GUY JAMES CONSTRUCTION COMPANY, PLAINTIFF-APPELLEE CROSS-APPELLANT,
v.
TRINITY INDUSTRIES, INC., DEFENDANT-APPELLANT CROSS-APPELLEE
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The court held that the Uniform Commercial Code authorized recovery of consequential damages, including the time/price differential, and modified the prejudgment interest award to run until the date of judgment.
The parties petitioned for rehearing after the court's initial decision. Trinity Industries raised the Uniform Commercial Code for the first time, and…
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PER CURIAM:
Both parties petition this Court for a rehearing. Trinity Industries, Inc. raises, for the first time, the Uniform Commercial Code as a bar to recovery of the “time/price differential” of steel awarded to James as damages. Generally, an appellate court does not consider issues that are first presented in an application for rehearing. See, e. g., United States v. Richards, 646 F. 2d 962, 963 (5th Cir. 1981); Moore v. United States, 598 F. 2d 439, 441 (5th Cir. 1979). However, during oral argument this Court inquired as to the possible application of the UCC to this case, so assuming , that the issue is properly before us, we construe the UCC sections relied on by Trinity to authorize the recovery of such consequential damages. See Tex.Bus. & Com.Code Ann. § 2.715(b) (Vernon 1968). The remaining points of error raised by both parties in their respective motions for rehearing have been thoroughly reconsidered, and are rejected.
Upon review of the opinion, however, the Court, sua sponte, concludes that the award made therein of prejudgment interest on the $102,162.43 amount of liquidated damages is erroneous. The interest period was inadvertently terminated by the district court, and subsequently by this court, as of April 6,1976, the date of settlement (see Guy James Construction Co. v. Trinity Industries, Inc., 644 F. 2d 525, 532 n.3, 534 (5th Cir. 1981), rather than the date of judgment. The opinion is modified, therefore, to reflect an award of interest on $102,162.43 at six percent per annum to the date of judgment, January 31, 1980, as follows:
$102,162.43 at 6% for year 1 = $ 6,129.75 $108,292.17 at 6% for year 2 = 6,497.53 $114,789.70 at 6% for year 3 = 6,887.38 $121,677.08 at 6% for year 4 = 7,300.62 $128,977.70 at 6%'for year 5 = 7,738.66 $136,716.36. at 6% for year 6 = 8,202.98 $144,919.34 at 6% for 77 days = 1,833.39 Total = - $ 44,590.31 Except as modified herein, both petitions for rehearing are DENIED.
* District Judge of the Western District of Texas, sitting by designation.
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Citator
Cited By
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GUY James Constr. Co. v. Trinity Indus., Inc., 644 F.2d 525 (5th Cir. 1981)
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Hawthorne Indus., Inc. v. Balfour MacLaine Int'l, Ltd., 676 F.2d 1385 (11th Cir. 1982)
Authorities Cited
- Moore v. United States, 598 F.2d 439 (5th Cir. 1979)
- United States v. Richards, 646 F.2d 962 (5th Cir. 1981)
- GUY James Constr. Co. v. Trinity Indus., Inc., 644 F.2d 525 (5th Cir. 1981)