                                                                                         ACCEPTED
                                                                                     06-14-00064-CV
                                                                          SIXTH COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                                4/27/2015 3:24:45 PM
                                                                                    DEBBIE AUTREY
                                                                                              CLERK


                      NO. 06-14-00064-CV
                                                               FILED IN
               IN THE COURT OF APPEALS FOR THE6th COURT OF APPEALS
                                                TEXARKANA, TEXAS
                   SIXTH DISTRICT OF TEXAS    4/27/2015 3:24:45 PM
                                                  DEBBIE AUTREY
                        AT TEXARKANA                  Clerk


JOYCE STEEL ERECTION, LTD.                                     APPELLANT

VS.

GORDON RAY BONNER                                                  APPELLEE



           Appeal from the District Court of Bowie County, Texas
                           202nd Judicial District,
                    Honorable Leon Pesek, Jr. Presiding



                        BRIEF OF APPELLEE

John R. Mercy                           Kelly Clements
Texas State Bar No. 13947200            Texas State Bar No. 17098500
MERCY p CARTER p TIDWELL, L.L.P.        Robert Clements
1724 Galleria Oaks Drive                Texas State Bar No. 00789785
Texarkana, TX 75503                     CLEMENTS & CLEMENTS
Telephone: (903) 794-9419               731 N. Paulus
Facsimile: (903) 794-1268               Dallas, TX 75214
E-mail: jmercy@texarkanalawyers.com     Phone: (214) 827-1122
                                        Fax: (214) 827-1126
                                        Email: kelly@clementslaw.com
                                        Email: robert@clementslaw.com

                     ATTORNEYS FOR APPELLEE

Oral Argument Requested
                             IDENTITY OF PARTIES AND COUNSEL

        Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee

lists below the names and addresses of all parties to the trial court’s final judgment

together with their counsel in the trial court. This list is provided so that the justices

of this Court may evaluate possible disqualification and recusal, and so that the Clerk

of the Court of Appeals may notify all parties of this Court’s final judgment.

Joyce Steel Erection, Ltd.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellant

J. Jeffery Richardson
NORTON ROSE FULBRIGHT
2200 Ross Avenue, Suite 3600
Dallas, TX 75201.. . . . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellant

Rosemarie Kanusky
NORTON ROSE FULBRIGHT US LLP
300 Convent, Suite 2100
San Antonio, TX 75205.. . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellant

Paul. A. Bezney
J. Kevin Kindred
ADKERSON, HAUDER & BEZNEY, P.C.
1700 Pacific Avenue, Suite 4450
Dallas, TX 75201-3005. . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellant

Gordon Ray Bonner.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellee

Kelly Clements
Robert Clements
CLEMENTS & CLEMENTS
731 N. Paulus
Dallas, TX 75214.. . . . . . . . . . . . . . . . . . Trial and Appellate Counsel for Appellee



                                                       i
John R. Mercy
MERCY p CARTER p TIDWELL, L.L.P.
1724 Galleria Oaks Drive
Texarkana, TX 75503. . . . . . . . . . . . . . . Trial and Appellate Counsel for Appellee




                                           ii
                                         TABLE OF CONTENTS
                                                                                                               Page

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Response to Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

         Responsive Issue No. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

             Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

             Statutory Scheme for Calculating Damages. . . . . . . . . . . . . . . . . . . . . . . 9

             Appellant’s Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

             Proper Calculation of Damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

         Responsive Issue No. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

             Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

             Prejudgment Interest with a Liable Defendant
             that is Not Jointly and Severally Liable. . . . . . . . . . . . . . . . . . . . . . . . . 17

             Joyce Crane’s Liability for Prejudgment Interest. . . . . . . . . . . . . . . . . . 18

                                                                  iii
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21




                                                              iv
                                    INDEX OF AUTHORITIES

Cases:                                                                                                     Page

Battaglia v. Alexander,
177 S.W.3d 893 (Tex. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Brainard v. Trinity Universal Ins. Co.,
216 S.W.3d 809 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Cordillera Ranch Ltd. v. Kendall County Appraisal District,
136 S.W.3d 249 (Tex. App. – San Antonio 2004, no pet.).. . . . . . . . . . . . . . . . . . 10

