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Head Industrial Coatings & Services Inc. v. Maryland Insurance Co.7/29/1998
clear is not a tort but a contract case. Thus, the section is inapplicable. Further, even if it were applicable, the present contention about the "settlement offer" was never mentioned during the appeal of this case, and we will not permit a substantive argument of this nature to now be raised for the first time.
MARYLAND'S ATTORNEY'S FEES CLAIMS
Maryland argues on several grounds that Head is not entitled to the 40% attorney's fees. Maryland first argues that fees are not recoverable by Head because Head is not a prevailing party, because attorney's fees were originally linked to the bad faith and Article 21.21, ยง 16 claims, and because Head did not submit the Section 38.001 breach of contract claim to the court.
Maryland also argues that the recent Supreme Court decision in Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997), holds that a percentage recovery by counsel is improper (this case was released after our decision in Birmingham Fire Ins. v. American Nat'l Fire Ins. Co.). This does not apply to the present case. The Anderson case was a DTPA case, in which the Court held that a contingency fee arrangement could not be the sole factor in determining the fees. Maryland has not previously argued this claim of error and may not raise the issue for the first time at this late date. The argument has been waived. Vawter v. Garvey, 786 S.W.2d 263 (Tex. 1990).
Furthermore, these arguments are immaterial in this case. The Supreme Court specifically held that "Nelson/Head are entitled to . . . attorney fees as found by the jury." The jury found that counsel was entitled to 40% of the recovery. Thus, the trial court did not err by rendering judgment for that percentage of actual damages based upon the Supreme Court's determination. These points of error are overruled. Maryland's Other Contention:
Cost Assessment
Maryland also contends that the trial court erred by not assessing costs of appeal against Head. The mandate of the Supreme Court states in part that Maryland "shall recover from Head Industrial Coatings and Services, Inc. and Gans & Smith Insurance Agency, who shall pay, the costs in this Court and in the court of appeals." The itemized bill of costs follows. The cases state, however, that the trial Judge need not include this directive in his judgment. Following remand to the trial court, the party may immediately seek to recover the costs of appeal through a writ of execution. Walston v. Walston, 955 S.W.2d 677 (Tex. App.-Waco 1997, no writ); City of Garland v. Long, 722 S.W.2d 49, 50 (Tex. App.-Dallas 1986, orig. proceeding). The order assessing costs is part of the mandate from the appellate court which the trial court must enforce, but there is no authority indicating that the trial court must re-order the party to pay costs after it has been mandated by the Supreme Court. This point of error is overruled.
Head's Contention of Error
Head contends that the trial court erred in its computation of interest because it did not include as part of his damages the interest awarded pursuant to the Supplementary Payments clause of the policy. He contends that the $310,067.71 amount should be added into the other damages, and that postjudgment interest from December 9, 1993 should be calculated on that amount in addition to the $500,000 face value of the policy and the $37,792 attorney's fees from the first judgment.
We have not been cited to any authority, nor have we found any, authority for converting the postjudgment interest pursuant to the Supplementary Payments clause into actual damages so that interest could then accrue on that amount as well as on the award m
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