Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Friday, May 2, 2014

Prevailing party status for attorney fee award purposes


Under the American Rule, attorney's fees are recoverable only if authorized by statute or by contract. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). If authorized by contract, the parties may agree on the standard that will govern the attorney's fee award, even if that standard conflicts with Chapter 38 of the Texas Practice and Remedies Code. Intercontinental Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009). If the contract provides that attorney's fees will be awarded to the prevailing party, the trial court must determine which party is "prevailing." To prevail, a party "must obtain actual and meaningful relief, something that materially alters the parties' legal relationship." Id. at 652 (citing Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). More simply, a party prevails when it "prevails upon the court to award it something, either monetary or equitable." Id. at 655.

Did the Defendant "win" (prevail) when the Plaintiff filed a nonsuit? 

In Epps v. Fowler, 351 S.W.3d 862, 869 (Tex. 2011), the Texas Supreme Court construed an attorney's fee provision in a standard real estate contract to determine whether a defendant is a prevailing party when the plaintiff properly nonsuits his claims. Guided by the Fifth Circuit's decision in Dean v. Riser, 240 F.3d 505 (5th Cir. 2001), the Court held that when a plaintiff nonsuits the claims in his lawsuit with prejudice, the defendant is considered the prevailing party because the plaintiff is barred by res judicata from re-asserting the same claims. Epps, 351 S.W.3d at 869.

When the plaintiff nonsuits his claims without prejudice, however, the Court refused to adopt such a per se approach. Id. at 869. The Court noted that a defendant would generally not be a prevailing party when the plaintiff nonsuits without prejudice because the nonsuit "works no such change in the parties' legal relationship; typically, the plaintiff remains free to re-file the same claims seeking the same relief." Id. The Court also observed, however, that "it is logical to conclude that the parties intended to award attorney's fees to compensate the defendant when the plaintiff knowingly pursues a baseless action," id. at 869, and to "`discourage the litigation of frivolous, unreasonable, or groundless claims' when a `calculating plaintiff . . . voluntarily withdraws his complaint' to escape a disfavorable judicial determination on the merits." Id. (quoting Riser, 240 F.3d at 510) (citations omitted). Accordingly, the Court held a defendant may be a prevailing party only "if the trial court determines, on the defendant's motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits." Id. at 870.

The Epps Court provided some guidance to trial courts when determining whether a nonsuit was taken to avoid an unfavorable ruling on the merits. A trial court "should rely as far as possible on the existing records and affidavits, and resort to live testimony only in rare instances." Id. Looking to federal case law, the Court identified the following factors which could support such a determination, including: (1) the timing of a plaintiff's nonsuit when filed only after the defendant files a potentially dispositive motion such as a motion for summary judgment; (2) a plaintiff's unexcused failure to respond to requests for admission or other discovery that could support entry of an adverse judgment; (3) a plaintiff's failure to timely identify experts or other critical witnesses; and (4) the existence of other procedural obstacles, such as the plaintiff's inability to join necessary parties. Id. at 871.

Implied in each of these factors is that the plaintiff's nonsuit was necessary to avoid an unfavorable ruling because the plaintiff's claims were weak or without merit. Indeed, the Epps Court explained that the purpose of the rule was to discourage the plaintiff from pursuing weak claims that should be abandoned and not to penalize a plaintiff for nonsuiting when that is "precisely what should be done". Id. at 869 (citing Riser, 240 F.3d at 510). For instance, a plaintiff who nonsuits only after "discovery reveals previously unknown flaws in the plaintiff's claims" likely has not done so to avoid an unfavorable ruling on the merits. Rather, the decision "may well reflect a legitimate litigation strategy that `reveals nothing about the merits of a plaintiff's case [and thus] does not warrant a conclusion that a defendant in such a case has prevailed . . . .'" Id. at 868 (quoting Riser, 240 F.3d at 510). Accordingly, the Epps Court held that "evidence that the suit was not without merit when filed may indicate that the defendant has not prevailed and is therefore not entitled to attorney's fees." Id. at 871.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00777-CV - 4/23/2014


"As a general rule, litigants in Texas are responsible for their own attorney's fees and expenses in litigation." Ashford Partners, Ltd. v. ECO Res., Inc., 401 S.W.3d 35, 41 (Tex. 2012). "Under Texas law, a court may award attorney's fees only when authorized by statute or by the parties' contract." Peterson Grp., Inc. v. PLTQ Lotus Grp., L.P., 417 S.W.3d 46, 87 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (citing MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009)).

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00855-CV – 12/30/2014