Presentation on theme: "E LLISON K ELLER A T T O R N E Y S A T L A W Preparing your Damages Case/Defense Texas Lawyer In-House Counsel Summit November 20, 2013 Tracey N. Ellison."— Presentation transcript:
E LLISON K ELLER A T T O R N E Y S A T L A W Preparing your Damages Case/Defense Texas Lawyer In-House Counsel Summit November 20, 2013 Tracey N. Ellison Kelley M. Keller Debra D. Hovnatanian 5120 Woodway Dr., Suite 6019 Houston, Texas
Considerations 2 Source of remedy. Statute and/or common law. Nature of damages. Contract, liquidated, tort, penalty, exemplary, interest, court costs. Pleadings. General or specific. Proof. Opinion (experts, lay persons), business records, valuations. Defenses. Failure to mitigate, insufficient proof, proportionate responsibility, one satisfaction rule, after-acquired evidence rule. The Number. Identify the damages amount/range as early as possible.
Case Preparation 3 Begin with the jury charge. Texas Pattern Jury Charge – Business, Consumer, Insurance, Employment. TPJC Damages through Includes case law and instructions on the elements of measure of damages and defenses. Sets roadmap and focuses discovery on the proof you will need at trial. See also O’Connor’s Texas Causes of Action. Consider summary judgment based on no evidence of damages.
Statutory Claims 4 Review all potential statutory bases for your claims or potential defenses for remedy provisions. Civil Practice & Remedies Code Business & Commerce Code Finance Code Labor Code Occupations Code Health and Safety Code Property Code Transportation Code
Texas Civil Practice & Remedies Code 5 The Damages Act, T EX. C IV. P RAC. & R EM. Code §§ , et seq. Applies “to any action in which a claimant seeks damages relating to a cause of action.” Establishes the maximum damages that may be awarded in an action subject to the chapter, “including an action for which damages are awarded under another law of this state.” Does not apply to the extent another law establishes a lower maximum amount of damages for a particular claim. § : Exclusions from the Damages Act: Actions under T EX. B US. & C OMM. C ODE § (Texas Free Enterprise and Antitrust Act of 1983); DTPA actions, “except as specifically provided in Section of that Act.” Actions under Chapter 36 of the Human Resources Code (Medicaid Fraud Prevention); and Actions under Chapter 21 of the Insurance Code (bad faith).
Texas Civil Practice & Remedies Code 6 Recoveries in certain civil actions. Medical Liability: §§ , Limitations on liability for non-economic losses and exemplary damages. Fraudulent court record, lien or claim against property: § (b). Greater of actual damages or $10,000, court costs, reasonable attorneys’ fees, and exemplary damages “in an amount to be determined by the court.” Interception of communication: §§ Statutory damages of $10,000, plus actual damages in excess of $10,000, punitive damages “to be determined by the court or jury,” and reasonable attorneys’ fees and costs. Civil theft: § Actual damages, plus an amount not to exceed $1,000, court costs, and reasonable attorneys’ fees. Actual damages not to exceed $5,000 recoverable from a parent or person with the duty of control or reasonable discipline of a child.
Texas Business & Commerce Code 7 Recoveries in certain civil actions. DTPA: § Economic damages, mental anguish damages (if the conduct was committed knowingly), plus not more than three times the economic damages, or if the conduct was committed intentionally, not more than three times the economic damages and mental anguish damages, plus costs and attorneys’ fees. Defendant may recover attorneys’ fees and costs if the action was groundless in law or brought in bad faith or for the purpose of harassment. Fraudulent transfers: §§ , Creditor may recover the value of the asset at the time of transfer, “subject to adjustment as the equities may require,” plus costs and attorneys’ fees “as are equitable and just.” Fraud in a real estate or stock transaction: § 27.01(b), (e). Actual damages, attorneys’ fees, expert witness fees, costs for copies of depositions, costs of court.
