Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Thursday, May 26, 2011

Attorney's Fees in Breach-of-Contract Action

Texas follows "the American Rule" Attorneys’ fees are not recoverable in Texas unless allowed by statute or the parties’ contract. Chapa, 212 S.W.3d at 310–11; Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992). ATTORNEY'S FEES UNDER CHAPTER 38 OF THE CPRC: Prevailing plaintiffs only A party “may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . an oral or written contract.” Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8). Our court has held that a “valid claim” under this statute is not limited to an action for monetary damages and may include an action for specific performance. See Rasmusson v. LBC PetroUnited, Inc., 124 S.W.3d 283, 287 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (citing Jones v. Kelley, 614 S.W.2d 95, 96, 100–01 (Tex. 1981)). No fees for successful defense of BoC claim under Chapter 38 [but that may change as a result of latest installment of legislative "tort" reform;---> Loser pays bill] Section 38.001(8) does not authorize recovery of attorneys’ fees for successfully defending a contract claim. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8); Thottumkal v. McDougal, 251 S.W.3d 715, 719 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Prevailing defendant may recover fees if contractually authorized However, the above-quoted contractual provision entitling a “prevailing party” to recover attorneys’ fees does not distinguish between successful prosecution and successful defense of a claim. Therefore, we may uphold the trial court’s determination that [ litigant ] is entitled to some fees because it successfully defended [ opposing party's ] breach-of-contract counterclaim. SOURCE: Houston Court of Appeals (Beaumont caselaw b/c of transfer) - 14-08-00329-CV - 5/26/11 ATTORNEYS FEES UNDER THE DJA: The Texas Declaratory Judgment Act ("the ACT') [TDJA aka DJA] provides, “In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem. Ann. § 37.009 (West 2008). “The [Act] entrusts attorney fee awards to the trial court’s sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). SOURCE: Houston Court of Appeals (Beaumont caselaw b/c of transfer) - 14-08-00329-CV - 5/26/11

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