APPELLANT v. APPELLEE (2010)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

SUPPLEMENTAL MEMORANDUM OPINION1 ON REHEARING

In our initial opinion, we held that the trial court erred by granting traditional summary judgment to Bluebonnet because of a fact issue with regard to the amount of damages, which also affected the amount of attorneys fees and court costs Bluebonnet was entitled to receive.   Specifically, we reversed the portion of the trial courts judgment granting traditional summary judgment to Bluebonnet and awarding $10,058.07 in damages;  $1,650 in attorneys fees and $296 in court costs at trial;  and $10,000 in attorneys fees in the event of appeal because the evidence in the record supported only $9,101.76 as due and owing by Montoya.

Bluebonnet moved for rehearing and requested a voluntary remittitur, setting out the following in its prayer:

Bluebonnet asks the Court to grant this motion for rehearing, withdraw its opinion, affirm the trial court[s] judgment as awarded;  or, alternatively, Bluebonnet hereby makes the voluntary remittitur of $956.31, and the $1,650 attorney[ ]s fees and $296.00 court costs and the $10,000 conditional attorney [s] fees, and waives such fees if reformed ․ [and] affirm the judgment of the district court as reformed with the remittitur ;  or suggest the remittitur that is sufficient and then reform and affirm the judgment as suggested;  or alternatively, that the case be remanded to the district court for trial on the issue of the exact amount due on Montoyas account, and that Bluebonnet have any and all general relief to which it is entitled.  [Emphasis added.]

We vacate our judgment, but not our opinion, of October 28, 2010, and we grant Bluebonnets request for voluntary remittitur, deny the remainder of Bluebonnets motion for rehearing, reform the trial courts judgment to reflect the remittitur of $956.31, the $1,650 in attorneys fees, the $296 in court costs, and the waiver of the $10,000 conditional attorneys fees and affirm the trial courts judgment as reformed.   See Tex.R.App. P. 46.5;  Rasmusson v. LBC PetroUnited, Inc., 124 S.W.3d 283, 289 (Tex.App.Houston [14th Dist.] 2003, pet. denied) (reforming and affirming summary judgment in supplemental opinion after voluntary remittitur);  Roadside Stations, Inc. v. 7HBF, Ltd., 904 S.W.2d 927, 934 (Tex.App.Fort Worth 1995, writ) (op. on remittitur) (same);  see also Sw. Inv. Co. v. Neeley, 455 S.W.2d 785, 786 (Tex.Civ.App.Fort Worth 1970, writ dismd) (supplemental op. on remand).

PANEL:  DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED:  December 23, 2010

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.