MESQUITE ELKS LODGE 2404 v. MOHAMMAD SHAIKH AND RANA MOHAMMAD SHAIKH (2011)

SUPPLEMENTAL MEMORANDUM OPINION ON REHEARING

Opinion By Justice Bridges

In our initial opinion, we sustained appellant's factual sufficiency challenge to the evidence used to support Finding of Fact No. 8 and, therefore, sustained appellant's issue challenging Conclusion of Law No. 4 that Shaikh should recover $23,166.00 in principal damages.   Because liability was contested, we could not reverse only on unliquidated damages.   See Tex.R.App. P. 44.1(b);  Redman homes, Inc. v. Ivy, 920 S.W.2d 664, 669 (Tex.1996).   Therefore, we reversed the judgment and remanded the cause for a new trial.

Appellee moved for rehearing and requested a voluntary remittitur as follows:

(1) $2,443.75 of the judgment principal award of $23,166.00, reducing the principal recovery to $20,722.25, and

(2) $305.50 of the prejudgment interest award of $2895.75, reducing the prejudgment interest recovery to $2590.25.

Thus, appellees sought to remit $2,443.75 in principal and $305.50 in prejudgment interest.

We conclude appellees' voluntary remittitur cures the reversible error, and we accept it.   We vacate our judgment, but not our opinion, of October 22, 2010, and we grant appellees' request for voluntary remittitur, deny the remainder of appellees' motion for rehearing, modify the trial court's judgment to reflect the remittitur of $2,443.75 and the $305.50 in prejudgment interest and affirm the trial court's judgment as modified.   See Tex.R.App. P. 46.5;  Rasmusson v. LBC PetroUnited, Inc., 124 S.W.3d 283, 289 (Tex.App.-Houston [14 th Dist.] 2003, pet. denied) (reforming and affirming summary judgment in supplemental opinion after voluntary remittitur);  Montoya v. Bluebonnet Financial Assets, No. 02-09-00301-CV, 2010 WL 5186787 (Tex.App.-Fort Worth, no pet.) (same).

081372SF.P05

DAVID L. BRIDGES JUSTICE