                             NUMBER 13-11-00050-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

GENIE INDUSTRIES, INC.,                                                      Appellant,

                                            v.

RICKY MATAK, BELINDA MATAK, AND
MISTY SONNIER AS REPRESENTATIVE
OF THE ESTATE OF WALTER PETE LOGAN
MATAK, DECEASED,                                                             Appellees.


                     On appeal from the 60th District Court
                         of Jefferson County, Texas.


                         MEMORANDUM OPINION
               Before Justices Garza, Benavides, and Perkes
                Memorandum Opinion by Justice Benavides
       In this products liability action, appellant Genie Industries, Inc. (“Genie”) appeals

an adverse jury verdict.    By three issues, Genie asserts that:       (1) the evidence is

legally insufficient to establish that the product in controversy possessed a design defect;
(2) the trial court erred by granting two of the appellees’ Batson/Edmonson challenges;

and (3) the trial court failed to give Genie a full settlement credit on final judgment.            We

affirm, in part, and reverse and remand, in part.

                                      I.      BACKGROUND1

        On March 30, 2009, 24-year-old Walter Pete Logan Matak (“Logan”) died at a

Beaumont hospital from massive craniocerebral injuries less than two hours after he

crash-landed to the floor from a 40-foot, fully-extended, AWP-40S single-bucket aerial

work platform (AWP-40S or “the lift”) manufactured by Genie.2 Logan, who was an

apprentice electrician at Gulf Coast Electric Company, used the lift to complete some

high-ceiling electrical work at the Cathedral in the Pines church in Beaumont. The

church owned the lift and granted permission to Logan and his supervisor, James

Boggan, to use it in order to complete their work inside the church.

        Logan ran fiber optic cable that morning at various high points in the church’s

sanctuary.     Prior to the fall, Boggan testified that each time Logan needed to reposition

himself to work, Logan would lower the lift, exit the lift bucket, and he and Logan would

remove the lift’s outriggers to move the lift to a new spot.          Boggan testified that at some

point that morning, the Cathedral’s maintenance worker, John Adams, suggested that

Logan did not need to lower and exit the basket each time he needed to reposition

himself, but rather, they could raise the outriggers and roll the lift while Logan was
        1
         This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).
        2
            The AWP-40S was described as a portable and lightweight single-person aerial lift. The work
platform, or bucket, is enclosed with a guardrail and telescopes up to forty feet. The mast is made of
aluminum. The base is supported by four outriggers at each corner, with foot pads supporting each
outrigger. According to Genie, the outriggers must be locked in place in order for the machine to extend.
The lift’s base has wheels which allow a single person to roll it around a particular worksite.


                                                   2
elevated.     Adams told the pair that he moved the lift in that manner “all the time.”

Boggan testified that he had used similar aerial lifts in other jobs, but that he had never

attempted to move a machine while the bucket was elevated and in use.

          There is conflicting testimony regarding the events that followed.     According to

Boggan, he and Adams attempted to move an elevated Logan only once, which caused

the lift to tip over.   Boggan testified that he was the only person who lifted the stabilizers

off the ground to remove the pressure on the footpads, and that Adams then helped him

move the lift.    Adams, however, testified that they each raised two outriggers and had

moved Logan, without incident, several times before the machine tipped over. Both

witnesses testified that the outriggers were raised a matter of inches, just enough to

clear the carpet and allow the lift to roll.   According to both witnesses, Logan remarked

that he and the lift were “leaning” immediately before the crash landing on the sanctuary

floor.

          The Matak family (appellees) filed suit shortly after Logan’s death and named

Genie, Gulf Coast Electric, and Cathedral in the Pines as defendants.              Gulf Coast

Electric and Cathedral in the Pines settled prior to trial. Trial moved forward against

Genie with the appellees asserting causes of action under several theories of liability: (1)

strict products liability for a defective design; (2) negligence; and (3) breach of warranty.

