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CAUSE NO. 20-DCV-275496
LISA GONZALES, INDIVIDUALLY IN THE DISTRICT COURT OF
AND AS NEXT FRIEND OF HER
DAUGHTER, C.G., A MINOR,
Plaintiffs,
vs. FORT BEND COUNTY, TEXAS
JAMIE CRANDALL EQUIPMENT
CORPORATION dba RICHMOND
EQUIPMENT, RAFAEL SOTO,
ANABEL SOTO, AND M.S., A MINOR,
Defendants. TH JUDICIAL DISTRICT
DEFENDANT JAMIE CRANDALL EQUIPMENT CORPORATION D/B/A
RICHMOND EQUIPMENT’S MOTION TO MODIFY, CORRECT AND/OR REFORM
THE MAY 31, 2023 FINAL JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant Jamie Crandall Equipment Corporation d/b/a Richmond Equipment
(“Defendant” or “Richmond Equipment”) respectfully moves this Court to modify, correct and/or
reform the Final Judgment signed on May 31, 2023, pursuant to rule 329b(g) of the Texas Rules
of Civil Procedure. In support of this Motion, Defendant respectfully alleges as follows:
INTRODUCTION
This Court called this case to trial on April 5, 2023. This Court charged the jury on April
14, 2023, and the jury returned its 10-2 verdict in favor of Plaintiffs on April 17, 2023.
During trial, Plaintiffs settled with all remaining defendants (ASW, Ambassador, and the
Sotos) for sums totaling $5,368,000. At the time of the Court signed the Final Judgment, Plaintiffs
advised the Court that they had not finalized the settlements with these defendants and had not
sought or secured dismissals or nonsuits of those defendants.
DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 1
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After multiple hearings and supplemental briefing, this Court signed a Final Judgment in
favor of Plaintiffs on May 31 2023. The Final Judgment awarded Plaintiffs compensatory damages
in the amount of Richmond’s percentage responsibility for the damages found by the jury, plus
pre-judgment interest, court costs and post-judgment interest. The Final Judgment mentions the
settlements between Plaintiffs and ASW, Ambassador, and the Sotos; but, it does not dismiss those
defendants or otherwise establish that the claims against those defendants have been resolved.
Should this Court overrule Defendant’s motion for new trial and motion for judgment
notwithstanding the verdict, the Court’s Final Judgment must be modified, corrected, or reformed
for the following reasons, each of which is addressed in greater detail below.
II. THE “FINAL JUDGMENT” SHOULD BE
MODIFIED, CORRECTED AND/OR REFORMED
On May 31, 2023, this Court signed the Final Judgment, which provides, in relevant part:
A jury of 12 qualified jurors of Fort Bend County was selected, sworn, and
empaneled, after which the jury heard the evidence and arguments of counsel.
Following the conclusion of the evidence, in response to the jury charge, the jury
made findings that the Court received, filed, and entered of record on April 17,
2023. The questions submitted to the jury and the jury’s findings are attached as
Exhibit A and incorporated by reference.
During the trial, Plaintiffs reached confidential settlements with ASW,
Ambassador, and the Soto Defendants. In accordance with the jury’s verdict and
the law, the Court hereby renders judgment for Plaintiffs against Defendant
Richmond.
Accordingly, the Court orders that Plaintiffs recover $7,350,600.40 in damages
from Defendant Richmond for its 40% share of $18,376,501 in damages found in
the jury’s verdict, pre-judgment interest of $510,028.38, court costs (including all
costs incurred in enforcement and collection), and post-judgment interest at the
annual rate of 8.0% compounded annually from the date of this judgment until paid.
All relief not expressly granted by this Judgment is denied. The judgment is final,
disposes of all claims and parties, and is appealable.
(Final Judgment at 1-2).
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A. No Prejudgment Interest Can Be Recovered from Richmond Equipment
Relevant Statutory Provisions
Chapter 33 of the Civil Practice & Remedies Code provides the law for computation of
judgments involving proportionate responsibility and settlements. Section 33.002 states this
chapter applies to “any cause of action based on tort in which a defendant, settling person, or
responsible third party is found responsible for a percentage of the harm for which relief is sought.”
Tex. Civ. Prac. & Rem. Code § 33.002(a). This is such a case (see Questions 3, 4 in Charge of the
Court).
