Mansik & Young Plaza LLC v. K-Town Management, LLC

470 S.W.3d 840, 2015 Tex. App. LEXIS 7698, 2015 WL 4504875
CourtCourt of Appeals of Texas
DecidedJuly 24, 2015
DocketNo. 05-15-00353-CV
StatusPublished
Cited by4 cases

This text of 470 S.W.3d 840 (Mansik & Young Plaza LLC v. K-Town Management, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mansik & Young Plaza LLC v. K-Town Management, LLC, 470 S.W.3d 840, 2015 Tex. App. LEXIS 7698, 2015 WL 4504875 (Tex. Ct. App. 2015).

Opinion

OPINION ON MOTION TO SET SUPERSEDEAS AMOUNT

Opinion by

Chief Justice Wright

Before the Court is the motion of appel-lees K-Town Management, LLC d/b/a KTN US, IP Investments, Ltd., Odes H. Kim, Ji Hong Park, and Chul Seung Park to increase the amount appellants must post to suspend execution of the trial court’s judgment to include the attorney’s fees awarded by the trial court. See Tex. R. App. P. 24.4 (party may seek review of trial court’s ruling on amount of bond). We deny the motion and affirm the trial court’s ruling.

Appellants sued appellees for business disparagement, slander of title, tortious interference, and libel arising from statements published in appellees’ newspaper. Appellees moved to dismiss under the Texas Citizens Participation Act. See Tex. Civ. PRAC. & Rem. Code Ann. §§ 27.001-27.011 (West 2015) (“TCPA”). The trial court granted the motion and awarded appellees $83,683.87 for reasonable and necessary attorney’s fees. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009. The trial court’s order also includes amounts for attorney’s fees in the event of appeals to this Court and the Texas Supreme Court.

Appellants filed a cash deposit of $2,056 in lieu of a supersedeas bond. This deposit covers only costs of court. The trial court denied appellees’ motion to raise the amount to include the attorney’s fees awarded under the TCPA. We review a trial court’s ruling on the amount of a supersedeas bond for abuse of discretion. G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex.App.-Dallas 2006, no pet.). But to the extent it turns on a question of law, we review the amount of a bond de novo. Imagine Automotive Grp., Inc. v. Boardwalk Motor Cars, LLC, 356 S.W.3d 716, 718 (Tex.App.-Dallas 2011, no pet.).

When a judgment is for money, the amount of the security must equal the sum of: (1) the amount of compensatory damages awarded in the judgment; (2) interest for the estimated duration of the appeal; and (3) costs awarded in the judgment. Tex. Civ. Prac. & Rem. Code Ann. § 52.006(a) (West 2015); Tex. R. App. P. 24.2(a)(1). The Texas Supreme Court has held that “compensatory damages” under section 52.006 do not include attorney’s fees. In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168 (Tex.2013); In re Corral-Lerma, 451 S.W.3d 385 (Tex.2015) (per curiam). Appellees contend, however, that the TCPA provides a unique remedy of immediate redress and is to be construed liberally, so that the holdings of Nolle Plastics and Corral-Lerma do not apply to attorney’s fees awarded under the TCPA.

Under section 27.009 of the TCPA, if a trial court orders dismissal of an action, it “shall” award attorney’s fees to the moving party. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1); Cruz v. Van Sickle, 452 S.W.3d 503, 522 (Tex.App.-Dallas 2014, pet. filed) (rejecting argument that attorney’s fees award under TCPA is discretionary). Section 27.009 provides:

§ 27.009. Damages and Costs
[842]*842(a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party:
(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and
(2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.
(b) If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney’s fees to the responding party. ,

In Nalle Plastics, the supreme court interpreted the term “compensatory damages” used in section 52.006 of the civil ■practice and remedies code, which governs the amount of security to supersede a judgment. The court explained that the enactment of Chapter 52 of the code was “part of House Bill 4, a 2003 comprehensive tort reform measure.” Nolle Plastics, 406 S.W.3d at 169. The legislature created a “new balance” between the judgment creditor’s right in the judgment and,the judgment debtor’s right to meaningful appellate review. Id. at 170 (citing Elaine A. Carlson, Reshuffling the Deck: Enforcing and Superseding Civil Judgments on Appeal after House Bill ⅛, 46 S. Tex L.Rev. 1035, 1038 (2005)). After a review of case law addressing the difference between attorney’s fees and damages, the court concluded:

These cases demonstrate the difference between compensation owed for an underlying harm and fees that may be awarded for counsel’s services.... While attorney’s fees for the prosecution or defense of a claim may be compensatory in that they help make a claimant whole, they are not, and have never been, damages. Not every amount, even if compensatory, can be considered damages. Like attorney’s fees, court costs make a claimant whole, as does pre-judgment interest. Yet it is clear that neither costs nor interest qualify as compensatory damages. Otherwise, there would be no need to list those amounts separately in the supersedeas bond statute. See Tex Civ. Prac. & Rem. Code § 52.006(a) (security must be “equal [to] the sum of ... the amount of compensatory damages awarded in the judgments ... interest for the estimated duration of the appeal[,] and .'.. costs awarded in the. judgment”); see also Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.2000) (noting that the Court gives effect to all words of a statute and does not treat any language as surplusage).

Id. at 173-74.

The question presented in Corral-Ler-ma was similar. See Corral-Lerma, 451 S.W.3d at 386. Corral-Lerma sued Border Demolition and Environmental, Inc. under the Texas Theft Liability Act, and Border Demolition counterclaimed for attorney’s fees under the same Act.. Id. (citing Tex Crv. PRac. & Rem. Code Ann. § 134.005(b)). The trial court granted summary judgment for Border Demolition and awarded $78,001 in attorney’s fees through trial as well as conditional fees for appeal. Id. Although the trial court concluded that attorney’s fees were not included in the security amount, the court of appeals disagreed, explaining that under the Theft Liability Act, an attorney’s fees [843]*843award “compensates or indemnifies a defendant for the legal expense he incurs in successfully defending a claim made against him under the Act.” See id. (quoting Corral-Lerma v. Border Demolition & Envtl, Inc., 420 S.W.3d 59, 64-65 (Tex. App.-El Paso 2012, order)).

Relying on Nalle Plastics,

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470 S.W.3d 840, 2015 Tex. App. LEXIS 7698, 2015 WL 4504875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mansik-young-plaza-llc-v-k-town-management-llc-texapp-2015.