Texas Business & Commerce Code (cont’d) 8 Recoveries in certain civil actions. Contracts for sale of goods. Seller’s breach. § (recovery of purchase price paid for rejected goods). § (difference between cost of cover and contract price, less expenses saved). § (measure of damages for non-delivery or repudiation by the seller is “the difference between the market prices at the time when the buyer learned of the breach and the contract price, together with any incidental and consequential damages,” less expenses saved). § (measure of damages for breach of warranty, consequential and incidental damages, including injury to person or property proximately resulting from any breach of warranty). Buyer’s breach. § (difference between contract price and market value at time of breach, lost profits, incidental damages). § (contract price if buyer has accepted goods).
Texas Business & Commerce Code (cont’d) 9 Recoveries in certain civil actions. Wrongful dishonor or repudiation of letter of credit: § Plaintiff may recover the amount subject of the dishonor or repudiation and incidental, but not consequential damages, reduced by the amount of damages avoided, plus attorneys’ fees and “other expenses of litigation.” Theft of trade secrets: Texas Uniform Trade Secrets Act (eff. 9/1/13) Section 134A.004. A claimant is entitled to injunctive relief and damages, which can include “both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty for a misappropriator’s unauthorized disclosure or use of a trade secret.”
Pleading Damages 10 General pleading. An original pleading must state that the amount sought “is within the jurisdictional limits the Court.” T EX. R. C IV. P. 47. Except in suits governed by the Family Code, the pleading must include a statement that the party seeks: (1) only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or (2) monetary relief of $100,000 or less and non-monetary relief; or (3) monetary relief over $100,000 but not more than $200,000; or (4) monetary relief over $200,000 but not more than $1,000,000; or (5) monetary relief over $1,000,000. Defendant may request pleading in a specific amount. T EX. R. C IV. P. 47. “[U]pon special exception the court shall require the pleader to amend so as to specify the maximum amount claimed.” (emphasis added). Specific pleading required. A party should specifically plead special damages such as nominal and exemplary damages. See T EX. R. C IV. P. 56; Harkins v. Crews, 907 S.W.2d 51, 61 (Tex. App.—San Antonio 1995, writ denied); ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248, 257 (Tex. App.—Dallas 1990, no writ); K-Mart Apparel Fashions Corp. v. Ramsey, 695 S.W.2d 243, 247 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).
Nature of the Damages 11 Contractual and business damages. Out-of-pocket losses (reliance). Benefit of the bargain (expectancy). Lost profits. Must be proven “by competent evidence with reasonable certainty.” Texas Instrs., Inc. v. Teletron Energy Mgmt., 877 S.W.2d 276, 279 (Tex 1994). Considerations: Established business v. new venture. Uncertain or changing market conditions. Opinion evidence admissible if based on objective facts. Holt Atherton Indus. V. Heine, 835 S.W.2d 80, 84 (Tex. 1992). Quantum meruit (restitution). No express contract/contract implied by law. Plaintiff may recover the reasonable value of work performed and/or materials furnished.
Nature of the Damages (cont’d) 12 Contractual and business damages. Special or consequential. Damages that flow naturally, but not necessarily, from the breach. Requires that the damages would be foreseeable by the non-breaching party,.e.g. lost profits. Loss of credit. See Roberts v. U.S. Home Corp., 694 S.W.2d 129, 134 (Tex. App.—San Antonio 1985, no writ). Loss of goodwill. See Texas & Pac. Ry v. Mercer, 90 S.W.2d 557, 560 (Tex. 1936); Checker Bag Co. v. Washington, 27 S.W.3d 625, 637 (Tex. App.—Waco 2000, pet. denied). Liquidated damages. Nominal damages. Available when the injured party has not suffered an actual loss or cannot prove the amount of loss.
Attorneys’ Fees 13 Authority for a recovery of attorneys’ fees. T EX. C IV. P RAC. & R EM. C ODE. § (breach of contract, sworn account, services, labor, material, etc.). § (declaratory judgment – “court may award costs and reasonable and necessary attorneys’ fees as are equitable and just”). § (motion to dismiss – prevailing party). “In a civil proceeding, on a trial court’s granting or denial, in whole or in part, of a motion to dismiss filed under the rules adopted by the supreme court under Section (g), Government Code, the court shall award costs and reasonable and necessary attorney’s fees to the prevailing party.” No reported cases on this section. See also § (motion to dismiss action in response to exercise of right to free speech, right to petition, or right of association).
