Frank Thomas Shumate Jr. D/B/A F.T.S. Trucking v. Berry Contracting, L.P. D/B/A Bay, Ltd.

Supreme Court of Texas
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No. 21-0955
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Frank Thomas Shumate Jr. d/b/a F.T.S. Trucking,
Petitioner,

v.

Berry Contracting, L.P. d/b/a Bay, Ltd.,
Respondent

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On Petition for Review from the
Court of Appeals for the Thirteenth District of Texas
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PER CURIAM

Berry Contracting, L.P. d/b/a Bay, Ltd. sued Frank Thomas
Shumate, alleging that Shumate—conspiring with Bay employee
Michael Mendietta—used Bay’s materials and labor to provide
unauthorized services to customers and enrich himself. After trial on
the merits, a jury found in favor of Bay on all claims. Bay elected to
recover on its Texas Theft Liability Act claim for which the jury awarded
$896,090.47 in actual damages, $4,480,452.35 in exemplary damages,
interest, and attorney’s fees. In post-trial motions, Shumate asked the
trial court to apply a settlement credit to reduce or eliminate the jury
award on account of a settlement agreement between Bay and
Mendietta. The trial court refused and instead rendered judgment on
the jury’s verdict, less $25,000 for prior payments made by Shumate.
The court of appeals affirmed the trial court’s judgment. The
court held that Shumate was not entitled to a settlement credit because
Bay’s agreement with Mendietta was not, in fact, a settlement at all.
___ S.W.3d ___, 2021 WL 2978713, at *6 (Tex. App.—Corpus Christi–
Edinburg July 15, 2021). The court of appeals also remarked that
Shumate did not present evidence that a $1.9 million agreed judgment
incorporated in that agreement had been fully satisfied or that Bay
received “partial satisfaction of the judgment related to an indivisible
injury.” Id.
In Bay, Ltd. v. Mulvey, ___ S.W.3d ___, 2024 WL 874798 (Tex.
Mar. 1, 2024), we construed the same agreement at issue in this case.
We held it reflected a settlement in the amount of $1.9 million. Id. at
*7. We further explained that the fact that the terms of the settlement
allow for payments to be made in the future does not, alone, reduce the
value of the settlement credit to be applied. Id. Because Shumate
offered the settlement agreement and agreed judgment into the record
at an appropriate time—and the settlement covers injuries for which
Bay sued Shumate—Shumate is entitled to a settlement credit against
the jury’s verdict.
Accordingly, in light of our decision in Mulvey and without
hearing oral argument, TEX. R. APP. P. 59.1, we grant Shumate’s petition
for review, reverse the court of appeals’ judgment, and remand the case
to the trial court. On remand, the trial court should determine the
appropriate amount of the settlement credit to be applied; consider the

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parties’ arguments regarding the settlement credit’s effect, if any, on the
remainder of the relief to which Bay may be entitled; and render a new
judgment.

OPINION DELIVERED: April 26, 2024

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