At trial, a Jefferson County jury found that the Genie AWP-40S possessed a design

defect and that the defect was the producing cause of the injuries alleged by the Matak

family.     The jury allocated responsibility as follows:

          Genie Industries             55%




                                                3
        Cathedral in the Pines               20%

        Gulf Coast Electric Co.              20%

        Logan Matak                           5%

The jury found total damages sustained by the appellees at $1,305,701.70.                                This

appeal followed.

                                       II.      DESIGN DEFECT

        In its first issue, Genie asserts that the evidence was legally insufficient to

establish that the AWP-40S was defectively designed, and this court should accordingly

reverse and render judgment in its favor.

A.      Applicable Law and Standard of Review

        To prevail in a products liability claim alleging a design defect, a plaintiff must

prove by a preponderance of the evidence that: (1) the product was defectively designed

so as to be unreasonably dangerous; (2) a safer alternative design existed 3; and (3) the

defect was the producing cause of the damages sought.                       See TEX. CIV. PRAC. & REM.

CODE ANN. § 82.005(a) (West 2011); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306,

311–12 (Tex. 2009); Hernandez v. Tokai Corp., 2 S.W.3d 251, 255–57 (Tex. 1999).

        Texas courts have applied a risk-utility analysis to determine whether a

defectively designed product is unreasonably dangerous.                        See Timpte Indus., 286

S.W.3d at 311 (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432 (Tex. 1997)).

These factors include:



        3
            A “safer alternative design” is statutorily defined as a product design other than the one actually
used that in reasonable probability: (1) would have prevented or significantly reduced the risk of the
plaintiff’s injuries; (2) without substantially impairing the product’s utility; and (3) was economically and
technologically feasible when the product was manufactured or sold. TEX. CIV. PRAC. & REM. CODE ANN. §
82.005(b) (West 2011); see Hernandez v. Tokai Corp., 2 S.W.3d 251, 258 (Tex. 1999).

                                                      4
       (1) the utility of the product to the user and to the public as a whole
           weighed against the gravity and likelihood of injury from its use;

       (2) the availability of a substitute product which would meet the same need
           and not be unsafe or unreasonably expensive;

       (3) the manufacturer's ability to eliminate the unsafe character of the
           product without seriously impairing its usefulness or significantly
           increasing its costs;

       (4) the user's anticipated awareness of the dangers inherent in the product
           and their avoidability because of general public knowledge of the
           obvious condition of the product, or of the existence of suitable
           warnings or instructions; and

       (5) the expectations of the ordinary consumer.

Grinnell, 951 S.W.2d at 432.

       Whether a product is unreasonably dangerous is generally a question of fact for

the jury.   Id. (citing Turner v. Gen. Motors Corp., 584 S.W.2d 844, 848 (Tex. 1979)); see

also Hernandez, 2 S.W.3d at 260 (“The determination of whether a product is

unreasonably dangerous because of a defective design is often one that involves factual

disputes that a party is entitled to have a jury resolve.”).   However, when reasonable

minds cannot differ on the risk-utility analysis considerations, the issue of whether a

product is unreasonably dangerous may be determined as a matter of law.        See Timpte,

286 S.W.3d at 312 (citing Hernandez, 2 S.W.3d at 260). Texas has also rejected a

bright-line “open and obvious danger rule,” with the Texas Supreme Court holding that “a

design defect may attach even if the defect is apparent.”      Timpte, 286 S.W.3d at 312

(quoting Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 383–84 (Tex. 1995)).

       We will sustain a legal sufficiency challenge when the record discloses the

following situations:   (1) a complete absence of evidence of a vital fact; (2) the court is

barred by rules of law or of evidence from giving weight to the only evidence offered to

                                              5
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere

scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact.   City

of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 1995).

B.     Discussion

1.     Risk-Utility Analysis

       First, we must employ the risk-utility analysis set forth in Grinnell to determine

whether legally sufficient evidence supported a finding that the Genie lift was defectively

designed so as to be unreasonably dangerous.              See 951 S.W.2d at 432.          The

risk-utility analysis “does not operate in a vacuum, but rather in the context of the

product's intended use and its intended users.” Timpte, 286 S.W.3d at 312.         In light of

our complete review of the evidence, we find evidence sufficient to support the jury’s

conclusion that the AWP-40S was unreasonably dangerous because numerous disputed

facts were presented for the jury to consider. See Hernandez, 2 S.W.3d at 260.

