If a party to a lawsuit wants to appeal the trial court’s judgment, it has to post security in the form of a supersedeas bond to suspend enforcement of the judgment during the appeal. In Top Cat Ready Mix, LLC v. Alliance Trucking, LP, et al., the Texas Fifth District Court of Appeals recently addressed the proper calculation of the amount of the supersedeas bond.
Instructions for calculating the amount of the supersedeas bond are set forth in Chapter 52 of the Texas Civil Practice & Remedies Code. Pursuant to the statute, “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 §52.006(a). Unfortunately, the phrase “compensatory damages” is undefined. In Top Cat Ready Mix, the court was tasked with interpreting the phrase “compensatory damages.”
The issue addressed in Top Cat Ready Mix is whether an award of contractual pre-judgment interest should be included as “compensatory damages” for purposes of calculating the amount of a supersedeas bond under Chapter 52. The trial court’s judgment awarded the plaintiff $315,087.21 in “actual damages,” $198,739.63 in “contractual pre-judgment interest,” $70,000 in attorneys’ fees, and post-judgment interest. The defendant superseded the judgment pending its appeal by posting a cash deposit in the amount of $371,802.90, reflecting the “actual damages” award, but not taking into account the “contractual pre-judgment interest.” The plaintiff filed a Motion to Review Supersedeas Security with the appellate court seeking to increase the amount of the bond to include the “contractual pre-judgment interest.”
In its opinion dated December 27, 2018, the Texas Fifth District Court of Appeals concluded that the phrase “compensatory damages” includes contractual pre-judgment interest. The court turned to the Black’s Law Dictionary, the Texas Finance Code, and the Texas Supreme Court’s opinion in In re Nalle Plastics Family Limited Partnership, 406 S.W.3d 168 (Tex. 2013) to reach its conclusion. While pre-judgment interest is “compensatory,” it is not considered an element of damage. However, in its opinion, the court drew a distinction between pre-judgment interest and contractual interest. “’Contract interest’ means interest that an obligor has promised or agreed to pay to a creditor under a written contract of the parties. The term does not include judgment interest.” Tex. Fin. Code §301.002(a)(1). The court held, “While pre-judgment interest might not be compensatory damages, ‘contractual interest’ is ‘a part of the debt, as much so as the principal.’” (citing First Nat’l Bank v. J.I. Campbell Co., 114 S.W. 887, 890 (Tex. Civ. App. – San Antonio 1908, no writ). Therefore, “contractual interest” is a “compensatory damage” for the purpose of calculating the amount of a supersedeas bond, while statutory “pre-judgment interest” is not.
The court’s opinion in Top Cat Ready Mix, LLC v. Alliance Trucking, LP, et al. provides guidance in both the drafting of judgments and the posting of security for an appeal. When the amount of “pre-judgment interest” to be awarded is based upon the parties’ contract, it should be noted in the judgment as “contractual interest” and not as “pre-judgment interest.” If the award recites the nature of the interest clearly, there should be less argument over the proper security needed to suspend enforcement of a judgment during appeal.
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