C. Thomas Clayton, M.D. v. Lisa Gay Wingate, Individually and as Representative of the Estate of John W. Wingate, Deceased, Kevin Wingate, Rhonda Wingate Perry and Paula Wingate Ballard--Appeal from 145th District Court of Nacogdoches County

NO. 12-06-00178-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

C. THOMAS CLAYTON, M.D., APPEAL FROM THE 145TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

LISA GAY WINGATE, INDIVIDUALLY

AND AS REPRESENTATIVE OF THE NACOGDOCHES COUNTY, TEXAS

ESTATE OF JOHN W. WINGATE, DECEASED,

KEVIN WINGATE, RHONDA WINGATE PERRY,

AND PAULA WINGATE BALLARD,

APPELLEES

MEMORANDUM OPINION

Appellant C. Thomas Clayton, M.D. appeals the trial court s final judgment in a medical malpractice lawsuit in which he was a defendant. In one issue, Clayton alleges that the trial court erred in computing the judgment. We affirm.

Background

On February 17, 1999, John W. Wingate died while undergoing treatment at Nacogdoches Medical Center ( NMC ). Wingate s wife and children sued NMC, Clayton, and radiology technician Larry Gee. On December 10, 2004, the Wingates settled with NMC for $ 449,984.00. The Wingates were unable to reach a settlement with Clayton and Gee and trial commenced on August 2, 2005.

A jury found that Wingate s death was proximately caused by the medical negligence of NMC and Larry Gee, but not Clayton. The jury found that NMC was 70% responsible for Wingate s death and that Gee was 30% responsible. The jury also found that Gee was a borrowed servant of Clayton at the time of the incident. Therefore, Clayton was vicariously liable for Gee s negligence.1

The jury found that the Wingates had incurred $ 240,000.00 in past damages and $150,000.00 in future damages. In addition, the parties had previously stipulated to $16,747.39 in past damages for medical and funeral expenses. The trial court found that the Wingates had incurred additional damages in the amount of $ 74,588.30 in prejudgment interest. After applying a credit for the Wingate s previous settlement with NMC, the trial court entered a final judgment against Clayton, awarding the Wingates $ 31,351.69. This appeal followed.

Computation of a Judgment

In his sole issue, Clayton alleges that the trial court erred by calculating prejudgment interest before applying a credit for the NMC settlement.

According to Clayton, the trial court's judgment is predicated on an incorrect conclusion of law. We review a trial court's conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 149 (Tex. App. Houston [14th Dist.] 2000, no pet.). When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App. Houston [14th Dist.] 1996, no writ).

The trial court rendered its judgment based upon former versions of sections 33.012 and 33.013 of the Texas Civil Practice and Remedies Code and former, now repealed, section 16.02 of article 4590i, Texas Revised Civil Statutes.2 The supreme court recently addressed the methodology of calculating prejudgment interest and applying settlement credits in a case involving those statutes. Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d 893 (Tex. 2005). Under Battaglia, the trial court should have first treated the Wingates total past damages as a lump sump incurred on the date of the injury, pooling together the damages of each plaintiff. See Taveau v. Brenden, 174 S.W.3d 873, 882 (Tex. App. Eastland 2005, pet. denied). Next, the trial court should have calculated the prejudgment interest on the past damages. See Brainard, No. 04-0537, 2006 Tex. LEXIS 1296, at *18-19 (Tex. Dec. 22, 2006); Battaglia, 177 S.W.3d at 908. Only then should the trial court have applied the NMC settlement credit to the Wingates damages, first to the prejudgment interest and past damages, then to the future damages. See Battaglia, 177 S.W.3d at 911-12.

The record shows that the trial court followed this method. Clayton s argument stands in direct contradiction to the Battaglia method and, therefore, is without merit. See Battaglia, 177 S.W.3d at 911-12. Therefore, we overrule Clayton s sole issue.

Disposition

We affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered April 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 See, e.g., Rogers v. Duke, 766 S.W.2d 547, 549 (Tex. App. Houston [1st Dist.] 1989, no writ).

2 Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1, 1985 Tex. Gen. Laws 3242, 3271, amended by Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, 1.01, 1987 Tex. Gen. Laws 37, 42, amended by Act of May 8, 1995, 74th Leg., R.S., ch. 136, 1, 1995 Tex. Gen. Laws 971, 974 (former Tex. Civ. Prac. & Rem. Code Ann. 33.012), amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, 4.06, 2003 Tex. Gen. Laws 847, 857-58 (current version at Tex. Civ. Prac. & Rem. Code Ann. 33.012 (Vernon Supp. 2006)); Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1, 1985 Tex. Gen. Law 3242, 3271, amended by Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, 2.09, 1987 Tex. Gen. Laws 37, 42, amended by Act of May 8, 1995, 74th Leg., R.S., ch. 136, 1, 1995 Tex. Gen. Laws 971, 974 (former Tex. Civ. Prac. & Rem. Code Ann. 33.013), amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, 4.07, 4.10(5), 2003 Tex. Gen. Laws 847, 858-59 (current version at Tex. Civ. Prac. & Rem. Code Ann. 33.013 (Vernon Supp. 2006)); Act of May 5, 1995, 74th Leg., R.S., ch. 140, 3, 1995 Tex. Gen. Laws 985, 989, amended by Act of June 2, 1997, 75th Leg., R.S., ch. 1396, 45, 1997 Tex. Gen. Laws 5202, 5249 (former Tex.

Footnote continued.

Rev. Civ. Stat. Ann. art. 4590i, 16.02), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, 10.09, 2003 Tex. Gen. Laws 847, 884.