mansik-young-plaza-llc-young-ho-kim-sun-hui-kim-and-david-kim-v-k-town ( 2015 )


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  • Affirm; and Opinion Filed July 24, 2015
    S   In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-15-00353-CV
    MANSIK & YOUNG PLAZA LLC, YOUNG HO KIM,
    SUN HUI KIM, AND DAVID KIM, Appellants
    V.
    K-TOWN MANAGEMENT, LLC D/B/A KTN US; IP INVESTMENTS, LTD.;
    ODES H. KIM; JI HONG PARK; AND CHUL SEUNG PARK, Appellees
    On Appeal from the 193rd Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DC-14-12729
    OPINION ON MOTION TO SET SUPERSEDEAS AMOUNT
    Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
    Opinion by Chief Justice Wright
    Before the Court is the motion of appellees 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 $33,683.87 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 Nalle 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:
    –2–
    §27.009. Damages and Costs
    (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.” Nalle 
    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 4, 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
    judgment[,]. . . interest for the estimated duration of the appeal[,] and . . .
    costs awarded in the judgment”); see also Spradlin v. Jim Walter Homes,
    –3–
    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-Lerma 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.
    CIV. 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 award “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, the supreme court granted mandamus relief and directed the
    court of appeals to withdraw its order. 
    Id. at 388.
    Border Demolition sought to distinguish its
    award of attorney’s fees from the attorney’s fees awarded in Nalle Plastics, arguing that a
    prevailing defendant under the Texas Theft Liability Act must be awarded its attorney’s fees
    even without an award of compensatory damages. See 
    id. at 386
    (citing damages provision of
    Texas Theft Liability Act, TEX. CIV. PRAC. & REM. CODE ANN. § 134.005(b)). The supreme
    court rejected this argument, explaining that “[t]his statutory distinction does not undermine the
    inherent differences between compensatory damages and attorney’s fees we acknowledged in
    Nalle Plastics. On the contrary, we observed that ‘[w]hile 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.’” 
    Id. at 386–87
    (quoting Nalle 
    Plastics, 406 S.W.3d at 173
    ).
    –4–
    The court also rejected Border Demolition’s argument that if attorney’s fees were not
    included in the security, then there would be “essentially no security” during appeal. See 
    id. at 387.
    The court noted that any other litigant who receives a compensatory damages award that is
    significantly smaller than an accompanying attorney’s fees award is in the same position. 
    Id. Because Chapter
    52 reflects the legislature’s intent to create a “new balance” between judgment
    debtors and creditors, it is the court’s duty to “enforce the statute as we find it.” 
    Id. In sum,
    the
    court concluded that attorney’s fees awarded under the Texas Theft Liability Act are not
    “compensatory damages” for “purposes of calculating the security amount necessary to
    supersede a judgment during appeal.” 
    Id. at 386.
    In addition to following Nalle Plastics in breach of contract cases, this Court has
    considered whether attorney’s fees awarded under the deceptive trade practices act for a
    groundless claim brought in bad faith are “compensatory damages” that must be superseded
    under section 52.006. See Lopez v. RS Clark & Assocs., Inc., 
    396 S.W.3d 656
    , 657 (Tex. App.—
    Dallas 2013, no pet.) (on motion to review order requiring additional security to supersede
    judgment). In Lopez, the trial court specifically ruled that the attorney’s fees awarded in the
    judgment were compensatory damages “to compensate [appellee] for its actual economic or
    pecuniary loss as a result of the bad faith maintenance of this groundless suit.” 
    Id. Relying on
    our opinion in Imagine Automotive, we reversed the trial court’s order including the fees in the
    amount to be superseded, explaining that attorney’s fees are not compensatory damages. 
    Id. We conclude
    that the analysis under Nalle Plastics and Corral-Lerma applies to
    attorney’s fees awarded under the TCPA.         Although title of the TCPA section addressing
    attorney’s fees (quoted above) is entitled “Damages and Costs,” TEX. CIV. PRAC. & REM. CODE
    ANN. § 27.009 (emphasis added), the heading of a section “does not limit or expand the meaning
    of a statute,” as appellees recognize. TEX. GOV’T CODE ANN. § 311.024 (West 2013). But
    –5–
    appellees argue the substance of the provision nonetheless establishes that attorney’s fees
    awarded under the TCPA are not “a form of ancillary relief,” but are awarded “as compensatory
    damages for the injury that the judicial system immediately caused to the defendant because the
    system was abused by the plaintiffs.” They do not point to specific language in section 27.009 to
    support their interpretation, relying instead on the general purposes of the TCPA.
    The supreme court has explained that the TCPA “endorses a summary process” to
    accomplish its purpose “to identify and summarily dispose of lawsuits designed only to chill
    First Amendment rights.” In re Lipsky, 
    460 S.W.3d 579
    , 589 (Tex. 2015).         We have recently
    noted that “[t]he stated purpose of the [TCPA] is to encourage and safeguard the constitutional
    rights of persons to petition, speak freely, associate freely, and otherwise participate in
    government to the maximum extent permitted by law and, at the same time, protect the rights of
    a person to file meritorious lawsuits for demonstrable injury.” ExxonMobil Pipeline Co. v.
    Coleman, No. 05-14-00188-CV, 
    2015 WL 2206466
    , at *3 (Tex. App.—Dallas May 12, 2015, no
    pet. h.).
    There is nothing in the language of section 27.009 to indicate that the attorney’s fees
    provided constitute “compensation owed for an underlying harm” in accordance with the purpose
    of the TCPA rather than “fees that may be awarded for counsel’s services” in defending a claim.
    See Nalle 
    Plastics, 406 S.W.3d at 173
    –74. As we concluded in Lopez, even attorney’s fees
    incurred in defending a bad faith and groundless suit are not “compensatory damages.” See
    
    Lopez, 396 S.W.3d at 657
    . Without statutory language to support a departure from the analysis
    of Nalle Plastics and Corral-Lerma, we deny appellees’ motion to increase the amount to
    supersede the trial court’s judgment to include attorney’s fees.
    –6–
    We affirm the trial court’s order.
    150353F.P05
    /Carolyn Wright/
    CAROLYN WRIGHT
    CHIEF JUSTICE
    –7–
    

Document Info

Docket Number: 05-15-00353-CV

Filed Date: 7/27/2015

Precedential Status: Precedential

Modified Date: 2/1/2016