Charles D. McDonald v. Charles M. Bennett and James v. Belvedere, Charles M. Bennett v. Charles D. McDonald

679 F.2d 415

Charles D. McDONALD, et al., Plaintiffs-Appellees,
v.
Charles M. BENNETT and James V. Belvedere, Defendants-Appellants.
Charles M. BENNETT, Plaintiff-Appellant,
v.
Charles D. McDONALD, et al., Defendants-Appellees.

No. 80-1124.

United States Court of Appeals,
Fifth Circuit.

June 28, 1982.

James Belvedere, pro se.

Brice A. Tondre, McFarland & Tondre, Houston, Tex., for Charles M. Bennett.

Porter & Clements, J. Eugene Clements, Barry Abrams, Houston, Tex., for McDonald.

1

Conner, Odom & Clover, C. E. Clover, Jr., Sealy, Tex., for John R. Selman & Citizens State Bank.

2

Appeals from the United States District Court for the Southern District of Texas.

ON PETITIONS FOR REHEARING

3

(Opinion May 7, 1982, 5 Cir., 1982, 674 F.2d 1080)

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Before CLARK, Chief Judge, GOLDBERG and WILLIAMS, Circuit Judges.

PER CURIAM:

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In McDonald v. Bennett, 674 F.2d 1080 (5th Cir. 1982), this Court remanded the case with instructions for the district court to offer plaintiff-appellee McDonald, as an alternative to a new trial, a remittitur of $303,900.00 in damages awarded against defendant-appellants Bennett and Belvedere, and of $100,000.00 in damages awarded against Bennett singly. Both sides have submitted petitions for rehearing, reiterating arguments that we already have found to be without merit. We deny these petitions for rehearing except as stated below.

6

Appellee McDonald's petition, however, also contains McDonald's assent to the remittitur, along with his request that we render judgment on this basis and without further proceedings on remand. This court is empowered to enter a remittitur. Our power in this respect is the same as that of a district court. Shingleton v. Armor Velvet Corp., 621 F.2d 180, 182 (5th Cir. 1980). "(I)f a remand would be mere wasted motion this Court (may) recompute the award." Id. (quoting Ferrero v. United States, 603 F.2d 510, 515 (5th Cir. 1979)).

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As McDonald has agreed to the remittitur described in our prior opinion, further proceedings on remand would be a waste of time. Accordingly, we grant his petition for rehearing for the sole purpose of accepting his remittitur and rendering judgment in place of remand. Our judgment hereby awards McDonald $98,905.00 in actual damages against Bennett and Belvedere, jointly and severally, an additional $150,000.00 in punitive damages against Bennett, and another $150,000.00 in punitive damages against Belvedere.

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JUDGMENT RENDERED.