Texas Department of Transportation, formerly known as State Department of Highways and Public Transportation v. Stephen Cotner and Cherie R. Cotner--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-93-255-CV

TEXAS DEPARTMENT OF TRANSPORTATION,

FORMERLY KNOWN AS STATE DEPARTMENT

OF HIGHWAYS AND PUBLIC TRANSPORTATION,

Appellant

v.

STEPHEN COTNER AND CHERIE R. COTNER,

Appellees

From the 249th District Court

Johnson County, Texas

Trial Court # 249-247-85

OPINION ON MOTION FOR REHEARING

Cherie Cotner has filed a motion for rehearing asking us to "clarify the matter of the amount of post-judgment interest which she is entitled to receive." Cherie argues that post-judgment interest should accrue from February 13, 1991, the date of the initial judgment against the State. However, when the Supreme Court reversed this court's opinion in the first appeal, it remanded the case to the trial court for further proceedings, with instructions that the trail court was "free to render a final judgment or to grant all parties a new trial, and to take other actions not inconsistent with this opinion." // On remand, the trial court entered an amended judgment, signed on August 30, 1993, awarding Cherie $250,000, "with interest thereon at the maximum lawful rate from the date of this Judgment until paid."

Although Cherie's brief concludes with a prayer that "the judgment of the trial court dated February 13, 1991, will again be affirmed," that is not the judgment from which the State perfected this second appeal. In addition to awarding damages to Cherie, the amended judgment ordered that Stephen recover nothing on his claims against the State and denied the State's counterclaim for contribution against Stephen. With regard to the amended judgment, the record does not reflect that Cherie objected to the judgment's award of interest from "the date of this Judgment." // Furthermore, because Cherie did not raise this complaint by crosspoint in her brief on original submission, we decline to address it now on motion for rehearing. //

We deny Cherie Cotner's motion for rehearing.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Motion for rehearing denied

Opinion delivered and filed June 8, 1994

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