Chapter 33 is based on the one-satisfaction rule. Virlar v. Puente, 664 S.W.3d 53, 59 (Tex.
2023). Section 33.012 governs the computation of the “Amount of Recovery” by a plaintiff. It
states, in relevant part: “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.” Id. § 33.012(b).
Section 33.013 governs the computation of the “Amount of Liability” owed by a defendant.
It states, in relevant part: “a liable defendant is liable to a claimant only for the percentage of the
damages found by the trier of fact equal to that defendant's percentage of responsibility with
respect to the personal injury, property damage, death, or other harm for which the damages are
allowed.” Id. § 33.013(a). Because the percentage of responsibility attributed to Richmond with
respect to a cause of action was not greater than 50 percent, Richmond is not jointly and severally
liable for all the damages. Id. § 33.013(b).
The Texas Supreme Court recognizes that both sections 33.012 and 33.013 must be taken
into account in determining what a claimant will recover and what a particular defendant will owe
with respect to that recovery. See Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d 893, 908
(Tex. 2005) (citing Roberts v. Williamson, 111 S.W.3d 113, 122-23 (Tex. 2003)). The Texas
DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 3
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Supreme Court refers to section 33.012 as a “cap on the damages a claimant may recover.” Id.
The calculation to determine this cap is based on “‘the amount of damages to be recovered by the
claimant,’” which includes not only actual damages but prejudgment interest. Id. (citing section
33.012).
The Texas Supreme Court also refers to section 33.013 as a “limitation” or cap on a
defendant’s liability. Id. When a non-settling defendant is less than 51% responsible (and not
jointly and severally liable, as is Richmond here), “the defendant’s liability is limited to the
percentage of the damages found by the trier of fact (the jury’s or trial court’s award of damages)
equal to the percentage of responsibility assigned to that defendant by the trier of fact.” Id. at 908
(citing section 33.013). In this scenario, the “principal” is only the specified percentage of the
“damages found by the trier of fact.” Id. In no scenario can prejudgment interest constitute
“damages found by the trier of fact.”
Purpose of Prejudgment Interest
Prejudgment interest is awarded to fully compensate the injured party, not to punish the
defendant. Brainard v. Trinity Univ. Ins. Co., 216 S.W.3d 809, 812 (Tex. 2006). Nothing in the
legislative history of sections 33.012 and 33.013 of the Civil Practice and Remedies Code
“indicates that the Legislature intended for prejudgment interest to either under- or over-
compensate claimants.” Battaglia, 177 S.W.3d at 907.
“Interest” has long been defined by the Legislature as “compensation for the use,
forbearance, or detention of money.” Id. (citing, inter alia, TEX IN ODE § 301.002(a)(4) and
former TEX EV IV TAT. art. 3097 (1895)). The Texas Supreme Court also defined
prejudgment interest as “‘compensation allowed by law as additional damages for lost use of the
money due as damages during the lapse of time between the accrual of the claim and the date of
judgment.’” Id. (quoting Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d
DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 4
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507, 528 (Tex. 1998)). For interest to actually compensate for the lost time value of money, no
more and no less, the timing of settlement payments must be taken into account. Id.
The Court Must Perform Both Section 33.012 and 33.013 Computations
to Avoid an Impermissible Double Recovery by Plaintiffs
This Court’s Final Judgment results in an impermissible double recovery of prejudgment
interest in this case because it adds prejudgment interest to Richmond’s 40% share of Plaintiffs’
damages as found by the trier of fact, even though Plaintiffs already have been fully compensated
for all prejudgment interest via their settlements with the other defendants and application of the
settlement credit for those settlements, pursuant to section 33.012. Plaintiffs use the fact that the
settlement payments have not yet been received to argue that all settlement credits must be applied
to past damages only. But to allow this novel and improper application of settlement credits in
performing the section 33.012 computation permits Plaintiffs to receive compensation for the lost
of use funds twice.
Under the one-satisfaction rule, when a plaintiff seeks recovery for the same injuries from
multiple parties, that plaintiff is entitled to only one recovery for any damages suffered. E.g. Utts
v. Short, 81 S.W.3d 822, 831 (Tex. 2002); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390
(Tex. 2000). Section 33.012 upholds the one-satisfaction rule by requiring that each claimant’s
jury award is reduced by any amount for which he or she settles. Id. at 832.
