Permian Power Tong, Inc. v. Diamondback E&P, LLC Appeal from 441st District Court of Midland County (memorandum opinion)

Annotate this Case
Download PDF
NO. 12-16-00092-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS PERMIAN POWER TONG, INC., APPELLANT § APPEAL FROM THE 441ST V. § JUDICIAL DISTRICT COURT DIAMONDBACK E&P, LLC, APPELLEE § MIDLAND COUNTY, TEXAS SUPPLEMENTAL MEMORANDUM OPINION We issued our original opinion in this case on May 31, 2017. After we received a request for clarification of opinion and judgment from Diamondback E&P, LLC, we withdrew our opinion issued on May 31, 2017, and issued a substituted opinion on June 14, 2017. In our opinion issued on June 14, 2017, this Court reversed the portion of the trial court’s judgment awarding Diamondback E&P, LLC, $587,176.97 in replacement damages on its breach of contract claim against Permian Power Tong, Inc., and suggested a remittitur in the amount of $13,588.64, resulting in $573,588.33 in replacement damages, thereby reducing total actual damages to $810,549.33. We stated that if Diamondback filed the remittitur with the trial court clerk within fifteen days of our opinion and notified this Court of such, we would modify the judgment and affirm the damages award in accordance with the remittitur, thereby obviating the need for a new trial. See TEX. R. APP. P. 46.3, 46.5. On June 19, 2017, Diamondback filed its Notice of Formal Acceptance of Suggestion of Remittitur in this Court, showing that it had timely filed the remittitur with the trial court clerk. Accordingly, we vacate our judgment, but not our opinion, dated June 14, 2017, and in accordance with our opinion, we modify the trial court’s judgment to reflect that the amount of the judgment for mitigation damages awarded to Diamondback is reduced to the sum of $573,588.33, resulting in a reduction of total actual damages to $810,549.33. See TEX. R. APP. P. 46.3, 46.5. We have also sustained the portion of Permian’s issue relating to Diamondback’s failure to segregate its attorneys’ fees. Therefore, we reverse the portion of the trial court’s judgment awarding $319,761.50 in attorneys’ fees incurred through representation at the trial court level, and remand the cause to the trial court for a determination of the amount of attorneys’ fees to be segregated. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006). We affirm the trial court’s judgment in all other respects. This Court’s opinion of June 14, 2017, otherwise remains in effect. BRIAN HOYLE Justice Opinion delivered June 30, 2017. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (PUBLISH) 2 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT JUNE 30, 2017 NO. 12-16-00092-CV PERMIAN POWER TONG, INC., Appellant V. DIAMONDBACK E&P, LLC, Appellee Appeal from the 441st District Court of Midland County, Texas (Tr.Ct.No. CV-49854) THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, it is the opinion of this court that there was error in the judgment of the court below insofar as the trial court’s judgment awarded $587,176.97 in replacement damages and $319,761.50 in attorneys’ fees. It is therefore ORDERED, ADJUDGED, and DECREED that the portion of the trial court’s judgment awarding $587,176.97 in replacement damages be modified to reflect an award of $573,588.33 in replacement damages, thereby reducing total actual damages to $810,549.33. It is therefore ORDERED, ADJUDGED, AND DECREED that the portion of the judgment awarding $319,761.50 in attorneys’ fees incurred through representation at the trial court level be reversed and the cause remanded to the trial court for a determination of the amount of attorneys’ fees to be segregated. It is further ORDERED, ADJUDGED and DECREED that, in all other respects, the trial court’s judgment is affirmed; all costs of this appeal be assessed one-half against the Appellant, PERMIAN POWER TONG, INC., and one-half against the Appellee, DIAMONDBACK E&P, LLC, for which execution may issue; and that this decision be certified to the court below for observance. Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.