Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Friday, February 15, 2013

Attorney fees available in breach-of-contract cases in Texas courts in addition to damages


ATTORNEY’S FEES ON BREACH-OF-CONTRACT CLAIM
   
As one of the exceptions to “the American Rule”, attorneys fees are available to successful plaintiffs in breach of contract cases under the Texas Civil Practice and Remedies Code even if the contract itself does not provide for recovery of legal fees arising from disputes under the contract. Trial court judges must award some, if requested and supported with evidence, although the amount is discretionary. Certain requirements must be met.  
   
STATUTORY AUTHORIZATION AS EXCEPTION TO THE AMERICAN RULE

A party may recover reasonable attorney's fees if its claim is for "an oral or written contract." TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (Vernon 2008).

ELEMENTS OF CLAIM FOR ATTY’S FEES UNDER CHAPTER 38 OF THE CPRC

To recover attorney's fees under section 38.001(8), a claimant must: (1) be represented by an attorney; (2) present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) show that payment was not tendered before the expiration of the 30th day after the claim was presented. Id. § 38.002(1)-(3) (Vernon 2008). Presentment of a claim is required to allow the debtor to pay the claim before incurring an obligation to pay attorney's fees. Panizo v. Young Men's Christian Ass'n of the Greater Houston Area, 938 S.W.2d 163, 168 (Tex. App.-Houston [1st Dist.] 1996, no writ).

AMOUNT TO BE REASONABLE
"Reasonable" attorney's fees are available to a prevailing party on a breach of contract claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2008). Although the trial court has discretion to fix the amount of attorney's fees, it does not have discretion to deny attorney's fees entirely if they are proper. Hassell Constr. Co., Inc. v. Stature Comm. Co., Inc., 162 S.W.3d 664, 668 (Tex. App.-Houston [14th Dist.] 2005, no pet.).

CITE FOR FEE FACTORS CASE FROM THE TEXAS SUPREME COURT

Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (listing eight factors a factfinder should consider when determining the reasonableness of attorney's facts).

A litigant is not required to present evidence on each of these factors. Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.-Houston [14th Dist.] 2000, no pet.).



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