Attorneys’ Fees (cont’d) 14 Authority for recovery (cont’d). T EX. B US. & C OMM. C ODE. § 17.50(c), (d) (DTPA). § (fraudulent transfers). § 27.01(e) (fraud in a real estate or stock transaction). Entitles successful plaintiff to attorneys’ fees, expert witness fees, costs of depositions, and costs of court. Exemplary damages available. Out-of-pocket or benefit of the bargain plus consequential damages. See Scott v. Sebree, 986 S.W.2d 364, (Tex. App.—Austin 1999, pet. denied). See O’Connor’s CPRC plus pp for a chart of 155 statutes providing for a recovery of attorneys’ fees.
Attorneys’ Fees (cont’d) 15 Segregating Fees. Ensure that counsel segregate fees for time spent on claims for which fees are recoverable from time spent on claims for which fees are not recoverable. See Alief Indep. Sch. Dist. v. Perry, No CV, 2013 Tex. App. LEXIS (Tex. App.—Houston [14th Dist.] Oct. 31, 2013). Ensure charge includes instruction on segregation of fees. See Green Int’l v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) (“While the jury question regarding attorneys’ fees failed to segregate the fees between the different projects and the various claims and defenses, neither party objected to the failure to segregate. Therefore, the error was waived.”).
Exemplary Damages 16 Statutory authorization for recovery of exemplary damages. T EX. C IV. P RAC. & R EM. C ODE §§ , Exemplary damages are recoverable “only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from”: Fraud Malice, or Gross negligence. Jury must be unanimous in its finding of liability for and amount of exemplary damages. Jury must be instructed that to find exemplary damages, the answer regarding the amount must be unanimous. May be awarded only if damages other than nominal damages are awarded. May not be awarded if the claimant elects to have his recovery multiplied under another statute.
Exemplary Damages 17 Statutory authorization for recovery of exemplary damages. T EX. C IV. P RAC. & R EM. C ODE §§ On motion by a defendant, made prior to voir dire or other deadline set by the court, the court shall bifurcate the trial. T EX. C IV. P RAC. & R EM. C ODE §§ The trier of fact “shall consider evidence, if any, relating to”: The nature of the wrong; The character of the conduct involved; The degree of culpability of the wrongdoer; The situation and sensibilities of the parties concerned; The extent to which such conduct offends a public sense of justice and propriety; and The net worth of the defendants. Evidence relevant solely to the question of exemplary damages is not admissible during the first phase of a bifurcated trial.
Exemplary Damages (cont’d) 18 Statutory authorization for recovery of exemplary damages. T EX. C IV. P RAC. & R EM. C ODE §§ (harm resulting from criminal act). In actions arising from assault, theft, or other criminal act, a court may not award exemplary damages against a defendant because of the criminal act of another, except under certain circumstances, including criminal actions by an employee of the defendant if: The principal authorized the doing and manner of the act; The agent was unfit and the principal acted with malice in employing or retaining him; The agent was employed in a managerial capacity and was acting in the scope of employment; or The employer or a manager of the employer ratified or approved the act.
Exemplary Damages (cont’d) 19 Statutory authorization for recovery of exemplary damages. T EX. B US. & C OMM. C ODE § 27.01(c), (d) (fraud in a stock transaction). Recoverable on proof of the defendant’s actual awareness of the falsity of a representation or promise. T EX. C IV. P RAC. & R EM. C ODE § (wrongful death). If caused by willful act or omission or by gross negligence. See O’Connor’s CPRC plus pp. 926 for a chart of 23 statutes providing for a recovery of attorneys’ fees.
