                                              OPINION
                                         No. 04-09-00230-CV

       PARADIGM OIL, INC., Pacific Operators, Inc., Pacific Operators of Texas, Inc.,
                        and Finley Oil Well Service, Inc.,
                                    Appellants

                                                   v.

                                  RETAMCO OPERATING, INC.,
                                          Appellee

                      From the 131st Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2003-CI-14549
                           Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 31, 2010

REVERSED IN PART AND AFFIRMED IN PART

           This case returns to us for the third time on a question of damages. The difficulty in this

case arises from the unique nature of the damages hearings. In 2003, the trial court imposed

death penalty sanctions and granted a default judgment against Appellants Paradigm Oil, Inc.,

Pacific Operators, Inc., Pacific Operators of Texas, Inc., and Finley Oil Well Service, Inc.

(collectively Paradigm) in favor of appellee Retamco Operating, Inc. based on discovery abuses.

We upheld the death penalty sanctions, but reversed the judgment as to the amount of damages
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and remanded the case for a new hearing on damages. Paradigm Oil, Inc. v. Retamco Operating,

Inc. (Paradigm I), 161 S.W.3d 531, 538 (Tex. App.—San Antonio 2004, pet. denied). Following

an appeal from the second hearing on damages, we concluded that the record contained legally

insufficient evidence to support the damage award and remanded the case to the trial court for a

new trial on damages in the interest of justice. Paradigm Oil, Inc. v. Retamco Operating, Inc.

(Paradigm II), 242 S.W.3d 67, 75 (Tex. App.—San Antonio 2007, pet. denied). In the latest

hearing, in January 2009, the trial court awarded past and future damages in excess of $11

million, attorney’s fees, costs, prejudgment interest exceeding $4.5 million, and exemplary

damages totaling $20 million.

       On appeal, Paradigm challenges: (1) the legal and factual sufficiency of the evidence to

support the damages found by the trial court; (2) the award of tort damages because the amount

of damages was controlled by contract and barred by the economic loss rule; (3) the finding of a

causal connection between the injuries and the events sued upon; (4) the award of attorney’s fees

under Texas law when the contract is controlled by California law; and (5) the failure to credit

Paradigm $2.5 million in settlements Retamco received from other parties for the same lost

revenue. We reverse the trial court’s judgment for the failure to apply a settlement credit, and

affirm the judgment in all other aspects.

                           FACTUAL AND PROCEDURAL BACKGROUND

A. The Loan

       To understand the parties’ arguments, a detailed discussion of the underlying transaction

is necessary. In 1984, Retamco established a $70 million credit line with Security Pacific

National Bank (SPNB). Following an economic downturn, Retamco decided to liquidate a

number of oil and gas properties to pay off the line of credit. Under the terms of the Purchase



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Agreement, Retamco transferred 572 oil and gas leases to PNB Security Company (PNB), a

SPNB subsidiary, while retaining certain reversionary interests in the properties. Specifically,

Retamco retained the right to receive assignments of overriding royalty interests 1 in certain

subsequently drilled producing wells and the right to elect after-payout working interests 2 (also

known as “back-in” interests) when the revenue from certain subsequently drilled wells exceeded

drilling and operating expenses. These rights only applied to “Purchaser Financed Wells” on

Class I or Class II properties specifically defined in the 1984 Agreement. 3

B. 1984 Agreement

         In addition to the interests reserved by Retamco, the 1984 Agreement allowed Retamco

to continue operating certain leases already in production; receive notice of lease terminations,

sales, or assignments; and exercise certain options to retain a lease. Important to this case,

Retamco had the right to be notified when a well reached payout so that Retamco could exercise

its option to take its working interest. Additionally, PNB was required to prepare and record, in

all applicable counties, a document identifying and describing the rights and benefits of Retamco

under the 1984 Purchase Agreement, and to notify every purchaser or assignor of a lease covered

under the 1984 Agreement of Retamco’s rights and interests. The Purchase Agreement also

provided that the 1984 Agreement was binding on all parties including their respective heirs,

legal representatives, successors, and assigns.                The Agreement also relieved PNB of its

obligations to Retamco only if PNB sold or assigned a property subject to Retamco’s rights set

forth in Article 6 of the 1984 Agreement.


1
  “An overriding royalty is an interest in the oil and gas produced at the surface, free of the expense of production.”
Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 542 n.1 (Tex. App.—Austin 1999, pet. denied) (citing 8 HOWARD
WILLIAMS & CHARLES MEYERS, OIL AND GAS LAW, MANUAL OF TERMS 748 (1998)).
2
  “A working interest is the right to share in well production, subject to the costs of exploration and development.
Payout is reached when the costs of drilling and equipping the well are recovered from production.” Stable Energy,
999 S.W.2d at 543 n.2 (citing WILLIAMS & MEYERS, at 769, 1191).
3
  Retamco retained a 20% back-in interest on Class II properties and a 10% back-in interest on Class I properties.

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       In 1985, PNB transferred approximately 510 of the original 572 leases held by PNB to

Clements Production Company. The remaining sixty-two leases were transferred to Paradigm in

1993. PNB failed to disclose the rights held and to be acquired by Retamco when it transferred

the properties to Clements and Paradigm. Two categories of properties are involved in this case:

the Briscoe wells covered under the Briscoe Lease, located in Webb County, and the “Giddings

Leases”, covering wells located in Fayette, Lee, and Burleson Counties. Although Retamco

operated the Briscoe Lease from 1988 until 2000, it never operated any of the Giddings wells.

As will be described in more detail below, Paradigm subsequently transferred its leases to other

entities, and Retamco also divested itself of some of its interests retained under the 1984

Agreement.

