Opinion issued August 29, 2014




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-12-01036-CV
                         ———————————
 CENAC TOWING CO., INC. AND TEPPCO MARINE SERVICES, LLC,
                         Appellants
                                   V.
   JOHNNY DEFONTE, INDIVIDUALLY AND D/B/A PORT BOLIVAR
              MARINE SERVICES, INC., Appellee



                 On Appeal from the 212th District Court
                       Galveston County, Texas
                    Trial Court Case No. 10CV0603



                     MEMORANDUM OPINION
      This case arises from an allision 1 of a tugboat and a stationary dock near the

shore of the Intracoastal Waterway by Port Bolivar, Texas. Cenac Towing Co.,

Inc. and TEPPCO Marine Services, LLC, appeal the trial court’s judgment in favor

of appellee, Johnny Defonte, individually and d/b/a Port Bolivar Marine Services,

Inc. In three issues, appellants contend that (1) appellee’s violations of federal

statutory law bar or reduce his recovery of damages; (2) the trial court abused its

discretion in granting appellee’s partial judgment notwithstanding the verdict based

on its finding that appellants were not entitled to a depreciation of the damage

award; and (3) there is a mathematical error in the final judgment that should be

corrected. We modify the judgment and, as modified, affirm.

                                    Discussion

    A. Procedural History

      Following an allision in July 2008, the dock owner sued the vessel owner for

negligence on March 1, 2010. After filing its third amended answer, the vessel

owner moved for summary judgment alleging that the dock owner had failed to (1)

secure a permit for his structure and (2) maintain the structure as federal law

required. Appellants further claimed that appellee’s dock constituted a hazard to

navigation and that appellee’s violation of federal law absolved them of liability


1
      An “allision” is a collision between a moving vessel and a stationary object.
      THOMAS J. SCHOENBAUM, ADMIRALTY & MARITIME LAW, § 5-2 (West 4th ed.
      2004).
                                         2
for the damage to the dock. On October 3, 2011, the trial court denied appellants’

motion for summary judgment and on February 28, 2012, conducted a bench trial

with the Honorable Rusty Hight presiding. At the conclusion of trial, the court

found in favor of appellee on his negligence claim and awarded him $110,000.00

in damages but depreciated the award to $80,000.00. On March 16, 2012, appellee

filed a motion for partial judgment notwithstanding the verdict asking that the

court award the full amount of damages. On October 11, 2012, having found that

appellants were not entitled to a depreciation allowance, The Honorable Susan

Criss granted appellee’s motion.2

    B. Factual Background

      At trial, the parties presented the following witnesses:

      1. Johnny Defonte

      In 2003, appellee purchased the dock and surrounding property in question

from John Seed, the prior owner, for $250,000. Appellee cleaned up the property

but never did anything to the structure. Appellee testified that neither the United

States Army Corps of Engineers (USACE) nor any other governmental agency had

ever contacted him regarding permitting for the structure, or informed him that he

lacked a necessary permit.




2
      Judge Hight passed away before the hearing on appellee’s motion.
                                          3
      Appellee, his son, and four other people witnessed the allision of the

tugboat, C.N.V. CULLEN CENAC, with appellee’s dock, and appellee testified

that the vessel broke the retaining wall of his structure. Afterwards, he contacted

the United States Coast Guard (USCG) regarding the allision. Appellee testified

that the USCG did not inform him that his dock was illegal or that he lacked a

permit for the structure.

      2. Reginald Sims

      Sims, Cenac’s captain, was operating the tugboat and pushing two barges

(each 97’ long by 54’ wide) when the allision occurred. He testified that he had

tied up his boat at appellee’s dock once before and there is nothing unusual about

appellee’s dock. On July 26, 2008, Sims steered his tugboat to the bank of the

waterway in Port Bolivar while he waited for a space at Marathon Dock in Texas

City. As he prepared to leave appellee’s dock, the tide was going out and his lead

barge became stuck on the ground. In the process of twisting his tugboat to push

the barge loose, he struck appellee’s dock.

      Sims testified that the waterway is at least three-hundred feet wide from

bank to bank, and that tugboats pushing barges “doubled up”—that is, two barges

side-by-side—routinely pass by appellee’s dock without incident. The only hazard

of which Sims was aware was a half-sunken barge in the middle of the channel.

Sims testified that appellee’s dock was not the cause of the accident.

                                          4
      3. Mark Underhill

      Appellee hired Underhill, a marine surveyor, as part of a joint survey before

litigation to determine the extent of damage to appellee’s dock caused by the

allision. Underhill and Bill Hatfield, appellants’ marine surveyor, conducted the

joint survey.