Exemplary Damages (cont’d) 20 Limitations on the recovery of exemplary damages. In any action in which there are two or more defendants, the award must be “specific to a defendant, and each defendant is liable only for the amount of the award made against that defendant.” T EX. C IV. P RAC. & R EM. C ODE § T EX. C IV. P RAC. & R EM. C ODE § Generally, exemplary damages are limited to the greater of two times the amount of “economic damages” plus (1) an amount equal to any noneconomic damages found by the jury, not to exceed $750K or (2) $200K. The cap on exemplary damages does not apply to actions based on certain conduct described as a felony in the Texas Penal Code, e.g. forgery, commercial bribery, misapplication of fiduciary property or property of financial institution, securing execution of a document by deception, etc. A defendant must plead the statutory cap. Drury Southwest, Inc. v. Louie Ledeaux #1, Inc., No CV, 2013 Tex. App. LEXIS 13345, n.1 (Tex. App.—San Antonio Oct. 30, 2013).
Mitigation 21 Plaintiffs’ duty to mitigate. Generally, a plaintiff has a duty to exercise reasonable care to mitigate damages. See Great Am. Ins. Co. v. North Austin MUD, 908 S.W.2d 415, 426 (Tex. 1995). For example, in employment litigation, a plaintiff’s damages will be reduced by amount that the plaintiff earned or should have earned in the exercise of reasonable diligence through other employment. Gulf Consol. Int’l v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983); Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d 178, 194 (Tex. App.—Texarkana 2002, no pet.). Mitigation is an affirmative defense that must be plead.
One Satisfaction Rule 22 The “one satisfaction rule” ensures that the plaintiff does not receive a duplicative recovery. Applicable when “multiple defendants commit the same act as well as when defendants commit technically different acts that result in a single injury.” Alief Indep. Sch. Dist. v. Perry, No CV, 2013 Tex. App. LEXIS 13522, *36 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013). “If a party received favorable findings on two or more theories of recovery that are consistent with each other and result in the same damages, then the trial court may render judgment awarding a single recovery of these damages, and the judgment may be based on all theories.” Id. “Because the damages recoverable under the [Texas] whistleblower and First Amendment claims are identical (but for the statutorily capped amount as to AISD) and because the trial court awarded a single recovery of damages, [Plaintiff] was not required to elect between these theories of recovery.” Alief Indep. Sch. Dist., 2013 Tex. App. LEXIS 13522, at *36.
One Satisfaction Rule (cont’d) 23 Joint and Several Liability. “[T]he imposition of joint and several liability avoids the possibility of a double recovery.” Alief Indep. Sch. Dist., 2013 Tex. App. LEXIS 13522, at ** Settlement credits. Available to a non-settling defendant as a credit against the judgment. See First Title Co. v. Garrett, 680 S.W.2d 74, 78 (Tex. 1993). Exception to the one satisfaction rule. The collateral source rule. Evidentiary rule preventing introduction of evidence regarding benefits received by plaintiff from an outside source, e.g., insurance, government assistance, tax deductions, worker’s compensation benefits. See Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex. 1980) (insurance).
Economic Loss Rule 24 Economic Loss Rule. A party may not recover in tort for purely economic losses suffered to the subject matter of a contract. Peterson Group, Inc. v. PLTQ Lotus Group, L.P., No CV, 2013 Tex. App. LEXIS (Tex. App.—Houston [1st Dist.] Oct. 17, 2013) (citations omitted). The court considers the “source of the defendant's duty to act (whether it arose solely out of the contract or from some common-law duty) and the nature of the remedy sought by the plaintiff.“ Id., quoting Formosa Plastics Corp. USA v. Presidia Eng’rs & Contractors, Inc., 960 S.W.2d 41, 45 (Tex. 1998). “When the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone.“ Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). However, under some circumstances, “a party's actions may breach duties simultaneously in contract and in tort.” Peterson Group. “To maintain a separate tort cause of action, the plaintiff must show that he has ‘suffered an injury that is distinct, separate, and independent from the economic losses recoverable under a breach of contract claim.’" Peterson Group, quoting Sterling Chems, Inc. v. Texaco Inc., 259 S.W.3d 793, 797 (Tex. App.--Houston [1st Dist.] 2007, pet denied).
