Opinion
No. 02-09-00301-CV
Delivered: December 23, 2010.
Appealed from the 30th District Court of Wichita County.
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
SUPPLEMENTAL MEMORANDUM OPINION ON REHEARING
See Tex. R. App. P. 47.4.
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 attorney's fees and court costs Bluebonnet was entitled to receive. Specifically, we reversed the portion of the trial court's judgment granting traditional summary judgment to Bluebonnet and awarding $10,058.07 in damages; $1,650 in attorney's fees and $296 in court costs at trial; and $10,000 in attorney's 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 Montoya's 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 Bluebonnet's request for voluntary remittitur, deny the remainder of Bluebonnet's motion for rehearing, reform the trial court's judgment to reflect the remittitur of $956.31, the $1,650 in attorney's fees, the $296 in court costs, and the waiver of the $10,000 conditional attorney's fees and affirm the trial court's 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] 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 dism'd) (supplemental op. on remand).