But ,
Who Pays The Attorney
Fees ?
When deciding whether to file a lawsuit , a major concern is whether parties may recover the money they spend on attorney ’ s fees . Below are some key points to keep in mind . General Rule In Texas , the general rule is that each party in a lawsuit is responsible for its own fees — unless a contract between the parties or a statute authorizes the party to recover its fees from another party . Below is an overview of some avenues for recovery . Contracts For many litigants , the ability to recover attorney ’ s fees incurred during litigation depends on the language of a contract in dispute in the litigation . Contracts , such as residential and commercial leases , oil and gas leases , and commercial contracts involving the purchase of goods and services , may contain attorney ’ s fees provisions allowing the prevailing party to recover its fees . However , not all contract provisions regarding attorney ’ s fees are the same , and each provision must be carefully examined . For example , an attorney ’ s fee provision in a residential lease contract may specify that the landlord only is eligible to recover its attorney ’ s fees if successful in litigation . So , when contemplating litigation , parties must understand the limits placed on recovery of attorney ’ s fees in the contract . Statutes If the contract does not have an attorney ’ s fee provision , or if no contract is at issue in the lawsuit , parties may potentially recover attorney ’ s fees under a statute . There are many statutes that give litigants the right to recover attorney ’ s fees , including Texas Civil Practice & Remedies Code § 38.001 . This section provides eight situations — including claims for rendered services , performed labor , or furnished materials — in which a party that recovers monetary damages may also recover reasonable and necessary attorney ’ s fees . Also , if a contract is in dispute but does not contain an attorney ’ s fee provision , § 38.001 allows the prevailing party to recover its reasonable and necessary attorney ’ s fees if certain prerequisites are met . However , this section also has its limitations . It only allows a party to recover attorney ’ s fees from an individual or corporation . Texas courts have interpreted § 38.001 literally and parties have been denied recovery of attorney ’ s fees from partnerships , limited liability companies , and other forms of business entities .
Other Texas statutes also allow for the recovery of attorney ’ s fees . For example , if litigation involves stolen goods or stolen intellectual property , the Texas Theft Liability Act permits a prevailing party to recover its reasonable attorney ’ s fees . Additionally , the Texas Deceptive Trade Practices Act , which is intended to protect Texas consumers , authorizes a prevailing consumer to recover attorney ’ s fees in a variety of instances , including breaches of warranties , failure to disclose information in a transaction , and misrepresenting the quality of goods or services . And , there are many other statutory provisions in Texas law , which may allow parties in a lawsuit to recover attorney ’ s fees . Conclusion The ability to recoup money spent on attorney ’ s fees may be a major factor in determining whether to file suit . Therefore , it is essential to understand the terms of any contract and the nuances of Texas ’ attorney ’ s fees statutes so that there are no surprises along the way . Consult an attorney experienced in litigation matters before jumping to conclusions about whether , and to what extent , attorney ’ s fees are recoverable .
This article is for informational purposes only and not for the purpose of providing legal advice . You should contact an attorney to obtain advice with respect to any particular issue .
Caroline Cyrier is an attorney with Harris , Finley & Bogle , P . C . Her practice focuses on commercial litigation , oil and gas , business torts , fiduciary litigation , and professional liability defense .
DECEMBER 2017 PARKER COUNTY TODAY
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