Proportionate Responsibility 25 Proportionate Responsibility under the T EX. C IV. P RAC. & R EM. C ODE §§ A claimant may not recover damages if his percentage of responsibility is greater than 50 percent. § Applies to actions in tort and under the DTPA “in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought.” § The trier of fact as to each cause of action shall determine the percentage of responsibility for (1) each claimant; (2) each defendant; (3) each settling person; and (4) each responsible third party who has been designated under Section § If the claimant is not barred from recovery by § , the court shall reduce the damages with respect to a cause of action by a percentage equal to the claimant’s percentage of responsibility. § (a). The award must further be reduced by the “sum of the dollar amounts of all settlements.” § (b). The award in a health care liability claim is reduced, at the election of the defendant, by (1) the sum of all settlements or (2) a percentage equal to each settling person’s percentage of responsibility. § (c).
Proportionate Responsibility (cont’d) 26 Proportionate Responsibility under the T EX. C IV. P RAC. & R EM. C ODE §§ A defendant is liable to a claimant only for the percentage of damages found by the trier of fact equal to the defendant’s percentage of responsibility with respect to the harm for which the damages are allowed, unless the defendant’s percentage of responsibility is greater than 50 percent or “the defendant, with the specific intent to do harm to others, acted in concert with another person to engage in” certain conduct described in specific provisions of the Texas Penal Code. § The defendant should tender a question on proportionate responsibility for submission to the jury with the jury charge. See Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78 (Tex. App.—Houston [14 th Dist.] 2013, pet. denied). The proportionate responsibility scheme is not applicable in a statutory tort action where the statute contains a separate and conflicting fault-allocation scheme. See Challenger Gaming Solutions, Inc. v. Earp, 402 S.W.3d 290 (Tex. App.—Dallas 2013, no pet. hist.) (not applicable in an action under the Uniform Fraudulent Transfers Act, T EX. B US. & C OMM. C ODE § (a)(2)).
Recent Cases – Exemplary Damages 27 Safeshred, Inc. v. Martinez, 365 S.W.3d 655 (Tex. 2012). An employer's illegal directive to the employee (and any malice that might have accompanied that directive) could not form the basis for a punitive damages award. The actionable conduct is the firing. “A plaintiff may not bring a Sabine Pilot claim immediately after being asked to perform an illegal activity, but must first refuse and be fired. Allowing punitive damages premised not on the actionable firing itself, but on the illegal conduct that might have occurred while the employment relationship was still ongoing, would be an improper expansion of the cause of action.” “[I]n retaliatory termination cases, the only malice relevant to allowing punitive damages is that surrounding the actual termination itself.” “Accordingly, even if there was legally sufficient evidence that Safeshred was grossly negligent in ordering Martinez to drive the illegal truck loads, that gross negligence would not support punitive damages in this action because it was not relevant to the actionable firing itself. Malice in this case could only be shown by clear and convincing evidence that Safeshred, in firing Martinez, intended or ignored an extreme risk of some additional harm (like interference with his future employment, harassment, or terminating him knowing it was unlawful to do so).”
Recent Cases – Attorneys’ Fees 28 Alief Indep. Sch. Dist. v. Perry, No CV, 2013 Tex. App. LEXIS (Tex. App.—Houston [14th Dist.] Oct. 31, 2013, no pet. hist.). Noting exception to rule requiring attorneys to segregate their fees incurred in connection with a claim for which attorneys’ fees are recoverable from fees incurred in connection with claims for which fees are not recoverable. “When discrete legal services advance both recoverable and unrecoverable claims, attorneys are not required to segregate fees to recover the total amount covering all claims. In this situation, the claims are said to be ‘intertwined,’ and the mere fact that attorneys’ fees are incurred in advancing both recoverable and unrecoverable claims does not render those fees unrecoverable.” 2013 Tex. App. LEXIS at *39 (internal citation omitted). “Attorneys are not required to keep separate records documenting the exact amount of time working on one recoverable claim versus an unrecoverable claim.” Id. Instead, “segregation is sufficiently established if, for example, an attorney testifies that a given percentage of the drafting time would have been necessary even if the claim for which attorney’s fees are unrecoverable had not been asserted.” Id. at *40. Attorney testified to percentage reductions per claim and defendant as to claims for which fees were not recoverable. The court held that the evidence supported the fee award. Id. at *41-44.
