                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-031-CV


PAUL THAILING                                                       APPELLANT

                                        V.

SONNY MATTHEWS,                                                       APPELLEE
AS NEXT FRIEND TO
CHARLES MATTHEWS

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           FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In one issue, Appellant Paul Thailing asserts that the trial court erred by

entering judgment against him without giving him credit for the amount paid in




      1
          … See Tex. R. App. P. 47.4.
settlement to Matthews by Mansfield Independent School District, an original

co-defendant.

                        II. Factual and Procedural History

         In April 2003, an accident involving an automobile and a pedestrian

occurred on Mansfield ISD property, resulting in Sonny Matthews suing Paul

Thailing and Mansfield ISD. Prior to trial, Matthews settled with Mansfield ISD

for $2,000, memorialized by a signed rule 11 agreement filed with the trial

court.

         On June 25, 2007, Thailing filed an “Election of Credit” with the trial

court requesting credit for the amount of the settlement between Mansfield ISD

and Matthews. Specifically, the election of credit read, “COMES NOW Paul

Thailing, Defendant, and pursuant to Texas Civil Practice and Remedies Code

§ 33.012(b)(1) and 33.014, elects a credit for the sum of the dollar amounts

of all settlements.” No objection was made to this filing. A jury subsequently

returned a verdict in favor of Matthews for $5,000.

         Matthews subsequently filed a motion to enter judgment, and Thailing

filed an objection seeking a credit for the settlement between Matthews and

Mansfield ISD. The trial court denied Thailing’s request and entered judgment

in favor of Matthews for $5,000. Thailing filed a motion for new trial, seeking




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to have the judgment reflect the $2,000 offset. The motion was denied by

operation of law, and this appeal followed.

                             III. Settlement Credit

      In his single issue, Thailing complains that the trial court failed to credit

the judgment against him with the settlement amount that Matthews had

received from Mansfield ISD. Matthews responds that Thailing did not properly

elect a settlement credit because he cited incorrect statutory references and did

not submit his percentage of responsibility to the jury.

      Section 33.012 of the civil practice and remedies code, entitled “Amount

of Recovery,” reads in pertinent part as follows: 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).

      Thailing clearly requested in his election of credit “credit for the sum of

the dollar amounts of all settlements,” which in this case is the $2,000

settlement with Mansfield ISD. We decline to elevate form over substance.

We hold that incorrectly denominating the statute as section 33.012(b)(1)

instead of section 33.012(b), particularly when section 33.012(b)(1) is the

former incarnation of section 33.012(b), does not negate the applicability of the

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election of credit when the body of the notice clearly indicates what is being

requested, that is, credit for the amount of previous settlements.2

      As to Matthews’s other argument regarding submission of “claimant’s

percentage of responsibility,” there is no statutory requirement for this as a

prerequisite to a settlement credit, and Matthews does not cite any authority

for this proposition. See Tex. Civ. Prac. & Rem. Code § 33.012. We sustain

Thailing’s single issue.




      2
       … Former section 33.012(b)(1) has almost the exact wording as current
section 33.012(b), stating,

      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 a credit equal to one
      of the following, as elected in accordance with Section 33.014:
      (1) the sum of the dollar amounts of all settlements[.]

Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws
971, 974, amended by Act of June 11, 2003, 78th Leg., R.S., ch. 204,
§ 4.06, 2003 Tex. Gen. Laws 847, 857 (current version at Tex. Civ. Prac. &
Rem. Code Ann. § 33.012(b)).
      Now-repealed section 33.014 provided that if a claimant settled with one
or more persons, a defendant had to make a written election as to which dollar
credit was to be applied under section 33.012(b) before the issues were
submitted to the trier of fact. See Act of May 18, 1995, 74th Leg., R.S., ch.
136, § 1, 1995 Tex. Gen. Laws 971, 975, repealed by Act of June 11, 2003,
78th Leg., R.S., ch. 204, § 4.10(6), 2003 Tex. Gen. Laws 847, 859.

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                               IV. Conclusion

     We reverse the part of the judgment against Thailing awarding damages

of $5,000, and we render judgment that Matthews is entitled to recover

$3,000 in damages from Thailing. We affirm the remainder of the trial court’s

judgment, excluding prejudgment and post-judgment interest. We reverse and

remand the case for recalculation of prejudgment and post-judgment interest

and for entry of judgment in accordance with this opinion.




                                         BOB MCCOY
                                         JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

DELIVERED: October 8, 2009




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