No. 06-14-00064-CV

In The Sixth Court Of Appeals

Texarkana, Texas

JOYCE STEEL ERECTION, LTD.,

Appellant

V. 

GORDON RAY BONNER, 

Appellee

FROM THE 202ND JUDICIAL DISTRICT COURT, BOWIE COUNTY, TEXAS

CAUSE NO. 11C0822-202 

HONORABLE LEON F. PESEK JR., PRESIDING

APPELLANT’S REPLY BRIEF 

NORTON ROSE FULBRIGHT US LLP

J. Jeffery Richardson

State Bar No. 16864450

jeff.richardson@nortonrosefulbright.com 

2200 Ross Avenue, Suite 3600

Dallas, Texas 78201

Telephone: 214.855.8121

Facsimile: 214.855.8200

NORTON ROSE FULBRIGHT US LLP

Rosemarie Kanusky

State Bar No. 00790999

rosemarie.kanusky@nortonrosefulbright.com

300 Convent, Suite 2100

San Antonio, Texas 78205

Telephone: 210.270.9362

Facsimile: 210.270.7205

Counsel for Joyce Steel Erection, Ltd.

ACCEPTED

06-14-00064-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

5/13/2015 1:57:22 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 5/13/2015 1:57:22 PM DEBBIE AUTREY Clerk
2

Table Of Contents

Table Of Contents.....................................................................................................2

Index Of Authorities.................................................................................................3

Introduction...............................................................................................................4

Argument...................................................................................................................4

I. The trial court miscalculated the amount of prejudgment 

interest. .................................................................................................4

II. The trial court miscalculated the amount of recoverable 

damages. ...............................................................................................7

Conclusion ................................................................................................................9

Certificate Of Compliance & Service.....................................................................11
3

Index Of Authorities

Page(s)

Cases

Battaglia v. Alexander,

177 S.W.3d 893 (Tex. 2005) ........................................................................4, 5, 6

Brainard v. Trinity Universal Ins. Co.,

216 S.W.3d 809 (Tex. 2006) ............................................................................5, 6

Galbraith Eng’g Consultants, Inc. v. Pochucha,

290 S.W.3d 863 (Tex. 2009) ................................................................................7

Pilgrim’s Pride Corp. v. Cernat,

205 S.W.3d 110 (Tex. App.—Texarkana 2006, pet. denied)...........................7, 8

Roberts v. Williamson,

111 S.W.3d 113 (Tex. 2003) ............................................................................6, 8

Tow v. Speer,

CIV.A. H-11-3700, 2015 WL 1058080 (S.D. Tex. Mar. 10, 2015).....................6

Statutes

TEX. CIV. PRAC. & REM. CODE (2015)

§ 33.004(i).............................................................................................................8

§ 33.012.................................................................................................................8

§ 33.012(a)............................................................................................................7

§ 33.012(b)............................................................................................................7

§ 33.013.................................................................................................................8

§ 33.013(a)............................................................................................................8
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Introduction

This appeal involves two issues of de novo review. The first issue questions 

whether the “amount of damages to be recovered by the claimant” used in 

Section 33.012(a) of the Civil Practice and Remedies Code can be misread, as 

Bonner does, as the “amount awarded by the jury.” The second issue questions 

whether the trial court failed to follow Supreme Court precedent and apply the 

declining principal formula to the calculation of prejudgment interest.

Argument

I. The trial court miscalculated the amount of prejudgment interest.

Bonner concedes that if the declining principal formula applies to the 

calculation of prejudgment interest in this case, then “the correct amount of the 

judgment would be $1,937,467.32.” Appellee’s Brief at 18. Bonner erroneously 

contends, however, that the declining principal formula cannot apply because there 

is no separate jury finding making Joyce Crane jointly and severally liable. Id. at 7, 

16, 17. 

According to Bonner, the declining principal formula is “specifically limited 

... to the situation where the non-settling defendant is jointly and severally liable.” 

