Gary Romano v. Gary Newton

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      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00255-CV



                                    Gary Romano, Appellant

                                                 v.

                                     Gary Newton, Appellee


   FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT
        NO. 24,929, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING



                           SUPPLEMENTAL OPINION


               On February 9, 2006, the district court entered a post answer-default judgment against

appellant, Gary Romano, awarding appellee, Gary Newton, $176,150.68 in actual damages,

$6,216.21 in attorney’s fees, interest and costs. On February 27, 2006, Romano filed a motion for

new trial contending that he had inadequate notice of the trial setting and that the evidence was

insufficient to support the judgment. On April 20, 2006, the district court entered an order

overruling Romano’s motion for new trial. On September 6, 2007, we issued an opinion holding that

the district court did not abuse its discretion in overruling Romano’s motion for new trial because

there was sufficient evidence to enable the district court to conclude that Romano had received

timely notice of the trial setting. We also held that, while there was sufficient evidence to support

the judgment as to Newton’s sworn account claim, there was legally insufficient evidence to support

a judgment for Newton on his breach of contract, fraud, and quantum meruit claims, and there was
no evidence to support Newton’s attorney’s fee award. As the amount of Newton’s sworn account

was only $29,544.47, that claim could not support the judgment’s $176,250.68 award. Accordingly,

we suggested a remittitur of $146,606.21, the difference between the $176,250.68 awarded in the

judgment and the $29,544.47 supported by the evidence. See Tex. R. App. P. 46.3. We then

affirmed the district court’s judgment conditioned on Newton’s filing a remittitur of $146,606.21

with the clerk of the district court within thirty days of the date our opinion issued.

               The thirty day period has since expired and no remittitur has been filed. Therefore,

in accordance with our September 6, 2007 opinion, we reverse the district court’s judgment and

remand the cause for a new trial on unliquidated damages and attorney’s fees.




                                               ________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Reversed and Remanded

Filed: December 7, 2007




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