       C. Procedural Background

       In 1999, Retamco sued PNB and its transferees and assignees, including Paradigm, the

operators of the oil and gas properties, and others for breach of contract and fraud. Retamco

alleged that Paradigm purchased some of the oil and gas properties from PNB, and that under the

terms of the 1984 Agreement and Paradigm’s contract with PNB, Paradigm succeeded to and

became obligated to perform all of PNB’s obligations to Retamco under the 1984 Agreement

even as to those properties never transferred to Paradigm. Retamco claimed that it: (1) had not

received assignments of overriding royalty interests to which it was entitled; (2) had been denied

its right to timely elect to convert its overriding royalty interests to working interests; and (3) had

not been paid the overriding royalties and working interest revenue it was due under the 1984

Purchase Agreement. After several motions for sanctions for discovery abuse were heard, on

July 15, 2003, the trial court imposed death penalty sanctions against Paradigm for what it called

“bad faith in the litigation process as a whole.” The trial court further struck Paradigm’s



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pleadings and disallowed evidence and argument opposing Retamco’s liability and damages

claims, and ordered that Appellants: “may not, and are disallowed to, oppose Plaintiff’s claims of

breach of contract and fraud, fraudulent concealment, accounting, conspiracy, alter ego, joint

enterprise liability, claims to overriding royalty interests, damages, exemplary damages, pre-

judgment interest, or attorney’s fees, whether by cross examination, objection to evidence

offered, or offer of evidence.” Paradigm II, 242 S.W.3d at 70. Despite the inability of Paradigm

to object to the evidence or contest liability, as noted earlier, we have remanded the case twice

for a new hearing on damages.

          In the prior appeal we focused on the sufficiency of the damage evidence provided by

land man John Thomas. The court spent much of its attention on the speculative nature of the

calculations of operating and drilling expenses, which would, in turn, impact the amount of

revenue attributable to the back-in working interests. 4 In reversing the damages award, the

Paradigm II Court described in detail the nature of the deficiencies in Thomas’s testimony, as

well as the evidence and testimony necessary to give a competent, relevant, and reliable opinion,

holding that “Thomas’s opinion as to damages was wholly speculative and conclusory because

he failed to provide factual substantiation for the opinions and failed to sufficiently explain how

he reached his conclusions.” Id. at 75. Once again, the case was remanded to the trial court for a

new hearing on damages.

          In January 2009, after a lengthy hearing, the trial court held that Retamco was entitled to

an award of damages from the defendants, jointly and severally in excess of $11 million in

compensatory damages. The court further found that Retamco’s compensatory damages were

based on $3,782,049.00 in damages proximately caused by the failure of the defendants to

comply with the 1984 Purchase Agreement, and $7,312,548.00 was attributable to the
4
    The back-in working interest is characterized in appellants’ brief as the after-payout working interest or APOWI.

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defendants’ fraud. In addition, the Court awarded exemplary damages against both Paradigm Oil

and Pacific Operators, Inc. in the amount of $7,500,000.00 each, and exemplary damages against

Pacific Operators of Texas and Finley Oil Well Service in the amount of $2,500,000.00 each.

The trial court filed findings of fact and conclusions of law and refused to enter the additional

findings requested by Paradigm.

                              LEGAL AND FACTUAL SUFFICIENCY

       Our attention in this appeal is once again drawn to the evidence supporting the damage

award. Paradigm’s first issue focuses on the legal and factual insufficiency of the evidence to

support the damage award. Paradigm does not attack a specific finding of the trial court, rather it

argues that the findings are conclusory and unsupported by the evidence.

A. Standard of Review

       The legal and factual sufficiency of the evidence supporting an award of unliquidated

damages after a default judgment may be challenged on appeal. Holt Atherton Indus., Inc. v.

Heine, 835 S.W.2d 80, 84–86 (Tex. 1992); Arenivar v. Providian Nat’l Bank, 23 S.W.3d 496,

498 (Tex. App.—Amarillo 2000, no pet.). To decide Paradigm’s “no-evidence” issue, we review

the record of the damages hearing in the light most favorable to the verdict and indulge every

reasonable inference to support the judgment. City of Keller v. Wilson, 168 S.W.3d 802, 822

(Tex. 2005). In reviewing a factual sufficiency challenge, we must consider all the evidence and

set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

       When a no-answer default judgment is rendered, the defendant’s liability for all causes of

action pled is conclusively established and all allegations of fact in the petition, except the

amount of unliquidated damages, are deemed admitted. Morgan v. Compugraphic Corp., 675



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S.W.2d 729, 731 (Tex. 1984). Thus, Retamco had to prove, by competent evidence, the amount

of unliquidated damages and that the injury for which damages are sought was proximately

caused by the event for which liability has been established. Id. at 731–32 & n.2; see also

Paradigm II, 242 S.W.3d at 72. “The damages must be ascertainable in some manner other than

by mere speculation or conjecture, and by reference to some fairly definite standard, established

experience, or direct inference from known facts.” A.B.F. Freight Sys., Inc. v. Austrian Imp.

Serv., Inc., 798 S.W.2d 606, 615 (Tex. App.—Dallas 1990, writ denied).

       This court previously held that the default judgment

       conclusively established, as alleged in the petition, that Paradigm assumed all of
       PNB’s obligations under the 1984 contract; that Paradigm committed breach of
       contract and fraud; and that Paradigm is jointly and severally liable with the other
       defendants for the damages caused by all of their breaches of contract and fraud.

Paradigm II, 242 S.W.3d 72–73 (citing ABF Freight, 798 S.W.2d at 615). Thus, to recover,

Retamco was required only to prove “by competent evidence the amount of its damages and that

its injuries were caused by the breaches of contract and fraudulent conduct.” Id. at 73.

B. Legal Conclusions

       Paradigm first argues that the evidence is legally insufficient because Retamco’s

witnesses offered improper legal conclusions on pure legal questions.          More specifically,

Paradigm argues that the expert opinions of John Thomas and Charles Graham, with regard to

Paradigm’s obligations under the 1984 Agreement, lacked evidentiary support. Both experts

testified concerning the various assignments and agreements pertinent to this case and

specifically that Paradigm was PNB’s legal successor and assign and assumed PNB’s legal

obligations under the 1984 Purchase Agreement.

       Paradigm’s argument is without merit. First, our court previously confirmed that the

default judgment “conclusively established, as alleged in the petition, that Paradigm assumed all

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of PNB’s obligations under the 1984 contract; . . . .” Paradigm II, 242 S.W.3d 72. Thus, the

experts’ conclusions complained of mirror our prior holding. Second, the experts were entitled

to rely upon the underlying assignments and leases in arriving at their opinions on damages.