Plaintiffs relied solely on Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003), to argue
that no further settlement credit is required here. (Brief at 2-3). But, as the Texas Supreme Court
In varying contexts, an award of prejudgment interest can result in an impermissible double recovery that
violates the one-satisfaction rule. See, e.g., Miller v. Debo Homes, LLC, No. 14-15-00004-CV, 2016 WL 5399507, at
*5 (Tex. App.—Houston [14th Dist.] Sept. 27, 2016, no pet.) (allowing recovery of prejudgment interest on damages
and on amounts deposited into court registry constituted impermissible double recovery); City of Houston v. Texan
Land & Cattle Co., 138 S.W.3d 382, 391 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ((awarding prejudgment
interest for both temporary taking and permanent taking constituted impermissible double recovery that violated one-
satisfaction rule).
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recognized in Battaglia, the calculation of prejudgment interest was not at issue in Roberts, and
there was no briefing or argument on the subject. Battaglia, 177 S.W.3d at 909.
Thus, Roberts is not controlling on the issues in this case. The Court should look to the
later Battaglia case, where the Texas Supreme Court considered the effect of prejudgment interest
and adopted the declining principal method for computing settlement credits under section 33.012,
and the later Brainard case, where the Court applied the same method for credits in non-health
care liability claims. See Brainard, 216 S.W. 3d at 816; Battaglia, 177 S.W.3d at 906-12.
Under the declining principal formula, settlement credits must be applied first to
prejudgment interest that accrued on past damages, then to past damages, and then to future
damages. See Battaglia, 177 S.W.3d at 908, 911. This analysis also applies when determining the
amount owed by a severally liable defendant, such as Richmond, in applying section 33.013. See
id. at 908.
Generally, prejudgment interest accrues from the date of notice or suit to the date the
settlement monies are received. Id. Here, Plaintiffs contended they have not yet received
settlement monies, so they were attempting to rush to judgment to avoid applying their settlement
credits to prejudgment interest as required under the declining principal methodology. But to do
so unconstitutionally punished Richmond and allowed Plaintiffs to receive a windfall double
recovery of prejudgment interest. That is, because all prejudgment interest on past damages here
would be extinguished by application of the $5,368,000 settlement credit under the declining
Plaintiffs also discuss Virlar v. Puente as perpetuating the Roberts analysis. But prejudgment interest was
not at issue in Virlar either. The issue there was whether the daughter’s settlement had to be credited against the
mother’s damages under Chapter 33, and whether that settlement credit violated the Open Courts clause. Virlar, 664
S.W.3d at 60-62.
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principal formula, Plaintiffs were not entitled to also recover prejudgment interest from Richmond
on its 40% of past damages, as awarded in the Final Judgment.
While the Texas Finance Code does require an award of prejudgment interest, even the
Finance Code does not support adding prejudgment interest to the amount of judgment when
Plaintiffs already have been fully compensated for that prejudgment interest via their settlements.
The Court must attempt to harmonize the Finance Code provision with sections 33.012 and 33.013,
which are designed to effectuate the one-satisfaction rule.
Consequently, the Court should perform the computation required under section 33.012
(including settlement credits applying the declining principal formula), as well as the computation
required under section 33.013, so that the Final Judgment does not award Plaintiffs an
impermissible double recovery of prejudgment interest. This Court should have delayed rendition
of judgment until the settlement payments had been received by Plaintiffs. That way, the Court
could properly apply the settlement credits as directed by Battaglia and Brainard, could confirm
that Plaintiffs have been fully compensated for all prejudgment interest through those settlements,
and could avoid any double recovery of prejudgment interest by Plaintiffs that would violate the
one-satisfaction rule. After performing both required computations under section 33.012 and
33.013, any final judgment rendered against Richmond should include only its liability for 40%
of the actual damages awarded by the trier of fact, plus any taxable court costs and postjudgment
interest at the current lawful rate— prejudgment interest.
Again, Richmond does not agree or concede that any judgment against it is proper.
DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 7
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B. Proposed Final Judgment Fails to Award Individual Damages to Individual
Plaintiffs
The jury’s verdict assessed damages for past and future damages for which C.G. may
recover and, damages recoverable by Ms. Lisa Gonzales for C.G.’s medical expenses incurred to
the age of eighteen years (amount awarded of $840,519.30). However, the Final Judgment only
states that “Plaintiffs recover $7,350,600.40 in damages from Defendant Richardson for its 40%
share of $18,376,501 in damages found in the jury’s verdict, pre-judgment interest of $510,028.38,
court costs (including all costs incurred in enforcement and collection), and post-judgment interest
at the annual rate of 8.0% compounded annually from the date of this judgment until paid.” (Final
Judgment at p. 2).
The Final Judgment must include the names of each of the individual Plaintiffs recovering
and must state the amounts awarded through the judgment to each. See TEX R. IV P. 301, 306
(judgment shall contain the full names of the parties for whom and against whom judgment is
rendered). Thus, Defendant objects that the Final Judgment fails to award recovery to the
individual Plaintiffs as the jury assessed damages, and moves for modification.
III. THE “FINAL JUDGMENT” IS NOT FINAL
In their original Motion for Judgment on the Jury’s Verdict, and later during post-verdict
hearings, Plaintiffs asserted that they have not yet received settlement monies for the three
settlements with ASW, Ambassador, and the Sotos, totaling $5,368,000, received and reported
during trial. They also asserted that the subrogation lien has not been resolved and settlement
agreements have not been drafted. (See Motion at 2). Plaintiffs have not nonsuited their claims
or filed motions to dismiss their claims against these settling defendants. Instead, Plaintiffs
delayed resolving their claims with the settling defendants to avoid application of Texas law on
application of settlement credits, and to manipulate the application of settlement credits here,
DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 8
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which resulted in an improper double recovery of prejudgment interest by Plaintiffs, as argued
above.
Because the claims against the settling defendants remain pending, and those defendants
remain parties to this case, the purported “Final Judgment” is not final, according to the record in
this case. See, e.g. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (Only a
“judgment that finally disposes of all remaining parties and claims, based on the record in the case,
is final.”). Richmond Equipment urges the Court to sign a new Final Judgment that expressly
disposes of Plaintiffs’ claims against these settling defendants, to ensure the “Final Judgment”
truly is final under Texas law.
THEREFORE, Defendant Jamie Crandall Equipment Corporation d/b/a Richmond
Equipment respectfully prays that this Court modify, correct and/or reform the May 31, 2023 Final
Judgment as requested herein, and grant Defendant all such other relief, general or special, at law
or in equity, as this Court deems just.
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Respectfully submitted,
COOPER & SCULLY, P.C.
By: /s/ R. Brent Cooper
R. RENT OOPER
brent.cooper@cooperscully.com
Texas Bar No. 04783250
IANA L. AUST
diana.faust@cooperscully.com
Texas Bar No. 00793717
ICHELLE E. OBBERSON
michelle.robberson@cooperscully.com
Texas Bar No. 16982900
900 Jackson Street, Suite 100
Dallas, Texas 75202
Telephone: (214) 712-9500
Facsimile: (214) 712-9540
LAW OFFICE OF AMY L. MITCHELL
NDREW S. ORNBURG
Dornba1@nationwide.com
Texas Bar No. 24049861
One East Greenway Plaza, Suite 1005
Houston, Texas 77046
Telephone: (713) 820-4656
Facsimile: (713) 364-3121
ICHARD B. MITH
Movant to Appear Pro Hac Vice
Smithr39@nationwide.com
New Jersey Bar No. 04970199
90 Woodbridge Drive
Woodbridge, New Jersey 07095
Telephone: (732) 582-3248
Facsimile: (732) 283-8741
ATTORNEYS FOR DEFENDANT
JAMIE CRANDALL EQUIPMENT
CORPORATION D/B/A RICHMOND
EQUIPMENT
DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 10
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CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of this Motion upon the following
counsel of record via efile on the 30th day of June, 2023.
Mr. Joseph D. Terry VIA EFILE
jterry@terrythweatt.com
Mr. L. Lee Thweatt
ltheatt@terrythweatt.com
Terry & Thweatt, P.C.
