651 F2d 1090 Life Insurance Company of Virginia v. Murray Investment Company

651 F.2d 1090

The LIFE INSURANCE COMPANY OF VIRGINIA, Plaintiff-Appellant
Cross Appellee,
v.
The MURRAY INVESTMENT COMPANY and Murray Advisory
Corporation, Defendants-Appellees Cross Appellants.

No. 79-3266.

United States Court of Appeals,
Fifth Circuit.

Unit A

July 29, 1981.

Coke & Coke, E. Russell Nunnally, T. L. Caudle, III, Debra A. Olson, Dallas, Tex., for plaintiff-appellant cross appellee.

Rain, Harrell, Emery, Young & Doke, Robert W. Jordan, Sidney A. Fitzwater, Dallas, Tex., for defendants-appellees cross appellants.

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

ON PETITION FOR REHEARING

(Opinion May 29, 1981, 5 Cir., 1981, 646 F.2d 224)

Before RUBIN and GARZA, Circuit Judges, and SUTTLE*, District Judge.

PER CURIAM:

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IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby GRANTED to the extent that upon remand of this case to the District Court for a determination of attorney's fees, the District Court shall await the Texas Supreme Court's decision in First National Bank in Weatherford, Texas v. Exxon Corporation, 597 S.W.2d 783 (Tex.Civ.App. El Paso, 1980), writ granted, 24 Tex.Sup.Ct.J. 375 (May 9, 1981). If in its holding in that case the Texas Supreme Court definitively holds that attorney's fees are not properly awardable under the circumstances of this case, the District Court shall not find or award attorney's fees to the Life Insurance Company of Virginia. However, should the Supreme Court of Texas fail to hold contrary to this Court's original opinion, the opinion shall remain as initially written. In all other respects the original opinion of this Court remains as written.

*

District Judge of the Western District of Texas, sitting by designation