Their resulting opinions, consisting of mixed questions of law and fact, detailed their reasoning

and how the damages were derived. See Colo. Interstate Gas Co. v. Hunt Energy Corp., 47

S.W.3d 1, 10 (Tex. App.—Amarillo 2000, pet. denied) (holding expert testimony based on

examinations of various underlying documents of title, including leases and assignments, was

sufficient evidence regarding the ownership of the interests in question). Finally, even if the

experts’ opinions on questions of law were inadmissible, “[t]he law presumes that in a matter not

tried before a jury, a court disregards any incompetent evidence and considers only the

competent evidence in reaching its decision.” Acker v. Denton Pub. Co., 937 S.W.2d 111, 119

(Tex. App.—Fort Worth 1996, no writ); see State ex rel. Grimes County Taxpayers Ass’n v. Tex.

Mun. Power Agency, 565 S.W.2d 258, 277 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ

dism’d). The trial court had before it the assignments, leases, and other conveyances upon which

the experts based their opinions. The court likewise had before it the terms of the default

judgment and our prior opinions regarding damage calculations. We presume the trial court

disregarded any incompetent evidence and followed our prior opinions when assessing the

damages in this case. Acker, 937 S.W.2d at 119; Grimes County, 565 S.W.2d at 277. We

overrule this issue on appeal.

C. Amount and Reliability of Damages

       1. Lack of Evidence of Reasonable Expenses

       Paradigm next complains that the damages relating to lost revenue attributable to the

back-in working interest lack evidentiary support. Specifically, Paradigm complains that the



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evidence regarding operating expenses on the Briscoe Lease is demonstrably inaccurate; and

there is no articulable basis for the operating expenses used to calculate damages on the Giddings

wells. Notably, the issue is not framed as a lack of evidence of Paradigm overcharging well

expenses, but as a lack of sufficient evidence of the reasonable well expenses to support the

damages.

          In order to review the working interest damages it is important to understand that under

the 1984 Agreement, when a well “broke even” or reached “payout”—when the revenue from

the well revenues equaled exploration, drilling, and operating expenses—then Retamco was

entitled to receive a 10–20% working interest in revenues from that well, depending on its

classification. Consequently, evidence of when a well reached “payout” is critical. Retamco’s

experts calculated when a well reached payout and the subsequent lost revenue by determining

the reasonable drilling and operating expenses for the wells at issue.

          In attacking the basis used to calculate operating expenses for the Giddings wells and

Briscoe Lease, Paradigm focuses on the testimony of Charles Graham and Stephen Gose,

pointing to a few statements from the record. Paradigm’s selective recitation, however, neglects

substantial evidence found in the record. Gose was president and co-owner of Retamco and had

fifty-eight years of experience in the oil and gas industry, and had drilled over 750 wells in

Texas. Retamco operated the Briscoe Lease from 1988 to 2000. In his testimony, Stephen Gose

analyzed the operating expenses associated with the wells under the Briscoe Lease and arrived at

an approximate figure of $500.00 per month in the mid-1980s. Retamco’s calculations increased

this figure to reflect inflation over subsequent years. Charles Graham is a petroleum engineer

with extensive experience, including serving as a petroleum engineer for the Briscoe Ranch. 5 He


5
    Graham worked as a petroleum engineer for almost 38 years and had experience as an operator of a well.

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testified that he was familiar with the reasonable costs to operate wells on the Briscoe Lease, and

confirmed the reasonableness of the operating expenses testified to by Gose.           Paradigm’s

complaint targets a purported inaccuracy in Gose’s testimony on operational expenses.

However, both Gose and Graham had personal knowledge regarding operations on the Briscoe

Lease. It was the prerogative of the fact-finder to accept Gose’s and Graham’s testimony on the

reasonableness of the operating expenses, and “great deference [is] given to the judge’s

determination of witnesses’ credibility and the weight of their testimony.” .39 Acres v. State,

247 S.W.3d 384, 387 (Tex. App.—Texarkana 2008, pet. denied); see City of Keller, 168 S.W.3d

at 819.

          Paradigm also complains of the lack of evidence of the operational expenses used in

calculating the payout date on the Giddings wells. Retamco used a baseline figure of $2,000.00

per month as the reasonable cost to operate each of the Giddings wells. Graham testified that his

firm had been monitoring the drilling activity in the Giddings wells’ area since 1987. He had

performed audits of operators in the area, such as Anadarko and Union Pacific, for other owners

of wells in the Giddings field. Graham had also owned working interests in wells in the

Giddings field and had personal knowledge of costs to operate wells, and used that knowledge in

conducting audits for compliance under operating agreements. The record thus supports the

reasonable operational expense calculation attributable to the Giddings wells.

          2. Reasonable Certainty of Damages

          Paradigm also complains that Retamco’s claims for lost overriding royalty interest

revenue and back-in working interest revenue were not proved with a reasonable degree of

certainty or supported by adequate data. Paradigm mentions two examples of faulty calculations

including: (1) Graham’s use of index prices for oil and gas, rather than actual prices available to



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the Comptroller of Public Accounts; and (2) a disagreement over Thomas’s characterization of

properties as Class II rather than Class I properties. In view of the substantial and specific

testimony contained in the record, we conclude this argument is without merit.

       Though a plaintiff’s figures need not be exact, they must approximate lost profits with

“reasonable certainty.” Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276,

279 (Tex. 1994). In order for lost profits to be established with reasonable certainty, evidence of

lost profits must be based upon objective data from which the loss can be determined with a

reasonable degree of exactness. See id. To be sufficient, the testimony “must be based on

objective facts, figures, or data from which the amount of lost profits may be ascertained” with

“reasonable certainty.” Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994);

compare id. with Aquila Sw. Pipeline, Inc. v. Harmony Explor., Inc., 48 S.W.3d 225, 246 (Tex.

App.—San Antonio 2001, pet. denied) (holding petroleum engineer’s evidence of lost profits as

to two oil and gas wells was speculative where witness did not base his calculations on evidence

of the historical profitability of the wells in question). In our prior opinion, this court critiqued

the testimony from the only witness to testify, land man John Thomas:

       [Thomas] did no more than identify the general types of information he reviewed
       and relied upon, give an incomplete summary of the procedure he followed to
       make his calculations, and render a conclusory opinion on the amount of
       damages. Although the evidence shows Thomas examined facts and data that
       would be appropriate to consider in calculating damages, he failed to specifically
       identify any of the facts, failed to provide any of the data, failed to explain how
       the facts and data affected his calculations, and failed to show any of his
       calculations.