       The appellees alleged that the Genie lift was defectively designed because the

design did not account for foreseeable misuses of the product—more specifically, that

the lift’s outriggers would be removed and the base would be moved while someone was

elevated inside the lift’s basket.   Genie contended at trial that the utility of the AWP-40S

lift is to provide users with a convenient, lightweight, and compactly-designed lift to

access hard-to-reach heights.         Specifically, Genie’s corporate representative and

director of product safety, Rick Curtin, emphasized at trial that this particular lift was

portable, unlike other models.        Curtin testified that the lift’s portability was “very

important,” and was “the key thing that makes the machine useful.” Curtin gave an

example that a single person could “roll the machine around on a work site,” and later


                                               6
“position [the lift] where they [were] going to . . . work with it.” Curtin noted in his

testimony that the lift’s outriggers allow for the user to stabilize the machine when

variances exist on the floor. The evidence shows that a consumer would expect the

AWP-40S to be a lightweight, mobile, and portable lift to work on high, hard-to-reach

spots.

         On cross-examination, Curtin admitted that Genie knew of the potential hazard

caused by moving the lift while the basket was in the air.      Curtin testified:

         I know that I’ve always had knowledge that the machine has to be
         stabilized properly and if not stabilized properly, then it can tip over. And,
         so, that’s been in mind ever since I started working with the company.

         Appellees emphasized at trial—and again on appeal—that Genie was aware of

the lift’s potential to tip over and cause injury, at any height, if moved while the bucket

was in the air but did nothing to “design out” the defect, despite cost-effective fixes or

alternatives to prevent it.    Genie counters by arguing that the hazard was warned

against through a warning label, but the utility of the lift outweighed the risk of the lift

tipping over and causing serious injury when it is assumed that the product will be used

as intended (i.e. when properly stabilized).

         Genie conceded, however, that Logan’s use of the AWP-40S was a “foreseeable

misuse” of the product.     The fact that the lift’s utility is high and the risk of injury is low

when the product is used as intended is but one consideration in the multitude of factors

used in Grinnell’s risk-utility analysis. The fact that a product’s foreseeable risk of harm

stems from a misuse of a product, rather than an intended use, is not an absolute bar to

liability for the injury caused by a product’s defective design.      Hernandez, 2 S.W.3d at

257; see Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 594 (Tex. 1999) (holding that


                                               7
a consumer’s “duty to discover defects, and to take precautions in constant anticipation

that a product might have a defect, would defeat the purposes of strict liability”).

“Instead, misuse of a product is a factor that must be considered in allocating

responsibility for the injury.”   Hernandez, 2 S.W.3d at 257. While consumers and end

users may not have a duty to discover or guard against a product’s defect, a consumer’s

conduct—other than a failure to discover or guard against the product defect—is subject

to comparative responsibility.     See Sanchez, 997 S.W.2d at 594 (holding that public

policy favors reasonable conduct by consumers regardless of whether a product is

defective, and does not relieve a consumer of the responsibility to act reasonably); see

also TEX. CIV. PRAC. & REM. CODE ANN. § 33.001 (West 2008).

       Here, the appellees argued that the evidence shows that Logan’s foreseeable

misuse of the lift was established not only by Adams’s suggestion to move the lift while in

use because he did it “all the time,” but also by Logan and Boggan’s acknowledgment of

the misuse.      Appellees argued, however, that Genie also played a role in the

foreseeable misuse and eventual injury to Logan for not designing against it.      Genie’s

admission to the foreseeability of misuses combined with Logan, Boggan, and Adams’s

conduct are disputed factors that the jury was within its purview to consider and weigh

when conducting its risk-utility assessment. Hernandez, 2 S.W.3d at 257.