114 Byrne Street
Houston, TX 77009
Counsel for Plaintiffs
Mr. John D. Perches VIA EFILE
jperches@wphk-law.com
Wadler, Perches, Hundl & Kerlick
710 Main Street
Richmond, TX 77406
Counsel for Plaintiffs
Russell S. Post VIA EFILE
rpost@beckredden.com
Lena Silva
lsilva@beckredden.com
Beck Redden LLP
1221 McKinney Street, Suite 4500
Houston, TX 77055
Counsel for Plaintiffs
/s/ Diana L. Faust
IANA L. AUST
DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 11
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Preview
CAUSE NO. 20-DCV-275496 LISA GONZALES, INDIVIDUALLY IN THE DISTRICT COURT OF AND AS NEXT FRIEND OF HER DAUGHTER, C.G., A MINOR, Plaintiffs, vs. FORT BEND COUNTY, TEXAS JAMIE CRANDALL EQUIPMENT CORPORATION dba RICHMOND EQUIPMENT, RAFAEL SOTO, ANABEL SOTO, AND M.S., A MINOR, Defendants. TH JUDICIAL DISTRICT DEFENDANT JAMIE CRANDALL EQUIPMENT CORPORATION D/B/A RICHMOND EQUIPMENT’S MOTION TO MODIFY, CORRECT AND/OR REFORM THE MAY 31, 2023 FINAL JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: Defendant Jamie Crandall Equipment Corporation d/b/a Richmond Equipment (“Defendant” or “Richmond Equipment”) respectfully moves this Court to modify, correct and/or reform the Final Judgment signed on May 31, 2023, pursuant to rule 329b(g) of the Texas Rules of Civil Procedure. In support of this Motion, Defendant respectfully alleges as follows: INTRODUCTION This Court called this case to trial on April 5, 2023. This Court charged the jury on April 14, 2023, and the jury returned its 10-2 verdict in favor of Plaintiffs on April 17, 2023. During trial, Plaintiffs settled with all remaining defendants (ASW, Ambassador, and the Sotos) for sums totaling $5,368,000. At the time of the Court signed the Final Judgment, Plaintiffs advised the Court that they had not finalized the settlements with these defendants and had not sought or secured dismissals or nonsuits of those defendants. DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 1 1061364v.2 After multiple hearings and supplemental briefing, this Court signed a Final Judgment in favor of Plaintiffs on May 31 2023. The Final Judgment awarded Plaintiffs compensatory damages in the amount of Richmond’s percentage responsibility for the damages found by the jury, plus pre-judgment interest, court costs and post-judgment interest. The Final Judgment mentions the settlements between Plaintiffs and ASW, Ambassador, and the Sotos; but, it does not dismiss those defendants or otherwise establish that the claims against those defendants have been resolved. Should this Court overrule Defendant’s motion for new trial and motion for judgment notwithstanding the verdict, the Court’s Final Judgment must be modified, corrected, or reformed for the following reasons, each of which is addressed in greater detail below. II. THE “FINAL JUDGMENT” SHOULD BE MODIFIED, CORRECTED AND/OR REFORMED On May 31, 2023, this Court signed the Final Judgment, which provides, in relevant part: A jury of 12 qualified jurors of Fort Bend County was selected, sworn, and empaneled, after which the jury heard the evidence and arguments of counsel. Following the conclusion of the evidence, in response to the jury charge, the jury made findings that the Court received, filed, and entered of record on April 17, 2023. The questions submitted to the jury and the jury’s findings are attached as Exhibit A and incorporated by reference. During the trial, Plaintiffs reached confidential settlements with ASW, Ambassador, and the Soto Defendants. In accordance with the jury’s verdict and the law, the Court hereby renders judgment for Plaintiffs against Defendant Richmond. Accordingly, the Court orders that Plaintiffs recover $7,350,600.40 in damages from Defendant Richmond for its 40% share of $18,376,501 in damages found in the jury’s verdict, pre-judgment interest of $510,028.38, court costs (including all costs incurred in enforcement and collection), and post-judgment interest at the annual rate of 8.0% compounded annually from the date of this judgment until paid. All relief not expressly granted by this Judgment is denied. The judgment is final, disposes of all claims and parties, and is appealable. (Final Judgment at 1-2). DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 2 1061364v.2 A. No Prejudgment Interest Can Be Recovered from Richmond Equipment Relevant Statutory Provisions Chapter 33 of the Civil Practice & Remedies Code provides the law for computation of judgments involving proportionate responsibility and settlements. Section 33.002 states this chapter applies to “any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought.” Tex. Civ. Prac. & Rem. Code § 33.002(a). This is such a case (see Questions 3, 4 in Charge of the Court). Chapter 33 is based on the one-satisfaction rule. Virlar v. Puente, 664 S.W.3d 53, 59 (Tex. 