At long last, the Texas Supreme Court has resolved a question
our courts of appeals have been unable to uniformly answer: Must
attorney's fees be superseded on appeal?
Historically, attorney's fees, like damages, had to be
superseded to prevent execution while a case was on appeal.
However, in 2003, the Legislature enacted the well-known
tort-reform package known as "H.B. 4," which sought to
make the superseding of judgments easier. Since then, judgment
debtors were required to post security only in the amount of
"compensatory damages" plus costs and interest for the
estimated duration of the appeal. See Tex. Civ. Prac.
& Rem. Code § 52.006(a); Tex. R. App. P. 24.2(a)(1).
For the last 10 years, litigation ensued over whether
attorney's fees awarded in a judgment constituted
"compensatory damages" or "costs" such that
they should be calculated into the amount of security required to
suspend enforcement of a judgment. The Houston (1st and 14th
districts), El Paso, and Corpus Christi courts held that
attorney's fees must be included; the Austin and Dallas courts
found the opposite.
The Supreme Court, in In re Nalle Plastics Family Limited
Partnership, settled the dispute by determining that
attorney's fees are neither "compensatory damages"
nor "costs" as intended by the statute. Accordingly, they
need not be included in the amount of security required to
supersede a judgment. The Court was careful to note that if
attorney's fees were awarded as damages, the analysis
would be different.
Footnote
1 No. 11-0903, 2013 Tex. LEXIS 396 (Tex. May 17, 2013).
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