      Underhill testified that he had reviewed nautical charts of this waterway

dating from 1966 to 2007 from the National Oceanic and Atmospheric

Association’s (NOAA) Office of Coast Survey. He testified that the navigable

portion of the waterway is “the portion that is dug and maintained for the

intracoastal canal and traffic.” He further testified that NOAA places buoys along

the channel to mark the edges of the navigable channel.

      According to Underhill, no portion of appellee’s dock interferes with the

navigable portion of the waterway. Underhill testified that the barges being pushed

by the C.N.V. CENAC were fifty-four feet wide, and that vessels pushing barges

of that width are able to pass each other in the intracoastal waterway without even

coming close to appellee’s dock. Underhill testified that appellee’s dock “is in no

way a menace to the navigation of the Intracoastal Waterway.” Based on the 2007

chart showing the defined limits of the intracoastal waterway running down the

middle of the canal, Underhill testified that the chart showed that appellee’s dock

was not an obstruction to navigation.

                                        5
      When asked whether commercial traffic typically tried to stay within the

middle portion of the waterway unless passing a vessel, Underhill replied “yes, you

want to stay into the channel as much as possible” and stated that a tugboat would

not travel along the bank and would only push over to the bank to retie its tow or to

tighten up the steamboat ratchets. He testified that “you’re not normally going to

hug the bank. You’re just asking for trouble. There’s no guarantee of water. You

don’t know where the mud flats are or not.”

      Underhill stated that appellee had not violated any federal permits. He

stated that the permits that appellants introduced at trial pertained to a request to

permit dredging to maintain a now-defunct marina.

      Underhill also testified regarding two bids to repair appellee’s dock. There

was a $29,000.00 bid, which he testified was “a ridiculous amount” and “I do not

believe you can even get the materials for that.” He testified that the $204,000.00

bid submitted by Kiva Construction Company was for a new dock and, thus,

exceeded the scope of damage to appellee’s dock. Based on his survey, Underhill

determined that the allision damaged approximately twenty-five percent of the

dock. Using Kiva’s bid, Underhill calculated the total cost of repairing appellee’s

dock, including materials, labor and equipment, at $98,239.36.

      Underhill further testified that but for the allision, appellee’s dock could

have lasted another fifty to one-hundred years and that appellee’s structure did

                                         6
what it was supposed to do, i.e., retain the bank and keep it from sloughing off into

the channel. He testified that depreciation should not be applied to the damages in

this case because the dock would have continued to do its job but for the damage

caused by the allision.

       4. William Hatfield

       William Hatfield, Cenac’s surveyor who participated in the joint survey of

appellee’s dock, testified that twenty-four feet of the dock’s retaining wall was

damaged as a result of the allision. After he conducted the survey, he discussed his

findings with his father, Earl Hatfield, owner of Earl Hatfield Marine Surveyors,

LLC.

       5. Earl Hatfield

       Earl Hatfield testified that appellee’s dock was approximately twenty-five

years old and that the typical service life of such a structure in South Texas is thirty

years due to the environment. He testified that, based on its condition, he would

allocate an eighty-percent depreciation to appellee’s structure.        Based on his

review of the findings from the joint survey, Earl Hatfield estimated a cost of

$25,000 to repair the damage to appellee’s dock. He testified that the USACE

permits introduced by appellants only reflected that the west end of appellee’s

dock was properly permitted but that the north and east ends were not reflected in




                                           7
the permits. According to Hatfield, the navigable portion of the waterway is “bank

to bank.”

      6. Terry Chandler

      Chandler is a maritime contractor and a damage estimator with Kiva

Construction Company. He testified that Kiva had previously parked a barge at

appellee’s dock as well as at an adjacent dock and that appellee’s dock does not

interfere with navigation of the waterway. In his opinion, the cost of repairing

appellee’s dock to its pre-allision condition would be $100,000.00 to 110,000.00.

Chandler further testified that but for the damage caused by the allision, appellee’s

dock was still functional and would not have needed to be replaced in the near

future.

      He testified that, although Kiva requires an owner to apply and secure a

permit for installation of a new structure, no permit is required to repair an existing

structure. He testified that if the steel inside of appellee’s concrete structure did

not become exposed, the structure could last fifty years or more. When the trial

court asked whether all of the concrete would have to be removed in order to repair

the damaged portion, Chandler replied that “to do three panels wide you might

have to do five to get three back in line.”




