Heart O' Texas Federal Credit Union v. Wayne Mathe and Janice Mathe--Appeal from County Court at Law No 2 of McLennan County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 1993 » Heart O' Texas Federal Credit Union v. Wayne Mathe and Janice Mathe--Appeal from County Court at Law No 2 of McLennan County

State: Texas

Court: Texas Northern District Court

Docket No: 10-92-00243-CV

Case Date: 11/10/1993

Plaintiff: Mike Hopkins

Defendant: Texas Department of Public Safety--Appeal from County Court at Law of Cherokee County

Preview:Heart O' Texas Federal Credit Union v. Wayne Mathe
and Janice Mathe--Appeal from County Court at Law
No 2 of McLennan County
HOT Credit v. Mathe /**/
IN THE
TENTH COURT OF APPEALS
No. 10-92-243-CV
HEART O' TEXAS FEDERAL CREDIT UNION,
Appellant
v.
WAYNE MATHE AND JANICE MATHE,
Appellees
From the County Court at Law No. 2
McLennan County, Texas
Trial Court # 910868 CV2
OPINION ON MOTIONS FOR REHEARING
On October 13, 1993, Wayne and Janice Mathe filed a motion for rehearing. On the same day they filed a "Motion to
Extend Time for Filing Brief in Support of Appellee's Motion for Rehearing." Typically, arguments and authorities in
support of points contained in a motion for rehearing are incorporated into the motion itself. The rules of appellate
procedure provide for the filing of motions for rehearing, the amendment of such motions, and for extensions of time
within which to file such motions. Tex. R. App. P. 100. Because the Mathes' motion for rehearing was timely filed and
the rules do not mention briefs in support of motions for rehearing, the motion is denied.
The motion for rehearing asserts twenty-three points on which they base error by this court. We have examined the
points and, being not persuaded by them to disturb our judgment, deny the motion for rehearing.
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Heart o' Texas Federal Credit Union also filed a motion for rehearing. H.O.T. correctly asserts, and the Mathes in a
response concede, that we inadvertently included the value of the pickup within the value of the personal property for
which we allowed a recovery on the Mathes' conversion theory. Accordingly, we will withdraw our judgment and
correct it to delete the value of the pickup.
H.O.T.'s motion also attacks the award of attorney's fees, a point not urged on original submission. Thus, the point was
waived even though attorney's fees are ordinarily not recoverable in a conversion action. See First State Bank, Morton
v. Chesshir, 634 S.W.2d 742, 748 (Tex. App. Amarillo 1982, writ ref'd n.r.e.) (citing Watson v. Glens Falls Insurance
Company, 505 S.W.2d 793, 797 (Tex. 1974)); Great Com. Life Ins. Co. v. Olton State Bank, 607 S.W.2d 604, 608
(Tex. Civ. App. Amarillo, 1980, no writ) (also citing Watson).
Finally, H.O.T. seeks a reduction in the amount of the exemplary damages awarded because of the conversion. This
point, too, was waived. See id. H.O.T. relies on Preston Carter Co. v. Tatum, 708 S.W.2d 23 (Tex. App. Dallas 1986,
writ ref'd n.r.e.), for the proposition that we have "the authority and obligation to review an award of exemplary
damages where a portion of the actual damages have been set aside." In Preston Carter, however, an opinion on
remand from the Supreme Court, Chief Justice Guittard states "[o]n original submission we . . . suggested a remittitur"
of the exemplary damages. Id. at 23-24. This statement leads us to the conclusion that the point was not, as here, raised
for the first time in a motion for rehearing. H.O.T.'s motion for rehearing is denied. The judgment dated September 29,
1993, is withdrawn and the judgment is reformed to allow the Mathes to recover the sum of $51,215 with interest
thereon at the rate of 10% per annum from the date of the judgment until paid and the additional sum of $9,750 as
attorney's fees, with appropriate credits for appellate steps not taken. As corrected, the judgment is affirmed.
BILL VANCE
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Judgment corrected; motions for rehearing denied
Opinion delivered and filed November 10, 1993
Do not publish
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