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Terrace v. City of Texarkana6/21/1999
roper judgment. TTL's second point of error is sustained.
Excluding Evidence of the Amount of Interest Lost
In its third point, TTL contends the trial court erred in prohibiting TTL from admitting evidence of the amount of interest it could have earned on the money paid to TWU in overcharges. Based on our Disposition of TTL's first two points, this case must be reversed and remanded for retrial on TTL's money had and received cause of action and we need not reach TTL's remaining points of error. However, in the interest of Justice and for consideration on retrial, we will address TTL's third point.
Specifically, TTL argues under this point that interest is recoverable for the loss of use of its money as a matter of law from the date of accrual of the action, and it seeks damages from the time of each monthly overcharge until the filing of the lawsuit. For the period prior to filing suit for which the court did allow proof of overcharges, the court correctly awarded ten percent interest as damages for the loss of use of money. Statutory prejudgment interest is mandated at Tex. Fin. Code Ann. § 304.101-104 (Vernon 1998) for wrongful death, personal injury , and property damage cases. The Texas Supreme Court recently addressed the situation of cases to which statutory prejudgment interest does not apply in Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528-33 (Tex. 1998).
The court held that in these cases, common-law prejudgment interest shall be calculated in the same manner as statutory prejudgment interest. Johnson, 962 S.W.2d at 531-33. Accordingly, common-law prejudgment interest accrues on the earlier of (1) 180 days after the date a defendant receives written notice of a claim, or (2) the date suit is filed. Id. at 531. Further, it accrues at the rate of postjudgment interest and is computed as simple interest. Id. at 532.
Postjudgment interest is governed by Tex. Fin. Code Ann. § 304.003 (Vernon 1998). The Johnson court decreed that its common-law prejudgment interest holding "applies to all cases in which judgment is rendered on or after December 11, 1997 . . . ." Id. at 533. Because the judgment here was rendered on February 18, 1998, the holding of the Johnson case applies. The judgment reflects that the trial court awarded "prejudgment interest calculated at ten percent (10%) simple interest from December 16, 1994 to November 10, 1997, . . . and postjudgment interest at the rate of ten percent (10%) compounded annually." Therefore, the trial court calculated prejudgment interest in the manner mandated by the Johnson case. Because the correct measure of damages for TTL's loss of use of money was common-law prejudgment interest as calculated according to the holding in the Johnson case, no question of fact existed for jury determination and the trial court did not err in excluding TTL's evidence of interest for loss of use of money due to the overcharges by TWU. TTL's third point of error is overruled.
The judgment is reversed, and the case is remanded for a new trial on TTL's claim for money had and received.
Donald R. Ross Justice
Date Submitted: April 13, 1999
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