Paradigm II, 242 S.W.3d at 74–75. Thomas’s testimony likewise suffered because his report

and underlying data were not admitted into evidence. In our opinion, this court also identified

the specific evidence necessary to support the damage award, including drilling and operating




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costs, prices, and production used in the damage calculations and the specific wells and leases at

issue. Id. at 75.

        Unlike the prior hearing on damages, at the most recent hearing Retamco introduced

substantial documentation and evidence on a per well basis to support the damages. 6 Graham

provided detailed calculations of damages by relying on monthly sales volume reports filed by

operators with the Railroad Commission and pricing information for gas from the twice-monthly

published Houston Ship Channel Index with adjustments to reflect the differences in quality and

heating values for Briscoe and Giddings production and post-production expenses. Not only

Graham, but Thomas and Paradigm’s president Carone stated that the Houston Index reflected a

“reliable” price. The reductions from that price represent Graham’s downward adjustment as a

conservative approach to ensure Retamco was not overcompensated by using the maximum

index price.    Although he acknowledges that his numbers are not provided with absolute

certainty, Graham reiterates that the calculations are within reasonable certainty. See Szczepanik,

883 S.W.2d at 649; Tex. Instruments, 877 S.W.2d at 279.

        John Thomas is an experienced petroleum land man with substantial experience in

reviewing leases, plats, and operation and production records. Thomas identified the percentage

ownership in each well in which Retamco owned an interest under the 1984 Agreement. Thomas

explained that the wells in question are not draining wells, they are not required wells, and they

are not excluded properties under the 1984 Purchase Agreement. Therefore, based on his review

of the documents, Thomas opined that each of the properties included in his report were properly

classified as Class II properties in which Retamco maintained an overriding interest and a

reserved working interest. He introduced his lengthy and detailed report into evidence in support


6
   Hundreds of exhibits contained in numerous binders were admitted by Retamco at the damages hearing that
included detailed calculations of lost revenue on a per well basis.

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of his damages testimony. Additionally, there is no evidence in the record that disputes his

classification of the properties, and Laura Burney, an oil and gas expert, likewise substantiated

the characterization of the properties as Class II. We, therefore, conclude that the evidence

supports that the lost revenue damages are supported by adequate data and with sufficient

certainty.

                                              TORT DAMAGES

A. Economic Loss Rule

        Paradigm next argues that the trial court abused its discretion in awarding tort damages

because Retamco’s fraud claim is truly a contract claim for which tort damages cannot be

awarded. Specifically, Paradigm argues that the fraud claim stems from the back-in rights

provided for in the 1984 Agreement, and the tort claims are not sufficiently independent from the

breach of contract claims to support an award of damages. 7 The trial court found that the fraud

damages were caused by Paradigm:

        (1) failing to record the rights of Retamco to provide record notice to others of its
            property rights;
        (2) improperly overstating costs or understating revenue on wells;
        (3) offsetting or deducting items of expenses not actually incurred including costs
            of plugging and abandoning wells that were not plugged and abandoned;
        (4) diverting proceeds due to Retamco to accounts created for Defendants’
            benefit; and
        (5) charging unreasonable monthly producing well rates for overhead in excess of
            actual, reasonable overhead expenses.

Paradigm thus contends that because the fraud damages arise from rights under the 1984

Agreement, such damages are precluded by the economic loss rule. S.W. Bell Tele. Co. v.

DeLanney, 809 S.W.2d 493, 495 (Tex. 1991). Retamco responds that the fraud allegations

contained in its Fifth Amended Petition were deemed admitted pursuant to the partial default

7
  Paradigm also contends that the operating expenses for the wells were governed by joint operating agreements,
which were not introduced into evidence. Without evidence of a joint operating agreement in the record, we cannot
address this assertion.

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judgment entered by the trial court. The fraud allegations in the petition included assertions that

PNB and Paradigm defrauded Retamco by forging endorsements on Retamco’s revenue checks;

offsetting and deducting items of operating expenses not actually incurred, including costs of

plugging and abandoning wells that were not plugged or abandoned; and charging unreasonable

and unconscionable monthly producing well rates far in excess of actual or reasonable overhead

expenses.

       In reviewing the default judgment, we previously stated: “the default judgment therefore

conclusively established, as alleged in the petition, . . . that Paradigm committed . . . fraud; and

that Paradigm is jointly and severally liable with the other defendants for the damages caused by

all of their . . . fraud.” Paradigm II, 242 S.W.3d at 72–73. Thus, we previously recognized that

Paradigm’s liability for fraud was conclusive, but that Retamco would be required to establish

the amount of damages attributable to the fraud.

       In an analogous case, the El Paso Court of Appeals rejected a well operator’s argument

that the plaintiff, a working interest owner, was barred from any tort recovery because her claims

sounded in contract. Cass v. Stephens, 156 S.W.3d 38, 68 (Tex. App.—El Paso 2004, pet.

denied). In Cass, a working interest owner sued the operator of oil and gas wells for breach of

contract, fraud, and conversion. Id. at 47–49. The plaintiff’s allegations included that the

operator made unauthorized expense charges on wells; overcharged expenses; and charged

expenses incurred on wells owned by the operator to plaintiff’s wells. See id. at 50–51. In

rejecting the argument that the damages were contractual the court stated:

       [W]e reject the contention that Stephens’ injury is contractual because she
       recovered economic damages. . . . Frank’s fraud caused the joint interest owners
       to pay for goods and services they never received. Logically, their damages are
       economic-fraudulently induced payment of money results in money damages.
       We conclude that the injury is tortuous in nature.



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See id. at 68–69. Thus, Cass clearly held that an agreement can create “a conduit for committing

the torts, but the duty breached exists independent from the agreements.” Id. at 69.

        The record contained significant evidence to support the conclusion that Retamco’s

damages were attributable to fraud outside the 1984 Agreement. Several letters in evidence

reflect Paradigm’s executives’ awareness of Retamco’s reversionary interests. Yet despite such

awareness, Paradigm recognized the negative impact of Retamco’s interest on a sale price of its

leases, and transferred its leases without any reference to the existence of such reversionary

interests.   There is evidence that Paradigm executives, Carone and McCallum, and their

companies worked with PNB and intentionally acted to defeat Retamco’s right to receive its

reversionary interests under the 1984 Agreement.         Thus, Paradigm fraudulently reported

expenses to ensure the back-in interests never materialized. Retamco’s petition describes, and

the evidence supports, that Paradigm created a scheme to defraud Retamco of its back-in

working interest revenue by overcharging and misstating expenses for which claims and

damages are separate from the breach of contract claims. Based on the pleadings, the trial

court’s findings, and the evidence submitted at trial, we hold that Retamco’s fraud claim

supported damages independent from Retamco’s breach of contract claim.