                                              8
      7. Jeff Webster

      Appellants presented Webster as an expert on the issues of federal

regulations and permitting. He testified that navigable waters of the United States

are “any waters in which commercial traffic can trade in” and that the

“[m]aintained channel is one that is constantly dredged because it tends to silting.”

      Appellants introduced four letters (dated 1985, 1987, 1989, and 1999) from

the USACE to John Seed, the dock’s prior owner, and the attached proposed plans

from Seed. In these letters, the Army Corp of Engineers authorized Seed by permit

to perform maintenance dredging in a slip off the Gulf Intracoastal Waterway. He

testified that the photographs taken of appellee’s structure after the 2008 allision

do not depict a structure identified in Seed’s proposed plans. Webster testified that

according to the original plan Seed submitted in 1985, the piles were supposed to

be positioned adjacent to the waterway, i.e., on the shore and not in the water. He

stated that he had not seen any permit authorizing the structure as depicted in the

photographs taken after the allision. Webster also testified that, in his opinion,

appellee’s structure interfered with the navigable waters and was “clearly a

hazard.” He also stated that such a structure, if maintained on land, can last twenty

to twenty-five years but that exposure to water could shorten its life.

      According to Webster, the pylons in front of appellee’s dock were

approximately eight to ten feet away from the shoreline. He testified that he was

                                          9
unaware of any vessels traveling the waterway that are wider than 290 feet.

       C.     Standard of Review

       When, as here, a party appealing from a non-jury trial does not request

findings of fact and conclusion of law, the appellate court presumes the trial court

found all fact questions in support of its judgment, and the reviewing court must

affirm the judgment on any legal theory finding support in the pleadings and

evidence. See Point Lookout W., Inc. v. Wharton, 742 S.W.2d 277, 278 (Tex.

1987); George v. Jepperson, 238 S.W.3d 463, 468–69 (Tex. App.—Houston [1st

Dist.] 2007, no pet.). In a bench trial, it is for the court, as trier of fact, to judge the

witnesses, to assign the weight to be given their testimony, and to resolve any

conflicts or inconsistencies in the testimony. Shaw v. Cnty. of Dallas, 251 S.W.3d

165, 169 (Tex. App.—Dallas 2008, pet. denied).

       D. Analysis

   1. Alleged Violations of Federal Statutory Law

       In their first issue, appellants contend that appellee’s structure constitutes an

obstruction to the navigable waters in violation of the Rivers and Harbors Act, 33

U.S.C. §§ 401–407 (2002), and the U.S. Coast Guard’s United States Aids to

Navigation System, 33 C.F.R. § 64.06, 66.01-5 (2013). Appellants argue that

appellee’s violation of federal laws bars or reduces his recovery for the damage to




                                            10
his dock. Appellee denies that his dock violates federal law or obstructs the

navigable portion of the waterway.

      Section 403 of the Rivers and Harbors Act provides, in relevant part:

      Obstruction of navigable waters generally; wharves; piers, etc.;
      excavations and filling in

      The creation of any obstruction not affirmatively authorized by
      Congress, to the navigable capacity of any of the waters of the United
      States is prohibited; and it shall not be lawful to build or commence
      the building of any wharf, pier, dolphin, boom, weir, breakwater,
      bulkhead, jetty, or other structures in any port, roadstead, haven,
      harbor, canal, navigable river, or other water of the United States,
      outside established harbor lines, or where no harbor lines have been
      established, except on plans recommended by the Chief of Engineers
      and authorized by the Secretary of the Army . . . .

33 U.S.C. § 403 (2002).

Appellants’ argument is two-fold. First, they maintain that appellee’s dock was an

unlawful obstruction to navigable waters, and thus, under the Act, appellee needed

authorization for his dock. Second, they contend that appellee’s failure to secure

authorization for his structure violated the Rivers and Harbors Act.

      A. Obstruction to Navigation

      In support of their first argument, appellants contend that appellee had

allowed his structure to become exposed in the water thereby interfering with the

permissible bank-to-bank navigation of the intracoastal waterway.       There was

conflicting evidence presented at trial regarding the definition of “navigable

waters.” Appellants’ expert, Webster, testified that navigable waters of the United
                                         11
States are “any waters in which commercial traffic can trade in.” Earl Hatfield,

appellants’ marine surveyor, testified that the navigable portion of the waterway is

bank to bank. Underhill, appellee’s surveyor, testified that the navigable portion of

the waterway is “the portion that is dug and maintained for the intracoastal canal

and traffic,” and that NOAA places buoys along the channel to mark the edges of

the navigable channel. 3 There was also conflicting testimony regarding whether



3
      Section 2.36(a) of Chapter 33 of the Code of Federal Regulations provides:

      § 2.36. Navigable waters of the United States, navigable waters, and
      territorial waters.

