of all settlements.
10 §33.012(b) Tex. Civ. Prac. & Rem. Code. This two- step reduction produces the
amount of recovery that the plaintiff is entitled to.
Fourth, once the calculation of the amount of recovery has been made then the
legislature mandates that the court determine the maximum liability for each liable
defendant. §33.013 Tex. Civ. Prac. & Rem. Code. A defendant is liable to a claimant
only for the percentage of damages found by the trier of fact equal to that defendant’s
percentage of responsibility. §33.013(a) Tex. Civ. Prac. & Rem. Code.
Finally, if the amount calculated under §33.012 is less than the limit of the
liable defendant’s maximum liability under §33.013 then that is the amount of the
judgment. If the amount calculated under §33.012 is more than the defendant’s
maximum liability under §33.013 the judgment is limited to the liable defendant’s
limit as calculated under §33.013(a).
As observed by this Court §33.012 and §33.013 do not reference each other nor
require that they be used sequentially. Pilgrim’s Pride Corporation v. Cernat, 205
S.W.3d 110, 114-115 (Tex. App. – Texarkana 2006, pet. denied). Id. Sections
33.012 and 33.013 operate independently and are dependent upon the circumstances
of each case. The two sections pose separate inquiries: §33.012 controls the
claimant’s total recovery while §33.013 governs the defendant’s separate liability.
Id. Martin K. Eby Const. Co. v. Lan/Stv, 350 S.W.3d 675, 683 (Tex. App. – Dallas
2011, rev’d on other grounds). Sections 33.012 and 33.013 are not to be used
11 sequentially to reduce claimants’ recoveries. Pilgrim’s Pride, 205 S.W.3d at 115.
This legislative scheme is simple and works well unless someone begins to deviate
from its clear dictates.
Appellant’s Argument
Appellant attempts to persuade this Court to construe §33.012 and §33.013 as
ambiguous or in conflict with one another. (Appellant’s Brief p.15-17). Appellant
attempts to convince this Court to apply §33.012 and §33.013 sequentially to first
include a reduction in the amount of damages found by the jury for the percentage
assessed against Premier, the responsible third party, and then to manipulate the
jury’s percentage allocation. (See Appellant’s Brief p. 17-18). This construction is
a variation of the argument that was rejected by this Court and the Texas Supreme
Court in Roberts v. Williamson, 111 S.W.3d 113, 122-123 (Tex. 2003). The courts
found that this argument is simply not supported by the legislative framework in
Chapter 33, Tex. Civ. Prac. & Rem. Code.
Appellant’s argument attempts to manipulate the starting amount for
calculating the amount of recovery to achieve Appellant’s desired result. (See
Appellant’s Brief p. 17-18). Appellant argues that to get to the starting point for
determining the amount of recovery one must first reduce the amount of damages
found by the jury by the percentages attributable to the responsible third party
(Premier). This reduction distorts the language of Chapter 33. Appellant argues that
12 what the legislature really meant for the calculations under §33.012 is that the
beginning point for calculation is “the amount of damages to be recovered.”
(Appellant’s Brief p. 16). This argument is nonsensical in that the purpose of §33.012
is to “find the amount of recovery.” Appellant claims the final calculation after the
deductions under §33.012 to also be the starting point for the deductions under
§33.012. Following the logic of this argument would create an ever shrinking infinite
loop of deductions. Appellant points to no statutory authorization for this calculation
and no case law to support its calculations. Because there is none!2
Having changed the starting point to include responsible third party
percentages, Appellant then argues that a further made up calculation is necessary
to determine “responsibility for the remaining portion of the jury’s award.”
(Appellant’s Brief p. 20). Here Appellant argues that one must recalculate the
parties’ percentages of the remaining amount by a ratio between defendant’s
percentage and plaintiff’s percentage. Appellant recalculates that it is only
responsible for 50.7463% of the damages.3 Nowhere is there any authority for such
2 Appellant cites only two cases in its argument, neither of which is relevant to the argument and both of which are clearly distinguishable. Valley Grande Manor v. Pasedes, 2013 WL 3517806 (Tex. App. – Corpus Christi - 2013, pet. denied) is a case dealing with the application of settlement credits to a medical liability claim. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991) was decided before the current proportionate liability scheme was enacted and the decision was based on the common law. 3 Under Appellant’s argument that 50.7463% would make Joyce Crane jointly and severally liable because its percentage would now be over fifty percent. §33.013(b)(1). That is surely not acceptable to Appellant.
