Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, LLC
356 S.W.3d 716
Tex. App.2011Background
- This is a motion to review sufficiency of security to suspend enforcement of a judgment pending appeal under Tex. Civ. Prac. & Rem. Code Ann. §§52.001, 52.006 and Tex.R.App. P. 24.1/24.2.
- Boardwalk Cars prevailed on a damages award under the Texas Theft Liability Act (TTLA); judgment totaled $259,950 in damages plus interest, costs, and $389,898 in attorney’s fees.
- Imagine Group deposited a $325,000 cash bond to supersede the judgment, based on damages, estimated costs of $10,000, and 12 months of interest.
- Boardwalk sought to increase the bond to reflect actual costs and more interest, but not to include the attorney’s fees.
- Trial court raised the bond to cover actual costs and six months of interest but did not increase it to secure the TTLA attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TTLA attorney’s fees are part of compensatory damages subject to security. | Boardwalk: fees are compensatory damages under TTLA. | Imagine Group: fees are not compensatory damages. | Fees are not compensatory damages; not included in security. |
| Do Shook v. Walden and PopCap Games control TTLA fees in security rulings? | Boardwalk argues these cases support including fees. | Imagine Group relies on these cases to exclude fees. | Shook/PopCap apply; TTLA fees not part of damages; not in security. |
| Do statutory provisions show fees are in addition to actual damages, not part of the underlying claim? | Boardwalk: TTLA fees are mandatory and part of liability. | Imagine Group: distinction between underlying damages and fees exists. | Provisions show fees are separate and not part of compensatory damages; not included in security. |
Key Cases Cited
- Miga v. Jensen, 299 S.W.3d 98 (Tex. 2009) (supersede pending appeal; standard of review for security)
- Shook v. Walden, 304 S.W.3d 910 (Tex.App.-Austin 2010) (fees not compensatory damages; controlling on issue)
- PopCap Games, Inc. v. Mumbo-Jumbo, LLC, 317 S.W.3d 913 (Tex.App.-Dallas 2010) (fees may not be compensatory damages under contract framework)
- G.R.A.V.I.T.Y. Enter., Inc. v. Reece Supply Co., 177 S.W.3d 537 (Tex.App.-Dallas 2005) (attorney’s fees ordinarily not compensable as damages)
- Beaumont v. Basham, 205 S.W.3d 608 (Tex.App.-Waco 2006) (attorney’s fees not part of underlying damages under common law)
- Fairways Offshore Exploration, Inc. v. Patterson Services, Inc., 355 S.W.3d 296 (Tex.App.-Houston [1st Dist.] 2011) (district court rejected Shook/PopCap rationale)