Oral Argument Requested

No. 03-14-00738-CV

In The Court of Appeals 

For The Third District of Texas

at Austin

 

Elness, Swenson, Graham § From the 200th District Court

Architects, Inc., § 

Appellant and Cross-Appellee, § 

 § 

v. § 

 § 

RLJ II-C Austin Air, LP, § 

RLJ II-C Austin Air Lessee, LP § 

and RJL Lodging Fund II § 

Acquisitions, LLC, § 

Appellees and Cross-Appellants. § Of Travis County, Texas

 

CROSS-APPELLANTS’ REPLY BRIEF

MUNSCH, HARDT, KOPF 

& HARR, P.C.

Michael W. Huddleston

State Bar No: 10148415

J. Stephen Gibson

State Bar No: 07866000

3800 Ross Tower

500 North Akard Street

Dallas, Texas 75201

214-855-7500 telephone

214-855-7584 facsimile

ATTORNEYS FOR APPELLEES, 

CROSS-APPELLANTS

Benton T. Wheatley

State Bar No. 24015171

Tracy McCreight

State Bar No. 24037064

401 Congress Avenue

Suite 3050

Austin, TX 78701

512-391-6100 telephone

512-391-6149 facsimile

ACCEPTED

03-14-00738-CV

6105954

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/16/2015 5:20:51 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/16/2015 5:20:51 PM JEFFREY D. KYLE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

The undersigned counsel of record, pursuant to Texas Rule of Appellate 

Procedure 38.2, certifies that the following persons have an interest in the outcome 

of this case:

Appellant, Cross-Appellee: Elness, Swenson, Graham Architects, Inc.

Appellant’s, Cross-Appellee’s 

Counsel on Appeal:

Weston M. Davis

Gregory N. Ziegler

Steven R. Baggett

Macdonald Devin, P.C.

1201 Elm Street

3800 Renaissance Tower

Dallas, TX 75270

Appellant’s, Cross-Appellee’s 

Counsel at Trial:

Weston M. Davis

Gregory N. Ziegler

Matthew Mumm

Macdonald Devin, P.C.

1201 Elm Street

3800 Renaissance Tower

Dallas, TX 75270

Appellees, Cross-Appellants: RLJ II-C Austin Air, LP

RLJ II-C Austin Air Lessee, LP

RLJ Lodging Fund II Acquisitions, LLC

Appellees’, Cross-Appellants’ 

Counsel on Appeal:

Michael W. Huddleston

J. Stephen Gibson

Munsch Hardt Kopf & Harr, P.C.

3800 Ross Tower

500 North Akard Street

Dallas, Texas 75201
iii

Appellees’, Cross-Appellants’ 

Counsel at Trial:

Benton T. Wheatley

Tracy McCreight

Munsch Hardt Kopf & Harr, P.C.

401 Congress Avenue

Suite 3050

Austin, TX 78701

By: /s/ Michael W. Huddleston

Attorney for Appellees, CrossAppellants
iv

STATEMENT CONCERNING ORAL ARGUMENT

Appellees and Cross-Appellants respectfully request oral argument in this 

case. Appellees and Cross-Appellants respectfully submit that oral argument will 

assist the Court in resolving the issues necessary to decide this appeal. 
v

TABLE OF CONTENTS

Identity of Parties and Counsel................................................................................. ii

Statement Concerning Oral Argument .....................................................................iv

Table of Contents.......................................................................................................v

Index of Authorities............................................................................................... viii

I. Joint and Several Liability Is Necessary For 

“One Satisfaction” Settlement Credit..............................................................1

A. All Courts That Have Actually Considered Whether 

Joint and Several Liability Is Necessary Have Ruled That It Is. .........1

B. The Joint and Several Liability Requirement Is Not Satisfied 

When There Is No Potential Joint and Several Liability. .....................4

1. Joint Contractual Liability Was Not Admitted 

In RLJ’s Pleading........................................................................4

a. Request to Impose Joint and Several Liability Included 

Request for Joint or Several Liability...............................5

1) RLJ Was Seeking the Broadest Relief Possible, 

Not to Narrow the Relief Available. ......................5

2) The Architect Ignores RLJ’s Intent Manifest in the 

Rest of the Prayer. ..................................................5

2. The Request for Relief Did Not Clearly, Deliberately and 

Unequivocally Allege Joint Contractual Liability......................6

a. Then-Pending Tort Claims Supported Request for 

Imposition of Joint and Several Liability. ........................7

b. Specific Allegations Negated Joint or Common 

Contractual Duty...............................................................7

c. Joint and Several Liability Request Asserted a Legal 

Conclusion And Is Not a “Fact” That Can Be 

Judicially Admitted...........................................................8

3. The Architect Waived the Effect of Any Admission On 

Introduction of Evidence Showing No Joint Duty. ....................9

C. Potential Joint Contractual Liability Not Presumed From 

Any Failure to Allocate Damages. ......................................................10

D. RLJ Had No Notice The Architect Would Claim Under the 

One Satisfaction Rule Credit for Contractual Liability Settlements...11
vi

1. The Architect Only Pleaded Chapter 33 Tort Contribution, 

Not “One Satisfaction” Settlement Contribution......................11

2. Limiting Its Contribution Claim to Chapter 33 Only 

Prevents the Architect from Relying on Bases for 

Claiming Contribution. .............................................................12

3. Liberal Construction Is Not a License to 

Infer Claims Not Alleged..........................................................12

4. There Was No Opportunity And No Need to Allocate.............13

E. Indivisible Injury Alone Does Not Establish Joint and Several 

Contractual Liability or the “One Satisfaction” Settlement Credit.....15

II. “One Satisfaction” Settlement Credit Does Not Apply to 

Any Contractual Liability..............................................................................18

A. Beware the Multiple Uses of “One Satisfaction.”...............................18

1. There Was No “One Satisfaction” Settlement Credit 

Until After Article 2212 Was Enacted......................................20

2. The Cases Cited By The Architect Did Not Involve 

Settlement Credits.....................................................................20

3. Utts Does Not Suggest That the “One Satisfaction” 

Settlement Credit Existed at Common Law 

Before Article 2212...................................................................21

B. This and Other Texas Courts Have Refused to Apply “One 

Satisfaction” Settlement Credits to Contractual Liability...................22

C. CTTI Is Still Valid. ..............................................................................25

1. No Later Decision Expressly Limits or Overturns CTTI..........25

2. Stare Decisis and En Banc Standards Make Sub 

SilentioOverruling of CTTI Both Unthinkable and Unlikely. ..26

3. Pool May Potentially Conflict with CTTI, But Does Not 

Overrule It.................................................................................27

4. Conflicts With Other Cases. .....................................................29

D. Extension of “One Satisfaction” Settlement Credit to 

Contractual Liability Prohibited by 

Texas Constitution Article I, Section 16.............................................30

III. Conclusion .....................................................................................................31

Certificate of Compliance ........................................................................................33
vii

Certificate of Service ...............................................................................................33
viii

INDEX OF AUTHORITIES

Page(s)

CASES

Aerospatiale Helicopter Corp. v. Universal Health Servs., Inc.,

778 S.W.2d 492 (Tex. App.—Dallas 1989, writ denied).....................................5

Alvord v. Waggoner,

88 Tex. 615, 32 S.W. 872 (1895) .......................................................................21

AMX Enters., Inc. v. Bank One, N.A.,

196 S.W.3d 202 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)...............26

Andrews v. Harvey,

39 Tex. 123 (1873)..............................................................................................21

Austin Home Ctr. Associates v. State,

794 S.W.2d 593 (Tex. App.—Austin 1990, no writ) .........................................27

Barstow v. State,

742 S.W.2d 495 (Tex. App.—Austin 1987, writ denied).....................................7

Bartley v. Guillot,

990 S.W.2d 481 (Tex. App.—Houston [1st Dist.] 1999, pet. denied)......... 24-25

Bd. of Ins. Comm’rs of Tex. v. Guardian Life Ins. Co. of Tex.,

142 Tex. 630, 180 S.W.2d 906 (1944) .................................................................5

Bentley v. Bunton,

94 S.W.3d 561 (Tex. 2002)...................................................................................8

Boulet v. State,

189 S.W.3d 833 (Tex. App.—Houston [1st Dist.] 2006, no pet.)..................9, 15

BP Am. Prod. Co. v. Marshall,

288 S.W.3d 430 (Tex. App.—San Antonio 2008), 

rev’d on other grounds, 342 S.W.3d 59 (Tex. 2011) .....................................2, 24

