Ellis v. The Renaissance on Turtle Creek Condominium Association, Inc.
Dallas Court of Appeals, No. 05-12-01435-CV (April 23, 2013)
Justices Wright (opinion), Lang-Miers, and Lewis
The court of appeals granted in part and denied in part the appellant’s motion to reduce the supersedeas bond ordered by the trial court. The appellant contended he was entitled to a reduction under Texas Rule of Appellate Procedure 24 because his net worth was negative and because the trial court incorrectly included an award of attorney’s fees in its calculation of the bond. The court of appeals concluded the trial court did not abuse its discretion in finding that the appellant failed to establish his net worth, but did abuse its discretion by treating attorney’s fees as damages for the purpose of setting the bond. The court of appeals ordered the bond reduced by the amount of the attorney’s fee award.
The trial court granted summary judgment against Ellis and signed a judgment against him for $13,405.64 plus $20,000 in attorney’s fees the appellee had incurred through the summary judgment proceeding. Ellis later filed a motion in the trial court to set the supersedeas bond at $500. His motion was supported by an affidavit of net worth, which appellee contested. At the hearing on the bond, Ellis testified and offered certain documentation of his assets and liabilities, but the trial court concluded he had not provided sufficient evidence to allow the court to determine his net worth. The trial court set the supersedeas bond in the amount of $36,235.98, which represented the amount of the judgment, including attorney’s fees, plus predicted interest through the duration of appeal.
The court of appeals first concluded that Ellis waived any error in the trial court’s finding regarding his net worth by failing to adequately brief the issue. The Court then considered whether the attorney’s fee award was properly included in the calculation of the bond. The Court noted that, under Tex. R. App. P. 24, the supersedeas bond must equal the “sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment.” The Court cited its 2011 decision in Imagine Auto Group, Inc. v. Boardwalk Motor Cars, LLC, for the proposition that “[g]enerally, attorney’s fees are not recoverable as damages” unless the parties’ contract provides for fees as compensation. The contract at issue in this case did not do so. The Court therefore concluded that “attorney’s fees are not compensatory damages and appellant should not be required to supersede the attorney’s fees.” The Court ordered the amount of the supersedeas bond decreased by the amount of the attorney’s fee award.
Dallas Court of Appeals, No. 05-12-01435-CV (April 23, 2013)
Justices Wright (opinion), Lang-Miers, and Lewis
The court of appeals granted in part and denied in part the appellant’s motion to reduce the supersedeas bond ordered by the trial court. The appellant contended he was entitled to a reduction under Texas Rule of Appellate Procedure 24 because his net worth was negative and because the trial court incorrectly included an award of attorney’s fees in its calculation of the bond. The court of appeals concluded the trial court did not abuse its discretion in finding that the appellant failed to establish his net worth, but did abuse its discretion by treating attorney’s fees as damages for the purpose of setting the bond. The court of appeals ordered the bond reduced by the amount of the attorney’s fee award.
The trial court granted summary judgment against Ellis and signed a judgment against him for $13,405.64 plus $20,000 in attorney’s fees the appellee had incurred through the summary judgment proceeding. Ellis later filed a motion in the trial court to set the supersedeas bond at $500. His motion was supported by an affidavit of net worth, which appellee contested. At the hearing on the bond, Ellis testified and offered certain documentation of his assets and liabilities, but the trial court concluded he had not provided sufficient evidence to allow the court to determine his net worth. The trial court set the supersedeas bond in the amount of $36,235.98, which represented the amount of the judgment, including attorney’s fees, plus predicted interest through the duration of appeal.
The court of appeals first concluded that Ellis waived any error in the trial court’s finding regarding his net worth by failing to adequately brief the issue. The Court then considered whether the attorney’s fee award was properly included in the calculation of the bond. The Court noted that, under Tex. R. App. P. 24, the supersedeas bond must equal the “sum of compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment.” The Court cited its 2011 decision in Imagine Auto Group, Inc. v. Boardwalk Motor Cars, LLC, for the proposition that “[g]enerally, attorney’s fees are not recoverable as damages” unless the parties’ contract provides for fees as compensation. The contract at issue in this case did not do so. The Court therefore concluded that “attorney’s fees are not compensatory damages and appellant should not be required to supersede the attorney’s fees.” The Court ordered the amount of the supersedeas bond decreased by the amount of the attorney’s fee award.