Fitzgerald v. Advanced Spine Fixation System, Inc.,
996 S.W.2d 864 (Tex. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Lippincott v. Whisenhunt, _
_S.W.3d_, Tex. Sup. Ct. 13-0926, April 24, 2015. . . . . . . . . . . . . . . . . . . . . . . . . . 8

Martin K. Eby Const. Co. v. Lan/Stv,
350 S.W.3d 675 (Tex. App. – Dallas 2011, rev’d on other grounds).. . . . . . . . . . 11

MCI Sales and Service, Inc. v. Hinton,
329 S.W.3d 475 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Pilgrim’s Pride Corporation v. Cernat,
205 S.W.3d 110 (Tex. App. – Texarkana 2006, pet. denied). . . . . . . . . . . . . . 11, 12

Roberts v. Williamson,
111 S.W.3d 113 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Stewart Title Guar. Co. v. Sterling,
822 S.W.2d 1 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Texas West Oaks Hosp. v. Williams,
371 S.W.3d 171 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                        v
Valley Grande Manor v. Pasedes,
2013 WL 3517806 (Tex. App. – Corpus Christi - 2013, pet. denied). . . . . . . . . . 13

Warner v. Glass,
135 S.W.3d 681 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9



Statutes:

Tex. Civ. Prac. & Rem. Code:

      §33.003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
      §33.003(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
      §33.012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 13 Passim
      §33.012(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15
      §33.012(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 16
      §33.013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 15, 16
      §33.013(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14
      §33.013(b)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tex. Finance Code §304.105.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Tex. Gov’t Code Anno. §311.011(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




                                                           vi
                           NO. 06-14-00064-CV
                  IN THE COURT OF APPEALS FOR THE
                      SIXTH DISTRICT OF TEXAS
                           AT TEXARKANA
JOYCE STEEL ERECTION, LTD.                                          APPELLANT

VS.

GORDON RAY BONNER                                                     APPELLEE


                            BRIEF OF APPELLEE

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Appellee, GORDON RAY BONNER, and files this his brief

in response to Appellant’s brief, and would show unto the Court the following.

                              Statement of the Case

      Nature of the Case          Gordon Bonner suffered catastrophic injuries
                                  when a crane operator, with no prior tilt wall
                                  experience, crushed him between a 150,000
                                  pound tilt wall and a concrete wall.

      Trial Court Information     102nd Judicial District Court, Bowie county,
                                  Texas, Honorable Leon F. Pesek, Jr.

      Course of Proceedings       The case was tried to a jury which found Joyce
                                  Steel Erection, Ltd. 34% responsible, Bonner
                                  33% responsible, and Bonner’s employer (a
                                  responsible third party) 33% responsible . (7 CR
                                  3879). The jury awarded $7,000,000.00 in
                                  damages. (7 CR 3880-3881). Joyce Crane had

                                        1
                                           stipulated to an additional $358,205.52 in
                                           medical expenses and $147,663.29 in lost wages.
                                           (7 CR 3904).

       Trial Court’s Disposition           The trial court entered a judgment against Joyce
                                           Crane after properly calculating percentages and
                                           credits under Chapter 33 of the Texas Civil
                                           Practice & Remedies Code in the amount of
                                           $2,345,480.69. (7 CR 4042).1




       1
          Appellant, Joyce Steel Erection, Ltd., will be referred to as “Joyce Crane”, and Appellee,
Gordon Ray Bonner, will be referred to as “Bonner.” The Clerk’s Record will be cited as (_ CR p.
__) and the Reporter’s Record will be cited as (__ RR p. __). Plaintiff’s exhibits will be cited as (P.
Ex. __).

                                                  2
          STATEMENT REGARDING ORAL ARGUMENT

The Court should grant oral argument for the following reasons:

a)    Oral argument would give the Court a more complete
      understanding of the facts presented in this appeal. Tex. R. App.
      P. 39.1(c).

b)    Oral argument would significantly aid the Court in deciding the
      case. Tex. R. App. P. 39.1(d).




                                  3
                RESPONSE TO ISSUES PRESENTED


                      Responsive Issue No. 1

The trial court properly followed the statutory scheme for
calculating a judgment under Chapter 33 of the Texas Civil Practice
& Remedies Code. In doing so, the court properly used only the
jury’s verdict, the Plaintiff’s percentage of responsibility, and the
settlement credits.