Broughton Assoc. Joint Venture v. Boudreaux,

709 S.W.3d 324 (Tex. App.—Waco 2002, no pet.)...........................................13
ix

Burke v. Union Pac. Res. Co.,

138 S.W.3d 46 (Tex. App.—Texarkana 2004, pet. denied)...............................29

CBI NA-CON, Inc. v. UOP, Inc.,

961 S.W.2d 336 (Tex. App.—Houston [1st Dist.] 1997, pet. denied)...............24

Crown Life Ins. Co. v. Casteel,

22 S.W.3d 378 (Tex. 2000)..........................................................................passim

CTTI Priesmeyer, Inc. v. K&O Limited Partnership,

164 S.W.3d 675 (Tex. App.—Austin 2005, no pet.)...................................passim

Cunningham v. Haroona,

382 S.W.3d 492 (Tex. App.—Fort Worth 2012, pet. denied)............................30

El Paso Nat. Gas v. Berryman,

858 S.W.2d 362 (Tex. 1993) .................................................................. 19, 29-30

Elliott v. Newsom,

No. 01-07-00692-CV, 2009 WL 214551 

(Tex. App.—Houston [1st Dist.] Jan. 29, 2009, no pet.)(mem. op.)....................9

Emerson Elec. Co. v. Am. Permanent Ware Co.,

201 S.W.3d 301 (Tex. App.—Dallas 2006, no pet.) ..........................................30

Fairfield Ins. Co. v. Stephens Martin Paving LP,

246 S.W.3d 653 (Tex. 2004) ..............................................................................31

Fina Supply, Inc. v. Abilene Nat’l Bank,

726 S.W.2d 537 (Tex. 1987) ..............................................................................19

First Title Co. of Waco v. Garrett,

860 S.W.2d 74 (Tex. 1993)..........................................................................passim

Flowers v. Flowers,

407 S.W.3d 452 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ...................12

Galle, Inc. v. Pool,

262 S.W.3d 564 (Tex. App.—Austin 2008, pet. denied)............................passim

GE Capital Commercial Inc. v. Worthington Nat’l Bank,

754 F.3d 297 (5th Cir. 2014) ............................................................................2, 9
x

Goggin v. Grimes,

969 S.W.2d 135 (Tex. App.—Houston [14th Dist.] 1998, no pet.) ...................16

Griffin v. Superior Ins. Co.,

161 Tex. 195, 338 S.W.2d 415 (1960) .................................................................7

Gym-N-I Playgrounds, Inc. v. Snider,

220 S.W.3d 905 (Tex. 2007) ..............................................................................30

Hennigan v. I.P. Petroleum Co.,

858 S.W.2d 371 (Tex. 1993) ................................................................................7

Heritage Gulf Coast Properties, Ltd. v. Sandalwood Apartments, Inc.,

416 S.W.3d 642 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ...................12

Highlands Ins. Co. v. Currey,

773 S.W.2d 750 (Tex. App.—Houston [14th Dist.] 1989, writ denied)..............6

Horizon Offshore Contractors, Inc. v. Aon Risk Servs. of Tex., Inc.,

283 S.W.3d 53 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)...............19

Horizon/CMS Healthcare Corp. v. Auld,

34 S.W.3d 887 (Tex. 2000)...................................................................................6

Houston First Am. Sav. v. Musick,

650 S.W.2d 764 (Tex. 1983) ............................................................................6, 9

Hunt v. Ellisor & Tanner,

739 S.W.2d 933 (Tex. App.—Dallas 1987, writ denied)......................... 2, 22-23

Ilami v. Rowinska,

No. 05-07-00893-CV, 2008 WL 3522242 

(Tex. App.—Dallas Aug. 14, 2008, no pet.) ........................................................8

In re Prudential Ins. Co. of Am.,

148 S.W.3d 124 (Tex. 2004) ..............................................................................30

In re Velazquez,

660 F.3d 893 (5th Cir. 2011) ................................................................................5

Kizer v. Meyer, Lytton, Allen & Whitaker, Inc.,

228 S.W.3d 384 (Tex. App.—Austin 2007, no pet.)..............................19, 25, 27
xi

Landers v. East Texas Salt Water Disposal Co., 

151 Tex. 251, 248 S.W.2d 731, 734 (1952) ...................................................3, 15

Lentz Eng’g, L.C. v. Brown,

No. 14-10-00610-CV, 2011 WL 4449655 

(Tex. App.—Houston [14th Dist.] Sept. 27, 2011, no pet.)(mem. op.)................6

Lewis v. Taylor,

17 Tex. 57 (1856)................................................................................................21

LJ Charter, LLC v. Air America Jet Charter, Inc.,

No. 14-08-00534-CV, 2009 WL 4794242 (Tex. App.—Houston [14th 

Dist.] Dec. 15, 2009, pet. denied).........................................................................2

Madison v. Williamson,

241 S.W.3d 145 (Tex. App.—Houston [1st Dist.] 2007, no pet.)................19, 26

Matthew v. Sohn,

13-12-00302-CV, 2013 WL 2949562 

(Tex. App.—Corpus Christi 2013, no pet.)(mem. op.) ......................................30

Mays v. Pierce,

203 S.W.3d 564 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).............16

Mendoza v. Fid. & Guar. Ins. Underwriters, Inc.,

606 S.W.2d 692 (Tex. 1980) ................................................................................6

Metal Bldg. Components, LP v. Raley,

No. 03-05-00823, 2007 WL 74316 

(Tex. App.—Austin Jan. 10, 2007, no pet.)............................................ 25, 27-28

Molberg v. State,

No. 03-13-00330-CV, 2014 WL 904286 

(Tex. App.—Austin 2014, no pet.).......................................................................6

Monsanto Co. v. Milam,

494 S.W.2d 534 (Tex. 1973) ..........................................................................7, 12

O’Connor v. First Court of Appeals,

837 S.W.2d 94 (Tex. 1992).................................................................................27

Osborne v. Jauregui, Inc.,

252 S.W.3d 70 (Tex. App.—Austin 2008, pet. denied)..............................passim
xii

Oyster Creek Fin. Corp. v. Richwood Investments II, Inc.,

176 S.W.3d 307 (Tex. App.—Houston [1st Dist.] 2004, pet. denied)......... 29-30

Paschall v. Peevey,

813 S.W.2d 710 (Tex. App. – Austin 1991, writ denied).....................................2

Regions Bank v. Bay,

No. 05–12–00531–CV, 2013 WL 5299174 

(Tex. App.—Dallas Sept. 18, 2010, no pet.)(mem. op.).....................................30

Seureau v. ExxonMobil Corp.,

274 S.W.3d 206 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ...................16

Smith v. Deneve,

285 S.W.2d 904 (Tex. App.—Dallas 2009, no pet.) ..........................................12

SmithKline Beecham Corp. v. Doe,

903 S.W.2d 347 (Tex. 1995) ..............................................................................12

Stewart Title Guar. Co. v. Sterling,

822 S.W.2d 1 (Tex. 1992)............................................................................passim

Storrie v. Cortes,

90 Tex. 283, 38 S.W. 154 (1896) .......................................................................31

Sun Oil Co. v. Robicheaux,

23 S.W.2d 713 (Tex. Comm. App. 1930)...........................................................17

Utts v. Short,

81 S.W.3d 822 (Tex. 2002)........................................................................... 21-22

Walker v. Packer,

827 S.W.2d 833 (Tex. 1992) ................................................................................1

Warren v. La Salle Co.,

262 S.W. 527 (Tex. Civ. App.—Austin 1924, writ dismissed w.o.j.)..................5

Whitley v. King,

227 S.W.2d 241 (Tex. Civ. App.—Waco 1950, no writ).....................................8

OTHER AUTHORITIES

Tex. R. App. P. 41.2(c)............................................................................................27
1

I. JOINT AND SEVERAL LIABILITY IS NECESSARY FOR 

“ONE SATISFACTION” SETTLEMENT CREDIT.1

The settlement credit issue is whether the Architect was entitled to any 

settlement credit at all, not the amount. Contrary to the Architect’s suggestion 

(Cross-Appellee’s 5), applicability of the settlement credit is a legal question 

reviewed de novo, Galle, Inc. v. Pool, 262 S.W.3d 564, 570 n.3 (Tex. App.—

Austin 2008, pet. denied). No discretion is allowed in deciding the law or applying 

it to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

The Architect insists, without authority, that “Texas law does not require 

joint and several liability for application of the one satisfaction rule” concerning 

settlement credits. (Cross-Appellee’s 6). It also alleges that RLJ “seeks to ... 

introduc[e] a new requirement – joint and several liability,” as if that requirement 

were previously unknown. (Cross-Appellee’s 7). Apparently, it maintains that 

“indivisible injury” alone is enough. (Cross-Appellee’s 14-17).

