First Title Company of Waco, et al v. Charles Garrett, et ux--Appeal from 74th District Court of McLennan County

MOTION FOR REHEARING DENIED

SEPTEMBER 13, 1990

NO. 10-89-228-CV

Trial Court

# 88-2452-3

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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FIRST TITLE COMPANY OF WACO, ET AL,

Appellants

v.

CHARLES GARRETT, ET UX,

Appellees

* * * * * * * * * * * * *

From 74th Judicial District Court

McLennan County, Texas

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OPINION ON REHEARING

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The court refused to credit $62,000, the amount the Garretts received in settlement of a separate suit against Jenkins and Dameron, against the judgment in this suit. First Title and Alamo Title claimed they were entitled to the credit under the "one satisfaction rule" // in Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703, 705 (Tex. Comm'n App. 1935, opinion adopted). Relying on Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 434 (Tex. 1984), and Stewart Title Guar. Co. v. Sterling, 772 S.W.2d 242, 248 (Tex. App.--Houston [14th Dist.] 1989, writ granted), this court held that they waived their right to the credit by failing to obtain a comparative-causation finding of Jenkins' and Dameron's liability.

First Title and Alamo Title contend on rehearing that Duncan only applies when at least one defendant is strictly liable. They point out that they were not strictly liable. They also argue that Sterling misapplied Duncan because none of the Sterling defendants were strictly liable. Regardless of whether Duncan was correctly applied by this court or in Sterling, First Title and Alamo Title were not entitled to the credit because they failed to establish that Jenkins and Dameron were joint tortfeasors.

The opinion in Cypress Creek Utility Service Co. v. Muller, 640 S.W.2d 860, 862 (Tex. 1982), provides a historical perspective of the settlement credit, which evolved as a means of ameliorating the harshness of the common-law rule that prohibited contribution between joint tortfeasors. Although the right of contribution did not exist under common law, courts began deducting the plaintiff's settlement with a joint tortfeasor from the judgment against the non-settling tortfeasor based on the principle that the plaintiff was entitled to only one satisfaction of the damages found by the jury. Id.

Article 2212, later codified as chapter 32 of the Civil Practices and Remedies Code, was enacted in 1917 to abrogate the common law and provide contribution among joint tortfeasors. TEX. REV. CIV. STAT. ANN. art. 2212 (Vernon 1971 and Vernon Supp. 1985) (repealed 1985, current version at TEX. CIV. PRAC. & REM. CODE ANN. 32.001-.003 (Vernon 1986)). However, the statute only applied to parties bound by the judgment. Therefore, if the plaintiff settled with a tortfeasor who was not liable under the judgment, then the non-settling defendant was still subject to the common-law prohibition against contribution. Muller, 640 S.W.2d at 862. When faced with that situation, the court in Bradshaw v. Baylor University deducted the plaintiff's settlement from the judgment. Id.; Bradshaw, 84 S.W.2d at 705. That approach was consistent with the action of courts prior to the enactment of article 2212.

In Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex. 1964), article 2212 was applicable because the settling tortfeasor was bound by the judgment. Under those circumstances, the Supreme Court rejected a dollar-for-dollar credit in favor of a proportionate reduction of the judgment based on the number of settling tortfeasors divided by the total tortfeasors. Duncan, 665 S.W.2d at 430.

Article 2212a, later codified as chapter 33 of the Civil Practices and Remedies Code, was enacted in 1973 to allow contribution between negligent joint tortfeasors based on the percentage of fault found by the jury. TEX. REV. CIV. STAT. ANN. art. 2212a (Vernon Supp. 1985) (repealed 1985, current version at TEX. CIV. PRAC. & REM. CODE ANN. 33.001-.016 (Vernon 1986 and Vernon Supp. 1990)). Unlike article 2212, the legislature in article 2212a spelled out how settlements were to affect the judgment against the non-settling defendant. Section 2(d), which embodied the dollar credit in Bradshaw v. Baylor University, was applicable if the settling party's negligence was not determined by the jury. TEX. CIV. PRAC. & REM. CODE ANN. 33.014 (Vernon 1986 and Vernon Supp. 1990); Muller, 640 S.W.2d at 863. If the jury determined the negligence of the settling tortfeasor, then section 2(e) provided a Palestine Contractors-type proportionate reduction based on the settling tortfeasor's percentage of negligence. TEX. CIV. PRAC. & REM. CODE ANN. 33.015 (Vernon 1986 and Vernon Supp. 1990); Muller, 640 S.W.2d at 863.

A credit against the judgment, whether a dollar-for-dollar reduction under Bradshaw v. Baylor University or a Palestine Contractors proportional credit, only applies if the settling and non-settling parties are joint tortfeasors. Assuming that Duncan is inapplicable to the facts here, First Title and Alamo Title had to at least establish by proof that Jenkins and Dameron were joint tortfeasors before they would be entitled to a dollar credit. However, the record simply does not reflect the basis of the Garretts' suit against Jenkins and Dameron or the basis of their liability, if any. // Accordingly, the court did not err when it refused to credit the settlement against the judgment. Point nine is also overruled for this reason.

Point eleven was that the Garretts failed to demonstrate good cause for the allegedly late designation of their previously undisclosed accounting expert. An allegation was made under the "lack of good cause" point that the Garretts failed to disclose their expert "as soon as practical." See TEX. R. CIV. P. 166b(6)(b). First Title and Alamo Title point out on rehearing that the "as soon as practical" allegation was not addressed in the opinion.

Even though a party may disclose an expert more than thirty days prior to the beginning of trial, the court has the discretion to suppress the expert's testimony because the disclosure was not made as soon as practical. Id.; Builder's Equipment Co. v. Onion, 713 S.W.2d 786, 788 (Tex. App.--San Antonio 1986, no writ). That discretion can be abused. Williams v. Crier, 734 S.W.2d 190, 193 (Tex. App.--Dallas 1987, no writ). However, the record does not reflect that the court clearly abused its discretion when it refused to suppress the accounting expert's testimony on the ground that the disclosure was not made as soon as practical. Point eleven is also overruled for this reason. The motion for a rehearing is denied.

BOB L. THOMAS

PUBLISHChief Justice