*1 unnecessary We find it to address the applicant’s allegations. Appli- merits of cant has been convicted the offense aggravated punish- sexual assault and his Therefore, ment has been assessed at life. applicant’s pertaining pre-tri- contentions al confinement due to denial of are bail moot. petition discretionary for review
hereby dismissed. LEWIS, Appellant,
Leslie C. Berkley (court-appointed), Bettis Walter COMPANY, U.S.A., EXXON H & H Prentice, (court-appointed), C. Austin for al., Trucking Company, et appellant. Appellees. Earle, Atty., Ronald Dist. William G. No. 08-89-00080-CV. Huttash, Reid, Atty., Asst. Dist. Robert Austin, Atty., State’s State. Texas, Appeals Court
El Paso.
Nov. 1989. Opinion Rehearing on Motions for OPINION ON APPLICANT’S PETITION Dec. 1989. FOR DISCRETIONARY REVIEW PER CURIAM.
Applicant
in the trial
filed
corpus seeking
court for a
writ
habeas
17.151,
pursuant
release on bail
to Article
That court denied relief. The
V.A.C.C.P.1
Appeals affirmed the trial court’s
Court of
corpus
parte
relief.
denial of habeas
Ex
(Tex.App
Danziger,
Before and FULLER KOEHLER, JJ.
OPINION
KOEHLER, Justice. cross-appeals from a This case involves *3 judgment personal injury in a lawsuit. final below, (“Lewis”), Plaintiff Leslie C. Lewis change of venue appeals from an adverse (“Exxon ruling. U.S.A. Corporation U.S.A.”) of Exxon a division (“Exxon Corp.”), complains of the trial a settlement denying court’s Exxon U.S.A. million, denying in credit of its $1.2 trial, prior to sever post-verdict H denying and in it a credit. (“H H”) Trucking claims Company & H & H failing in the trial court erred award judgment against H a Exxon U.S.A. & recovery from allowing in Lewis a further in and reverse and H & H. We affirm part. render in arose on October The cause action severely was hit and when Lewis truck, by its injured by an H & H driven (“Haumes- employee, Darrell Haumesser ser”), site, drilling oil leased and on an well in Midland operated by Exxon U.S.A. Coun- initially filed suit on ty, Texas. Lewis Texas, 22, 1986, County, April Jefferson Haumesser, H, against H & Exxon U.S.A. Corp. At the time suit was and Exxon filed, resident of Ector Coun- Lewis was a Corp., Jersey ty, Texas. Exxon is a New place principal of busi- corporation with York. Exxon U.S.A. is head- ness New H County, in Harris Texas. & quartered H, registered corporation, had its a Texas Texas, agent County, and its in Dawson Haumesser, driver, of Mar- was a resident At or the time County, tin Texas. about answers, all of the defen- they filed their motions to transfer venue. dants also filed County hearing, the Jefferson After the by or- the case District Court transferred Houston, Vincent, appellee, for Nicholas 24, 1986, July to Midland signed der on Co., County. Houston, Ross, appellee, H James E. pleadings to amended his Lewis then Trucking Co. defendants, J.W. bring in as additional (“Holts”), Holt, George Holt Friedman, Denlinger, Jack Holt and Greg Robert G. H, on Houston, of & Associates, P.C., sole owners and stockholders Friedman & ego theory. In several an alter June Lewis. appellant, Leslie C. $1,174,000.00. entry Prior to entered into a months H, verdict, H & Hau- Exxon U.S.A. unsuccessful- settlement (collectively $720,000.00post-verdict the three Holts ly messer and for a moved designated Defendants”), by alternative, $265,- “H as & H tlement credit or the H terms pursu- settlement credit post-verdict (and agreed pay subsequently pay did to Section 33.014. ant trial) the sum of error, he sole Lewis’ claims, except all County trial complains that the Jefferson proxi- failing to find that Exxon court erred Defendants, mate cause as the H & representa Corp. agency maintained for at most an they would liable resulting in a denial of county, in that tive damages as- additional county transfer of the and a venue jury. agreed sessed It was also County. current suit Midland the & Defendants *4 requires, exceptions, with certain statute be submitted to the was brought are to in the that all lawsuits “be purpose determining of of or of county which all of cause (filed compensation lien the workers’ county of or in the defen action accrued by Compa- Casualty Surety case Aetna residence_” & dant’s Tex.Civ.Prac. Defendants, ny) by paid to be H H (Vernon 1986). Rem.Code One sec. $40,000.00. agree- not to exceed Under the exceptions general to the venue re- of ment, as a the & Defendants’ on quirement, and one relied Lewis result of trial was thus limited case, permits plaintiff in this to file his $50,000.00 (the $10,- maximum of first foreign any county corpo- which a suit them, 000.00 of the amount found doing ration defendant business in this plus on compensa- the workers’ agency representative.” state has “an or lien). tion The & H retained Defendants (Ver- Tex.Civ.Prac. & Rem.Code sec. 15.037 right any no recover $1.2 of 1986). The on non burden was Lewis paid agreement. under the prima proof make facie that his suit was Prior to the of commencement County maintainable in Jefferson under the request- Exxon Defendants filed motion exception in 15.037. Tex.R.Civ.P. ing the court trial to dismiss the H & 87, 3(a). 