                      Responsive Issue No. 2

The declining principal formula only applies when the liable
defendant is jointly and severally liable. Joyce Crane was not
jointly and severally liable; therefore, the court properly calculated
prejudgment interest.




                                  4
                               STATEMENT OF FACTS

        On June 23, 2009 Gordon Ray Bonner’s life was changed forever. Bonner was

an iron worker employed by Premier Contractors. (5 RR p. 3275). He was assigned

to a job at the Red River Army Depot. (5 RR p. 3275; 9 RR p. 25-28). Premier

Contractors also hired Joyce Crane to lift 150,000-pound concrete tilt wall panels on

the Red River Army Depot job. (4 RR p. 19). On June 23, 2009 Joyce Crane sent a

crane operator and a flagger, both of whom who had no prior tilt wall experience, to

perform the tilt wall lifts.(4 RR p. 180-181; 5 RR p. 93; 8 RR p. 11). Bonner was

responsible for holding a brace attached to the tilt wall while the Joyce Crane operator

lifted and swung the tilt wall into place. (9 RR p. 32-34). The Joyce Crane operator

and flagger lost control of the tilt wall during the lift causing Bonner to be crushed

between the 150,000-pound tilt wall and a nearby concrete wall. (9 RR p.35-39).

        The tilt wall crushed Bonner’s pelvis, arteries, genitals, bladder, urethra, and

right leg. (7 RR p. 100-103). Ultimately, Bonner endured forty surgeries, including

a prosthetic penile implant, reconstructive surgery of his right leg, arteries and

urethra, and fixation of his pelvis. (P. Ex. 150). Additionally, at the time of trial

Bonner’s doctors were recommending that his right leg be amputated. (9 RR p. 113-

117).

        The case was tried to a Bowie County jury which apportioned responsibility

for Bonner’s injuries among the parties. (7 RR p. 3878-3879). The jury found Joyce

                                            5
Crane 34% responsible, Bonner 33% responsible, Premier (Bonner’s employer who

had been named as a responsible third party by Joyce Crane) 33% responsible, and

two settling parties, Self Concrete and Carothers Construction each 0% responsible.

(7 CR 3877-3879). The jury awarded Bonner $7,000,000.00 in damages. (7 CR

3880-3881). Additionally, Joyce Crane had stipulated that Bonner’s past medical

expenses were $358,205.52, and his past lost wages were $147,633.29. (7 CR 3904).

The court ultimately entered judgment after applying the legislative scheme under

Chapter 33 of the Texas Civil Practice & Remedies Code for Bonner in the amount

of $2,345,480.69. (7 CR p. 4042).




                                         6
                        SUMMARY OF THE ARGUMENT

      The trial court followed the legislatively mandated scheme to formulate the

correct judgment. The method of calculating the judgment proffered by Joyce Crane

is not supported by any case law or statutory authority. Proper calculation of the

judgment is governed by §33.012 Tex. Civ. Prac. & Rem. Code. The amount of

recovery is reduced only by Bonner’s percentage of responsibility (33%) and the

amount of the settlement credits. Nothing else! The trial court was correct.

      Joyce Crane was not jointly and severally liable. Therefore the trial court

correctly calculated prejudgment interest under the Finance Code.

      The judgment should be affirmed.




                                         7
                         ARGUMENT AND AUTHORITIES


                               Responsive Issue No. 1

             The trial court properly followed the statutory scheme
             for calculating a judgment under Chapter 33 of the
             Texas Civil Practice & Remedies Code. In doing so, the
             court properly used the jury’s verdict, the Plaintiff’s
             percentage of responsibility, and the settlement credits.

   “I don’t know what you mean by ‘glory,’ ” Alice said.
   Humpty Dumpty smiled contemptuously. “Of course you don’t – till I tell you.
   I meant ‘there’s a nice knock-down argument for you!’ ”
   “But ‘glory’ doesn’t mean ‘a nice knock-down argument,’ ” Alice objected.
   “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means
   just what I choose it to mean – neither more nor less.”
   “The question is,” said Alice, whether you can make words mean so many
   different things.”
   “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”
   Alice was too much puzzled to say anything; . . .

