Talk about snatching victory from the jaws of defeat. The Dallas Court of Appeals recently held that an appellee is entitled to voluntary remittitur on rehearing. In this case, the court of appeals originally issued an opinion in which it found the evidence insufficient to support the amount of damages. Because liability was contested, the court reversed the judgment and remanded the case for a new trial. The appellee filed a motion for rehearing and requested a voluntary remittitur of a portion of the actual damages and prejudgment interest. The court of appeals held that the "voluntary remittitur cures the reversible error and we accept it." The court went on to vacate its judgment (but not its opinion) and enter a new judgment affirming the trial court’s judgment as modified.
I wonder whether or not offering voluntary remittitur as an alternative in appellee’s brief could ever be considered waiver. There is some confusing authority as to when an appellee can present an argument for affirmance for the first time on rehearing. While the better practice may be for appellees to offer the remittitur in their principal brief, this case supports the position that it’s not too late on rehearing. The court’s opinion in Mesquite Elk’s Lodge #2404 v. Shaikh can be found here.