A. All Courts That Have Actually Considered Whether Joint and 

Several Liability Is Necessary Have Ruled That It Is.

The Texas Supreme Court, this Court (twice), the Fifth Circuit, and other 

Texas appellate courts recognize that “one satisfaction” settlement credits only 

 1 The Architect fails to distinguish between the multiple differing circumstances in which 

the phrase “one satisfaction” is used. To avoid confusion, RLJ refers to the issue in this 

case as involving the “‘one satisfaction’ settlement credit” to distinguish it from other 

doctrines under the broader “one satisfaction” heading. See II.A., infra.
2

apply to joint liability. GE Capital Commercial Inc. v. Worthington Nat’l Bank, 

754 F.3d 297, 306 (5th Cir. 2014); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 

390 (Tex.2000); First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 78 (Tex.1993); 

Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex.1992); LJ Charter, LLC 

v. Air America Jet Charter, Inc., No. 14-08-00534-CV, 2009 WL 4794242 at *9 

(Tex. App.—Houston [14th Dist.] Dec. 15, 2009, pet. denied); BP Am. Prod. Co. v. 

Marshall, 288 S.W.3d 430, 456 (Tex. App.—San Antonio 2008), rev’d on other 

grounds, 342 S.W.3d 59 (Tex.2011); CTTI Priesmeyer, Inc. v. K&O Limited 

Partnership, 164 S.W.3d 675, 684 (Tex. App.—Austin 2005, no pet.); Paschall v. 

Peevey, 813 S.W.2d 710, 712 (Tex. App. – Austin 1991, writ denied). CTTI 

specifically ruled:

Because tortfeasors cannot be jointly and severally liable for contract 

damages, and other contract defendants are only jointly and severally 

liable for breaches of contracts to which they are a party or that 

promise the same performance, we ... affirm the trial court’s decision 

to deny any settlement credits. 

164 S.W.3d at 685 (emphasis added).

After calling the requirement a “straw man” (Cross-Appellee’s 7), the 

Architect later recognizes the need for joint and several liability. It argues GE 

Capital “holds only that the one-satisfaction rule requires an allegation of joint and 

several liability between the defendants.” (Cross-Appellee’s 10). The Architect 

also attempts to distinguish Hunt v. Ellisor & Tanner, 739 S.W.2d 933, 938 (Tex. 
3

App.—Dallas 1987, writ denied), because “it did not involve any allegations of 

joint liability....” (Cross-Appellee’s 18). As the Architect itself recognizes, joint 

and several liability is prerequisite for a “one satisfaction” settlement credit. 

Allowing this credit in non-tort cases based on indivisible injury alone 

ignores Texas joint and several tort liability law. After Landers v. East Texas Salt 

Water Disposal Co., joint and several tort liability is based solely on indivisible 

injury. 151 Tex. 251, 248 S.W.2d 731, 734 (1952), Thus, some post-Landers tort 

cases discuss indivisible injury requirement without mentioning joint and several 

liability because, post-Landers, in tort cases the former automatically satisfies the 

latter. The Texas Supreme Court made abundantly clear that joint and several 

liability is essential to receiving a “one satisfaction” settlement credit. Casteel, 22 

S.W.3d at 390; Garrett, 860 S.W.2d at 78; Sterling, 822 S.W.2d at 8. There was no 

potential joint and several contractual liability here,2 so there could be no “one 

satisfaction” settlement credit. 3 (Cross-Appellants’ 23-29, 34-39).

 2 The Architect does not question that joint contractual liability requires promising the 

same performance. The Architect only argues that the joint liability requirement was 

satisfied by taking three words in the relief RLJ requested out of context while ignoring 

detailed allegations that the Architect and Settling Defendants breached distinct 

contractual duties. (Cross-Appellee’s 9). Why this argument is meritless is explained in 

I.B., infra.

3 Demonstrating the dearth of supporting authority, the Architect resorts to arguing 

whether such credits are available in breach of contract cases. (Cross-Appellee’s 7-9). To 

uphold the settlement credit in this case, the Architect must prevail on both the joint-andseveral and the contractual liability issues. 
4

B. The Joint and Several Liability Requirement Is Not Satisfied 

When There Is No Potential Joint and Several Liability.

The specific factual allegations about the Defendants’ respective contractual 

duties showed that there was no common undertaking. (Cross-Appellants’ 25-31, 

34-39). The Architect attempts, however, to create the appearance of potential joint 

and several liability by arguing “RLJ pled that [the Architect and the Settling 

Defendants] were jointly and severally liable for RLJ’s breach of contract claims.” 

(Cross-Appellee’s 9; emphasis added). Nothing in RLJ’s request specifically 

refers to “breach of contract claims”4 as the Architect says. (CR202; Id.). Nowhere 

does RLJ “admit” Defendants’ contractual liability was joint.

1. Joint Contractual Liability Was Not Admitted In RLJ’s 

Pleading. 

The Architect’s categorical and incorrect assertion is based exclusively on 

three words – “jointly and severally” – in RLJ’s request for relief. (CR202). RLJ 

pleaded tort claims against all Defendants for which joint and several liability 

would have been appropriate. (CR197-200). Many pages of RLJ’s petition and 

supporting documentation detail facts showing that each Defendant’s contractual 

duties were dissimilar and distinct. (CR192-93, 197-98, 200-01, 209-12). 

 4 The prayer requests “judgment against the Defendants, jointly and severally, for [RLJ’s] 

damages, interest, attorneys' fees, costs, and any other relief to which [it] may be 

entitled.” (CR202; emphasis added).
5

Nevertheless, the Architect argues as if the general request for relief overrides 

more specific allegations and alone admits joint and several liability.

a. Request to Impose Joint and Several Liability 

Included Request for Joint or Several Liability.

The Architect is wrong. Pleadings must be interpreted reasonably by 

construing words in context and allowing substance to control form. See Warren v. 

La Salle Co., 262 S.W. 527, 531 (Tex. Civ. App.—Austin 1924, writ dismissed 

w.o.j.). 

1) RLJ Was Seeking the Broadest Relief 

Possible, Not to Narrow the Relief Available.

The request for judgment against all “Defendants, jointly and severally” is 

included in a prayer seeking that and “any other relief.” (CR202). In context, it 

cannot be reasonably interpreted to seek only joint liability. “And” refers to “either 

or both” when manifest intent and context requires. In re Velazquez, 660 F.3d 893, 

898 (5th Cir. 2011); see Bd. of Ins. Comm’rs of Tex. v. Guardian Life Ins. Co. of 

Tex., 142 Tex. 630, 180 S.W.2d 906, 908 (1944); Aerospatiale Helicopter Corp. v. 

Universal Health Servs., Inc., 778 S.W.2d 492, 502 (Tex. App.—Dallas 1989, writ 

denied). “Jointly and severally,” in context, also requested joint or several liability.

2) The Architect Ignores RLJ’s Intent Manifest 

in the Rest of the Prayer.

Even if “and” were only conjunctive, the Architect’s interpretation ignores 

RLJ’s manifest intent. Seeking the maximum relief available, RLJ requested “any 
6

other relief to which [it] may be entitled.” Read reasonably and in that context, the 

prayer did not only seek to hold the defendants jointly liable. It also included an 

assertion of several liability. Therefore, the request that the Defendants be “jointly 

and severally” liable was pleaded alternatively, not unequivocally, that the 

Defendants’ contractual liability was only joint. 