Appellee’s Brief at 17 (emphasis removed, citing Battaglia v. Alexander, 177 

S.W.3d 893, 907 (Tex. 2005)). Battaglia says no such thing.
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Under section III of the Battaglia opinion, the Supreme Court found no trial 

court error in holding the defendant associations jointly and severally liable based 

on the jury’s finding of joint venture. 177 S.W.3d at 904. Under section IV of the 

opinion, the Supreme Court held “the timing of settlement payments must be taken 

into account.” Id. at 907. 

Additionally, “[a] settlement payment should be credited first to accrued 

prejudgment interest as of the date the settlement payment was made, then to 

‘principal,’ thereby reducing or perhaps eliminating prejudgment interest from that 

point in time forward.” Id. at 908 (emphasis added). The Court never limited its 

declining principal formula to the joint and several context.

If there was any doubt about whether the Supreme Court’s holding was 

limited to cases involving joint and several liability, then the Court removed that 

doubt in Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 811 (Tex. 2006), 

which involved a single defendant without joint and several liability. The 

unanimous Court held that, “to satisfy the purpose of prejudgment interest, 

settlements must be credited periodically, according to the date they are received.” 

Id. at 816. 

Furthermore, the Court held, the settlement credit “is applied first to accrued 

prejudgment interest and then to principal.” Id. at 817 (emphasis added). “This 

approach, known as the ‘declining principal’ formula, is the proper way to apply 
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credits in the calculation of prejudgment interest.” Id. at 816 (emphasis added); see 

also Tow v. Speer, CIV.A. H-11-3700, 2015 WL 1058080, *15 (S.D. Tex. Mar. 10, 

2015) (likewise applying Battaglia in the absence of joint and several liability).

Bonner’s novel joint and several liability requirement has no basis in the 

case law. It also makes no sense in light of what Bonner asked the trial court to do. 

Bonner did credit the settlement payments periodically, as required by the first part 

of the declining principal formula. But Bonner failed to follow the second half of 

the formula by crediting the payments first to accrued prejudgment interest. 

7CR3903 (calculation for the initial judgment); 7CR4040 (calculation for the 

amended judgment). The trial court made the same fundamental mistake that 

should now be corrected. 7CR3934-35; 7CR4042-43.

Bonner’s real complaint seems to be that the settlement payments were made 

by parties “that the jury specifically found were not responsible.” Appellee’s Brief 

at 18. The Supreme Court, however, has not made any exceptions to its declining 

principal formula. See Brainard, 216 S.W.3d at 816; see also Roberts v. 

Williamson, 111 S.W.3d 113, 123 n.7 (Tex. 2003) (“[A] defendant may 

incidentally benefit from a claimant’s favorable settlement with others.”). 

The trial court here did not follow the Supreme Court’s declining principal 

formula in its entirety. At a minimum, the judgment must be modified to reflect a 

proper calculation.
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II. The trial court miscalculated the amount of recoverable damages.

Bonner contends that the proportionate responsibility statute is “simple.” 

Appellee’s Brief at 12. The Supreme Court disagrees. Galbraith Eng’g 

Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868 (Tex. 2009) (describing 

chapter 33 of the Civil Practice and Remedies Code as “a complex statutory 

scheme”). 

Bonner also argues — without citing a single supporting case or even the 

pertinent section of the proportionate responsibility statute — that the “jury’s 

determination of the amount of damages gives the trial court its starting point for 

all subsequent damage calculations and reductions.” Appellee’s Brief at 10. 

Bonner then mischaracterizes Joyce Crane’s issue regarding Section 33.012 of the 

Civil Practice and Remedies Code as an attempt to create a statutory ambiguity. Id.

at 12.

To the contrary, Section 33.012 is not ambiguous. Pilgrim’s Pride Corp. v. 

Cernat, 205 S.W.3d 110, 117-18 (Tex. App.—Texarkana 2006, pet. denied) 

(declining to find ambiguity when holding that Section 33.012 “imposes limits on 

what a claimant may recover”). Section 33.012 repeatedly refers to the “amount of 

damages to be recovered by the claimant.” TEX. CIV. PRAC. & REM. CODE

§ 33.012(a), § 33.012(b). The section does not refer to the “amount of damages 
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found by the jury,” although the legislature could have used that simple phrase if 

that had been its intent. 

