Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

The Dallas Court of Appeals, in an opinion by Chief Justice Carolyn Wright (left), recently held that attorney's fees awarded in a judgment need not be superseded on appeal.  In an opinion last year also by Chief Justice Wright, the Dallas Court held that attorney's fees awarded in a breach of contract case were not "compensatory damages," and, therefore, were not required to be superseded on appeal.  Here, attorney's fees were awarded under Chapter 134 of the CPRC, otherwise known as the Texas Theft Liability Act.  The Court held that Chapter 38 (regarding breach of contract) and Chapter 134 of the CPRC were basically indistinguishable noting that attorney's fees were mandatory under  both provisions.  The Court refused to follow the rationale of the Houston (1st) Court of Appeals, which had previously held that attorney's fees constitute compensatory damages and must be superseded on appeal. Consequently, the Dallas Court denied the Appellee's request to increase the supersedeas bond to secure the award of attorney's fees.  This creates a spilt of authority between Dallas and Austin, both holding attorney's fees need not be superseded, and Houston (1st), holding attorney's fees must be superseded, making it ripe for review by the Texas Supreme Court.   The Court's opinion in Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, LLC can be found here.  

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Supersedeas aficionados will want to take a look at the Austin Court of Appeals' opinion in Shook v. Walden.  The opinion gives a very thorough treatment of the parties' arguments and analysis of the law relating to elements of damages that must be superseded.  To summarize, the court of appeals makes the following holdings:

• Attorney's fees awarded under Civil Practice and Remedies Code Chapter 38 are not compensatory damages that must be superseded under Civil Practice and Remedies Code Section 52.006.  The court distinguishes the Houston Fourteenth Court of Appeals decision in Clearview Props., L.P. v. Property Tex. SC One Corp., 228 S.W.3d 262 (Tex. App.--Houston [14th Dist.] 2007, pet. denied)
• Prejudgment interest is a form of compensatory damages that must be superseded under Civil Practice and Remedies Code Section 52.006.
• The clerk's record for an appeal is not a cost awarded in the judgment and does not have to be superseded under Civil Practice and Remedies Code Section 52.006.
• Post-judgment interest, including the post-judgment interest awarded on prejudgment interest, trial and post-judgment attorney's fees, and costs must be superseded under Civil Practice and Remedies Code Section 52.006.
• Post-judgment interest for one year's estimated is adequate since the trial court has continuing jurisdiction to revisit the matter after a year has passed.

The court's opinion may be found here.  The court's opinion that post-judgment interest on post-judgment attorney's fees must be superseded is interesting in light of the Fourteenth Court's holding that post-judgment interest on post-judgment attorney's fees should not begin to run until the appeals court judgment is final.  Protechnics Int'l, Inc. v. True-Tag Sys., Inc., 843 S.W.2d 734, 736 (Tex. App.-- Houston [14th Dist.] 1992, no writ).

• Email This
• Print
• Comments
• Trackbacks
• Share Link