B. Fraud Damages

        Paradigm argues that the fraud damages awarded do not conform to an accepted legal

standard.

        Texas recognizes two measures of direct damages for common-law fraud: the out-
        of-pocket measure and the benefit-of-the-bargain measure. The out-of-pocket
        measure computes the difference between the value paid and the value received,
        while the benefit-of-the-bargain measure computes the difference between the
        value as represented and the value received.




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Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 49 (Tex.

1998) (citations omitted); see also Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007)

(per curiam) (observing that out-of-pocket damages “derive from a restitutionary theory,” while

benefit-of-the-bargain damages “derive from an expectancy theory”). A plaintiff may recover

either the out-of-pocket or the benefit-of-the-bargain damages, whichever is greater. Arthur

Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997).

       Paradigm argues that Retamco’s back-in working interest damages are limited to the

difference between the value it parted with and the value it received. As such, Paradigm claims

there is no evidence that Retamco parted with any value, i.e., that it paid the overstated operating

expenses, in connection with Paradigm’s alleged misrepresentation of operating expenses.

Paradigm further asserts that the trial court erred in awarding all of Retamco’s back-in working

interest revenues, as opposed to the difference between the over charged amounts and what was

reasonable. Moreover, because Retamco was required to pay some operating expenses, the

entire lost revenue from the back-in working interest cannot be causally linked to Paradigm’s

alleged fraudulent activities.

       In response, Retamco points to Graham’s testimony regarding his calculations of the

working interest revenues that were “net” figures taking into account past and on-going lease

expenses. Thus, the trial court awarded damages based on lost working interest revenue less

reasonable operating expenses. Retamco further argues Graham’s damage calculations were a

classic benefit-of-the-bargain calculation—Graham calculated the difference between the value

of working interest revenues represented by Paradigm which amounted to nothing, and the value

of the revenues Retamco would have collected but for Paradigm’s fraud. Retamco’s model is

appropriate. Because Graham’s calculations are based on the difference between the value of the



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                                                                                   04-09-00230-CV


interests represented by Paradigm to Retamco and the value received by Retamco, they constitute

direct damages for fraud. See Formosa Plastics, 960 S.W.2d at 49.

C. Lack of Causal Nexus for After-Payout Working Interest Tort Damages

       Finally, Paradigm argues that the vast majority of the back-in working interest damages,

attributable to fraud, were incurred when Paradigm was not involved in the lease operations. For

example, after March 2000, the Briscoe Lease was operated by other third parties.           Thus,

Paradigm argues it did not and could not charge excessive operating expenses for the Briscoe

Lease wells after March 2000. Furthermore, Paradigm claims that Retamco put on evidence of

excess operating expenses only for the years 1993–1999 and therefore, there is no basis for tort

damages based on fraud prior to January 1, 1993, or after January 1, 2000. As will be discussed

in more detail below, the allegations in Retamco’s petition regarding fraud, including allegations

of joint and several liability under theories of conspiracy and joint enterprise/venture, were

deemed admitted. Based on the evidence, the trial court could have concluded that Carone and

Paradigm were working with PNB and never intended Retamco’s working interests to vest. The

fraud damages awarded were based on a model that examined when Retamco’s working interests

would have vested absent fraud and how much revenue would have been received. Both Graham

and Thomas provided detailed testimony of the interests and revenue that Retamco would have

received absent the fraud of Paradigm. We overrule this issue.

D. Harm Not Proximately Caused by Paradigm

       Continuing its complaints about the damages award, Paradigm argues that Retamco failed

to establish that Paradigm proximately caused its damages. See Paradigm II, 242 S.W.3d at 72.

Retamco’s damages are based on its overriding royalty interests and back-in working interests;

which are interests in real property. Matagorda County Appraisal Dist. v. Coastal Liquids



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                                                                                            04-09-00230-CV


Partners, L.P., 165 S.W.3d 329, 332 (Tex. 2005). Paradigm argues that its duty to pay Retamco

could only arise when Retamco and Paradigm owned interests in the subject leases at the same

time because only then would Paradigm have a legal duty to Retamco. Paradigm maintains that

there were a series of conveyances that show as a matter of law that Retamco recovered damages

for interests it no longer owned and at a time when Paradigm had no interest in the leases.

Before discussing this issue further we must point out again the unusual construct in which the

damages were presented. At trial, the trial court did not admit any of the conveyances relied

upon by Paradigm due to the death penalty sanctions, but in order to understand Paradigm’s

argument we will describe the pertinent conveyances below. 8

        1. The Briscoe Ranch Conveyances

        The damages awarded relating to the Briscoe Lease cover a time period from 1986 to

2017 in some instances. Paradigm attacks these damages because (1) Retamco assigned its

entire interest in the Briscoe Lease as early as March 16, 1994, and no later than January 1,

2000; 9 and (2) Paradigm did not own or operate any interest in the Briscoe Lease after March 1,

2000. 10 Consequently, Paradigm argues it cannot be liable to Retamco for working interests it

conveyed to others at least by 2000.

        2. The Giddings Lease Assignment

        The Giddings Lease damages cover a period from approximately 1994 into the future.

Paradigm attacks these damages because: (1) Retamco assigned all of its interest in the Giddings

Leases effective March 31, 2006; (2) Paradigm assigned its interests to third parties effective




8
   Paradigm attached the various assignments and conveyances to a request for judicial notice.
9
   Retamco claims the 1994 assignment was void and never implemented.
10
    Paradigm assigned its interest in the Briscoe Lease to Crimson Energy, L.P. in 2000, but did not disclose
Retamco’s reversionary interests in the document.

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                                                                                                    04-09-00230-CV


January 1, 2000; and (3) Paradigm never owned many of the Giddings Leases for which damages

were awarded. 11

          3. Damages Prior to Paradigm’s Acquisition

          Paradigm points out that it did not acquire any of the subject properties until May 1993,

when PNB sold sixty-two wells to Paradigm under the terms of an Asset Purchase Agreement.