   Through the Looking Glass, Lewis Carroll.

      Much like Humpty Dumpty, Appellant fabricates an argument to attempt to

achieve the desired result, a take-nothing judgment. The argument is not based upon

any statutory or case law. A proper application of statutory law clearly shows the trial

court correctly entered judgment.

Standard of Review

      This Court is to review the trial court’s interpretation of §33.012 Tex. Civ.

Prac. & Rem. Code under a de novo standard. Lippincott v. Whisenhunt, _ S.W.3d_,

Tex. Sup. Ct. 13-0926, April 24, 2015; MCI Sales and Service, Inc. v. Hinton, 329

                                           8
S.W.3d 475, 499 (Tex. 2010). When interpreting statutory provisions this Court is

to attempt to find and apply the intent of the legislature. Texas West Oaks Hosp. v.

Williams, 371 S.W.3d 171, 177 (Tex. 2012). Warner v. Glass, 135 S.W.3d 681, 983

(Tex. 2004). If the language of the statute is unambiguous the court is to give it the

interpretations supported by the plain meaning of the provision’s words and terms.

Fitzgerald v. Advanced Spine Fixation System, Inc., 996 S.W.2d 864, 865 (Tex.

1999). This Court should construe terms consistent with the plain and common

meaning of the statute’s words. Tex. Gov’t Code Anno. §311.011(a) (words and

phrases shall be read in context and construed according to the rules of grammar and

common usage). This Court should read every word, phrase and expression as if it

was deliberately chosen, and that words that are excluded from the statute are done

so purposefully. Cordillera Ranch Ltd. v. Kendall County Appraisal District, 136

S.W.3d 249, 254 (Tex. App. – San Antonio 2004, no pet.).

Statutory Scheme for Calculating Damages

      Chapter 33 of the Civil Practice and Remedies Code sets out the legislative

scheme for determining proportionate responsibility. The damages to be recovered

depend on the amount of damages found by the jury, the application of credits for

claimant’s percentage of responsibility, settlement credits, and the liable defendant’s

percentage of responsibility. The steps to determine a plaintiff’s recovery are

mandatory.

                                          9
      First, the jury must assess percentages of responsibility to the claimants,

defendants, settling persons, and responsible third parties. §33.003 Tex. Civ. Prac.

& Rem. Code. This assessment is with respect to “each person’s causing or

contributing to cause in any way the harm ‘for which recovery for damages is

sought.’” 33.003(a) Tex. Civ. Prac. & Rem. Code. The effect of §33.003(a) is to

allow a liable defendant to reduce his percentage of responsibility by shifting blame

to other parties.

      Second, the calculation of damages to be recovered by the claimant starts with

the amount of damages found by the jury. The jury is asked to determine what sum

of money if paid now in cash would fairly and reasonably compensate the claimant

(Bonner) for his injuries. (7 CR 3880). The jury is told not to make any reductions

to the recovery, but that the trial court will determine what the recovery would be by

applying the law. (7 CR 3880). The jury’s determination of the amount of damages

gives the trial court its starting point for all subsequent damage calculations and

reductions.

      Third, from that starting point the legislature requires that the amount of

damages be reduced by the percentage equal to the claimant’s percentage of

responsibility. §33.012(a) Tex. Civ. Prac. & Rem. Code. The legislature also

mandates that the amount be further reduced by the dollar amounts of all settlements.



                                         10
§33.012(b) Tex. Civ. Prac. & Rem. Code. This two- step reduction produces the

amount of recovery that the plaintiff is entitled to.

      Fourth, once the calculation of the amount of recovery has been made then the

legislature mandates that the court determine the maximum liability for each liable

defendant. §33.013 Tex. Civ. Prac. & Rem. Code. A defendant is liable to a claimant

only for the percentage of damages found by the trier of fact equal to that defendant’s

percentage of responsibility. §33.013(a) Tex. Civ. Prac. & Rem. Code.

      Finally, if the amount calculated under §33.012 is less than the limit of the

liable defendant’s maximum liability under §33.013 then that is the amount of the

judgment. If the amount calculated under §33.012 is more than the defendant’s

maximum liability under §33.013 the judgment is limited to the liable defendant’s

limit as calculated under §33.013(a).