To be judicially admitted, a fact allegedly must be alleged deliberately, 

clearly and unequivocally. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 

887, 905 (Tex.2000); Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 

S.W.2d 692, 694 (Tex.1980). Only “‘[a]ssertions of fact, not pled in the 

alternative, in [a party’s] live pleadings’” may be judicial admissions. Molberg v. 

State, No. 03-13-00330-CV, 2014 WL 904286 at *2 (Tex. App.—Austin 2014, no 

pet.)(quoting Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.1983); 

emphasis added). RLJ’s request for relief was, at most, equivocal and could not 

judicially admit joint liability.

2. The Request for Relief Did Not Clearly, Deliberately and 

Unequivocally Allege Joint Contractual Liability.

This is especially true when the entire pleading is considered, as it must be 

when deciding whether it is sufficiently clear, deliberate, and unequivocal to 

judicially admit a fact. Lentz Eng’g, L.C. v. Brown, No. 14-10-00610-CV, 2011 

WL 4449655, at *1 (Tex. App.—Houston [14th Dist.] Sept. 27, 2011, no 

pet.)(mem. op.); see, e.g., Highlands Ins. Co. v. Currey, 773 S.W.2d 750, 755 
7

(Tex. App.—Houston [14th Dist.] 1989, writ denied)(no admission in motion when 

party specifically denied the same fact in its answer); Barstow v. State, 742 S.W.2d 

495, 509 (Tex. App.—Austin 1987, writ denied)(no admission when motion 

contained conflicting statements). “[M]ere mistake or slip of the tongue must be 

eliminated” before a statement may be treated as a judicial admission. Hennigan v. 

I.P. Petroleum Co., 858 S.W.2d 371, 372 (Tex.1993)(quoting Griffin v. Superior 

Ins. Co., 161 Tex. 195, 338 S.W.2d 415, 419 (1960)).

a. Then-Pending Tort Claims Supported Request for 

Imposition of Joint and Several Liability.

RLJ alleged pending tort claims so that including a request for joint and 

several liability was appropriate for those claims. It does not necessarily or even 

reasonably follow that such request must have also included contractual liability. 

b. Specific Allegations Negated Joint or Common 

Contractual Duty.

This is further illustrated because the specific facts alleged contradict any 

inference that RLJ admitted joint liability. Reasonable interpretation means 

specific allegations control more general averments. Monsanto Co. v. Milam, 494 

S.W.2d 534, 536 (Tex.1973). RLJ alleged breaches of distinct contractual 

obligations by the Soils Engineer (CR192, 211-212), General Contractor (CR192), 

and the Architect. (CR192, 205-07). These factual averments eliminated as a 

matter of law any potential joint contractual liability. (Cross-Appellants’ 25-28, 
8

35-39). Even the Architect agreed that its responsibilities were different. 

According to its closing argument, “An architect is not an engineer [or] ... a 

general contractor.” (10RR33). “Architects do not ... and cannot second-guess 

engineers.” (10RR34). The specific factual allegations, therefore, control the 

general relief requested over whether the contractual liability alleged was joint. 

c. Joint and Several Liability Request Asserted a 

Legal Conclusion And Is Not a “Fact” That Can 

Be Judicially Admitted. 

Whether liability is joint and several is a legal conclusion, not a factual 

assertion. See Bentley v. Bunton, 94 S.W.3d 561, 619 (Tex.2002)(conspiracy 

finding “requires the legal conclusion to impose joint and several liability”); Ilami 

v. Rowinska, No. 05-07-00893-CV, 2008 WL 3522242, at *2 (Tex. App.—Dallas 

Aug. 14, 2008, no pet.)(“defendants are jointly and severally liable” is a “legal 

conclusion”). “The mere fact that plaintiffs incidentally inserted in their petition 

the legal conclusion that ‘[the defendant], under the facts alleged, is further liable 

to plaintiffs, jointly and severally, in his individual capacity’ did not in any respect 

change or alter the nature and character of the cause of action otherwise asserted 

....” Whitley v. King, 227 S.W.2d 241, 244 (Tex. Civ. App.—Waco 1950, no 

writ)(emphasis added). 

Even if the request had “admitted” potential joint contractual liability, it 

would not have been binding because it concerned a question of law, not fact. 
9

Boulet v. State, 189 S.W.3d 833, 838 (Tex. App.—Houston [1st Dist.] 2006, no 

pet.). Admission of a legal conclusion has no legal effect. Elliott v. Newsom, No. 

01-07-00692-CV, 2009 WL 214551, at *2 (Tex. App.—Houston [1st Dist.] Jan. 

29, 2009, no pet.)(mem. op.). 

3. The Architect Waived the Effect of Any Admission On 

Introduction of Evidence Showing No Joint Duty.

Further, the Architect waived reliance on any such admission by permitting 

the introduction of contradictory evidence without objecting that the matter had 

been conclusively established. “The party relying on his opponent’s pleadings as 

judicial admissions of fact, however, must protect his record by objecting to the 

introduction of evidence contrary to that admission....” Musick, 650 S.W.2d at 

769.

When RLJ introduced evidence precluding any joint contractual liability, the 

Architect never asserted it was barred by judicial admission. (Cross-Appellants’ 7-

11, 34-38). For this additional reason, there is no judicial admission of joint 

contractual liability. Without allegation of or evidence showing a joint contractual 

liability, there is no distinction between this case and GE Capital.

5 Neither 

involved pleadings for potential joint contractual liability.

 5 The Architect asserts that RLJ argues the “one satisfaction” settlement credit “only 

applies if there is a finding of joint and several liability between the defendants.” (CrossAppellee’s 10). RLJ made no such argument. When Chapter 33 does not apply, there is 

no mechanism for obtaining any liability finding about a settling party’s liability. RLJ 
10

C. Potential Joint Contractual Liability Not Presumed From Any 

Failure to Allocate Damages.

Without potential joint contractual liability in this case, no duty to allocate 

ever arose. The Architect acknowledges (Cross-Appellee’s 11) there must first be 

“some damages for which there could be joint and several liability.” CTTI, 164 

S.W.3d at 685, n.3. Nevertheless, it dismisses CTTI as merely “explain[ing] the 

burden[-]shifting procedure” for “one satisfaction” settlement credits. (CrossAppellee’s 12). The Architect ignores that the CTTI footnote it cites concludes:

[t]his burden shifting applies only where there are at least some 

damages for which there could be joint and several liability. Because 

... there can be no damages for which CTTI is jointly liable with other 

settling parties, K & O had no burden to allocate....

Id. (emphasis added). CTTI rejected the Architect’s suggestion (Cross-Appellee’s 

11-13) that the duty to allocate arises regardless of whether the potential liability 

would be joint. Failure to allocate does not otherwise make “joint” a separate 

settled liability. There must be a potential joint liability before allocation is 

necessary. According to the Architect, it had no common contractual duty with any 

Settling Defendant. (10RR33-39).

 

does not quarrel whether the joint and several liability requirement is satisfied by 

allegation or introduction of evidence supporting such liability. It need not do so. Neither 

happened in this case. Rather, the pleading and the evidence showed that there was no 

possibility, as the Architect itself argued to the jury (Cross-Appellants’ 38-39), that the 

Architect’s and the Settling Defendants’ liability could have arisen from any common 

contractual duty. (Cross-Appellants’ 34-38).
11

D. RLJ Had No Notice The Architect Would Claim Under the 

One Satisfaction Rule Credit for Contractual Liability 

Settlements.

Further, RLJ had no notice of any need to allocate because the Architect 

never pleaded for any “one satisfaction” settlement credit. The Architect asserts 

that its answer, “construed liberally ... did provide notice of ESG’s intent to reduce 

any damage award based on sums received [from] other settling parties” (CrossAppellee’s 28), and that RLJ was at fault for not “request[ing] ... an ‘opportunity’ 

to ... apportion[] its damages.” (Cross-Appellee’s 3, 26). (Id.). 