Paradigm argues that it assumed the obligation to pay revenues only on the sixty-two leases

covered by the 1984 Agreement from January 1, 1993, forward. Furthermore, the remaining 510

leases, which specifically acknowledged the interests held by Retamco, were transferred in 1985

to Clements Energy. Therefore, Paradigm could not have caused harm before 1993 or in excess

of the sixty-two leases it acquired. Retamco disputes Paradigm’s interpretation of the Clements’

purchase and points to the Clements assignment that was not made subject to Retamco’s rights

and therefore, according to Paradigm, PNB remained fully responsible to Retamco on all the

leases conveyed under the 1984 Agreement.

          4. Effect of Death Penalty Sanctions

          The death penalty sanctions awarded in this case preclude much of Paradigm’s

arguments. Under the terms of the Default Judgment, Paradigm “may not, and [is] disallowed to,

oppose Plaintiff’s claims of breach of contract and fraud, fraudulent concealment, accounting,

conspiracy, alter ego, joint enterprise liability, claims to overriding royalty interests, damages,

exemplary damages, pre-judgment interest or attorney’s fees whether by cross examination,

objection to evidence offered, or offer of evidence . . . .” As a result the trial court did not admit

any of the underlying assignments and conveyances that would support Paradigm’s factual

assertions. Paradigm claims the trial court erred by not admitting the pertinent documents under

a request for judicial notice.
11
     Paradigm transferred its Giddings well leases to Republic Drilling Co. and Douglas McCallum.

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                                                                                                      04-09-00230-CV


         Specifically, Paradigm requested that the trial court take judicial notice of six

conveyances affecting the Briscoe and Giddings Leases because public records are adjudicative

facts of which the trial court shall take judicial notice “if requested by a party and supplied with

the necessary information.” See TEX. R. EVID. 201(d). Judicial notice, however, is a matter of

evidence. See Burtis v. Butler Bros., 226 S.W.2d 825, 830 (Tex. 1950). Retamco argues that the

sanctions order prohibits Paradigm from offering evidence and their judicial notice argument is

simply a means of circumventing the sanctions. We agree. Paradigm offered the exhibits during

the hearing on the settlement credits and argued that the documents were evidence of a lack of

causal nexus. In reality, Paradigm was attempting to limit its liability and circumvent the death

penalty sanctions. Accordingly, the trial court did not err in failing to take judicial notice of the

conveyances or admitting them into evidence.

         In addition to the failure to admit the conveyance documents Paradigm relies upon to

establish the lack of a causal connection, the default judgment conclusively established

Paradigm’s liability, including “that Paradigm assumed all of PNB’s obligations under the 1984

contract; . . . and that Paradigm is jointly and severally liable with the other defendants for the

damages caused by all their breaches of contract and fraud.” 12 Paradigm II, 242 S.W.3d at 72–

73. Thus, the issue of which obligations were assumed by Paradigm under the 1984 Agreement,

and when they arose have been established. See Morgan v. Compugraphic Corp., 675 S.W.2d

729, 731 (Tex. 1984) (all causes of action and facts pled are established in default judgment).

Because Paradigm is jointly and severally liable with PNB, the evidence supports damages that

accrued before Paradigm acquired its leases and after it transferred its interests.




12
  Retamco pled joint and several liability based on conspiracy, joint enterprise/venture, successor liability, and alter
ego theories.

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                                                                                 04-09-00230-CV


       Finally, many of Paradigm’s arguments misconstrue the nature of the damages awarded.

The trial court did not award specific back-in working interests or overriding royalty interests

that are currently owned by third parties. The damage model was based on the loss of those

interests and resulting loss of revenue caused by Paradigm’s fraudulent accounting, conspiracy

with PNB, and failure to abide by the 1984 Purchase Agreement. Absent Paradigm’s actions,

Retamco introduced evidence that it would have received revenue from its working interests

earlier and would not have conveyed its interests for less than their value. Specifically, Gose

testified that he learned that Crimson was seeking to sell its interest in the Briscoe Lease to

Huber Energy. Because Gose had yet to receive any royalties from the property, Gose wrote

Crimson advising them of Retamco’s interest in the lease. Crimson sued Retamco for slander of

title because it was unaware of Retamco’s interest due to Paradigm’s effort to conceal Retamco’s

interest from others. Paradigm refused to provide the payout data to Retamco to establish to

Crimson’s satisfaction the extent of its back-in working interest. Because Crimson was a bona

fide purchaser for value, Gose had to settle by assigning its rights to Crimson. However, Gose

testified to the reasons why Retamco transferred its reversionary interests to Crimson under the

Briscoe Lease.   Gose made certain that the parties put in the assignment and settlement

agreement that Retamco was not waiving or releasing any claims it had against Paradigm.

                                    EXEMPLARY DAMAGES

       Because the “actual damages sustained from a tort must be proven before punitive

damages are available,” Paradigm claims that Retamco is not entitled to punitive damages. Twin

City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex. 1995). Furthermore, a breach of contract

can never support punitive damages, even in the face of intentional conduct or malicious acts.

Manges v. Guerra, 673 S.W.2d 180, 184 (Tex. 1984). However, in light of our determination



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                                                                                                  04-09-00230-CV


that the actual damages were legally and factually sufficient, and the damages were properly

awarded under fraud, we need not address these issues further.

        Paradigm states, however, that even assuming tort damages, there is insufficient evidence

to conclude that the trial court considered any of the facts required by section 41.011 of the

Texas Civil Practice and Remedies Code for imposing exemplary damages. See TEX. CIV. PRAC.

& REM. CODE ANN. § 41.011 (Vernon 2008). 13 Moreover, even if the court did consider the

factors, Paradigm argues that this case does not merit exemplary damages because the harm

caused was purely economic, did not implicate any health or safety concerns, and Retamco was

not financially vulnerable. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 308 (Tex.

2006). However, “[e]xemplary damages are recoverable when the injury is tainted with fraud,

malice, or willful wrong.” Cheek v. Humphreys, 800 S.W.2d 596, 599 (Tex. App.—Houston

[14th Dist.] 1990, writ denied).