2(a) parties agree subds. grounds from the suit on the corporation Corp. foreign Exxon is a that all issues them and had between parties doing in Texas. The dis- business effectively been settled agree question on or whether either and there no need to submit their was were, employees of two Exxon at the both request- and further filed, agents representa- time suit or was ing that it receive a settlement credit of meaning tives of Exxon within the of Sec- damages any million toward assessed 15.037. tion pursuant it Tex.Civ.Prac. found, (impliedly) court The trial (Vernon 1986). The Kem.Code sec. 33.014 hearing, after the that neither the two denied. The Exxon Defen- was agent repre was or employees Exxon dants then moved the court to sever the company within mean sentative settling H & H Defendants from suit. ing of the statute and ordered a venue This motion also denied. After the County, case Midland transfer commencement of trial on November primary question was the evidence, which without opening but county general under the rule stated venue the three Holts. In an- non-suited also in Section 15.001. We must assume it, swer to the issues concluded that Lewis failed following the trial court found the U.S.A., prima case on the Lewis, percent; to make out a facie gence: five agency representative issue as matter thirty-five percent; Corp., per- zero Haumesser, cent; H, thorough review of the twenty percent; of law. After a em forty percent; damages deposition testimony the two Exxon assessed probably improper did cause rendition of an ployees, Hank Crenshaw and Bob Sum 81(b)(1). mers, depositions judgment. Tex.R.App.P. the other at At the as well as affidavits, say County, tached to the we cannot trial in Midland conclusion law, erred, minimally negligent the trial court as a matter of found Lewis determining out damages. that Lewis had not made and awarded him substantial in Jefferson prima facie case for venue say cannot from that result that the We However, County under Section 15.037. error, any, County of the Jefferson erred, if the had so conclude even court we ruling adversely court in to Lewis on that the error was harmless since case calculated to cause transfer motions was in Midland transferred to tried probably cause the rendition of an did County, county proper venue. See 81(b)(1). improper Tex.R.App.P. judgment. Engineering Cox v. Funston Mach. & Accordingly, Lewis’ of error Supply, (Tex.App.— question is overruled. 1988, writ). Fort Worth no We reach this points of error We next consider the language conclusion from the of Tex.Civ. H, and H & all of raised Exxon U.S.A. 15.064(b) (Vernon sec. Prac. & Rem.Code which are to the effect that the trial court 1986), which states: comparative erred merits, appeal on On from the trial negligence statutes and the case law on the in no improper venue was shall subject, specifically in its denial of Exxon’s event harmless error and shall be the H & H Defendants motions to sever determining error. wheth- reversible give any judgment full credit toward proper, er venue was or was not *5 against up mil- rendered appellate court shall consider the entire failing amount and in lion settlement record, including trial on the merits jury so apply proper law to verdict [Emphasis added]. that Exxon would receive an additional 15.064(b), exception With the of Section and H H would have no further credit Chapter 15 of the Texas Civil Practice and would, fact, in receive a and contri- Code, along Rule of the Remedies with 87 bution from Exxon U.S.A. to the extent of Procedure, Texas Rules of Civil sets forth liability. Exxon’s procedural the substantive and law be comparative negligence The statutes regard by the courts with followed trial concerned, formerly Ar with which we are proper venue and motions to transfer ven- 2212a, 2(b), 2(d) 2(e),Tex. ticle Sections 15.064(b), hand, on is ue. Section the other 33.012, Rev.Civ.Stat.Ann., now 33.