Recent Cases – Mental Anguish 29 Onyung v. Onyung, No CV, 2013 Tex. App. LEXIS 9190 (Tex. App.—Houston [1st Dist.] July 13, 2013, pet. denied). Jury awarded the plaintiff damages for mental anguish arising from the defendant’s breach of fiduciary duty as the plaintiffs’ lawyer in a series of business transactions. The defendant asserted that damages for mental anguish were not recoverable on an award of purely economic damages Tex. App. LEXIS 9190, at * The court found that there was no evidence in the record “demonstrating that [plaintiff] experienced an emotional response meeting the legal standard for mental anguish,” an accordingly held that the evidence was legally insufficient to support a finding that the plaintiff “experienced a high degree of mental pain and distress that disrupted her daily routine as a result of” the defendants’ conduct. Id. at *48.
Recent Cases – Exemplary Damages, Election of Remedies, Tort Damages Arising From Contract 30 Drury Southwest, Inc. v. Louie Ledeaux #1, Inc., No CV, 2013 Tex. App. LEXIS (Tex. App.—San Antonio Oct. 30, 2013, no pet.). Landlord tenant dispute following landlord’s lock-out of a restaurant following a default in payment. The jury found in favor of the tenant on several alternative theories. The tenant elected to recover under the DTPA. In an earlier appeal, the court of appeals reversed the award of actual damages under the DTPA as outside of the range of evidence and remanded the case to the trial court to allow the tenant to make a re-election of remedies. On remand, the tenant elected to recover on its fraud theory Tex. App. LEXIS 13345, at **6-7. The court held that the evidence supported a finding of fraud based on misrepresentations made during the lease negotiations to induce the tenant into agreeing to lease the premises and that there was legally sufficient evidence to support an award for out- of-pocket expenses incurred in reliance on the misrepresentations. Id. at ** “[A]s long as the award is within the range of damages supported by the evidence, the reviewing court is not permitted to speculate about how the jury actually arrived at its award.” Id. at *17. The court reviewed the award of exemplary damages under the criteria set by T EX. R. C IV. P. § et seq. and held that the evidence supported a finding that the landlord’s fraudulent conduct resulted in a failed venture for the tenant and that legally sufficient evidence supported an award of exemplary damages. Id. at ** The court further found that the award was not excessive. Id. at **24-29.
Recent Cases – Exemplary Damages 31 Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.—Dallas 2013, no pet.). The court held that although a pre-injury release met the express negligence test for releasing claims arising from the defendant’s negligence, it did not cover gross negligence claims “and did not preclude proof of claims for negligence and actual damages.” Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78 (Tex. App.—Houston [14 th Dist.] 2013, pet denied). Apartment complex guests sued a number of defendants for malicious prosecution, false imprisonment, and assault after towing company employees beat the guests with a flashlight given to them by the apartment security guard. The jury found for the plaintiffs on the false imprisonment and assault claims. The court held that there was legally sufficient evidence of malice by the towing company employees and upheld an award of exemplary damages.
Recent Cases – Attorneys’ Fees 32 In re Nalle Plastics Family L.P., 406 S.W.3d 168 (Tex. 2013). The court held that attorneys’ fees incurred in prosecuting a claim are not “compensatory damages” or “costs” and so are not to be included in the calculation of a supersedeas bond.
Recent Cases – the Unlawful Acts Doctrine and Proportionate Responsibility 33 Dugger v. Arredondo, 408 S.W.3d 825 (Tex. 2013). Wrongful death action in which the court considered the “viability of the ‘unlawful acts doctrine’ as an affirmative defense in light of Texas’s proportionate responsibility scheme and the statutory affirmative defense” of assumption of the risk provided in T EX. C IV. P RAC. & R EM. C ODE § Under common law, the unlawful acts doctrine precluded a recovery by a plaintiff if it was shown that at the time of the injury, the plaintiff was engaged in an illegal act that contributed to the injury. The court held that “the Legislature’s adoption of the proportionate responsibility scheme in Chapter 33 of the Civil Practice and Remedies Code evidenced its clear intention that a plaintiff’s illegal conduct not falling within a statutorily recognized affirmative defense be apportioned rather than barring recovery completely.”