Affirm; and Opinion Filed July 24, 2015 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-15-00353-CV MANSIK & YOUNG PLAZA LLC, YOUNG HO KIM, SUN HUI KIM, AND DAVID KIM, Appellants V. K-TOWN MANAGEMENT, LLC D/B/A KT N US; IP INVESTMENTS, LTD.; ODES H. KIM; JI HONG PARK; AND CHUL SEUNG PARK, Appellees On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-12729 

### OPINION ON MOTION TO SE T SUPERSEDEAS AMOUNT Before Chief Justice Wright, Justi ce Lang-Miers, and Justice Stoddart Opinion by Chief Justice Wright Before the Court is the motion of appelle es K-Town Management, LLC d/b/a KTN US, IP Investments, Ltd., Odes H. Kim, Ji Hong Pa rk, and Chul Seung Park to increase the amount appellants must post to suspend execution of the trial court’s judgment to include the attorney’s fees awarded by th e trial court. See T EX
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. P. 24.4 (party may seek re view of trial court’s ruling on amount of bond). We deny the moti on and affirm the trial court’s ruling. Appellants sued appellees for business di sparagement, slander of title, tortious interference, and libel arising from statements published in appellees’ newspaper. Appellees moved to dismiss under the Texas Citizens Particip ation Act. See T EX
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. C ODE A NN . §§ 27.001–27.011 (West 2015) (“TCPA”). The tria l court granted the motion and awarded–2– appellees $33,683.87 for reasonable and necessary attorney’s fees. See T EX
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. C ODE A NN . § 27.009. The trial court’s order also incl udes amounts for attorney’s fees in the event of appeals to this Cour t and the Texas Supreme Court. Appellants filed a cash depos it of $2,056 in lieu of a supe rsedeas bond. This deposit covers only costs of court. The trial court denied appellees ’ motion to raise the amount to include the attorney’s fees awarded under the TCPA. We re view a trial cour t’s ruling on the amount of a supersedeas bond for abuse of discretion. G.M. Houser, Inc. v. Rodgers , 204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, no pet.). Bu t to the extent it turns on a question of law, we review the amount of a bond de novo. Imagine Automotive Grp., Inc. v. Boardwalk Motor Cars, LLC , 356 S.W.3d 716, 718 (Tex. App.—Dallas 2011, no pet.). When a judgment is for money, the amount of the security must equal the sum of: (1) the amount of compensatory damages awarded in the judgment; (2) intere st for the estimated duration of the appeal; and (3) co sts awarded in the judgment. T EX
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. P. 24.2(a)(1). The Texas Supreme Court has held that “compensatory damages” under section 52.006 do not in clude attorney’s fees. In re Nalle Plastics Family Ltd. P’ship , 406 S.W.3d 168 (Tex. 2013); In re Corral-Lerma , 451 S.W.3d 385 (Tex. 2015) (per curiam). Appellees contend, ho wever, that the TCPA provides a unique remedy of immediate redress and is to be cons trued liberally, so that the holdings of Nalle Plastics and Corral-Lerma do not apply to attorney’s fees awarded under the TCPA. Under section 27.009 of the TCPA, if a trial court orders dismi ssal of an acti on, it “shall” award attorney’s fees to the moving party. See T EX
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### § 27.009(a)(1); Cruz v. Van Sickle , 452 S.W.3d 503, 522 (Tex. App.—D allas 2014, pet. filed) (rejecting argument that attorn ey’s fees award under TCPA is discretionary). Section 27.009 provides:–3– §27.009. Damages and Costs (a) If the court orders dismissal of a legal acti on under this chapter, the court shall award to the moving party: (1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter th e party who brought the legal action from bringing similar actions described in this chapter. (b) If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to dela y, the court may award court costs and reasonable attorney’s fees to the responding party. In Nalle Plastics , the supreme court interpreted the term “compensatory damages” used in section 52.006 of the civil pr actice and remedies code, which governs the amount of security to supersede a judgment. The court explained that the enactment of Chapte r 52 of the code was “part of House Bill 4, a 2003 comprehensive tort reform measure.” Nalle Plastics , 406 S.W.3d at 169. The legislature created a “new balance” between the j udgment creditor’s right in the judgment and the judgment debtor’s right to meaningful appellate review. Id. at 170 (citing Elaine A. Carlson, Reshuffling the Deck: Enforcing and Superseding Civil Judgments on Appeal after House Bill 4, 46 S. T EX
. L. R EV . 1035, 1038 (2005)). After a revi ew of case law addressing the difference between attorney’s fees and damages, the court concluded: These cases demonstrate the difference between compensation owed for an underlying harm and fees that may be awarded for counsel’s services. . . . While attorney’s fees for the prosecu tion or defense of a claim may be compensatory in that they help make a claimant whole, they are not, and have never been, damages. Not every amount, even if compensatory, can be considered damages. Like attorney’s fees, court costs make a claimant whole, as does pre-judgment interest. Yet it is clear that neither costs nor interest qualify as compensatory dama ges. Otherwise, there would be no need to list those amounts separate ly in the supersedeas bond statute. See T EX
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. C ODE § 52.006(a) (security must be “equal [to] the sum of . . . the amount of comp ensatory damages awarded in the judgment[,]. . . interest for the estimate d duration of the appeal[,] and . . . costs awarded in the judgment”); see also Spradlin v. Jim Walter Homes,–4– Inc., 34 S.W.3d 578, 580 (Tex. 2000) (noting that the Court gives effect to all words of a statute and does not treat any language as surplusage). Id. at 173–74. The question presented in Corral-Lerma was similar. See Corral-Lerma , 451 S.W.3d at 386. Corral-Lerma sued Border Demolition and Environmental, Inc. under the Texas Theft Liability Act, and Border Demolition counterclaimed for attorney’s fees under the same Act. Id