- Sections appellate a directive to the courts 33.015, 014 and Tex.Civ.Prac. & Rem.Code appeal if it out action to be taken on turns (Vernon 1986), effect, in at the time this in improper that venue was the ultimate filed, suit was are as follows: 15.064(b) county Although of trial. Damages Proportion. Section 33.012. converse, specifically does not cover the If is than one defendant there more if implication the clear is that it is conclud- negligence does not and the claimant’s ed from the entire record that venue was the total of all defen- exceed error, proper county then the dants, proportion contribution must be any, if suit was court which percentage negligence attribut- to the filed, incorrectly determining the venue to each defendant. able and not question may have been harmless Tort-Fea- Section 33.014. Settlement: appellate court should not reversible.1 The Party Defendant sor Not judgment appeal a on and remand reverse amount of an al- If the existence and trial unless it is determined that new negligence are leged joint tort-feasor’s complained the error of law of amounted jury because appellant’s rights as not submitted such denial of the paid amount in settle- tort-feasor has reasonably calculated to cause Price, statute, present Tex- interesting see New from one Texas 1. For an discussion Legislative History, 15 St. appeal as Venue Statute: and harmless error in of view of venue L.J., Mary’s legislative history 875-880. the context of the Pfister, tlement. Rose v. joined a claimant not as ment to and was having joined, (Tex.Civ.App. or party defendant been [1st Dist.] — Houston 1980). agreement dismissed nonsuited after between Lewis and entitled, tling, each defendant is entitled to deduct “PAR the H & H Defendants is COMPROMISE, SETTLEMENT, he is liable to from the amount RE TIAL percentage LEASE, the claimant of the amount AND INDEMNITY AGREE on the ratio fairly purports based lengthy It is MENT.” defendant’s to the total the Exx to cover both situation where negligence of all defendants. Defendants settle Lewis before on is reached the case jury 33.015. Tort-Fea- and where Settlement: Party goes jury verdict in the absence of
sor Defendant latter settlement with Exxon. In the alleged joint If an tort-feasor settles event, the H & H Defendants are not party as a joined with a claimant but is to remain as defendants but are to “active when the case cross-actions, diligently any ly and defend so the existence allegations and/or raised counterclaims his amount of are submitted and are to make an elec them[.]” his file to have necessary papers tion and gence settle- is found any, negligence, of their complete portion ment is a release of agreement jury. determined to him. attributable provides: Exxon disagree H & and on whether agreed payment further It is agreement between H H Defen- MILLION, of ONE TWO HUNDRED and Lewis was a dants “settlement” within ($1,200,000.00) THOUSAND DOLLARS meaning of that word as used in the Plaintiff the final shall not be [Lewis] question. strenuously statutes H H& can re- amount of monies that Plaintiff contends did cover terms, amount to a settlement since prox- should find H & H and its driver remained in the imate cause as these Defendants. *6 lawsuit, required were to defend and to However, agreed shall it is that Plaintiff questions concerning negli- submit their from the H H Defendants not recover jury. Thus, gence argues, Inc., Trucking, any H H or & additional applies so that to a 33.012 it is entitled of sum in excess TEN THOUSAND up contribution from Exxon to Exxon’s ver- ($10,000.00), AND NO/100 DOLLARS any- and Lewis dict cannot recover H plus the H & Defendants’ share thing from further either it or Exxon under $40,- compensation up lien worker’s the “Bradshaw Rule”. The latter rule is 000.00, as described below. Bradshaw opinion in attributed Baylor University, 126 Tex. 84 S.W.2d (1935), said, 703, 705 where it “It is a percentage negligence, any, of acceptation general injured an rule of jury by the will used for the found be party is entitled but one satisfaction purpose determining of him.” The Brad- injuries by sustained Compensation lien to be the Worker’s Rule, although shaw in situa- not abolished H H paid by the H & Defendants. The & apply, does not tions where proportion- will pay their severely applica- has been modified in its Compensation share of the Worker’s ate comparative by tion stat- by Their lien as verdict. Utility Creek Service Com- utes. figured by share proportionate will be Muller,
pany, Inc. v. considering neg- (Tex.1982). ligence the Defendants as 100% unlikely agreement by parties any An in event Plaintiff, compromise of understanding in is found on Plaintiff’s reach any, from con- disputed gence, matters is to a set will excluded be considered circumstances, H & H De- some under of the amount of the worker’s sideration $50,- may pay have to less than fendants paid to Inter- compensation lien to be answer, we nothing. To find the 000.00 or However, per- regardless of the venor. relating to a provisions settle- turn to the assigned the H centage Lewis and Exxon before ver- ment between verdict, in no by jury H& Defendants dict: H H H Defendants & & event will the & H Defendants & the H & such pay more Trucking, required event] [In Inc. be Trucking, guarantee Inc. H& Compen- $40,000.00of the Worker’s than receive an additional Lewis ... shall Thus, if the case is tried sation lien. $50,000.00, only in the event that but the H & H Defen- between $400,000.00 in less than recovers dants, Corporation and Exxon from Exxon prior to verdict settlement U.S.A., Company, then the and/or Exxon Company, Corporation and/or Exxon Trucking, HH & H & H Defendants & gradual- guarantee This shall be pay have to more than Inc. will never extinguished, on dollar-for-dollar ba- ly $50,000.00, per- regardless of the total of sis, every dollar above the sum assigned them centage $350,000.00 receives which Lewis jury. verdict from Exxon Cor- prior tlement provides for a agreement U.S.A., poration and/or release from Lewis complete and final $400,000.00. If Lewis up to the sum of consideration H H Defendants the & “[i]n $400,000.00 or more in settle- receives referred to ...” payment verdict, H H then the & ment agreement. Even preceding portion of the pay no additional funds will are to re
though the H & H Defendants way If Lewis ... to Lewis. receive[s] percent their in the lawsuit and have main any sum to verdict of settlement ages negligence determined $400,000.00, H H then the & excess of provides though agreement and even Trucking, Inc. shall Defendants & & liability in addition to contingent for some excess funds. no claim to such have it, previously paid under H H Defendants & the & no event will complete under embodies responsible for Trucking, Inc. be H& disputed mat standing compromise pay- in additional than more agreement is a that the ters. We conclude to Lewis.... ment meaning term of that within keep agreement was to The intent of the further 33.014 and 33.015. We in Section until the suit the H & H Defendants agreement was a success conclude settlement with Exxon reached a either under the bring the settlement ful effort to reached, limit- while Lewis or a verdict was 33.015 so that provisions of Section liability to not ing H H Defendants’ *7 to be escape liability found not would $50,000.00 over than an additional more having the settle negligent, and to avoid regardless already paid, they had what agree “Mary a Carter” treated as ment Exx- from by Lewis the amount recovered ment. good why of no reason can think on. We problem lies the off should be worse H H Defendants jury’s verdict agreement they would to verdict than if the case went liability, if prior additional to determine if Exxon had settled order to have been agree found H H Defendants. Exxon U.S.A. was any, of the & Since verdict. percent to a thirty-five case is tried provides that the to have been ment the at damages cause assessed negligence proximate negligent and and were Defendants, damages $1,174,000.00, its share against the & are found amount $410,900.00, for which regardless of the liability, came their additional them, given. Because that amount against is limited $400,000.00, H H Defen- the negligence $50,000.00 ($10,000.00on the exceeds liability to Lewis have no further compensation dants liability and Having agreement. under the settlement implication that lien). than an It is more
731 position, Exxon cites Merit agreement port previously that of its concluded the Honish, 715 S.W.2d Drilling Company v. settlement, bringing to a it with- amounted (Tex.App. Corpus Christi writ 87 purview in the of Section 33.015 rather — n.r.e.), in which the non-set ref’d a case 33.012, H than under Section the H & De- tling negli not to the defendant chose have are not entitled to contribution fendants gence settling defendant H & H Defendants’ from Exxon jury; Singleton v. Crown Central extent of error is sustained to the Corporation, 713 Petroleum 115 S.W.2d damages adjudged that additional were 1985, rev’d, [Tex.App. [1st Dist.] them. — Houston (Tex.1987) ], in which 690 a case S.W.2d now We turn U.S.A.’s three settling the defendant’s was not error, point being points of the first thus, submitted to the the non-set denying the court erred in Exxon a trial tling entitled to full credit defendant was settlement credit for the full settlement; for amount of the H paid by the & H Defendants to Lewis Trucks, Inc. v. Browning-Ferris, Mack trial, being second effect Inc., (Tex.App. Corpus 714 S.W.2d — denying court erred in Exxon’s n.r.e.) ref’d a case in Christi writ motion to sever the & H Defendants settling defen the third dants the jury was submitted to and as a denying trial erred court Exxon’s motion result, liability of those defendants was $720,000.00, post-verdict for a credit of completely released under 33.015. alternative, $265,263.16. in the credit best, proposi At stand these cases points It is convenient to consider these non-settling tion that a defendant when together. prospect faced with settling may defendant not be sub point, its first Under Exxon U.S.A. reason, mitted to the for whatever can argues that since the between