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Recovery of Attorney Fees in Texas

Attorney fees

By J. Alexander Johnson

The purpose of this article is to provide an advance starting point for lawyers in Texas and nationwide to recover or oppose a request or demand for attorney fees in Texas courts. This is not a book review but rather a strong recommendation to purchase this excellent publication: How to Recover Attorneys’ Fees in Texas, Third Edition 2014.  This article is written solely by my own initiative and not requested by the authors.

Trey Cox and Dennis Jason, the authors are partners at Lynn, Tillotson, Pinker & Cox, LLP, a litigation boutique in Dallas, Texas.  Both attorneys have substantial jury trial experience.  Trey Cox is Board Certified as a Trial Advocate by the National Board of Trial Advocacy.  Jason Dennis is on the faculty of the National Board of Trial Advocacy and has been designated as a Master Advocate.

As an interesting aside, Jason Dennis graduated high school from Phillips Academy in Andover, Massachusetts.  This writer an active member of the Massachusetts bar was educated in the cradle of intellectual America and is very familiar with Phillips Academy’s outstanding academic reputation.  If you do not believe me ask former graduates, U.S. Presidents George H. and George W. Bush.

LEGAL BASES FOR RECOVERY
The legal bases of the right to recover attorney fees for the prevailing party in Texas is primarily premised on a contract between the parties, numerous statutes and Section 38 of the Texas Civil Practice and Remedies Code. In addition to a contractual basis, attorney fees are recoverable from an opposing party, if authorized by statute.1 The most common statute for recovery of attorney fees is the Texas Civil Practice & Remedies Code.

CHAPTER 38 TCPRC
Under Chapter 38 of the Texas Civil Practice & Remedies Code a person may recover reasonable attorneys’ fees from an individual or corporation, if the claim is for: (1) rendered services; ( 2) performed labor; (3) furnished material; (4) freight or express overcharges; (5) lost or damaged freight or express; (6) killed or injured stock; (7) a sworn account and (8) an oral or written contract.2  To recover attorney fees under Chapter 38, a party must prevail on a claim for which the attorneys’ fees are recoverable and recover damages.3 In addition, a party must follow certain procedural requirements:

  1. The claimant must be represented by an attorney;
  2. The claimant must present the claim to an opposing party or duly authorized agent and
  3. Payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.4

To determine if a party is entitled to recover attorney fees is a question of law.5 The burden of proof to show entitlement to the fees is on the party seeking to recover attorney fees.The allowance of attorneys’ fees is within the discretion of the trial court and will only be reversed for an abuse of discretion.7  This should sound very familiar to the experienced lawyer.  An abuse of discretion in most cases is extremely difficult to show.  An appellate court will not substitute its judgment if the trial court based its award on reasonable evidence presented before it, even if the award of attorneys’ fees is based on conflicting evidence.8

In order to be a prevailing party, actual relief on the merits of the plaintiff’s claim must be awarded such that it materially alters the legal relationship between the parties that directly benefits the plaintiff.9  A party must recover something of value either monetary or equitable.10 An injunction granted to an employer against a former employee will uphold an award of attorneys’ fees even where no damages were awarded because of a breach of covenant not to compete.11  Even a nonsuit without prejudice by a plaintiff in order to avoid an unfavorable judgment will qualify as a prevailing party.12  Keep in mind that a party must expressly request attorney fees in his complaint or counterclaim.13  Thus, a lawyer’s demand for attorneys’ fees should include both a specific and general demand.  For example, “The Plaintiff seeks recovery of their reasonable and necessary attorneys’ fees, costs and expenses through trial and all appeals under applicable Texas law, including but not limited to Section 38.001 of the Tex. Civ. Prac. & Rem. Code.”

The following are some common statutes that permit recovery of attorneys’ fees such as Declaratory Judgments, Insurance Code, Texas Deceptive Trade Practices Act, Securities, Intellectual Property, Class Action, Antitrust Law, Covenant not to Compete and Trademark Infringement. Appendix 22 in the book addresses and sets out a plethora of Texas statutes providing for attorneys’ fees.