1. The Architect Only Pleaded Chapter 33 Tort

Contribution, Not “One Satisfaction” Settlement 

Contribution

The Architect’s selective quote from its answer6 omits its explicit limitation 

to a Chapter 33 settlement credit. The Architect pleaded:

Alternatively, if the economic loss rule does not completely bar all of 

Plaintiffs’ tort claims, then, pursuant to Chapter 33 of the Texas Civil 

Practice and Remedies Code, Defendants are entitled to a credit for 

any settlement Plaintiffs receive from any other person or entity. If 

Plaintiffs settle with any other person or entity, then Defendants 

 6 Attempting to create the appearance of pleading for a “one satisfaction” settlement 

credit implicitly acknowledges the Texas Rule of Civil Procedure 94 obligation to plead 

for it affirmatively. Under 2212, it was unnecessary to affirmatively plead for the “one 

satisfaction” settlement credit because no fact issue was potentially presented. The credit 

was fixed by statute on a per capita basis. (Cross-Appellants’ 22). Under modern 

practice, a “one satisfaction” settlement credit is not fixed and must be pleaded as an 

affirmative defense under Rule 94. (Cross-Appellants’ 57-59). Cases stating generally 

that it is unnecessary to plead the “one satisfaction” settlement credit appear to have 

uncritically adopted language from cases decided when the credit amount was fixed by 

article 2212.
12

reserve the right to make a written election of credit for settlement 

under §33.014 of the Texas Civil Practice and Remedies Code.[7

]

(CR47; emphasis added). 

2. Limiting Its Contribution Claim to Chapter 33 Only 

Prevents the Architect from Relying on Bases for 

Claiming Contribution. 

Specific allegations control general assertions. Monsanto Co., 494 S.W.2d at 

536. Pleading a particular ground precludes reliance on others not alleged. 

Heritage Gulf Coast Properties, Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 

642, 660 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Smith v. Deneve, 285 

S.W.2d 904, 916 (Tex. App.—Dallas 2009, no pet.). The Architect’s pleading 

cannot be reasonably read to request a “one satisfaction” settlement credit. 

3. Liberal Construction Is Not a License to Infer Claims 

Not Alleged.

Liberal construction is not a “license to read into [a pleading] a claim that it 

does not contain.” Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App.—Houston 

[14th Dist.] 2013, no pet.). It only allows that which may be “reasonably inferred 

from what is specifically stated.” SmithKline Beecham Corp. v. Doe, 903 S.W.2d 

347, 354 (Tex.1995). Allegation of a “one satisfaction” settlement credit against 

contractual liability cannot be inferred from the Architect’s pleading for Chapter 

33 tort contribution.

 7 This section was repealed September 1, 2003, nine years before the Architect’s Second 

Amended Answer. (CR46). 
13

This is especially true because, when the Architect asserted Chapter 33 

contribution, RLJ’s tort claims were still pending. (CR197-200). The trial court 

only later rendered a take-nothing summary judgment on those claims. (CR1710). 

After the trial court disposed of the tort claims, RLJ settled with the Settling 

Defendants. (Cross Appellants’ 11). The Architect never pleaded or otherwise gave 

RLJ any notice it would seek a “one satisfaction” settlement credit.8

4. There Was No Opportunity And No Need to Allocate. 

The Architect further asserts that RLJ now attempts to “show allocation of 

damages on appeal despite the fact that [it] presented no such evidence to the trial 

court.” (Cross-Appellee’s 2). This is incorrect for several reasons. “A party cannot 

waive a right before [it] is in a position to assert it.” Broughton Assoc. Joint 

Venture v. Boudreaux, 709 S.W.3d 324, 328 (Tex. App.—Waco 2002, no pet.). 

Without notice the Architect was claiming a “one satisfaction” settlement credit for 

contractual liability, RLJ can hardly be faulted for not allocating.9

 8 Because the Architect failed to plead the “one satisfaction” settlement credit, its 

arguments concerning laches (Cross-Appellee’s 29) are founded on an incorrect premise 

and need not be considered further. 

9 If allocation was necessary, the Architect’s delay until after trial in raising the “one 

satisfaction” settlement credit issue deprived RLJ of its right to have the jury resolve all 

fact issues. This delay alone foreclosed the application of the one satisfaction rule due to 

laches. (Cross-Appellants’ 58-59). The Architect’s contention that laches as an avoidance 

was waived by not being pleaded is baseless because the Architect never pleaded for any 

contractual liability contribution defense. RLJ specifically asserted laches when the issue 

arose post-trial. (CR1817). The Architect never objected this avoidance was untimely. 

(CR1633-39). 
14

The lynchpin of the Architect’s allocation argument was that RLJ’s petition 

asserted potential joint and several contractual liability. As shown here and 

previously (Cross-Appellants’ 34-39), it did no such thing. The Architect never 

satisfied its “initial burden to show that there are ‘at least some damages for which 

there could be joint and several liability.’” (Cross-Appellee’s 12; see also CrossAppellee’s 27). The need to allocate never arose.

The Architect further misapprehends what must be allocated. It argues 

incorrectly RLJ had “to show allocation of damages applicable only to ESG.” 

(Cross-Appellee’s 12; emphasis added; see also Cross-Appellee’s 27). Actually, 

allocation is only required for settlement proceeds, not the non-settling defendant’s 

damages. CTTI, 164 S.W.3d at 675, n.3.

Even if it were necessary to allocate to specifically identify those damages 

for which the Architect was liable, the jury’s verdict did that. (Cross-Appellants’ 

40-47). The charge only asked about the damages from the Architect’s failure to 

comply with its own contractual obligations, not for all damages resulting from all 

Defendants’ alleged breaches. (CR1127; App.B). According to this Court and the 

Texas Supreme Court, the “one satisfaction” settlement credit would not apply for 

this reason alone. 

The [“one satisfaction” settlement credit] rule guards against a 

plaintiff receiving a windfall “by recovering an amount in court that 

covers the plaintiff’s entire damages, but to which a settling defendant 

has already partially contributed. The plaintiff would otherwise be 
15

recovering an amount greater than the trier of fact has determined 

would fully compensate for the injury.”

Osborne v. Jauregui, Inc., 252 S.W.3d 70, 75 (Tex. App.—Austin 2008, pet. 

denied)(quoting First Title Co. v. Garrett, 860 S.W.2d 74, 78 (Tex.1993)).

RLJ questions whether the “one satisfaction” settlement credit applies at all. 

It does not question whether, if the Architect was entitled to such a credit, the trial 

court correctly calculated the amount. The Architect’s discussion of allocation is 

ultimately an immaterial diversion.

E. Indivisible Injury Alone Does Not Establish Joint and Several 

Contractual Liability or the “One Satisfaction” Settlement 

Credit. 

The Architect’s confusion continues into its indivisible injury argument. 

There, the Architect again asserts judicial admission as substitute for a non-existent 

fact. It urges RLJ judicially admitted the injury in this case was indivisible. (CrossAppellee’s 14). An injury is “indivisible” when, by its very nature, it cannot be 

apportioned with reasonable certainty to the individual wrongdoers. Landers v. 248 

S.W.2d at 734. Whether an injury is indivisible is a question of law that cannot be 

established by admission. Boulet, 189 S.W.3d at 838.

Legal injury cannot be conflated with damages. They are separate and 

distinct. A legal injury consists of the invasion to a claimant’s legally protected 

rights. Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 226-227 (Tex. App.—

Houston [14th Dist.] 2008, no pet.); Goggin v. Grimes, 969 S.W.2d 135, 137 (Tex. 
16

App.—Houston [14th Dist.] 1998, no pet.). For contract breaches, the legal injury 

is failing or refusing to do something a party promised. Mays v. Pierce, 203 

S.W.3d 564, 575 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). By 

definition, the “injury” in a contract case in which there is no joint or common 

contractual duty and no joint liability is not “indivisible” as it is in tort cases.

However, even assuming arguendo that the “injury” here could be treated as 

“indivisible” sans a common contractual duty, that alone is not enough to establish 

entitlement to a “one satisfaction” settlement credit. The settlement must have also 

been for the same damages assessed against the non-settling defendant. Casteel, 22 

S.W.3d at 391; CTTI, 164 S.W.3d at 675, n.3. The jury was not asked the amount 

of damages resulting from breaches by all defendants – only those of the Architect.