13 a sequential second reduction to determine the starting point for the statutory
calculation. Because there is none!
Appellant’s argument, having reduced the damage amount twice prior to the
new fictional starting point, then applies the legislative mandate of §33.012.4 The
effect of Appellant’s argument is to twice take advantage of the designation of the
responsible third party’s percentage and is an impermissible double-deduction. By
doing this made up calculation, amazingly, Appellant is able to produce a take-
nothing judgment. Appellant’s calculation proves once again: that if allowed to define
the starting point, Appellant is able to achieve its desired result, but the machinations
necessary to do so defy logic, the legislative system, and are puzzling at best. After
analyzing Appellant’s argument this Court must be left much like Alice – “too much
puzzled to say anything.”
4 Verdict plus prejudgment interest $8,123,612.24 Less Premier (RTP) percentage (33%) 2,680,792.04
5,442,820.20 Less recalculated Bonner percentage (33/67) 2,680,790.33
2,762,029.87 Less settlement credit 3,100,000.00
Amount of recovery > -0-
Doesn’t reach §33.013(a).
14 Proper Calculation of the Damages
Properly calculating the amount of recovery pursuant to the statute leads to a
much different result. If no reductions were applied Bonner would be entitled to
recover the amount of damages awarded by the jury plus the stipulated amounts and
prejudgment interest ($8,127,583.12). Under §33.012(a), because the jury found
Bonner to be 33% responsible, the jury’s award must be reduced by Bonner’s
negligence. ($8,127,583.12 x 33% = $2,682,102.43; $8,127,583.12 – $2,682,102.43
= $5,445,480.69). Next, under §33,012(b) the jury’s award must be further reduced
by the amount of all settlements. ($5,445,408.69 – $3,100,000.00 = $2,345,480.69).
So, after applying the legislatively mandated reductions of §33.012, Bonner’s amount
of recovery is $2,345,480.69. The trial court then determines Joyce Crane’s amount
of liability under §33.013. This is done by determining Joyce Crane’s percentage of
responsibility of the jury’s award. ($8,127,583.12 x 34% = $2,763,378.26). This is
Joyce Crane’s maximum amount of liability. Because Bonner’s recovery
($2,345,480.69) is less than Joyce Crane’s maximum amount of liability
($2,763,378.26), Bonner’s judgment is properly calculated to be $2,345,480.695.
5 Verdict plus prejudgment interest $8,127,583.12 Reduction for Plaintiff’s Negligence (33%) 2,682,102.43 Tex. Civ. Prac. & Rem. Code §33.012(a) $5,445,480.69 Reduction for Settlement 3,100,000.00 Tex. Civ. Prac. & Rem. Code §33.012(b) Amount Recoverable Under Tex. Rem. & Prac. Code §33.012 $2,345,480.69
15 Appellant tacitly acknowledges that this is the proper method of calculating the
judgment in its alternative calculation for the judgment. (Appellant’s brief p.26).
The trial court properly followed the legislative scheme under Chapter 33 in
calculating the judgment.
Responsive Issue No. 2
The declining principal formula only applies when the liable defendant is jointly and severally liable. Joyce Crane was not jointly and severally liable; therefore, the court properly calculated prejudgment interest.
Appellant argues that the court improperly calculated the amount of
prejudgment interest.
Standard of Review
The review of the trial court’s calculation of prejudgment interest is done by
this Court de novo. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 815-16
(Tex. 2006).
Prejudgment interest is constitutionally allowed by law as additional damages
for the loss of use of the money due “as damages” during the lapse of time between
Maximum Liability of Joyce (34%) $8,127,583.12 Tex. Civ. Prac. & Rem. Code §33.013 x .34 $2,763,378.26 Amount of Recovery $2,345,480.69
16 accrual of the claim and the date of judgment. Battaglia v. Alexander, 177 S.W.3d
893, 907 (Tex. 2005).
