Parker County Today December 2017 - Page 13

W ho B ut , P ays T he A ttorney F ees ? W hen 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 autho- rizes 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 attor- ney’s fees incurred during litigation depends on the language of a contract in dispute in the litiga- tion. Contracts, such as residential and commer- cial 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 provi- sion 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. the prevailing party to recover its reasonable and necessary attor- ney’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 partner- ships, 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 misrepre- senting 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 If the contract does not have an attorney’s fees may be a major factor in determining whether fee provision, or if no contract is at issue in the to file suit. Therefore, it is essential to understand the lawsuit, parties may potentially recover attorney’s terms of any contract and the nuances of Texas’ attor- fees under a statute. There are many statutes that ney’s fees statutes so that there are no surprises along give litigants the right to recover attorney’s fees, the way. Consult an attorney experienced in litigation including Texas Civil Practice & Remedies Code matters before jumping to conclusions about whether, § 38.001. This section provides eight situations— and to what extent, attorney’s fees are recoverable. including claims for rendered services, performed labor, or furnished materials—in which a party This article is for informational purposes only and not for the purpose of providing legal advice. You should contact an that recovers monetary damages may also recov- attorney to obtain advice with respect to any particular issue. er reasonable and necessary attorney’s fees. Also, Caroline Cyrier is an attorney with Harris, Finley & Bogle, P.C. Her if a contract is in dispute but d ́ЁхɅѥ͕́ɍѥѥ̰ͥ́ѽ̰)ѽɹéɽ٥ͥ ā́Ս䁱ѥѥɽͥ䁑͔)Mхѕ(