       Curtin testified that he was not aware, nor could he recall, either as corporate

representative or director of product safety for Genie, that the company ever thought

about, discussed, or attempted to develop an alternative design or guard to prevent the

known tip-over risk if the outriggers were removed. When asked by appellees’ counsel

about what Genie had done to eliminate the unsafe character of the product without


                                             8
seriously impairing its usefulness or significantly increasing its costs, Curtin testified that

Genie offered training to operators of the lifts and placed warning stickers on the

machines.      Additionally, Curtin testified that Genie designed the AWP-40S to elevate

only if the outriggers were in place and in contact with the ground. Appellees’ counsel

acknowledged that safety feature, but asked what was in place to prevent the lift from

being moved while the bucket was elevated. The following exchange took place:

         [APPELLEES’ COUNSEL]:                  So, I agree with you, you’ve got
                                                something in place that won’t let you go
                                                up if the outriggers are not in place. But
                                                if I’m up, what do you have and what
                                                have you done to design out somebody
                                                pushing the machine while somebody’s
                                                up in the air?

         [CURTIN]:                              I don’t believe that there’s any way to
                                                design out having somebody misuse the
                                                machine by taking the outriggers out.
                                                What we have done is we have provided
                                                what we can provide, which is warnings
                                                and instructions for the proper use of the
                                                machine. We also provided training
                                                that we were talking about. And all of
                                                that is part of the design.            It’s
                                                considered as you’re doing the design.
                                                It’s not separate from it.

         Genie argued at trial, and now on appeal, that the lift is a safer alternative than an

industrial ladder which can extend to forty feet because the lift ascends and descends

quickly, which reduces operator fatigue, and the lift’s base has guard rails to prevent

falls.   Appellees’ expert, however, presented four alternative designs which purportedly

cost in the range of $25 to $200,4 and would have reduced the magnitude and likelihood


         4
         Cathedral in the Pines pastor, Louis R. Feldschau, testified that the church paid approximately
$10,000.00 for the AWP-40S lift.


                                                   9
of the injury in this case, but still retain the utility of the lift.5 Genie countered, however,

that appellees’ proposed alternative designs would have reduced the utility of the lift,

increased the danger of a fall, or would not have prevented Logan’s accident.

        Under the Grinnell factors, the evidence shows numerous facts, which rise to

more than a mere scintilla, indicating that the AWP-40S was an unreasonably dangerous

design.     These conflicts and disputes were the type for which reasonable minds could

disagree, and thus, cannot be decided as a matter of law.                      See Timpte Indus., 286

S.W.3d at 311.

2.      Safer Alternative Design

        Genie argues next that the appellees failed to offer legally sufficient evidence of a

safer alternative design because the offered designs fail to: (1) prevent or significantly

reduce the risk of injury without substantially impairing the product’s utility; and (2) be

economically and technologically feasible.                See TEX. CIV. PRAC. & REM. CODE ANN. §

82.005(b)(1)–(2). We disagree.

        a. Automatic Drop Down Design

        The appellee’s first proposed safer alternative design involves an automatic

drop-down design, developed by appellee’s expert Ken Zimmer. Zimmer testified that

under this alternative design, the aerial bucket would lower at a rate of one-foot per

second when pressure was lifted from one of the outriggers’ foot pads following a

two-second warning alarm.           Zimmer estimated through his own testing of the AWP-40S

that it would take approximately ten to twelve-and-a-half seconds to remove one

        5
           Because the Texas Legislature elevated the availability of a safer alternative design from a factor
to be considered in a risk-utility analysis to a requisite element of a cause of action for a defectively
designed product, we will examine whether a safer alternative design existed in more detail in PART II (B)(2)
of this opinion. See TEX. CIV. PRAC. & REM. CODE ANN. § 82.005(a)(1); Hernandez, 2 S.W.3d at 256–57.

                                                     10
outrigger.   Genie challenged this contention by arguing that tip-over posed a safety risk

at any height.   Zimmer estimated that at thirty seconds, after three pads were removed

and with the automatic drop-down design in place, Logan would have been “very close to

the platform height” where the tip-over risk is low.     Zimmer opined that the utility of the

lift would not be affected by this alternative design, and if anything, the design would add

to its safety and would have significantly reduced the risk of Logan’s injury in this case.