      (a) Except as provided in paragraph (b) of this section, navigable waters of
      the United States, navigable waters, and territorial waters mean, except
      where Congress has designated them not to be navigable waters of the
      United States:

             (1) Territorial seas of the United States;

             (2) Internal waters of the United States that are subject to tidal
             influence; and

             (3) Internal waters of the United States not subject to tidal influence
             that:

                    (i) Are or have been used, or are or have been susceptible for
                    use, by themselves or in connection with other waters, as
                    highways for substantial interstate or foreign commerce,
                    notwithstanding natural or man-made obstructions that
                    require portage, or

                    (ii) A governmental or non-governmental body, having
                    expertise in waterway improvement, determines to be capable
                    of improvement at a reasonable cost (a favorable balance
                    between cost and need) to provide, by themselves or in
                                            12
appellee’s dock interfered with navigation of the waterway. Although Webster

testified that appellee’s structure interfered with the navigable waters and as

“clearly a hazard,” Underhill testified that, based on his review of NOAA charts,

appellee’s dock “is in no way a menace to the navigation of the Intracoastal

Waterway.” Chandler, Kiva’s maritime contractor, also testified that appellee’s

dock does not interfere with navigation of the waterway.           Sims, the tugboat

captain, testified that boats pushing doubled-up barges routinely pass by appellee’s

dock without incident, and that appellee’s dock was not the cause of the accident.

In light of this record, we find that the trial court had sufficient evidence before it

to support its finding that appellee’s dock did not interfere with navigation.

      B. Necessity of Permit

      Appellants also argue that appellee violated federal law because he operated

his dock without the requisite permit. In support of their argument, appellants rely

on the four permits the USACE issued to Seed 4 and argue that appellee never

sought to transfer or re-file the permits and, in failing to do so, violated the United




                    connection with other waters, as highways for substantial
                    interstate or foreign commerce.

      33 C.F.R. §2.36 (2013)
4
      The USACE issued permit no. 15926/12 in 1985, no. 15926/32 in 1987, no. 18931
      in 1989, and no. D-10753 in 1999.

                                          13
States Aids to Navigation System. See 33 C.F.R. § 66.01-30 (2013).5 However, a

review of these permits reveals that they authorized Seed to perform, or to continue

performing, maintenance dredging in a slip off the intracoastal waterway.

Underhill also testified that the permits pertained to a request to permit dredging to

maintain a now-defunct marina.

      Appellants also argue that appellee’s failure to obtain a permit for his

structure deprived the USCG of the opportunity to mark his structure in accordance

with 33 C.F.R. § 66.01-5. Appellant’s argument is without merit. Section 66.01-5

sets out the application procedure for building a new structure. Further, a structure

is defined as a “fixed or floating obstruction, intentionally placed in the water,

which may interfere with or restrict marine navigation.” See id. § 64.06. As

discussed above, the evidence supported the trial court’s conclusion that appellee’s

dock did not interfere with navigation.


5
      Section 66.01-30 provides:

      (a) Before any private aid to navigation consisting of a fixed structure is
      placed in the navigable waters of the United States, authorization to erect
      such structure shall first be obtained from the District Engineer, U.S. Army
      Corps of Engineers in whose district the aid will be located.

      (b) The application to establish any private aid to navigation consisting of a
      fixed structure shall show evidence of the required permit having been
      issued by the Corps of Engineers.

33 C.F.R. § 66.01-30 (2013).

                                           14
      As the trier of fact, it was up to the trial court to judge the witnesses, to

assign the weight to be given their testimony, and to resolve any conflicts or

inconsistencies in the testimony. LaCroix v. Simpson, 148 S.W.3d 731, 734 (Tex.

App.—Dallas 2004, no pet.). As the reviewing court, we presume that the trial

court found all fact questions in support of its judgment, and must affirm the

judgment on any legal theory finding support in the pleadings and evidence. See

Point Lookout W., Inc., 742 S.W.2d at 278; George, 238 S.W.3d at 468–69. Here,

the trial court had the opportunity to hear the witnesses and to resolve conflicts and

inconsistencies in the testimony. See Montgomery Ind. Sch. Dist. v. Davis, 34

S.W.3d 559, 567 (Tex. 2000). Based on our review of the record, we conclude that

there was sufficient evidence to support the trial court’s conclusion that appellee

did not violate the Rivers and Harbors Act or the USCG’s United States Aids to

Navigation System. See 33 U.S.C. §§ 401-407 (2002); 33 C.F.R. § 64.06, 66.01-5

(2013).6 We overrule appellants’ first issue.