2023). Section 33.012 governs the computation of the “Amount of Recovery” by a plaintiff. It states, in relevant part: “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.” Id. § 33.012(b). Section 33.013 governs the computation of the “Amount of Liability” owed by a defendant. It states, in relevant part: “a liable defendant is liable to a claimant only for the percentage of the damages found by the trier of fact equal to that defendant's percentage of responsibility with respect to the personal injury, property damage, death, or other harm for which the damages are allowed.” Id. § 33.013(a). Because the percentage of responsibility attributed to Richmond with respect to a cause of action was not greater than 50 percent, Richmond is not jointly and severally liable for all the damages. Id. § 33.013(b). The Texas Supreme Court recognizes that both sections 33.012 and 33.013 must be taken into account in determining what a claimant will recover and what a particular defendant will owe with respect to that recovery. See Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d 893, 908 (Tex. 2005) (citing Roberts v. Williamson, 111 S.W.3d 113, 122-23 (Tex. 2003)). The Texas DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 3 1061364v.2 Supreme Court refers to section 33.012 as a “cap on the damages a claimant may recover.” Id. The calculation to determine this cap is based on “‘the amount of damages to be recovered by the claimant,’” which includes not only actual damages but prejudgment interest. Id. (citing section 33.012). The Texas Supreme Court also refers to section 33.013 as a “limitation” or cap on a defendant’s liability. Id. When a non-settling defendant is less than 51% responsible (and not jointly and severally liable, as is Richmond here), “the defendant’s liability is limited to the percentage of the damages found by the trier of fact (the jury’s or trial court’s award of damages) equal to the percentage of responsibility assigned to that defendant by the trier of fact.” Id. at 908 (citing section 33.013). In this scenario, the “principal” is only the specified percentage of the “damages found by the trier of fact.” Id. In no scenario can prejudgment interest constitute “damages found by the trier of fact.” Purpose of Prejudgment Interest Prejudgment interest is awarded to fully compensate the injured party, not to punish the defendant. Brainard v. Trinity Univ. Ins. Co., 216 S.W.3d 809, 812 (Tex. 2006). Nothing in the legislative history of sections 33.012 and 33.013 of the Civil Practice and Remedies Code “indicates that the Legislature intended for prejudgment interest to either under- or over- compensate claimants.” Battaglia, 177 S.W.3d at 907. “Interest” has long been defined by the Legislature as “compensation for the use, forbearance, or detention of money.” Id. (citing, inter alia, TEX IN ODE § 301.002(a)(4) and former TEX EV IV TAT. art. 3097 (1895)). The Texas Supreme Court also defined prejudgment interest as “‘compensation allowed by law as additional damages for lost use of the money due as damages during the lapse of time between the accrual of the claim and the date of judgment.’” Id. (quoting Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 4 1061364v.2 507, 528 (Tex. 1998)). For interest to actually compensate for the lost time value of money, no more and no less, the timing of settlement payments must be taken into account. Id. The Court Must Perform Both Section 33.012 and 33.013 Computations to Avoid an Impermissible Double Recovery by Plaintiffs This Court’s Final Judgment results in an impermissible double recovery of prejudgment interest in this case because it adds prejudgment interest to Richmond’s 40% share of Plaintiffs’ damages as found by the trier of fact, even though Plaintiffs already have been fully compensated for all prejudgment interest via their settlements with the other defendants and application of the settlement credit for those settlements, pursuant to section 33.012. Plaintiffs use the fact that the settlement payments have not yet been received to argue that all settlement credits must be applied to past damages only. But to allow this novel and improper application of settlement credits in performing the section 33.012 computation permits Plaintiffs to receive compensation for the lost of use funds twice. Under the one-satisfaction rule, when a plaintiff seeks recovery for the same injuries from multiple parties, that plaintiff is entitled to only one recovery for any damages suffered. E.g. Utts v. Short, 81 S.W.3d 822, 831 (Tex. 2002); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). Section 33.012 upholds the one-satisfaction rule by requiring that each claimant’s jury award is reduced by any amount for which he or she settles. Id. at 832. Plaintiffs relied solely on Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003), to argue that no further settlement credit is required here. (Brief at 2-3). But, as the Texas Supreme Court In varying contexts, an award of prejudgment interest can result in an impermissible double recovery that violates the one-satisfaction rule. See, e.g., Miller v. Debo Homes, LLC, No. 14-15-00004-CV, 2016 WL 5399507, at *5 (Tex. App.