Nor is Joyce Crane trying to create a conflict between Sections 33.012 and 

33.013, as Bonner suggests. See Appellee’s Brief at 12; see also Pilgrim’s Pride, 

205 S.W.3d at 118 (“Section 33.013 limits the liability of a particular defendant 

who is not jointly and severally liable.”). Instead, Section 33.012 should be 

construed according to its plain terms. 

Section 33.012’s reference to the “amount of damages to be recovered by the 

claimant ” should be construed to exclude the amount of damages attributable to 

the responsible — but not liable — third party. TEX. CIV. PRAC. & REM. CODE

§ 33.012, § 33.004(i). Doing so results in a take-nothing judgment in Joyce Crane’s 

favor. 

On other facts not present here (such as different awards or allocation of 

responsibility), the limit “on the amount of liability” stated in Section 33.013 

would come into play. TEX. CIV. PRAC. & REM. CODE § 33.013. Significantly, 

Section 33.013 specifically refers to the “damages found by the trier of fact.” Id.

§ 33.013(a). The legislature’s use of that explicit phrase in Section 33.013 signals 

its intent to mean something else in Section 33.012 when it says the “amount of 

damages to be recovered by the claimant.” See Roberts, 111 S.W.3d at 123 
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(“[D]amages under these two sections are the same only when the claimant has not 

settled and shares no responsibility.”).

The judgment should be reversed because properly applying the 

proportionate responsibility statute and pertinent settlement credits yields a takenothing judgment in favor of Joyce Crane.

Conclusion

For all the foregoing reasons and those stated in its opening brief, Joyce 

Crane requests a take-nothing judgment in its favor and release of its surety, or 

alternatively, reformation of the judgment to reflect the proper calculation of 

prejudgment interest (which reduces the judgment to $1,937,467.32). Joyce Crane 

prays for all other relief to which it may be entitled.
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Respectfully submitted,

NORTON ROSE FULBRIGHT US LLP

By: /s/ Rosemarie Kanusky

State Bar No. 00790999

rosemarie.kanusky@nortonrosefulbright.com

300 Convent, Suite 2100

San Antonio, Texas 78205

Telephone: 210.224.5575

Telecopier: 210.270.7205

and

NORTON ROSE FULBRIGHT US LLP

J. Jeffery Richardson

Jeff.Richardson@Nortonrosefulbright.com

2200 Ross Avenue, Suite 3600

Dallas, Texas 78201

Telephone: 214.855.8121

Facsimile: 214.855.8200

Counsel for Appellant, 

Joyce Steel Election, Ltd.
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Certificate Of Compliance & Service

I certify that this brief complies with type-face and type-volume 

requirements. The document contains 1,485 words excluding the table of contents 

and index of authorities.

I certify that a copy of this brief was emailed to the following: 

Robert L. Clements

Robert@clementslaw.com

Kelly R. Clements

Kelly@clementslaw.com

CLEMENTS & CLEMENTS

731 N. St. Paulus Ave.

Dallas, Texas 78214

Counsel for Appellee, 

Gordon Ray Bonner 

John R. Mercy

jmercy@texarkanalawyers.com

MERCY CARTER TIDWELL, L.L.P

1724 Galleria Oaks Drive

Texarkana, Texas 75503

Counsel for Appellee, 

Gordon Ray Bonner

Paul A. Bezney

paul@ahblaw.net

J. Kevin Kindred

kevin@ahblaw.net

Adkerson, Hauder & Bezney, P.C..

1700 Pacific Avenue, Ste. 4450

Dallas, Texas 75201

Counsel for Appellant,

Joyce Steel Election, Ltd.

Brent L. Watkins

bwatkins@skeltonslusher.com

Skelton Slusher Barnhill 

Watkins Wells, PLLC

1616 South Chestnut

Lufkin, Texas 75901

Counsel for Intervenor, 

American Interstate Insurance 

Company

/s/ Rosemarie Kanusky

May 13, 2015

41669667