6
      Because the trial court found that appellee had not violated federal statutory law,
      the Pennsylvania Rule cited by appellants—under which a ship that violates a
      statutory rule intended to prevent collisions is presumed to be the contributing, if
      not the sole, cause of the incident—is inapplicable in this case. See The
      Pennsylvania, 19 Wall 125, 86 U.S. 125, 136, 22 L.Ed. 148 (1873), overruled on
      other grounds by United States v. Reliable Transfer Co., 421 U.S. 397, 411, 95
      S.Ct. 1708, 44 L.Ed.2d 251 (1975); see Pennzoil Producing Co. v. Offshore
      Explor., Inc., 943 F.2d 1465, 1471 (5th Cir. 1991).


                                           15
   2. Depreciation of Damage Award

      In their second issue, appellants contend that the trial court erred when it

granted appellee’s motion for partial judgment notwithstanding the verdict based

upon its finding that appellants had failed to present evidence entitling them to a

depreciation allowance. Appellee argues that the trial court correctly rendered

judgment without depreciating the damage award.

      At the conclusion of trial, Judge Hight awarded appellee $110,000.00 in

damages and depreciated the award to $80,000.00. Appellee filed a motion for

partial judgment notwithstanding the verdict arguing that appellants had presented

no evidence entitling them to a depreciation of the award. Judge Criss granted

appellee’s motion.

      In maritime allision cases, the general rule regarding depreciation is “where

the repairs do not extend the useful life of the property as it existed just before the

collision, there should be no deduction for depreciation.” Brunet v. United Gas

Pipeline Co., 15 F.3d 500, 505 (5th Cir.1994); see also Cargill, Inc. v. Kopalnia

Rydultowy Motor Vessel, 304 Fed. App’x. 278, 2008 WL 5341377 (5th Cir. 2008)

(per curiam). In Cargill, a wharf owner brought suit to recover for damages to its

wharf as a result of the negligent docking and landing of a ship. See id. at 279.

Applying the rule above, the Fifth Circuit reasoned that “[i]f the repaired wharf

walkway is ‘integral’ to Cargill’s wharf—because the repaired section will not be

                                          16
replaced independently and/or retained when the rest of the wharf is rebuilt—and

the repairs do not extend the useful life of the entire wharf, repair costs will not be

depreciated.” Id. at 280-81; see Brunet, 15 F.3d at 505-06 (holding that repair

costs not subject to depreciation because damaged pipeline crossing was part of

larger system and would require replacement when larger pipeline system was

replaced).   Thus, the proper inquiry here is whether the damaged portion of

appellee’s structure is integral to the entire structure; that is, whether there is

evidence that the damaged portion of the dock will be replaced again when the

structure as a whole reaches the end of its useful life—if so, appellee will not

receive the benefit of any useful life extension, and no depreciation should be

taken. See Brunet, 15 F.3d at 505-06; Cargill, 304 Fed. App’x. at 281.

      Appellants contend that there is no evidence establishing that the damaged

portion of appellee’s dock was an integral part of the entire structure. They argue

that the surveyors and Chandler testified that the individual panels of the concrete

retaining wall could be replaced without having to replace the entire wall, and that

Chandler testified that replacing the damaged portion of the wall will add to the

useful life of the structure. Thus, appellants reason, the portion to be replaced is

not integral to the whole structure.

      First, we note that whether the damaged portion of appellee’s dock could be

replaced without having to replace the entire structure is not the proper inquiry.

                                          17
See Oregon v. Tug Go-Getter, 468 F.2d 1270, 1273–74 (9th Cir.1972) (“Under

these circumstances it is of no significance that the pier could be separately

repaired or even replaced. (So could a single wall of a building.)”). Rather, the

question is whether the damaged portion of appellee’s dock will be replaced again

when the dock as a whole reaches the end of its useful life. While there was

testimony from several witnesses regarding the length of the structure’s useful

life, 7 we find nothing in the record to support appellants’ assertion that the

damaged portion of appellee’s dock would not be replaced when the entire

structure reaches the end of its useful life.