(CR1127; App.B). The Architect points to the general release of all past and future 

claims arising out of the Project to suggest overlapping damages (Cross-Appellee’s 

3-4) even though the damages question was limited to those caused by the 

Architect. (CR1127; App.B). As the Architect itself previously urged, joint liability 

is based on the liability alleged, not the liability released. (Cross-Appellee’s 10-

13). Further, every prudent litigant will obtain a release of all claims that were or 

could have been asserted. The scope of the release will always be broader than the 

settlor’s alleged liability. 
17

The Architect’s allocation argument is but an attempt to bolster its complaint 

that the damages evidence was legally insufficient. (Appellant’s 36-57). The 

Architect maintains the jury could not “allocate” damages unless a witness 

particularly attributed to it a specific sum of damages it alone caused. (CrossAppellee’s 15). Among the reasons this argument is meritless (Appellees’ 

Amended 61-62), is that it requires a return to the now-rejected rule of Sun Oil Co. 

v. Robicheaux, 23 S.W.2d 713, 715 (Tex. Comm. App. 1930)(judgment adopted), 

barring recovery if the claimant failed to establish the damage caused by each 

defendant. Ironically, the “one satisfaction” settlement credit the Architect sought 

was created in response to the statute rectifying the very same “intolerable 

burden.” (Cross-Appellants’ 21). 

If the Architect wanted a jury determination of an amount of damages that 

included those caused by the Settling Defendants, it was obliged to properly 

preserve that complaint. Any necessity for allocation of damages was not related to 

the elements of RLJ’s recovery as the Architect suggests (Cross-Appellee’s 26), 

but to the Architect’s post-verdict claim for a “one satisfaction” settlement credit. 

The Architect did not assert that issue by affirmative pleading as required. (See n. 

6, supra.; Cross-Appellants’ 57-58). 

It did not preserve for complaint any failure of the charge to obtain a finding 

about whether damages overlapped. (Cross-Appellants’ 56-57). Such a finding was 
18

necessary to trigger any alleged duty to allocate. CTTI, 164 S.W.3d at 675, n.3. In 

addition to having no joint contractual liability with any Settling Defendant, the 

Architect failed to show that any settlement proceeds were for the injury or the 

same damages as those assessed against the Architect. The Architect was, 

therefore, not entitled to a “one satisfaction” settlement credit for these reasons. 

II. “ONE SATISFACTION” SETTLEMENT CREDIT DOES NOT 

APPLY TO ANY CONTRACTUAL LIABILITY.

The Architect also deserved no “one satisfaction” settlement credit because 

it is not available for contractual liabilities. The credit is limited to cases of joint 

tort liability. (Cross-Appellants’ 19-25). Yet, the Architect contends that there is an 

overarching common law “one satisfaction” settlement credit available beyond that 

created in response to article 2212. Actually, the common law generally allowed 

neither joint and several liability nor claims for contribution. (Cross-Appellants’ 

20-21). Nevertheless, the Architect infers from pre-article 2212 cases containing 

the phrase “one satisfaction” a pre-existing common law “one satisfaction” 

settlement credit. (Cross-Appellee’s 6 n.2). 

A. Beware the Multiple Uses of “One Satisfaction.”

Texas cases have used the phrase “one satisfaction” for at least three distinct 

purposes: 1) limiting recovery to the judgment amount in later enforcement suits, 

e.g., El Paso Nat. Gas v. Berryman, 858 S.W.2d 362, 364 (Tex.1993)(alleged alter 

ego had no derivative liability if judgment against alleged principle fully paid); 
19

2) describing the election of remedies necessary for formulating the judgment 

when damages for indivisible injury are awarded or recovered under multiple 

recovery theories, Madison v. Williamson, 241 S.W.3d 145, 159 (Tex. App.—

Houston [1st Dist.] 2007, no pet.); and 3) describing the settlement credit created 

in response to article 2212 to limit the amount of recoverable damages recoverable 

when a potentially liable defendant settles its tort liability before judgment. Stewart 

Title Guar. Co. v. Sterling, 822 S.W.2d 1, 5 (Tex.1991).

The election-of-remedies “one satisfaction” bars recovery if plaintiff elects 

to recover or has obtained judgment under a different theory of liability for the 

same wrong, regardless of whether it would exceed the loss. See Fina Supply, Inc. 

v. Abilene Nat’l Bank, 726 S.W.2d 537, 541 (Tex.1987); Horizon Offshore 

Contractors, Inc. v. Aon Risk Servs. of Tex., Inc., 283 S.W.3d 53, 60 (Tex. App.—

Houston [14th Dist.] 2009, pet. denied); e.g., Kizer v. Meyer, Lytton, Allen & 

Whitaker, Inc., 228 S.W.3d 384, 392, n.3 (Tex. App.—Austin 2007, no 

pet.)(second action’s judgment might be barred by recovery in previous judgment). 

The “one satisfaction” judgment rule does not concern the amount of damages that 

can be awarded by a forthcoming judgment, only the amount recoverable from a 

judgment debtor or those in privity under an existing judgment.

This case involves neither of those rules. Instead, it involves the “one 

satisfaction” settlement credit created in response to legislation overturning the 
20

common-law rule prohibiting contribution among tortfeasors. As the Texas 

Supreme Court explained in Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 5 

(Tex.1991), 

[The judgment debtor] alleges that it is entitled to an off-set from the 

settlement under the one satisfaction rule. This doctrine developed at 

common law from the interpretation and application of [article 2212,] 

the original contribution statute. This common law development was 

necessary, because the statute did not address the implications of a 

partial settlement on contribution.

(Emphasis added); see also Cross-Appellants’ 20-22. 

1. There Was No “One Satisfaction” Settlement Credit 

Until After Article 2212 Was Enacted.

Without acknowledging the different purposes for which courts use “one 

satisfaction,” the Architect infers from pre-article 2212 cases containing that 

expression that a common law settlement credit previously existed even if recovery 

was for a non-tort liability. The Architect declares, “The Texas Supreme Court 

began enforcing the one-satisfaction rule as early as 1856.” (Cross-Appellee’s 6). 

While that is true for the “one satisfaction” of judgment rule and election-ofremedies rule, it is untrue for the “one satisfaction settlement credit.” 

2. The Cases Cited By The Architect Did Not Involve 

Settlement Credits.

None of the three cases the Architect cites involved settlement, a settling 

party, or reduction of a damage award. Lewis v. Taylor, 17 Tex. 57, 59 (1856) 

involved the “one satisfaction” of judgment rule, holding that a judgment creditor 
21

was not entitled to recover more than the judgment amount in a suit against the 

debtor’s bond surety. Alvord v. Waggoner, 88 Tex. 615, 32 S.W. 872, 873 (1895), 

concerned the “one satisfaction” election of remedies when it observed that a 

grantee could sue each of his successors in title for breach of the general warranty 

deed, but “could have but one satisfaction of his damages.” The opinion in 

Andrews v. Harvey, 39 Tex. 123 (1873), contains no reference whatever to any 

“one satisfaction” rule. “One satisfaction” appears only in the summary of the 

losing party’s argument, which preceded opinions in Texas Reports. See 1 Tex. 

Preface. And that reference appears to be to the election-of-remedies “one 

satisfaction.” None of these cases show a “one satisfaction” settlement credit 

existed before article 2212.

3. Utts Does Not Suggest That the “One Satisfaction” 

Settlement Credit Existed at Common Law Before 

Article 2212.

From the fallacious premise that settlement contributions under the onesatisfaction rule antedated article 2212, the Architect urges that in Utts v. Short, 81 

S.W.3d 822, 831-32 (Tex.2002), “[t]he [Texas] Supreme Court explained that 

Texas’ statutory contribution scheme upholds the broader one-satisfaction rule 

rather than supersedes the common law one-satisfaction rule.” There are numerous 

erroneous assumptions underlying this suggestion. 
22

Creating a specific settlement credit in response to article 2212 would have 

been unnecessary if a common-law “one satisfaction” settlement credit already 

existed. Further, the cited passage from Utts was only the opinion of Justice Baker, 

not a majority of the court. Id. at 824. Finally, Utts involved a tort claim governed 

by the Chapter 33 contribution statute. It presented no question whether Chapter 33 

supplanted a pre-existing common-law settlement credit other than the “one 

satisfaction” settlement credit created in response to article 2212, which only 

applied to tort cases. Id. at 825. 

B. This and Other Texas Courts Have Refused to Apply “One 

Satisfaction” Settlement Credits to Contractual Liability.