      As observed by this Court §33.012 and §33.013 do not reference each other nor

require that they be used sequentially. Pilgrim’s Pride Corporation v. Cernat, 205

S.W.3d 110, 114-115 (Tex. App. – Texarkana 2006, pet. denied). Id. Sections

33.012 and 33.013 operate independently and are dependent upon the circumstances

of each case. The two sections pose separate inquiries: §33.012 controls the

claimant’s total recovery while §33.013 governs the defendant’s separate liability.

Id. Martin K. Eby Const. Co. v. Lan/Stv, 350 S.W.3d 675, 683 (Tex. App. – Dallas

2011, rev’d on other grounds).      Sections 33.012 and 33.013 are not to be used

                                          11
sequentially to reduce claimants’ recoveries. Pilgrim’s Pride, 205 S.W.3d at 115.

This legislative scheme is simple and works well unless someone begins to deviate

from its clear dictates.

Appellant’s Argument

      Appellant attempts to persuade this Court to construe §33.012 and §33.013 as

ambiguous or in conflict with one another. (Appellant’s Brief p.15-17). Appellant

attempts to convince this Court to apply §33.012 and §33.013 sequentially to first

include a reduction in the amount of damages found by the jury for the percentage

assessed against Premier, the responsible third party, and then to manipulate the

jury’s percentage allocation. (See Appellant’s Brief p. 17-18). This construction is

a variation of the argument that was rejected by this Court and the Texas Supreme

Court in Roberts v. Williamson, 111 S.W.3d 113, 122-123 (Tex. 2003). The courts

found that this argument is simply not supported by the legislative framework in

Chapter 33, Tex. Civ. Prac. & Rem. Code.

      Appellant’s argument attempts to manipulate the starting amount for

calculating the amount of recovery to achieve Appellant’s desired result. (See

Appellant’s Brief p. 17-18). Appellant argues that to get to the starting point for

determining the amount of recovery one must first reduce the amount of damages

found by the jury by the percentages attributable to the responsible third party

(Premier). This reduction distorts the language of Chapter 33. Appellant argues that

                                        12
what the legislature really meant for the calculations under §33.012 is that the

beginning point for calculation is “the amount of damages to be recovered.”

(Appellant’s Brief p. 16). This argument is nonsensical in that the purpose of §33.012

is to “find the amount of recovery.” Appellant claims the final calculation after the

deductions under §33.012 to also be the starting point for the deductions under

§33.012. Following the logic of this argument would create an ever shrinking infinite

loop of deductions. Appellant points to no statutory authorization for this calculation

and no case law to support its calculations. Because there is none!2

       Having changed the starting point to include responsible third party

percentages, Appellant then argues that a further made up calculation is necessary

to determine “responsibility for the remaining portion of the jury’s award.”

(Appellant’s Brief p. 20). Here Appellant argues that one must recalculate the

parties’ percentages of the remaining amount by a ratio between defendant’s

percentage and plaintiff’s percentage.                Appellant recalculates that it is only

responsible for 50.7463% of the damages.3 Nowhere is there any authority for such


       2
          Appellant cites only two cases in its argument, neither of which is relevant to the argument
and both of which are clearly distinguishable. Valley Grande Manor v. Pasedes, 2013 WL 3517806
(Tex. App. – Corpus Christi - 2013, pet. denied) is a case dealing with the application of settlement
credits to a medical liability claim. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991)
was decided before the current proportionate liability scheme was enacted and the decision was
based on the common law.
       3
         Under Appellant’s argument that 50.7463% would make Joyce Crane jointly and severally
liable because its percentage would now be over fifty percent. §33.013(b)(1). That is surely not
acceptable to Appellant.

                                                 13
a sequential second reduction to determine the starting point for the statutory

calculation. Because there is none!

       Appellant’s argument, having reduced the damage amount twice prior to the

new fictional starting point, then applies the legislative mandate of §33.012.4 The

effect of Appellant’s argument is to twice take advantage of the designation of the

responsible third party’s percentage and is an impermissible double-deduction. By

doing this made up calculation, amazingly, Appellant is able to produce a take-

nothing judgment. Appellant’s calculation proves once again: that if allowed to define

the starting point, Appellant is able to achieve its desired result, but the machinations

necessary to do so defy logic, the legislative system, and are puzzling at best. After

analyzing Appellant’s argument this Court must be left much like Alice – “too much

puzzled to say anything.”




       4
           Verdict plus prejudgment interest             $8,123,612.24
           Less Premier (RTP) percentage (33%)            2,680,792.04

                                                          5,442,820.20
           Less recalculated Bonner percentage (33/67)    2,680,790.33

                                                          2,762,029.87
           Less settlement credit                         3,100,000.00

           Amount of recovery                              >   -0-

Doesn’t reach §33.013(a).


                                               14
Proper Calculation of the Damages

      Properly calculating the amount of recovery pursuant to the statute leads to a

much different result. If no reductions were applied Bonner would be entitled to

recover the amount of damages awarded by the jury plus the stipulated amounts and

prejudgment interest ($8,127,583.12). Under §33.012(a), because the jury found

Bonner to be 33% responsible, the jury’s award must be reduced by Bonner’s

negligence. ($8,127,583.12 x 33% = $2,682,102.43; $8,127,583.12 – $2,682,102.43

= $5,445,480.69). Next, under §33,012(b) the jury’s award must be further reduced

by the amount of all settlements. ($5,445,408.69 – $3,100,000.00 = $2,345,480.69).

So, after applying the legislatively mandated reductions of §33.012, Bonner’s amount

of recovery is $2,345,480.69. The trial court then determines Joyce Crane’s amount

of liability under §33.013. This is done by determining Joyce Crane’s percentage of

responsibility of the jury’s award. ($8,127,583.12 x 34% = $2,763,378.26). This is

Joyce Crane’s maximum amount of liability. Because Bonner’s recovery

($2,345,480.69) is less than Joyce Crane’s maximum amount of liability

($2,763,378.26), Bonner’s judgment is properly calculated to be $2,345,480.695.

      5
          Verdict plus prejudgment interest                            $8,127,583.12
          Reduction for Plaintiff’s Negligence (33%)                    2,682,102.43
            Tex. Civ. Prac. & Rem. Code §33.012(a)
                                                                       $5,445,480.69
          Reduction for Settlement                                      3,100,000.00
            Tex. Civ. Prac. & Rem. Code §33.012(b)
          Amount Recoverable Under Tex. Rem. & Prac. Code §33.012      $2,345,480.69

                                              15
Appellant tacitly acknowledges that this is the proper method of calculating the

judgment in its alternative calculation for the judgment. (Appellant’s brief p.26).

      The trial court properly followed the legislative scheme under Chapter 33 in

calculating the judgment.

                              Responsive Issue No. 2

               The declining principal formula only applies when the
               liable defendant is jointly and severally liable. Joyce
               Crane was not jointly and severally liable; therefore,
               the court properly calculated prejudgment interest.

      Appellant argues that the court improperly calculated the amount of

prejudgment interest.

Standard of Review

      The review of the trial court’s calculation of prejudgment interest is done by

this Court de novo. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 815-16

(Tex. 2006).

      Prejudgment interest is constitutionally allowed by law as additional damages

for the loss of use of the money due “as damages” during the lapse of time between




        Maximum Liability of Joyce (34%)                                 $8,127,583.12
           Tex. Civ. Prac. & Rem. Code §33.013                                   x .34
                                                                         $2,763,378.26
        Amount of Recovery                                               $2,345,480.69

                                           16
accrual of the claim and the date of judgment. Battaglia v. Alexander, 177 S.W.3d

893, 907 (Tex. 2005).

Prejudgment Interest with a Liable Defendant
that is Not Jointly and Severally Liable

      Appellant argues that prejudgment interest in this case is controlled by

Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006). Brainard is an

underinsured motorist case that relies on the method set forth in Battaglia to calculate

prejudgment interest on a statutory underinsured motorist claim. Battaglia specifically

limited its calculation to the situation where the non-settling defendant is jointly and

severally liable. Battaglia, 177 S.W.3d at 907. [emphasis added]. Battaglia does not

address how prejudgment interest should be calculated where the liable defendant is

not jointly and severally liable. It stands to reason that the liable defendant is still

liable for the prejudgment interest on its amount of liability. In such a case the

prejudgment interest should be calculated pursuant to §304 et seq. of the Texas

Finance Code.