      Appellants also assert that Chandler testified that replacing the damaged

portion of the wall will add to the useful life of the structure. Appellants rely on

the following portion of Chandler’s testimony:

      Q;     I’m asking you as an estimator for Kiva, could you give the
             judge a fair and reasonable estimate for repair of that portion of
             the dock at issue that was damaged by the CULLEN CENAC?



7
      Underhill testified that, but for the allision, appellee’s dock could have lasted
      another fifty to one hundred years. Chandler testified that if the steel inside of
      appellee’s concrete structure did not become exposed, the structure could last fifty
      years or more. Webster stated that such a structure, if maintained on land, can last
      20-25 years. According to Earl Hatfield, the typical service life of such a structure
      in South Texas is thirty years.




                                           18
      A:     You’re saying they’ve got stuff that’s not the entire dock, just
             the area that they are talking about?

      Q:     Yes, sir, I am[.]

      A:     I think it would be around a hundred, hundred and ten thousand
             range.

      Q:     Is that to repair the damage and get it back into the condition it
             was prior to the collision at issue?

      A:     That’s correct.

      Q:     Now, with regard to the dock based on your experience in the
             industry, we know there’s damage as a result of the collision.
             But for that damage was the dock still functioning and
             operating?

      A:     Yes.

      Q:     As an estimator, but for the damage did you see any reason why
             the dock would have to be replaced in the near future?

      A:      No.

      Contrary to appellant’s contention, Chandler did not testify that repairing the

damaged portion of the dock will add to the useful life of the entire structure;

rather, his testimony spoke only to the length of the useful life of the dock (i.e.,

that it was not near the end of its useful life). Further, this testimony is consistent

with Chandler’s earlier testimony that the structure could last fifty years or more if

the steel inside of it did not become exposed.

      Here, there were no findings of fact or conclusion of law requested and,

thus, we presume that the trial court found all fact questions in support of its
                                          19
judgment. See Point Lookout W., Inc., 742 S.W.2d at 278. Appellee was entitled

to the cost of repairing his dock to its pre-allision condition. See Freeport Sulphur

Co. v. S.S. Hermosa, 526 F.2d 300, 304 (5th Cir.1976) (explaining that purpose of

damages for maritime tort is to place injured party as nearly as possible in

condition it would have occupied if accident had not occurred). Based on the

record before us, we cannot say that the trial court’s finding that appellants failed

to present any evidence entitling them to a depreciation of the damages award was

error.    As such, the trial court properly granted appellee’s motion for partial

judgment notwithstanding the verdict awarding appellee the full amount of

damages. Accordingly, we overrule appellants’ second issue.

   3. Error in Judgment

         In their third issue, appellants complain that the final judgment signed by the

trial court on October 11, 2012, is incorrect. Specifically, they contend that the

judgment should award appellee a total award of $140,419.84 instead of

$140,938.76.       Appellee concedes that there are mathematical errors in the

judgment.

         The October 11, 2012 final judgment awards appellee $110,000.00 in

damages and “pre-judgment interest on this amount from the date of notice of the

damage . . . up until the time of entry of this Judgment in the amount of THIRTY

THOUSAND FOUR HUNDRED NINETEEN DOLLARS                AND   84/100 ($30,938.76), for a

                                            20
total recovery of ONE HUNDRED THIRTY THOUSAND FOUR HUNDRED NINETEEN

DOLLARS   AND   84/100 ($130,938.76).” We agree that the numerical value of the

prejudgment interest on the damage award is incorrect, and that the total award

was miscalculated. Because we have the necessary information before us, we may

reform the judgment. See TEX. R. APP. P. 43.2(b); Mullins v. Mullins, 202 S.W.3d

869, 878 (Tex. App.—Dallas 2006, pet. denied). The numerical value of the

prejudgment interest should be corrected to read $30,419.84, and the total damage

award should be corrected to read “ONE HUNDRED FORTY THOUSAND FOUR

HUNDRED NINETEEN DOLLARS           AND   84/100 ($140,419.84).”   Accordingly, we

sustain appellants’ third issue.

                                    Conclusion

      We affirm the trial court’s judgment in favor of appellee on his negligence

claim. However, we modify the judgment to reflect the numerical value of the

prejudgment interest as $30,419.84, and to reflect the total damage award as “ONE

HUNDRED FORTY THOUSAND FOUR HUNDRED NINETEEN DOLLARS                  AND   84/100

($140,419.84).”

      We affirm the trial court’s judgment, as modified.




                                          21
                                             Jim Sharp
                                             Justice



Panel consists of Justices Jennings, Higley, and Sharp.




                                        22