Prejudgment Interest with a Liable Defendant that is Not Jointly and Severally Liable
Appellant argues that prejudgment interest in this case is controlled by
Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006). Brainard is an
underinsured motorist case that relies on the method set forth in Battaglia to calculate
prejudgment interest on a statutory underinsured motorist claim. Battaglia specifically
limited its calculation to the situation where the non-settling defendant is jointly and
severally liable. Battaglia, 177 S.W.3d at 907. [emphasis added]. Battaglia does not
address how prejudgment interest should be calculated where the liable defendant is
not jointly and severally liable. It stands to reason that the liable defendant is still
liable for the prejudgment interest on its amount of liability. In such a case the
prejudgment interest should be calculated pursuant to §304 et seq. of the Texas
Finance Code.
Here, Bonner’s judgment is not based upon a statutory claim nor upon Joyce
Crane’s being jointly and severally liable. Therefore, neither Brainard nor Battaglia
applies.
17 Joyce Crane’s Liability for Prejudgment Interest
Joyce Crane was not jointly and severally liable. Therefore the trial court
calculated prejudgment interest against Joyce Crane based upon the past damages
awarded by the jury. See §304.105 Texas Finance Code. It did so by giving credit
to Joyce Crane for the settlements by the non-responsible defendants at the time those
settlements were paid. The settlements were made by parties (Carothers Construction
and Self Concrete) that the jury specifically found were not responsible for any of the
damages upon which the prejudgment interest was calculated. The settlements were
made by parties that the jury specifically found were not responsible for the damages
for which the prejudgment interest will be calculated. The court then applied
§304.104 Texas Finance Code and calculated the prejudgment interest as simple
interest at 5% under §304.003. The total prejudgment interest calculated under the
Finance Code for Joyce Crane was $617,773.43. The trial court properly calculated
the prejudgment interest.
Alternatively, if this Court chooses to follow Appellant’s argument with
respect to calculating prejudgment interest, the correct amount of the judgment
would be $1,937,467.32.
18 CONCLUSION
The trial court did not err by following the legislatively mandated scheme to
form the judgment. Appellant’s puzzling calculations would only lead this Court into
an error that the trial court awarded by following the law.
The trial court properly calculated the prejudgment interest in a case where
Joyce Crane was not jointly and severally liable.
The judgment should be affirmed.
WHEREFORE, PREMISES CONSIDERED, Appellee, GORDON RAY
BONNER, prays that this Court affirm the judgment of the trial court, award him his
court costs on appeal; and for such other and further relief to which he may show
himself to be entitled.
Respectfully submitted,
/s/ John R. Mercy John R. Mercy Texas State Bar No. 13947200 MERCY p CARTER p TIDWELL, L.L.P. 1724 Galleria Oaks Drive Texarkana, TX 75503 Telephone: (903) 794-9419 Facsimile: (903) 794-1268 E-mail: jmercy@texarkanalawyers.com
19 Kelly Clements Texas State Bar No. 17098500 Robert Clements Texas State Bar No. 00789785 CLEMENTS & CLEMENTS 731 N. Paulus Dallas, TX 75214 Phone: (214) 827-1122 Fax: (214) 827-1126 Email: kelly@clementslaw.com Email: robert@clementslaw.com
ATTORNEYS FOR APPELLEE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of Appellee was served on all counsel of record via electronic transmission on this 27th day of April, 2015, as follows:
Mr. J. Jeffery Richardson NORTON ROSE FULBRIGHT US LLP 2200 Ross Avenue, Suite 3600 Dallas, TX 75201 Email: jeffrichardson@nortonrosefulbright.com
Rosemarie Kanusky NORTON ROSE FULBRIGHT US LLP 300 Convent, Suite 2100 San Antonio, TX 78205 Email: rosemarie.kanusky@nortonrosefulbright.com
20 Mr. Paul A. Bezney ADKERSON, HAUDER & BEZNEY, P.C. 1700 Pacific Ave., Suite 4450 Dallas, TX 75201-3005 Email: paul@ahblaw.net
Mr. J. Kevin Kindred ADKERSON, HAUDER & BEZNEY, P.C. 1700 Pacific Ave., Suite 4450 Dallas, TX 75201-3005 Email: kevin@ahblaw.net
/s/ John R. Mercy John R. Mercy
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4, I hereby certify that the foregoing Brief of Appellee contains 2,964 words. This is a computer-generated document created in WordPerfect using 14-point typeface. In making this certificate I am relying on the word count provided by the software used to prepare the document.
/s/ John R. Mercy John R. Mercy