. (citing T EX
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. C ODE A NN . § 134.005(b)). The trial court granted summary judgment for Border Demolition and awarded $78,001 in attorney’s fees through trial as well as conditional fees for appeal. Id . Although the trial court concluded that attorney’s fees were not included in the security amount, the court of a ppeals disagreed, explaining that under the Theft Liability Act, an attorney’s fees award “compe nsates or indemnifies a defendant for the legal expense he incurs in successfully defending a claim made against him under the Act.” See id. ( quoting Corral-Lerma v. Border Demolition & Envtl., Inc. , 420 S.W.3d 59, 64–65 (Tex. App.— El Paso 2012, order)). Relying on Nalle Plastics , the supreme court granted mandamus relief and directed the court of appeals to w ithdraw its order. Id . at 388. Border Demolition sought to distinguish its award of attorney’s fees from the attorney’s fees awarded in Nalle Plastics , arguing that a prevailing defendant under the Texas Theft Liabil ity Act must be awarded its attorney’s fees even without an award of compensatory damages. See id . at 386 (citing damages provision of Texas Theft Liability Act, T EX
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. C ODE A NN . § 134.005(b)). The supreme court rejected this argument, ex plaining that “[t]his statutory di stinction does not undermine the inherent differences between compensatory da mages and attorney’s f ees we acknowledged in Nalle Plastics . On the contrary, we obser ved that ‘[w]hile attorney’s fees for the prosecution or defense of a claim may be compensatory in that th ey help make a claimant whole, they are not, and have never been, damages.’” Id. at 386–87 (quoting Nalle Plastics , 406 S.W.3d at 173).–5– The court also rejected Border Demolition’s argument that if attorney’s fees were not included in the security, then there would be “essentially no security” during appeal. See id. at 387. The court noted that any other litigant who r eceives a compensatory damages award that is significantly smaller than an accompanying attorney’s fees award is in the same position. Id. Because Chapter 52 reflects the legislature’s inte nt to create a “new balance” between judgment debtors and creditors, it is the court’s dut y to “enforce the statute as we find it.” Id. In sum, the court concluded that attorney ’s fees awarded under the Texa s Theft Liability Act are not “compensatory damages” for “purposes of ca lculating the security amount necessary to supersede a judgment during appeal.” Id. at 386. In addition to following Nalle Plastics in breach of contract cases, this Court has considered whether attorney’s fees awarded under the deceptive trade practices act for a groundless claim brought in bad faith are “compensa tory damages” that must be superseded under section 52.006. See Lopez v. RS Clark & Assocs., Inc. , 396 S.W.3d 656, 657 (Tex. App.— Dallas 2013, no pet.) (on motion to review order requiring additional security to supersede judgment). In Lopez , the trial court specifically ruled that the attorney’s fees awarded in the judgment were compensatory damages “to compen sate [appellee] for its actual economic or pecuniary loss as a result of the bad fa ith maintenance of this groundless suit.” Id. Relying on our opinion in Imagine Automotive , we reversed the trial court’s order including the fees in the amount to be superseded, explaining that atto rney’s fees are not compensatory damages. Id. We conclude that the analysis under Nalle Plastics and Corral-Lerma applies to attorney’s fees awarded under the TCPA. Although title of the TCPA section addressing attorney’s fees (quoted above) is entitled “ Damages and Costs,” T EX
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. C ODE A NN . § 27.009 (emphasis added), the heading of a section “does not limit or expand the meaning of a statute,” as appellees recognize. T EX
. G OV ’ T C ODE A NN . § 311.024 (West 2013). But–6– appellees argue the substance of the provision nonetheless establishes th at attorney’s fees awarded under the TCPA are not “a form of anc illary relief,” but are aw arded “as compensatory damages for the injury that the judicial system immediately caused to the defendant because the system was abused by the plaintiffs.” They do not point to specific la nguage in section 27.009 to support their interpretation, re lying instead on the genera l purposes of the TCPA. The supreme court has explained that th e TCPA “endorses a summary process” to accomplish its purpose “to identify and summarily dispose of lawsuits designed only to chill First Amendment rights.” In re Lipsky , 460 S.W.3d 579, 589 (Tex. 2015). We have recently noted that “[t]he stated purpose of the [TCPA] is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, a nd otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsui ts for demonstrable injury.” ExxonMobil Pipeline Co. v. Coleman , No. 05-14-00188-CV, 2015 WL 2206466, at *3 (Tex. App.—Dallas May 12, 2015, no pet. h.). There is nothing in the language of section 27. 009 to indicate that the attorney’s fees provided constitute “compensation owed for an underlying harm” in accordance with the purpose of the TCPA rather than “fees that may be awar ded for counsel’s services” in defending a claim. See Nalle Plastics , 406 S.W.3d at 173–74. As we concluded in Lopez , even attorney’s fees incurred in defending a bad faith and groundl ess suit are not “compensatory damages.” See Lopez , 396 S.W.3d at 657. Without st atutory language to support a de parture from the analysis of Nalle Plastics and Corral-Lerma , we deny appellees’ motion to increase the amount to supersede the trial court’s judgment to include attorney’s fees.–7– We affirm the trial court’s order.

150353F.P05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE