Owens-Corning Fiberglas Corp. v. Schmidt

BURGESS, Justice,

dissenting.

I respectfully dissent to the majority’s disposition of cross-point two. Schmidt’s cross-point avers: “The trial court erred by giving OCF a credit to which it had not shown itself entitled.” In argument, Schmidt states: “OCF points to no evidence establishing its entitlement to the credit....” The majority acknowledges the record does not contain evidence of the settlements, but overrules the point “because Schmidt did not challenge the facts stated in OCF’s brief ...” citing Tex. R.App. P. 74(f). It is true, Schmidt did not use any magic words or explicitly state: “Ap-pellee challenges all the facts alleged in Appellant’s brief.” However, in my view, there can be no stronger challenge than alleging there is “no evidence.” Consequently, the majority simply avoids the issue by utilizing this alleged procedural “defect.”1

*526This court recently visited the substantive issue in Mobil Oil Corp. v. Ellender, 934 S.W.2d 439 (Tex.App.—Beaumont 1996, n.w.h.)(one justice dissenting). The opinion stated:

Expressed another way, what procedure was required to supply the court ‘the sum of the dollar amounts of all settlements.’2
Our highest court has never expressly enunciated what is required for providing the court the amount to be credited. However, in First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 78-79 (Tex.1993) they stated: ‘Any party seeking the benefit of a settlement credit has the burden of establishing that it is entitled to such a reduction in the amount of the judgment.’ (citing Hill v. Budget Fin. & Thrift Co., 383 S.W.2d 79, 82 (Tex.Civ.App.-Dallas 1964, no writ)). The court noted the settlement agreement had been ‘placed into the record.’ Id. at 79.
Hill, 383 S.W.2d at 82-83, stated:
The burden of proof was undoubtedly upon appellees Safeway-Connell to establish the proper amount of credit to be applied to the actual damage verdict, thus reducing their liability.... Having pleaded for the relief, and the burden being upon them, we now consider the evidence to determine whether Safeway-Connell satisfied the burden of proof.... [I]t is without dispute that the burden was upon them to prove the proper amount of damages sought to be credited to them....
Thus, in the context of ‘burden of proof and ‘burden ... to prove’, it is a logical inference that defendants seeking a credit are obliged to offer the trial court evidence of ‘the sum of the dollar amounts of all settlements.’ This may be done in the manner other operative facts are proven, through a judicial admission, a stipulation, a request for judicial notice or properly admitted documents or testimony. The comments of Mobil’s attorney were none of these, they were simply ‘lawyer talk’, not evidence, which does not provide the necessary basis of proof.

In this case, the following exchange occurred at a post-trial hearing:

THE COURT: ... But somebody is going to have to give me a figure considering all the credits that are due to Owens Corning
[OCF’s Counsel]: Based on the way that the Court is intending to craft the judgment, I believe that it would be $2,025,-000.00. Is that right, Herschel?
[Schmidt’s Counsel]: That’s what you’ve got set out in your motion this morning.

Schmidt’s counsel merely acknowledged there was an amount alleged in a motion. This was no stipulation or judicial admission of any amounts. There is no evidence of the amounts of any of the settlements other than the $250,000 settlement previously discussed. Since OCF failed to provide evidence of the settlement amounts, the trial court erred in awarding a credit. Consequently, I would sustain the cross-point and reform the judgment.

. OCF did not raise this in their reply brief.

. Tex. Civ. Prac. & Rem.Code Ann. § 33.012(b)(1).