Kennedy Con., Inc. v. Glenn W. Forman, Jr.

Motion Denied; Order filed November 10, 2014.
In The
Fourteenth Court of Appeals
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NO. 14-14-00776-CV
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KENNEDY CON., INC., Appellant
V.
GLENN W. FORMAN, JR., Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 06-CV-0959
ORDER
In this appeal from a final judgment signed July 15, 2014, appellee Glenn
W. Forman, Jr. filed a motion to review the sufficiency of the amount of security
required to suspend enforcement of the judgment. See Tex. R. App. P. 24.4. In the
court below, in response to the motion filed by appellant Kennedy Con., Inc., on
August 26, 2014, the trial court signed an order setting the amount of security at
$278,806.60, representing actual damages and post-judgment interest thereon.
Kennedy posted a bond in that amount on August 28, 2014, and it was approved by
the clerk the next day. In this court, Forman alleges the amount of the supersedeas
bond is insufficient and the required security should be increased to $381,688.26,
to include, in addition to the amount set by the trial court: (1) prejudgment interest
on the compensatory damages awarded in the judgment; (2) post-judgment interest
on the pre-judgment interest; and (3) post-judgment interest on the attorney’s fees
awarded in the judgment.
“[W]hen a judgment is for money, the amount of 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 § 52.006(a). The Supreme Court of Texas
analyzed section 52.006(a) in In re Nalle Plastics Family Limited Partnership, 406
S.W.3d 168 (Tex. 2013). The high court held that the attorney’s fees in that case
were not compensatory damages or costs for purposes of suspending enforcement
of a money judgment. Id. at 176. As to prejudgment interest, the court
characterized it in another context as “compensation allowed by law as additional
damages.” Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d
507, 528 (Tex. 1998). For purposes of applying section 52.006, however, the court
explained in Nalle:
Not every amount, even if compensatory, can be considered damages.
Like attorney’s fees, court costs make a claimant whole, as does
prejudgment interest. Yet it is clear that neither costs nor interest
qualify as compensatory damages.
In re Nalle, 406 S.W.3d at 173.
Kennedy argued to the trial court that pre-judgment interest was not required
to be included in the supersedeas amount, citing In re Nalle. We review the trial
court’s determination of the amount of security under Rule 24.4 of the Texas Rules
of Appellate Procedure for an abuse of discretion. Ramco Oil & Gas, Ltd. v. Anglo
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Dutch (Tenge) L.L.C., 171 S.W.3d 905, 909 (Tex. App.—Houston [14th Dist.]
2005, order). Generally, the test for abuse of discretion is whether the trial court
acted without reference to any guiding rules and principles or whether the trial
court acted arbitrarily and unreasonably. Id. at 910. We conclude the trial court did
not abuse its discretion in omitting prejudgment interest from the calculation of the
amount of security based on the quoted pronouncement in In re Nalle. See 406
S.W.3d at 173. In addition, because attorney’s fees and prejudgment interest were
not included in the calculation of the security amount, the trial court did not abuse
its discretion in failing to require the amount of security to include post-judgment
interest on the attorney’s fees awarded in the judgment or on the prejudgment
interest.
We deny Forman’s motion requesting that we order the amount of security
increased.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Publish.
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