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
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… 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.
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… 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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