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

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.

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

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