To bolster its contention that “one satisfaction” settlement credits apply to 

contractual liabilities, the Architect sweepingly but incorrectly declares “neither 

this Court nor any other appellate jurisdiction in Texas holds that the onesatisfaction rule is limited by the particular cause of action asserted.” (CrossAppellee’s 7). 

In CTTI Priesmeyer, Inc. v. K & O Ltd. Partnership, 164 S.W.3d 675, 683-

84 (Tex. App.—Austin 2005, no pet.), this Court noted that the Dallas appellate 

court in Hunt v. Ellisor & Tanner, 739 S.W.2d 933, 938 (Tex. App.—Dallas 1987, 

writ denied), ruled a breach of contract claim does not support comparative 

causation. The Architect attempts to distinguish Hunt by urging “that it did not 

involve any allegations of joint liability and indivisible damages....” (Cross-
23

Appellees’ 18). If Hunt meant the one satisfaction rule applies to contractual 

liabilities, then it nevertheless requires joint and several liability. Either way, Hunt

supports RLJ’s contention that the trial court erroneously gave the Architect credit 

for the sums paid by the Settling Defendants either because the “one satisfaction” 

settlement credit does not apply to contractual liability at all or does not apply if 

the potential contractual liability is not joint. 

Even more to the point, CTTI discussed Stewart Title Guar. Co. v. Sterling, 

822 S.W.2d 1 (Tex.1991), First Title Co. of Waco v. Garrett, 860 S.W.2d 74 

(Tex.1993), and Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000) – the 

post-Hunt Texas Supreme Court cases analyzing the availability of settlement 

credits under the one satisfaction rule. CTTI observed that in each of those cases 

the liable and settling defendants were joint tortfeasors. It pointed out that the 

Texas Supreme Court had observed in Casteel:

Under the one satisfaction rule, the nonsettling defendant may only 

claim a credit based on the damages for which all tortfeasors are 

jointly liable.... [T]he nonsettling defendant is entitled to offset any 

liability for joint and several damages by the amount of common 

damages paid by the settling defendant, but not for any amount of 

separate or punitive damages paid by the settling defendant.

CTTI, 164 S.W.3d at 684 (quoting Casteel, 22 S.W.3d at 391-92; emphasis added). 

Without explanation, the Architect nevertheless declares CTTI’s “holding 

itself acknowledges and allows for the application [of one satisfaction settlement 

credits] to breach of contract claims.” (Cross-Appellee’s 12, n. 4). In reality, CTTI
24

“conclude[d] that the one satisfaction rule applies only to tort claims, not to breach 

of contract claims.” Id. (emphasis added). This Court could not have been more 

clear. 

CTTI is not an isolated example. CBI NA-CON, Inc. v. UOP, Inc., 961 

S.W.2d 336, 339 (Tex. App.—Houston [1st Dist.] 1997, pet. denied), also 

categorically ruled “[c]ontribution is allowed in Texas only among joint 

tortfeasors.” Id. at 33910; accord, Marshall, 288 S.W.3d at 456 (“A nonsettling 

defendant may only successfully urge the one satisfaction rule when there are joint 

tortfeasors”). CBI explained “the only way [C]hapter 33 could apply is if [the 

plaintiff] had a negligence claim, breach of warranty claim ... or a strict products 

liability claim” because “[a] breach of contract claim is not a basis for contribution 

under Chapter 33.” Id. at 339, 341. Bartley v. Guillot, 990 S.W.2d 481, 484 (Tex. 

App.—Houston [1st Dist.] 1999, pet. denied), also disallowed a “one satisfaction” 

settlement credit because “any set-off [the liable defendant] may be entitled to 

receive must come from another tortfeasor, not ... a party merely involved by 

contract.” Id. These decisions further illustrate that “one satisfaction” settlement 

credits apply only to joint tort, not contractual, liabilities.

 10 Despite the assertion of a general right of contribution for all the claims asserted 

against UOP, the court deemed it necessary only to consider Chapter 33. It could not 

have based its disposition on Chapter 33 alone if there were a common-law contribution 

right. Thus, CBI also rebuts the Architect’s contentions that joint and several liability is 

not required and that there is an overarching common-law contribution right beyond 

Chapters 32 and 33. 
25

C. CTTI Is Still Valid.

Without acknowledging or considering origin or purpose of the “one 

satisfaction” settlement credit, the Architect assails generally the notion it only 

applies to tort liability and attacks in particular the continuing vitality of CTTI 

based on four later decisions by this Court. (Cross-Appellee’s 12, n.4).

1. No Later Decision Expressly Limits or Overturns CTTI.

Two of these opinions make no mention of CTTI whatever. Kizer v. Meyer, 

Lytton, Alen & Whitaker, Inc., 228 S.W.3d 384, 392 n.3 (Tex. App. – Austin 2007, 

no pet.); Metal Bldg. Components, LP v. Raley, No. 03-05-00823, 2007 WL 74316 

(Tex. App.—Austin Jan. 10, 2007, no pet.). Galle, Inc. v. Pool, 262 S.W.3d 564, 

573-74 (Tex. App.—Austin 2008, pet. denied), and Osborne v. Jauregui, Inc., 252 

S.W.3d 70, 75 (Tex. App.—Austin 2008, pet. denied)(en banc), cite CTTI, but not 

concerning whether the “one satisfaction” settlement credit applies to contractual 

liability. Neither Pool nor Osborne discuss CTTI’s explanation why the “one 

satisfaction” settlement credit was created or analyzes why that reason and the 

Texas Supreme Court authorities on which CTTI relied meant the credit was 

limited to joint tort liability. 

Using the identical language, Pool and Osborne cite general boilerplate 

originating in election-of-remedies cases, Madison, 241 S.W.3d at 159, that the 

“one satisfaction” rule applies regardless of theory of recovery when multiple 
26

defendants commit the same or “technically” different acts resulting in the same 

injury. Pool, 262 S.W.3d at 573; Osborne, 252 S.W.3d at 75. Both Pool and 

Osborne cite Stewart, Sterling, Garrett, and Casteel – tort cases that had no reason 

to address non-tort liability. Nothing in Pool or Osborne reflects an actual 

awareness that CTTI disallowed “one satisfaction” settlement credits for 

contractual liabilities. Neither opinion suggests conscious or overt rejection of

CTTI’s holding.

Pool and Osborne relied on AMX Enters., Inc. v. Bank One, N.A., 196 

S.W.3d 202, 206 (Tex. App.—Houston [1st Dist.] 2006, pet. denied), for the 

proposition that “[t]he application of the rule is not limited to tort claims and ... 

depends not on the cause of action asserted but rather the injury sustained.” AMX 

relied on Sterling as support: 

There can be but one recovery for one injury, and the fact that more 

than one defendant may have caused the injury or that there may be 

more than one theory of liability, does not modify this rule.

822 S.W.2d at 8. AMX ignored that Sterling was a tort case applying article 2212, 

the original contribution statute, id. at 5, and involved no potential contractual 

liability. 

2. Stare Decisis and En Banc Standards Make Sub Silentio 

Overruling of CTTI Both Unthinkable and Unlikely. 

Conscious, but surreptitious, overruling of CTTI would have been 

irreconcilable with respect for stare decisis, see Austin Home Ctr. Associates v. 
27

State, 794 S.W.2d 593, 595 (Tex. App.—Austin 1990, no writ), and the established 

practice of explicit, en banc resolution of conflicting opinions. O’Connor v. First 

Court of Appeals, 837 S.W.2d 94, 96 (Tex.1992); see also Tex. R. App. P. 41.2(c). 

It is inconceivable this Court would treat CTTI in the cavalier manner the Architect 

suggests had it been concerned in Pool or Osborne about conflict with CTTI. It 

would not have left its resolution to the soothsaying of litigants.

3. Pool May Potentially Conflict with CTTI, But Does Not 

Overrule It.

No later decisions suggests this Court overruled CTTI. Kizer, 228 S.W.3d at 

392 n.3, involved successive suits against a single defendant, not a “one 

satisfaction” settlement credit. Without mentioning CTTI, the Court observed 

hypothetically that “potential recovery on [a later] breach of contract claim ... 

might well be barred by [a previous recovery under] the one satisfaction rule which 

prohibits more than one recovery for a given harm.” Id. Kizer did not address 

whether a “one satisfaction” settlement credit applied to contractual liability.