settling negli elect to have defendant’s Lewis and the H & Defendants was a gence filing so submitted cross-claim Mary not a Carter settling contribu agreement, having the H H& Defendants tion. one When defendant settles received no interest in the amount Lewis plaintiff, remaining non-settling defen hoped exchange to recover from negli dants elect to can submit settlor’s participation suit, for their continued gence jury by cross-filing against right the H & H Defendants had “no under settlor, it is error for trial court but 6a, Article of the Texas Browning-Fer not to dismiss the settlor. Compensation Act Chap Workers’ or under ris, 407. Section 33.015 is ter 33 of the Texas Civil Practice Rem applied only option at the not to be edies Code to its submit Creek non-settling defendant. jury solely to determine what Inc., Utility Service compensation of a workers’ lien it must at 866. pay.” contrary, Exxon asserts an On right” “absolute to determine whether Exxon also asserts that it was pretrial would take credit for full prejudicial error court not of the settlement amount under Section grant settling to sever the joint alleged 33.014 before tort- H accordance with Tex.R. *8 negligence feasor’s was submitted to a Shortly Civ.P. 41. after this percentage or a reduction filed, under Section H & H Defendants amended their negligence 33.015 where the of the answer, alleging a cross-action for contri alleged joint tort-feasor was determined against bution along negligence judgment. with event of an adverse al filing non-settling joint By leged tort-feasor. its of but one cause action motions, pretrial Exxon claims it elected to that under various defendants. fact agreement, is take credit under Section 33.014 and enti the Lewis/H & H settlement In sup tled to the full settlement credit. of 732 TRUCKING, determine the & his employment would be utilized to with & COMPANY, HOLT, compensation
H Defendants’
J.W.
JACK HOLT and
workers’
lia
HOLT, negligently
keep
GEORGE
failed to
bility
separate
would not create
new and
lookout_”
proper
allega
Under these
Although
cause
action.
the trial court
tions,
Trucking,
Inc.,
H & H
would be
discretionary powers
has broad
in matters
liable,
all, only
respondeat superi-
if at
on a
41,
of severance under Rule
there are limi
liable,
theory,
or
and the Holts
would be
tations. One such limitation is where there
all, following
finding
on the
against multiple
is one cause of action
de
Trucking
part
theory
of H & H
on a
Merkin,
fendants. Duke
v.
599
877
S.W.2d
ego,
alter
neither of which is sufficient to
1980, writ).
(Tex.Civ.App.
Paso
no
An
— El
“alleged joint
characterize them as
tort-fea-
other occurs when otherwise
severable
Although
sors” under Section 33.014.
facts,
causes of
action are intertwined
definition,
may
term “tort”
have no exact
it
Home
S.O.C.
subject
issues and
matter.
generally
wrong
is
defined as a civil
or
City of Sachse,
owners Association v.
741
duty
imposed
that
breach
law has
(Tex.App.
542
S.W.2d
no
— Dallas
independent of contract.
55 Tex.Jur.2d
writ).
circumstances,
Under such
both
(1964).
1
Respondeat superior
Torts sec.
is
case,
apply
to this
severance would
theory
liability by
of vicarious
which an
improper
have been
as an abuse of discre
employer
usually
is
liable
tortious
tion.
Knutson v. Morton
employee.
acts of his
argues persuasively
Exxon next
Inc.,
Foods,
(Tex.1980).
603
805
S.W.2d
joint
three individual Holts were
tort-fea-
theory
ego”
applied
of “alter
Lewis, having
sors and that when
settled
impose personal
liability on individual
part
with them as
of the H
H Defen-
&
corporation
shareholders for the acts of a
dants, non-suited them after trial had com-
disregarded
where the shareholders have
menced so
existence
amount
corporate entity
have treated
of their
was not
corporation
per
as a mere conduit of their
jury,
of Section 33.014
Manney
Company
sonal
business.
triggered
so that it became entitled to
Company,
Texas Reserve
Insurance
Life
deduct from the amount for which it was
(Tex.Civ.App.
have been had there been no settlement. paraphrase quotation by To Justice Creek, Spears in at unjustly if Lewis will be enriched receiving a total of more than the
verdict, expense. it will not Exxon’s
Exxon, not seek U.S.A. does to make
settling H rath- & H whole but Jr., HASLEY, Frank Leonard profit injustice er to from the that the & Appellant, supposedly experienced. Exxon, points three error are U.S.A.’s Texas, Appellee. overruled. STATE of the 58th Court District No. CR. 09-89-076 County transferring Jefferson Texas, Appeals judg- Court of County Midland is affirmed. The is af- Beaumont. ment of the 238th District Court Exxon, recovery against firmed as 1, 1989. Nov. amount as to H H Truck- reversed rendered Haumesser,
ing Company so and Darrell nothing Leslie C. Lewis will recover further from these Defendants.