PREVAILING DEFENDANT MAY RECOVER ATTORNEY'S FEES IF AUTHORIZED BY CONTRACT
The trial court's decision to award attorney's fees and post-judgment interest is supported by the contract, which states:
If the services of an attorney are retained and/or if any action at law or in equity is brought to enforce or interpret the provisions of this Agreement or to collect any monies due hereunder, the prevailing party shall be entitled to reasonable attorney's fees together with interest thereon at the highest rate provided by law in addition to any other relief to which he may be entitled at law or in equity.
WHAT DOES 'PREVAILING' MEAN? WHAT DOES IT TAKE TO QUALIFY AS PREVAILING PARTY FOR FEE RECOVERY PURPOSES?
A "prevailing party" is a party who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even if not to the extent of its original contention. See Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 564 (Tex. App.--Texarkana 2003, pet. denied); Dear v. City of Irving, 902 S.W.2d 731, 739 (Tex. App.--Austin 1995, writ denied).
Because ADC successfully defended against Hertzberg's suit by obtaining summary judgment on his claims, ADC is the prevailing party. See Robbins v. Capozzi, 100 S.W.3d 18, 27 (Tex. App.--Tyler 2002, no pet.). Thus, [Defendant] is entitled to "reasonable attorney's fees together with interest thereon" as provided by the contract. Accordingly, the trial court's decision to grant [Defendant's] requests for attorney's fees and post-judgment interest was not an abuse of discretion.
SOURCE: THIRD COURT OF APPEALS IN AUSTIN - 03-07-00072-CV - 9/11/2009