        We note that Paradigm does not argue that the exemplary damages are excessive or

challenge the trial court’s findings of fact relating to the exemplary damages. Moreover, as

Retamco points out, this case is more than mere breach of contract. To the contrary, Retamco

argues that this case “involves purposeful fraud and conspiracy to commit fraud that was deemed

admitted and overwhelmingly proven at trial and is now the subject of unchallenged fact-

findings on appeal.”         Once again, we agree.              There was evidence that Paradigm forged
13
   The trial court expressly considered the factors listed in the Civil Practice and Remedies Code in its finding of
facts. Texas Civil Practice and Remedies Code section 41.011 provides as follows:
     (a) In determining the amount of exemplary damages, the trier of fact shall consider evidence, if any,
     relating to:
          (1) the nature of the wrong;
          (2) the character of the conduct involved;
          (3) the degree of culpability of the wrongdoer;
          (4) the situation and sensibilities of the parties concerned;
          (5) the extent to which such conduct offends a public sense of justice and propriety; and
          (6) the net worth of the defendant.
     (b) Evidence that is relevant only to the amount of exemplary damages that may be awarded is not
     admissible during the first phase of a bifurcated trial.
TEX. CIV. PRAC. & REM. CODE ANN. § 41.001 (Vernon 2008).

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                                                                                                      04-09-00230-CV


endorsements on Retamco’s revenue checks and deposited them into its accounts; that Paradigm

engaged in a multi-year plan of grossly inflating operating expenses to ensure the back-in

working interests would not vest; and misrepresented its activities and ownership to avoid paying

Retamco its revenues. There is clearly sufficient evidence upon which the trial court could find

that Paradigm’s misconduct was malicious, fraudulent, or reprehensible. See TEX. CIV. PRAC. &

REM. CODE ANN. § 41.011; BMW of N. Am. v. Gore, 517 U.S. 559, 576 (1996); Chapa, 212

S.W.3d at 308. Accordingly, this issue is overruled.

                                                ATTORNEY’S FEES

         Paradigm next argues that the trial court erred in awarding attorneys’ fees because the

1984 Purchase Agreement contains a California choice of law provision. Paradigm claims

Retamco is not entitled to enforce the attorney’s fee provision contained in the 1984 Agreement

because none of the Appellants were parties to the 1984 Purchase Agreement. 14 Accordingly,

under California law, Retamco cannot enforce the attorney’s fees provision against Paradigm

because Paradigm was not a party to the original contract. See Glynn v. Marquette, 152 Cal.

App. 3d 277, 280 (1984) (holding that award of attorney’s fees under California law requires an

express assumption of the contract). Because, according to Paradigm, it is neither an “assign”

nor a “successor,” the trial court erroneously ordered attorney’s fees against Paradigm. This

argument is without merit.

         Paradigm neither requested the trial court take judicial notice of California law nor

alerted it to any discrepancies between California and Texas law. See Coca-Cola Co. v. Harmar

Bottling Co., 218 S.W.3d 671, 695 (Tex. 2006) (Brister, J., dissenting) (“When a party fails to

request judicial notice of the law of another state as permitted under Rule 202, ‘Texas courts will

14
   Section 8.13 of the 1984 Agreement provides in part: “In the event any party hereto shall institute any action or
proceeding against any other party hereto . . . the losing party shall pay to the prevailing party reasonable attorneys’
fees, costs, and expenses incurred by the prevailing party.”

                                                         - 23 -
                                                                                       04-09-00230-CV


simply presume that the law of the other state is identical to Texas law.’” (quoting Olin Guy

Wellborn III, Judicial Notice Under Article II of the Texas Rules of Evidence, 19 ST. MARY’S

L.J. 1, 27 (1987))); see also Burlington N. & Santa Fe Ry. Co. v. Gunderson, Inc., 235 S.W.3d

287, 290 (Tex. App.—Fort Worth 2007, pet. withdrawn). Thus, a presumption existed that

California law on attorney’s fees is identical to Texas law.           More importantly, however,

Paradigm’s sanctions, specifically the judicial admissions, provide that Retamco is entitled to

attorney’s fees.      The default judgments “conclusively established” that, as alleged in the

petitions, Paradigm is liable for Retamco’s attorney’s fees. See Paradigm II, 242 S.W.3d at 72–

73; Burlington N. & Santa Fe Ry., 235 S.W.3d at 290–91.

                                        SETTLEMENT CREDITS

           Finally, Paradigm argues that the trial court erred in failing to apply the settlement

credits.

A. Standard of Review

           A trial court’s determination of the existence or amount of a settlement credit is reviewed

for an abuse of discretion. Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W .3d 307,

326 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). To determine whether a trial court

abused its discretion, we must decide whether the trial court acted without reference to any

guiding rules or principles; in other words, we must decide whether the act was arbitrary or

unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004); Walker v. Gutierrez,

111 S .W.3d 56, 62 (Tex. 2003). An appellate court cannot conclude that a trial court abused its

discretion merely because the appellate court would have ruled differently in the same

circumstances. E.I. du Pont de Nemours & Co., v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).




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                                                                                    04-09-00230-CV


B. Joint and Several Liability

       Under the one-satisfaction rule, a party cannot “obtain[] more than one recovery for the

same injury.” Stewart Title Gaur. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991). Chapter 33 of

the Texas Civil Practice and Remedies Code governs settlement credits in all tort actions. See

TEX. CIV. PRAC. & REM. CODE ANN. § 33.002(a) (Vernon 2008) (providing that Chapter 33

applies to “any cause of action based on tort in which a . . . settling person . . . is found

responsible for a percentage of the harm for which relief is sought”). Section 33.012(b) of the

Code provides, “If the claimant has settled with one or more persons, the court shall further

reduce the amount of damages to be recovered by the claimant with respect to a cause of action

by the sum of the dollar amounts of all settlements.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.012(b) (Vernon 2008).       This statute is mandatory.    Carl J. Battaglia, M.D., P.A. v.

Alexander, 177 S.W.3d 893, 906 (Tex. 2005). A non-settling defendant has the burden to prove

the existence and amount of a settlement credit, and may do so by placing the settlement

agreement or some other evidence of the settlement amount in the record. Utts v. Short, 81

S.W.3d 822, 828 (Tex. 2002) (op. on reh’g); see also Mobil Oil Corp. v. Ellender, 968 S.W.2d

917, 927 (Tex. 1998) (holding that non-settling defendant can meet its burden of proof “by

placing the settlement agreement or some evidence of the settlement amount in the record”).