—Houston [14th Dist.] Sept. 27, 2016, no pet.) (allowing recovery of prejudgment interest on damages and on amounts deposited into court registry constituted impermissible double recovery); City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 391 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ((awarding prejudgment interest for both temporary taking and permanent taking constituted impermissible double recovery that violated one- satisfaction rule). DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 5 1061364v.2 recognized in Battaglia, the calculation of prejudgment interest was not at issue in Roberts, and there was no briefing or argument on the subject. Battaglia, 177 S.W.3d at 909. Thus, Roberts is not controlling on the issues in this case. The Court should look to the later Battaglia case, where the Texas Supreme Court considered the effect of prejudgment interest and adopted the declining principal method for computing settlement credits under section 33.012, and the later Brainard case, where the Court applied the same method for credits in non-health care liability claims. See Brainard, 216 S.W. 3d at 816; Battaglia, 177 S.W.3d at 906-12. Under the declining principal formula, settlement credits must be applied first to prejudgment interest that accrued on past damages, then to past damages, and then to future damages. See Battaglia, 177 S.W.3d at 908, 911. This analysis also applies when determining the amount owed by a severally liable defendant, such as Richmond, in applying section 33.013. See id. at 908. Generally, prejudgment interest accrues from the date of notice or suit to the date the settlement monies are received. Id. Here, Plaintiffs contended they have not yet received settlement monies, so they were attempting to rush to judgment to avoid applying their settlement credits to prejudgment interest as required under the declining principal methodology. But to do so unconstitutionally punished Richmond and allowed Plaintiffs to receive a windfall double recovery of prejudgment interest. That is, because all prejudgment interest on past damages here would be extinguished by application of the $5,368,000 settlement credit under the declining Plaintiffs also discuss Virlar v. Puente as perpetuating the Roberts analysis. But prejudgment interest was not at issue in Virlar either. The issue there was whether the daughter’s settlement had to be credited against the mother’s damages under Chapter 33, and whether that settlement credit violated the Open Courts clause. Virlar, 664 S.W.3d at 60-62. DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 6 1061364v.2 principal formula, Plaintiffs were not entitled to also recover prejudgment interest from Richmond on its 40% of past damages, as awarded in the Final Judgment. While the Texas Finance Code does require an award of prejudgment interest, even the Finance Code does not support adding prejudgment interest to the amount of judgment when Plaintiffs already have been fully compensated for that prejudgment interest via their settlements. The Court must attempt to harmonize the Finance Code provision with sections 33.012 and 33.013, which are designed to effectuate the one-satisfaction rule. Consequently, the Court should perform the computation required under section 33.012 (including settlement credits applying the declining principal formula), as well as the computation required under section 33.013, so that the Final Judgment does not award Plaintiffs an impermissible double recovery of prejudgment interest. This Court should have delayed rendition of judgment until the settlement payments had been received by Plaintiffs. That way, the Court could properly apply the settlement credits as directed by Battaglia and Brainard, could confirm that Plaintiffs have been fully compensated for all prejudgment interest through those settlements, and could avoid any double recovery of prejudgment interest by Plaintiffs that would violate the one-satisfaction rule. After performing both required computations under section 33.012 and 33.013, any final judgment rendered against Richmond should include only its liability for 40% of the actual damages awarded by the trier of fact, plus any taxable court costs and postjudgment interest at the current lawful rate— prejudgment interest. Again, Richmond does not agree or concede that any judgment against it is proper. DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 