PRESENTMENT
In order to recover attorneys’ fees based on a claim under Chapter 38, a party must also provide evidence of presentment of the claim to the opposing party.14 Presentment may be written or oral.15 For the plaintiff the best tactic is to make presentment in writing by letter Certified Mail Return Receipt 30 days before trial.  However, the Texas Civil Practice and Remedies Code does not provide for the recovery of attorneys’ fees by a defendant who does not have a claim of his own and only defends against the plaintiff’s claim.16 Not only is there no claim for recovery of attorneys’ fees in this context, but there can be no presentment.17 In addition, any request, demand or presentment for attorneys’ fees requires that the claimant prove that the fees incurred are “reasonable and necessary.”18 Also, the fees incurred by the plaintiff must have been incurred while suing the defendant on a claim that provides for the recovery of attorneys’ fees.19

I now ask the reader. Did you know all of the above before you read this article?  Also, after you put on your case in chief and before you rest and close are you now going to announce to the Court:” Your Honor, I would like to testify and prove up my attorneys’ fees. You are now testifying in narrative form and that you spent a total of “X” number hours on this case and that amount of attorneys’ fees is reasonable and necessary.  If so, you are in for a big surprise and very possibly a complete denial of attorneys’ fees.  That is why I am recommending this publication by Trey Cox and Jason Dennis.   I believe my admonishment is kind of like that automobile oil filter commercial: “You can pay me a little bit now for the oil filter or pay me a whole bunch later for a new car.” You decide on what side of this analogy you want to stand, by making an informed decision.

CONCLUSION
If as plaintiff you want to maximize your recovery in addition to damages you must prove up and present your attorneys’ fees with detail and precision.  You can only do that by reading: How to Recover Attorneys’ Fees in Texas.  In addition, a defendant should want to attack, deny or reduce the plaintiff’s request for attorney’s fees by showing the trier of fact the improper, inadequate or insufficient proof. The information and suggestions in this article is taken from the authors’ book but should not be taken as a substitute for independent research.

The authors and publisher point out that the information in their book may not be sufficient in dealing with a client’s particular legal problem and makes no warranty or representation as to its suitability for such a purpose.  In that regard, this writer sets out in the beginning that the information in this article is to provide an advance starting point in your research to recover or oppose attorney’s fees.

Pleading and presenting attorneys’ fees claim has numerous traps for the unwary.  If you have any questions do not call me because I will be in court proving up my attorney’s fee claim.  I will have my presentment letter in evidence, time sheets with a detailed explanation of the services performed, deposition of the attorney fee expert and a checklist of what I need to prove and a bevy of other items all taken from the book: How To Recover Attorneys’ Fees in Texas.


 

J. Alexander Johnson is an accomplished trial lawyer and concentrates on Civil Litigation ranging from Insurance Coverage, Sports and Entertainment to Personal Injury. Mr. Johnson is an active member of the Texas, Michigan, Massachusetts and Federal Court bars. He can be reached at www.JamesAJohnsonEsq.com or by E-Mail johnsonjajmf@yahoo.com.

 

ENDNOTES

  1. Gulf States Utilities Co v. Low, 79 S.W. 3d 561, 567 (Tex. 2002).
  2. Tex. Civ. Prac. & Rem. Code § 38.001.
  3. Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W. 3d 195, 201 (Tex. 2004).
  4. Supra, n.2 § 38.002.
  5. Holland v. Wal-mart Stores, 1 S.W. 3d 91, 94 (Tex.1999).
  6. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991).
  7. Ragsdale v. Progressive Voters League, 801 S.W. 3d 880, 811 (Tex. 1990).
  8. Paul v. Merrill Lynch Trust Co. of Texas, 183 S.W. 3d 805, 812 (Tex. App. – Waco 2005).
  9. Intercontinental Group P’ship v. KB Home Loan Star L.P.I., 295 S.W. 3d 650, 653 (Tex. 2009).
  10. Id.
  11. Mustang Pipeline Co., Inc. v. Driver Pipeline Co., 134S.W. 3d 195, 201(Tex.2004).
  12. Epps v. Fowler, 351, S.W. 3d 862, 864 (Tex.2011).
  13. Swate v. Medina Comm. Hosp., 966 S.W. 2d 693, 701 (Tex. App.-San Antonio 1998, pet. denied).
  14. Tex. Civ. Prac. & Rem. Code §38.002; Novosad v. Mid-Century Ins. Co., 881 S.W. 2d 546, 552 (Tex. App.- San Antonio 1994, no writ).
  15. Jones v. Kelley, 614 S.W. 2d 95, 100 (Tex. 1981).
  16. Thottumkal v. McDougal, 251 S.W. 3d 715, 719 (Tex. App.-Houston [14th Dist.] 2008).
  17. Id.
  18. Tex. Bus. & Com. Code §1750 (d); Id. at §27.01 (e); Tex. Civ. Prac. & Rem. Code § 38.001.
  19. Stewart Title Guar. Co. v. Sterling, 822 S.W. 2d 1, 11 (Tex. 1991).