Zimmer testified that the added safety feature would increase the utility of the lift

because “these machines get into the hands of untrained people.”

       Zimmer testified that this alternative design would entail retooling the circuit board

of the lift to add another switch and cause the lift’s platform to lower when the outriggers

are lifted and the bucket is elevated.   Zimmer stated that “[i]t’s kind of like taking a circuit

and turning it upside down because it’s already there right side up.” The estimated cost

of such a switch was $25, which established the alternative design’s economic feasibility

on a $10,000.00 machine.       See Honda of Am. Mfg., Inc. v. Norman, 104 S.W.3d 600,

607 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“To establish economic

feasibility, the plaintiff must introduce proof of the ‘cost of incorporating this technology’”).

       A range of evidence was also offered to support that this alternative design was

technologically feasible.    Genie argues that Zimmer admitted that his design was a

hypothetical proposal which had not been incorporated in Zimmer’s practice as a design

engineer, and should be disregarded as a matter of law. We disagree.                  A plaintiff

needs only to prove that the alternative design is “capable of being developed . . . even

though the [plaintiff’s] expert has produced no prototype.”      Sanchez, 997 S.W.2d at 592

(Tex. 1999) (citing Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 748 (Tex.


                                               11
1980)).    Here, evidence was presented that Genie has products which already

incorporate the automatic drop technology.     Further, Curtin admitted that hypothetically,

a company “may be able to design a system that would allow the platform to come

down,” but testified that Genie would never do it because of unspecified safety concerns.

       b. Pothole Protection Design

       The appellees’ expert proposed a second alternative design known as the

“pothole protection” design.       The general idea behind this design involved the

mechanical deployment of outriggers as the lift’s basket is raised. A live demonstration

of this technology, narrated by Zimmer, was presented to the jury, but was not provided

to this Court for review.   According to Zimmer, the outriggers extend and stabilize as the

lift rises, unlike on the AWP-40S. Thus, the outriggers could not be removed while the

basket was deployed. Zimmer testified that the utility of the pothole protection design

would have reduced the risk of injury when compared to the AWP-40S because the

outriggers could not be removed while the lift was elevated.     Genie contended that this

pothole protection design was designed for a mobile lift, whereas the AWP-40S is a

stationary lift, governed by different safety standards.   Zimmer countered, however, that

his alternative lift design, while mobile, was still moved from location to location by

manual force, much like the AWP-40S. This particular design’s technology is in place in

other lifts and has been implemented since the 1980s.          Zimmer estimated that this

modified outrigger system would cost about $200.00 and was economically feasible.




                                             12
        c. Chain and Padlock Design

        Zimmer offered a third design known as the “chain and padlock” or

“lock-out/tag-out” design.        Generally, this design would lock the outrigger in place with a

padlock, and the person in the bucket would have the only key to unlock it.                       Therefore,

while the lift bucket/basket is elevated, the outrigger remains in place if someone on the

ground attempted to remove it, as occurred in this case.                 Zimmer testified that padlocks

and chains are technologically feasible and would cost approximately $25 to implement

and would have virtually eliminated Logan’s tip-over risk because the outriggers would

never have been raised without his knowledge.                 Genie argues that this design is legally

insufficient to support the reasonably safer alternative design element because Logan,

Boggan, and Adams made a conscious decision to ignore the current warnings on the

AWP-40S and would have moved the lift while it was elevated anyway.

        d. Block Idea

        Finally, the appellees developed a lay “block theory” alternative design when they

questioned Genie’s expert.6 Under this design theory, the AWP-40S would have a

block on one end, and a wheel on the other much like an air compressor one would have

at home. The wheel would aid in keeping the portability and “tilt back” feature in place,

but the block would prevent the AWP-40S from being moved if the outriggers were

removed while the lift’s bucket was in the air. Curtin admitted that the theory would be

technologically and economically feasible, but testified that the lift’s utility would suffer

because it would be more time consuming to move the lift. The appellees challenged

        6
          This lay theory was presented to and discussed with Genie’s expert and corporate representative
Rick Curtin. Genie did not object to this lay theory at any point before or during its introduction to the jury.
Instead, Genie’s first objection to this lay theory came a day after the theory’s introduction. Accordingly,
any challenges to the admissibility of this testimony on appeal are waived. See TEX. R. APP. P. 33.1.

                                                      13
Curtin that the actual time difference in moving the AWP-40S involved adding a couple

more steps under the block design versus the present design and would thus not

substantially impair the lift’s utility.

        All four alternative design theories in this case constituted more than a mere

scintilla of evidence upon which the jury could have determined that a safer alternative

design existed.

3.      Conclusion

        Because the evidence was legally sufficient for a reasonable jury to have

concluded that the AWP-40S was defectively designed, we overrule Genie’s first issue.

                        III.    BATSON/EDMONSON CHALLENGES

        In its second issue, Genie contends that the trial court erred in its

Batson/Edmonson rulings regarding two jurors.

A.      Applicable Law and Standard of Review

        In a civil trial, exclusion from the venire on account of race violates a prospective

juror’s equal protection rights; and an opposing litigant may raise the excluded person’s

rights on his or her behalf. Edmonson v. Leesville Concrete Co., Inc. 500 U.S. 614,

628–31 (1991) (extending the holding in Batson v. Kentucky, 476 U.S. 79, 85–99 (1986)

to civil proceedings); see Powers v. Palacios, 813 S.W.2d 489, 490 (Tex. 1991) (per

curiam) (extending the Edmonson holding to Texas cases).

        A three-step process—guided by substantive parameters set forth by the United

States Supreme Court—controls the resolution of a Batson/Edmonson objection. See

Goode v. Shoufeh, 943 S.W.2d 441, 445 (Tex. 1997) (internal citations omitted). First,

the opponent of the peremptory challenge must establish a prima facie case of


                                             14
purposeful discrimination; second, the burden shifts to the party who exercised the strike

to come forward with a race-neutral explanation; and third, the trial court must determine

if the party challenging the strike has proven purposeful racial discrimination. The trial

court may choose to believe, or not believe, the explanation offered by the party who

exercised the peremptory challenge.     See id.

      We review a trial court’s ruling on a Batson/Edmonson objection in civil cases for

an abuse of discretion.   Id. at 446.   A trial court abuses its discretion if its decision is

“arbitrary, unreasonable, and without reference to guiding principles.” Mercedes-Benz

Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).

B.    Discussion

      After voir dire, Genie peremptorily struck six black veniremembers. Initially, the

appellees challenged all of Genie’s strikes on Batson/Edmonson grounds, but the trial

court sustained their objections only to jurors Gwendolyn Sharp and Charline G.

Lawrence.    Because the trial court sustained the Batson/Edmonson challenges on

jurors Sharp and Lawrence, after Genie offered race-neutral explanations for striking

them, the preliminary issue of making a prima facie case of discriminatory intent is moot.

See Hernandez v. New York, 500 U.S. 352, 359 (1991); Goode, 943 S.W.2d at 445.

Accordingly, we will analyze the remaining two prongs under Batson/Edmonson.

      Genie argues that race-neutral grounds supported its peremptory strikes of jurors

Sharp and Lawrence. With regard to Sharp, Genie argues that Sharp and the Matak

family’s trial counsel, James Payne, were acquainted through church circles.             The

record indicates, however, that when Genie’s counsel asked Juror Sharp on two

occasions whether her acquaintanceship with Payne would have any effect on her ability


                                            15
to serve as a juror, both times Sharp answered, “no.” Genie argues further that it was

concerned with Sharp’s marriage to a church pastor because “she might be reluctant to

hold a church liable.” Again, when asked by Genie’s counsel whether she would have

any problem holding a church liable for negligence, Sharp answered, “no.”

       Next, Genie argues that it struck Lawrence due to her “positive responses and

reactions” to the appellees’ trial counsel during voir dire.     Lawrence appeared to speak

during voir dire only once, when she agreed with a statement made by a white juror,

James D. Marrs, whose statement supported Genie’s position. Genie struck Lawrence,

but did not strike Marrs.

       The trial court evaluated Genie’s race-neutral arguments with regard to all six

challenges, and found two arguments implausible.           All six of Genie’s strikes were used

to exclude black prospective jurors.     Eleven of the twenty-seven prospective jurors were

black—roughly, forty-one percent of the panel.           Of that estimated forty-one percent

(41%), approximately fifty-five percent (55%) of the total black veniremembers were

peremptorily struck and excluded by Genie. This statistical disparity was pointed out to

the trial court and within the trial court’s discretion to consider in its ruling.   See Miller-El

v. Dretke, 545 U.S. 231, 240–41 (2005); Davis v. Fisk Elec. Co., 268 S.W.3d 508, 516

(Tex. 2008) (noting that the statistical disparity in that case was unlikely produced by

“happenstance”).

       Furthermore, the appellees argue for a comparative juror analysis. First, one of

Genie’s race-neutral arguments—i.e. that juror Sharp’s affiliation with a church may

affect her willingness to hold a church liable—was undermined when Genie did not strike

white juror Emma R. Melanson, a former employee of the Cathedral in the Pines.


                                                16
Second, as pointed out previously in this section, juror Lawrence’s sole response during

voir dire was that she agreed with juror Marrs’s statement which appeared to support

Genie’s position. While Genie did not strike Marrs, who is white, it did strike Lawrence.

Finally, Genie argues that Lawrence’s positive demeanor toward appellees’ trial counsel

was another reason to strike her. However, “nonverbal conduct or demeanor, often

elusive and always subject to interpretation, may well mask a race-based strike.”

Davis, 268 S.W.3d at 518. The record shows nothing to suggest that Lawrence was

hostile to Genie’s case; to the contrary, the record supports an opposite inference.       See

Hill v. State, 827 S.W.2d 860, 871 (Tex. Crim. App. 1992) (en banc).7

       Accordingly, we conclude that the trial court did not abuse its discretion in

sustaining two Batson/Edmonson challenges. Genie’s second issue is overruled.

                               IV.    SETTLEMENT CREDIT

       In its final issue, Genie argues that the trial court erred when it entered judgment

without giving Genie full credit for the appellees’ pretrial settlement with Cathedral in the

Pines church.

A.     Applicable Law and Standard of Review

       Chapter 33 of the Texas Civil Practice and Remedies Code along with the

common-law guides the analysis of this issue.         Chapter 33 applies to “any cause of

action based on tort in which a defendant, settling person, or responsible third party is

found responsible for a percentage of the harm for which relief is sought.”           TEX. CIV.

PRAC. & REM. CODE ANN. § 33.002(a)(1) (West 2008).             Furthermore, section 33.012

requires the trial court to reduce the amount of recovery if the claimant has settled with

       7
           The Texas Supreme Court noted that Batson procedure is “much more developed” in Texas
criminal jurisprudence. Goode v. Shoukfeh, 943 S.W.2d 441, 450 (Tex. 1997).

                                              17
one or more persons with respect to the cause of action by the sum of the dollar amounts

of all settlements.   Id. § 33.012(b); see First Title Co. v. Garrett, 860 S.W.2d 74, 78

(Tex. 1993) (holding that “when a plaintiff files suit alleging that multiple tortfeasors are

responsible for the plaintiff's injury, any settlements are to be credited against the

amount for which the liable parties as a whole are found responsible, but for which only

the non-settling defendant remains in court”) The rationale for this doctrine is that the

plaintiff should not receive a windfall by recovering an amount in court that covers the

plaintiff's entire damages, but to which a settling defendant has already partially

contributed. The plaintiff would otherwise be recovering an amount greater than the trier

of fact has determined would fully compensate for the injury.     Id.