       The non-settling defendant is entitled to offset any liability for joint and several damages

by the amount of common damages paid by the settling defendant, but not for any amount of

separate or punitive damages paid by the settling defendant. Crown Life Ins. Co. v. Casteel, 22

S.W.3d 378, 391–92 (Tex. 2000) (op. on reh’g); CTTI Priesmeyer, Inc. v. K & O Ltd. P’ship,

164 S.W.3d 675, 684 (Tex. App.—Austin 2005, no pet.); Texas Capital Sec., Inc. v. Sandefer,

108 S.W.3d 923, 926 (Tex. App.—Texarkana 2003, pet. denied). The non-settling defendant,



                                              - 25 -
                                                                                     04-09-00230-CV


however, may only claim a credit based on the damages for which all tortfeasors are jointly

liable. Casteel, 22 S.W.3d at 390–92; CTTI Priesmeyer, 164 S.W.3d at 684–85.

       The issue thus becomes from whom the non-settling defendant may claim a credit. “If

the independent tortuous conduct of two or more persons is a legal cause of an indivisible injury,

each person is jointly and severally liable for the recoverable damages caused by the tortuous

conduct.” RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY §§ A18, 10, cmt. b

(2000). Likewise,

       when there is no concert or unity of design and two people are acting
       independently and tortuously causing distinct harm for which there is reasonable
       basis for division according to the contribution of each, each is subject to liability
       only for the portion of the total harm that he has himself caused.

Century 21 Page One Realty v. Naghad, 760 S.W.2d 305, 310 (Tex. App.—Texarkana 1988, no

writ) (citing RESTATEMENT (SECOND) OF TORTS § 881 (1979)). We must, therefore, address each

entity for which Paradigm seeks a settlement credit to determine if they are “jointly and severally

liable” under the default judgment.

C. Analysis

       Paradigm alleges that Retamco obtained settlements from Bank of America in the amount

of $1.25 million, Crimson Energy Company, L.P. in the amount of $400,000.00 and Anadarko in

the amount of $925,000.00, for a total of $2,575,000.00 in settlement credits. Paradigm argues

that these settlement monies stem from the same injury and the same revenue stream for which

the trial court awarded damages. Retamco responds that Paradigm failed to show that Paradigm

and the settling parties were jointly and severally liable for the damages covered by the

settlement agreements. Yet, as Paradigm points out, Retamco cannot be heard to argue in every

other aspect of this case that Paradigm is jointly and severally liable for the acts of the other

defendants and not so with regard to settlement credits.

                                               - 26 -
                                                                                   04-09-00230-CV


       1. Bank of America Settlement

       We note that Retamco named Bank of America as a defendant. PNB was a subsidiary of

SPNB, which was, in turn, purchased by Bank of America. More specifically, in Plaintiff’s Fifth

Amended Original Petition, Retamco named Bank of America as a defendant that failed to pay

or underpaid royalties owed to Retamco. Retamco’s pleadings support that Bank of America

was, in fact, a successor and assign under the 1984 Agreement.         Thus, as an assignee of

Paradigm, Bank of America was a settling party and the trial court should have reduced the

amount of damages to be recovered by Retamco by the $1,250,000.00 received from Bank of

America. See TEX. CIV. PRAC. & REM. CODE § 33.012(b). The trial court, therefore, erred in

failing to award the requested settlement credit with regard to Bank of America.

       2. Crimson Energy and Anadarko Settlements

       The trial court, however, could have reasonably concluded that Crimson Energy and

Anadarko E & P Company, L.P. were not jointly and severally liable for the damages in

question. Casteel, 22 S.W.3d at 390–92. Retamco named neither party as a defendant in its

original suit against Paradigm and offered no testimony linking Crimson Energy or Anadarko as

parties joining with Paradigm to produce the common injury. See Amstadt v. U.S. Brass Corp.,

919 S.W.2d 644, 654 (Tex. 1996) (explaining that joint and several liability may be imposed

when the actions of two or more entities join to produce an indivisible injury, but not when the

injuries can be apportioned with reasonable certainty).     There was no evidence that either

Crimson Energy or Anadarko were part of Paradigm’s scheme causing injury to Retamco. See

BP Am. Prod. Co. v. Marshall, 288 S.W.3d 430, 456 (Tex. App.—San Antonio 2008, pet. filed);

CTTI Priesmeyer, 164 S.W.3d at 685–86. Additionally, the Crimson Energy settlement arose

out of a lawsuit filed by Crimson Energy against Retamco for tortuous interference with contract


                                              - 27 -
                                                                                      04-09-00230-CV


and the Anadarko lawsuit involved none of the Paradigm defendants and contained no

allegations of fraud. Additionally, neither the Crimson Energy nor the Anadarko settlements

were simple settlements that specifically related to issues in this case. Thus, the trial court could

have reasonably concluded that the foregoing settlements were attributable to other issues

between Crimson Energy and Anadarko that did not stem from Paradigm’s, or its assigns’ or

successors’, actions. See Casteel, 22 S.W.3d at 390–92.

        Accordingly, we overrule Paradigm’s argument with regard to application of the

settlement credits from the Anadarko and Crimson Energy settlement agreements, but sustain

Paradigm’s argument with regard to Bank of America. Accordingly, the trial court should have

awarded a settlement credit of $1,250,000.00 against the damages.

                                           CONCLUSION

        Based on the overwhelming evidence before the trial court, we conclude that the evidence

is both legally and factually sufficient to support the trial court’s award of compensatory and

exemplary damages. We further conclude that the trial court properly held that Retamco was

entitled to recover damages based on fraud and attorney’s fees based on the sanctions award and

the presumption that California law is identical to Texas law. We uphold the trial court’s denial

of settlement credits with regard to Crimson Energy and Anadarko. But because Bank of

America is jointly and severally liable with the Paradigm appellants, based on the law of the

case, we reverse the trial court’s failure to apply a credit in the amount of $1.25 million

regarding Retamco’s settlement with Bank of America. We affirm the judgment of the trial court

in all other aspects.


                                                  Rebecca Simmons, Justice




                                                - 28 -
