Delhi Gas Pipeline Corp. v. Lamb

OPINION ON MOTION FOR REHEARING

OSBORN, Chief Justice.

The Appellant, Delhi Gas Pipeline Corporation, has filed a motion for rehearing in which it again asserts the same basic contentions presented in its original brief. We have again considered those contentions and the points of error raised in the motion for rehearing and they are overruled.

The Appellees, James L. Lamb, Jr., et al., have filed a motion for rehearing along with two motions to supplement the record. We grant the motion to amend the record by filing a supplemental statement of facts and deny the motion to amend the transcript. In part we grant the motion for rehearing, and in part deny the motion.

The supplemental statement of facts which we have granted leave to file includes testimony heard by the trial court in August, 1986, concerning attorney’s fees and in particular evidence concerning the amount of time involved with an appeal in this case. That testimony was inadvertently left out of the statement of facts originally filed in this case. The trial court’s award of attorney’s fees on appeal was based upon the testimony which appears in this supplemental statement of facts. We find that evidence sufficient to support the trial court’s award of $22,500.00 subject to appeals to this Court and the Supreme Court of Texas. That part of our judgment dated December 31, 1986, which reversed the trial court’s judgment awarding attorney’s fees on appeal is set aside and the trial court’s award of attorney’s fees is in all things affirmed.

The Appellees’ motion for rehearing asserts that we erred in overruling the Appel-lees’ two cross-points of error. It is argued that under Rule 52(a), Tex.R.App.P., the Appellees were not required to except to the trial court’s judgment in order to complain on appeal with regard to the issues of prejudgment interest and the price redetermination provisions of the contracts. We disagree. The provisions now appearing in Rule 52(a), Tex.R.App.P., previously appeared in Rule 373, Texas Rules of Civil Procedure. It was under the provisions of that rule that the court in Plasky v. Gulf Insurance Company, 160 Tex. 612, 335 S.W.2d 581 (1960), was decided. In that opinion, Justice Walker noted that a complaint was made about the trial court’s failure to award interest on a sum recovered in a personal injury suit over and above the policy limits of the defendant. In denying the contention, the court said:

He did not object or except to the judgment entered in this case, and there is nothing in the record to show that the contention he now makes was ever urged in the trial court. The question cannot be raised for the first time on appeal, and petitioner’s second point of error is accordingly overruled.

All of the cases cited in our original opinion reached that same result. The Appellees now attempt with a supplemental transcript to include in the record copies of correspondence between counsel and the court concerning these issues. The corre*102spondence is not a proper matter for inclusion in the transcript and we have accordingly denied the motion to have the supplemental transcript filed. Except as to the issue of attorney’s fees on appeal, the Ap-pellees’ motion for rehearing is in all things overruled.