       In order to determine the sum of the dollar amounts of all settlements, the Texas

Supreme Court instructs us to turn to the common law.      See Mobil Oil Corp. v. Ellender,

968 S.W.2d 917, 927 (Tex. 1998). Under the common law, a defendant seeking a

settlement credit has the burden of proving its right to such a credit.       Id.   (citing First

Title Co. 860 S.W.2d at 78). This burden can be met by placing the settlement

agreement or some evidence of the settlement amount in the record.               Ellender, 968

S.W.2d at 927.    Once the defendant meets its burden, the burden then shifts to the

settling party, who must tender a valid settlement agreement allocating between actual

and punitive damages to the trial court before judgment is entered.         Id. at 928.    If the

settlement agreement is not tendered, or allocation between actual and punitive

damages is not proven to the trial court before judgment, the non-settling defendant is

entitled to a credit equaling the entire settlement amount.     Id.     A plaintiff is limited to




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proving allocation of damages to that which is expressly stated in a valid settlement

agreement. Id.

        We review a trial court’s determination of the existence of, or the amount of, or its

decision to apply a settlement credit for an abuse of discretion.             See Oyster Creek Fin.

Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 326 (Tex. App.—Houston [1st Dist.]

2004, pet. denied); Tex. Capital Sec. Inc. v. Sandefer, 108 S.W.3d 923, 925 (Tex.

App.—Texarkana 2003, pet. denied).

B.      Discussion

        Genie met its initial burden to show that it was entitled to a credit for Cathedral in

the Pines’ confidential pretrial settlement.8 The amount was placed into the record on

two separate occasions—the first, in open court by the appellees’ trial counsel at a

pretrial hearing; and the second by an in-camera admission of the written settlement

agreement at a post-verdict hearing to enter judgment. Therefore, the burden then

shifted to the appellees to prove the allocation of actual versus exemplary damages from

its settlement agreement with Cathedral in the Pines.                Genie argues that the entire

settlement amount was for actual damages, rather than divided between actual and

exemplary damages, as argued by the appellees to the trial court and on appeal.

Based upon the terms of the written settlement agreement included in the record, we

agree with Genie.

        The appellees put forth an intriguing, yet unpersuasive, argument that the

confidential settlement amount with the church includes actual and exemplary damages


        8
          We note that co-defendant Gulf Coast Electric Company purportedly settled with the appellees at
the pretrial stage exclusively on a claim of gross negligence against Gulf Coast Electric Company. This
settlement is not before us on appeal.

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because the total settlement amount is in excess of the statutory damages cap afforded

to non-hospital charitable organizations, such as Cathedral in the Pines.    See TEX. CIV.

PRAC. & REM. CODE ANN. § 84.006 (West 2011).             According to the appellees’ trial

counsel, initial pretrial settlement negotiations with Cathedral in the Pines contemplated

the $500,000 statutory liability cap for actual damages under section 84.006 but later

increased when the church’s counsel was notified that the appellees would seek

exemplary damages against the church in addition to actual damages. We decline to

address or consider this statutory cap argument because Ellender instructs us to look

solely at the terms expressly stated in a settling party’s settlement agreement and ignore

extrinsic evidence to determine the allocation of damages for settlement agreements

after May 8, 1998.    See 968 S.W.2d at 928.

       In this case, the settlement agreement includes the following pertinent language:

       Specifically, all monies being paid in settlement of this claim are paid on
       account of damages sustained by use arising from the occurrence. No
       portion of the proceeds paid under this Full and Final Release represent
       exemplary or punitive damages, nor pre-judgment or post-judgment
       interest.

       Because the appellees’ settlement agreement with Cathedral in the Pines did not

allocate between actual and exemplary damages to the trial court, but rather stated that

no part was for exemplary damages, the trial court abused its discretion by not factoring

the full settlement credit entitled to Genie.   See id. Accordingly, we sustain Genie’s

third issue.




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                                 V.    CONCLUSION

      We reverse the trial court’s judgment, exclusively on the issue of damages, and

remand for recalculation of damages in accordance with the full settlement credit that

Genie is entitled to. The remainder of the judgment is affirmed.




                                                      __________________________
                                                      GINA M. BENAVIDES,
                                                      Justice


Delivered and filed the
6th day of December, 2012.




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