In Raley, the plaintiff sued in tort to enforce a previous judgment imposing a 

contract against alleged alter egos of, and recipients of alleged fraudulent property 

transfers from, the original judgment debtor. 2007 WL 74316 at *3, 13. In response 

to the plaintiff’s misunderstanding about the nature of the liability in the 

enforcement suit, Id. at *18, Justice Patterson stated in dicta that credit under 

“[t]he one satisfaction rule is consistent with principles of contract law, which 
28

preclude a non-breaching party from recovering damages ... that would put [it] in a 

better position than it would have been had the contract been fully performed.” Id. 

at 19, n. 22. The court did not and could not rule the liable defendant was entitled 

to a “one satisfaction” settlement credit for contract liability because the liability in 

the case before the court was based on a tort.

As already discussed, Osborne simply recited the standard “boilerplate” 

from cases that imported the election-of-remedies “one satisfaction” rule, see 

II.C.1, supra., and mingled it with the observation in tort cases that the “one 

satisfaction” settlement credit was available because of the nature of the injury, not 

the cause of action. It neither expressly nor implicitly overruled CTTI.

Pool, on the other hand, at least superficially conflicts with CTTI because it 

applied the “one satisfaction” settlement credit to dispose of an alternative 

contractual liability theory. 262 S.W.3d at 574. Regardless of whether doing so 

was necessary, the Pool opinion did not overtly consider 1) the original need for 

the “one satisfaction” settlement credit; 2) the “rule” about application regardless 

of theory of recovery is properly limited to election-of-remedy, not settlement 

credit, cases; or 3) the first case expanding “one satisfaction” settlement credits 

beyond tort cases relied on Berryman – an election-of-remedies case. (CrossAppellants’ 49-50). 
29

Even if a conflict existed between CTTI and Pool, CTTI controls. CTTI 

expressly considered and independently analyzed whether the “one satisfaction” 

settlement credit applied in contract cases. The opinion in Pool did not. 

Presumably, the parties in Pool did not alert the court that cases holding the “one 

satisfaction” rule applied regardless of liability theory were election-of-remedies, 

not settlement credit, cases. 

4. Conflicts With Other Cases.

RLJ acknowledged that there are cases saying the “one satisfaction” 

settlement credit applies to more than tort cases. (Cross-Appellants’ 48). Two such 

cases cited by the Architect – Oyster Creek Fin. Corp. v. Richwood Investments II, 

Inc., 176 S.W.3d 307, 328 (Tex. App.—Houston [1st Dist.] 2004, pet. denied), and 

Burke v. Union Pac. Res. Co., 138 S.W.3d 46, 70, (Tex. App.—Texarkana 2004, 

pet. denied) – this Court expressly declined to follow because they “have not 

discussed the requirement of joint liability.” CTTI, 164 S.W.3d at 685. The 

Architect’s cited decisions (Cross-Appellee’s 7-8, 22) make no attempt to reconcile 

observations about allowing credits for a non-tort liability with the reasons why the 

“one satisfaction” settlement credit was created11 – reasons that only existed in tort 

cases.

12

 11 Cunningham v. Haroona, 382 S.W.3d 492 (Tex. App.—Fort Worth 2012, pet. denied), 

involved a medical malpractice wrongful death claim, so there was no reason to consider 

whether the “one satisfaction” settlement credit applied to breach-of-contract liability. 
30

D. Extension of “One Satisfaction” Settlement Credit to 

Contractual Liability Prohibited by Texas Constitution 

Article I, Section 16.

Texas strongly favors parties’ freedom of contract. Gym-N-I Playgrounds, 

Inc. v. Snider, 220 S.W.3d 905, 912 (Tex.2007). Generally, parties are entitled to 

consensually allocate risks and rewards by contract as they wish so long as there is 

no public policy violation. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 

& n. 11 (Tex.2004). It is difficult to imagine a greater infringement than 

involuntarily transferring a party’s contract rights to benefit a wrongdoer who was 

not a party to that agreement. Yet, the Architect argues Texas’s constitutionally 

guaranteed contractual freedom only applies to statutory restrictions. The Texas 

Supreme Court perceived no such limitation when it considered this right 

paramount to a court-recognized public policy against insuring exemplary 

 

AMX, like Berryman, involved no “settlement” but was a case about what derivative 

liability remained when a jointly liable party paid part of the alleged debt. In Regions 

Bank v. Bay, No. 05–12–00531–CV, 2013 WL 5299174 at *4 (Tex. App.—Dallas Sept. 

18, 2010, no pet.)(mem. op.), the plaintiff conceded the settlement was for the same loss 

and the opinion did not discuss applicability to contract liability. Emerson Elec. Co. v. 

Am. Permanent Ware Co., 201 S.W.3d 301, 314 (Tex. App.—Dallas 2006, no pet.), 

involved an uncritical application of misguided language from Oyster Creek to support 

application of the “one satisfaction” settlement credit to a breach of contract case. 

12 Matthew v. Sohn, 13-12-00302-CV, 2013 WL 2949562 (Tex. App.—Corpus Christi 

2013, no pet.)(mem. op.), involved whether the non-settling defendant was entitled to a 

credit against DTPA liability from a settlement with a defendant sued for alleged tort 

liability. The court ruled it was solely because of an indivisible injury. Id. at *5. It did not 

consider application to contract liability. 
31

damages. Fairfield Ins. Co. v. Stephens Martin Paving LP, 246 S.W.3d 653, 664 

(Tex.2004). 

Restricting the guarantee to statutes is based on the federal parallel, Storrie 

v. Cortes, 90 Tex. 283, 287, 38 S.W. 154, 156 (1896), because, being located in 

Article I, it only limited legislative power. The Texas freedom-of-contract 

provision is contained in the Bill of Rights and limits the power of state 

government generally. “No ... law impairing the obligations of contract shall be 

made” by any branch, not just the Legislature. Tex. Const. art. I, §16. 

The Architect also argues that art. I, §16 does not apply because a “one 

satisfaction” settlement credit is not a retroactive law. It reasons “the rule was in 

existence long before any contract at issue.” (Cross-Appellee’s 25). This argument 

begs the question this case presents: does any such rule apply to breach of contract 

claims? In light of the cases holding it does not, see II.B., supra., it can hardly be 

deemed an “undisputed” rule whose existence was certain. It cannot be deemed 

part of the settling parties’ agreement. If it were, it would operate retroactively and 

unconstitutionally. 

III. CONCLUSION

For the foregoing reasons and those stated in RLJ’s previously-filed briefs, 

the court should grant the relief RLJ has requested therein and all other relief to 

which RLJ may be justly entitled.
32

Respectfully submitted,

MUNSCH HARDT KOPF & HARR PC 

/s/Michael W. Huddleston

Michael W. Huddleston

State Bar No. 10148415

J. Stephen Gibson

State Bar No. 07866000

3800 Ross Tower

500 North Akard Street

Dallas, TX 75201

(214) 855-7500 Main Tel.

(214) 855-7584 Main Fax

mhuddleston@munsch.com

sgibson@munsch.com

Benton T. Wheatley

State Bar No. 24015171

Tracy McCreight

State Bar No. 24037064

Munsch Hardt Kopf & Harr, P.C.

401 Congress Avenue, Suite 3050

Austin, TX 78701

(512) 391-6100 Main Tel.

(512) 391-6149 Main Fax

bwheatley@munsch.com

tmccreight@munsch.com

Attorneys For Appellees and 

Cross-Appellants.
33

CERTIFICATE OF COMPLIANCE

I hereby certify that this Appellees’ Brief was prepared using Microsoft 

Word 2010, which indicated that the total word count (exclusive of those items 

listed in Tex. R. App. P. 9.4(i)(1)) is 7479 words.

/s/ Michael W. Huddleston

Michael W. Huddleston

CERTIFICATE OF SERVICE

I certify that I served a true and correct copy of the foregoing document 

upon counsel listed below on this 16th day of July, 2015 by e-file:

Weston M. Davis

Gregory N. Ziegler

Steven R. Baggett

Macdonald Devin, P.C.

1201 Elm Street

3800 Renaissance Tower

Dallas, TX 75270

/s/ Michael W. Huddleston

Michael W. Huddleston