      Here, Bonner’s judgment is not based upon a statutory claim nor upon Joyce

Crane’s being jointly and severally liable. Therefore, neither Brainard nor Battaglia

applies.




                                          17
Joyce Crane’s Liability for Prejudgment Interest

      Joyce Crane was not jointly and severally liable. Therefore the trial court

calculated prejudgment interest against Joyce Crane based upon the past damages

awarded by the jury. See §304.105 Texas Finance Code. It did so by giving credit

to Joyce Crane for the settlements by the non-responsible defendants at the time those

settlements were paid. The settlements were made by parties (Carothers Construction

and Self Concrete) that the jury specifically found were not responsible for any of the

damages upon which the prejudgment interest was calculated. The settlements were

made by parties that the jury specifically found were not responsible for the damages

for which the prejudgment interest will be calculated. The court then applied

§304.104 Texas Finance Code and calculated the prejudgment interest as simple

interest at 5% under §304.003. The total prejudgment interest calculated under the

Finance Code for Joyce Crane was $617,773.43. The trial court properly calculated

the prejudgment interest.

      Alternatively, if this Court chooses to follow Appellant’s argument with

respect to calculating prejudgment interest, the correct amount of the judgment

would be $1,937,467.32.




                                          18
                                   CONCLUSION

      The trial court did not err by following the legislatively mandated scheme to

form the judgment. Appellant’s puzzling calculations would only lead this Court into

an error that the trial court awarded by following the law.

      The trial court properly calculated the prejudgment interest in a case where

Joyce Crane was not jointly and severally liable.

      The judgment should be affirmed.

      WHEREFORE, PREMISES CONSIDERED, Appellee, GORDON RAY

BONNER, prays that this Court affirm the judgment of the trial court, award him his

court costs on appeal; and for such other and further relief to which he may show

himself to be entitled.


                                       Respectfully submitted,


                                         /s/ John R. Mercy
                                       John R. Mercy
                                       Texas State Bar No. 13947200
                                       MERCY p CARTER p TIDWELL, L.L.P.
                                       1724 Galleria Oaks Drive
                                       Texarkana, TX 75503
                                       Telephone: (903) 794-9419
                                       Facsimile: (903) 794-1268
                                       E-mail: jmercy@texarkanalawyers.com




                                                              19
                                        Kelly Clements
                                        Texas State Bar No. 17098500
                                        Robert Clements
                                        Texas State Bar No. 00789785
                                        CLEMENTS & CLEMENTS
                                        731 N. Paulus
                                        Dallas, TX 75214
                                        Phone: (214) 827-1122
                                        Fax: (214) 827-1126
                                        Email: kelly@clementslaw.com
                                        Email: robert@clementslaw.com

                                        ATTORNEYS FOR APPELLEE




                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Brief of Appellee
was served on all counsel of record via electronic transmission on this 27th day of
April, 2015, as follows:

      Mr. J. Jeffery Richardson
      NORTON ROSE FULBRIGHT US LLP
      2200 Ross Avenue, Suite 3600
      Dallas, TX 75201
      Email: jeffrichardson@nortonrosefulbright.com

      Rosemarie Kanusky
      NORTON ROSE FULBRIGHT US LLP
      300 Convent, Suite 2100
      San Antonio, TX 78205
      Email: rosemarie.kanusky@nortonrosefulbright.com




                                             20
      Mr. Paul A. Bezney
      ADKERSON, HAUDER & BEZNEY, P.C.
      1700 Pacific Ave., Suite 4450
      Dallas, TX 75201-3005
      Email: paul@ahblaw.net

      Mr. J. Kevin Kindred
      ADKERSON, HAUDER & BEZNEY, P.C.
      1700 Pacific Ave., Suite 4450
      Dallas, TX 75201-3005
      Email: kevin@ahblaw.net


                                        /s/ John R. Mercy
                                      John R. Mercy




                         CERTIFICATE OF COMPLIANCE

      Pursuant to Tex. R. App. P. 9.4, I hereby certify that the foregoing Brief of
Appellee contains 2,964 words. This is a computer-generated document created in
WordPerfect using 14-point typeface. In making this certificate I am relying on the
word count provided by the software used to prepare the document.


                                        /s/ John R. Mercy
                                      John R. Mercy




                                        21