7 1061364v.2 B. Proposed Final Judgment Fails to Award Individual Damages to Individual Plaintiffs The jury’s verdict assessed damages for past and future damages for which C.G. may recover and, damages recoverable by Ms. Lisa Gonzales for C.G.’s medical expenses incurred to the age of eighteen years (amount awarded of $840,519.30). However, the Final Judgment only states that “Plaintiffs recover $7,350,600.40 in damages from Defendant Richardson for its 40% share of $18,376,501 in damages found in the jury’s verdict, pre-judgment interest of $510,028.38, court costs (including all costs incurred in enforcement and collection), and post-judgment interest at the annual rate of 8.0% compounded annually from the date of this judgment until paid.” (Final Judgment at p. 2). The Final Judgment must include the names of each of the individual Plaintiffs recovering and must state the amounts awarded through the judgment to each. See TEX R. IV P. 301, 306 (judgment shall contain the full names of the parties for whom and against whom judgment is rendered). Thus, Defendant objects that the Final Judgment fails to award recovery to the individual Plaintiffs as the jury assessed damages, and moves for modification. III. THE “FINAL JUDGMENT” IS NOT FINAL In their original Motion for Judgment on the Jury’s Verdict, and later during post-verdict hearings, Plaintiffs asserted that they have not yet received settlement monies for the three settlements with ASW, Ambassador, and the Sotos, totaling $5,368,000, received and reported during trial. They also asserted that the subrogation lien has not been resolved and settlement agreements have not been drafted. (See Motion at 2). Plaintiffs have not nonsuited their claims or filed motions to dismiss their claims against these settling defendants. Instead, Plaintiffs delayed resolving their claims with the settling defendants to avoid application of Texas law on application of settlement credits, and to manipulate the application of settlement credits here, DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 8 1061364v.2 which resulted in an improper double recovery of prejudgment interest by Plaintiffs, as argued above. Because the claims against the settling defendants remain pending, and those defendants remain parties to this case, the purported “Final Judgment” is not final, according to the record in this case. See, e.g. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (Only a “judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final.”). Richmond Equipment urges the Court to sign a new Final Judgment that expressly disposes of Plaintiffs’ claims against these settling defendants, to ensure the “Final Judgment” truly is final under Texas law. THEREFORE, Defendant Jamie Crandall Equipment Corporation d/b/a Richmond Equipment respectfully prays that this Court modify, correct and/or reform the May 31, 2023 Final Judgment as requested herein, and grant Defendant all such other relief, general or special, at law or in equity, as this Court deems just. DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 9 1061364v.2 Respectfully submitted, COOPER & SCULLY, P.C. By: /s/ R. Brent Cooper R. RENT OOPER brent.cooper@cooperscully.com Texas Bar No. 04783250 IANA L. AUST diana.faust@cooperscully.com Texas Bar No. 00793717 ICHELLE E. OBBERSON michelle.robberson@cooperscully.com Texas Bar No. 16982900 900 Jackson Street, Suite 100 Dallas, Texas 75202 Telephone: (214) 712-9500 Facsimile: (214) 712-9540 LAW OFFICE OF AMY L. MITCHELL NDREW S. ORNBURG Dornba1@nationwide.com Texas Bar No. 24049861 One East Greenway Plaza, Suite 1005 Houston, Texas 77046 Telephone: (713) 820-4656 Facsimile: (713) 364-3121 ICHARD B. MITH Movant to Appear Pro Hac Vice Smithr39@nationwide.com New Jersey Bar No. 04970199 90 Woodbridge Drive Woodbridge, New Jersey 07095 Telephone: (732) 582-3248 Facsimile: (732) 283-8741 ATTORNEYS FOR DEFENDANT JAMIE CRANDALL EQUIPMENT CORPORATION D/B/A RICHMOND EQUIPMENT DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 10 1061364v.2 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of this Motion upon the following counsel of record via efile on the 30th day of June, 2023. Mr. Joseph D. Terry VIA EFILE jterry@terrythweatt.com Mr. L. Lee Thweatt ltheatt@terrythweatt.com Terry & Thweatt, P.C. 114 Byrne Street Houston, TX 77009 Counsel for Plaintiffs Mr. John D. Perches VIA EFILE jperches@wphk-law.com Wadler, Perches, Hundl & Kerlick 710 Main Street Richmond, TX 77406 Counsel for Plaintiffs Russell S. Post VIA EFILE rpost@beckredden.com Lena Silva lsilva@beckredden.com Beck Redden LLP 1221 McKinney Street, Suite 4500 Houston, TX 77055 Counsel for Plaintiffs /s/ Diana L. Faust IANA L. AUST DEFENDANT’S MOTION TO MODIFY, CORRECT, AND/OR REFORM THE 5-31-23 FINAL JUDGMENT Page 11 1061364v.2