Monday, February 24, 2014

Attorneys Fees not recoverable as damages

Attorneys' Fees are not considered damages and not recoverable as such; contract or statute must authorize fee award

Texas law distinguishes between the recovery of attorneys' fees as actual damages and recovery of attorneys' fees incident to the recovery of other actual damages. Worldwide Asset Purchasing, L.L.C. v. Rent-a-Center East, Inc., 290 S.W.3d 554, 570 (Tex. App.-Dallas 2009, no pet.). A party may recover attorneys' fees only as provided by contract or statute. Id.; Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 898 (Tex. App.-Dallas 2003, no pet.). As a general rule, attorneys' fees are not recoverable as damages in and of themselves. See, e.g., Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003); Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, L.L.C., 356 S.W.3d 716, 718 (Tex. App.-Dallas 2011, no pet.); Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 521 (Tex. App.-Houston [1st Dist.] 2009, pet. denied); Worldwide Asset Purchasing, 290 S.W.3d at 570; see also Quest Communications Int'l, Inc. v. AT & T Corp., 114 S.W.3d 15, 35-36 (Tex. App.-Austin 2003) (damages measured by plaintiff's attorneys' fees recoverable only under certain exceptions not implicated here), rev'd in part on other grounds, 167 S.W.3d 324 (Tex. 2005) (per curiam).

A party relying on assertions of non-recoverable damages alone, such as attorneys' fees and expenses sustained in defending a lawsuit and prosecuting a counterclaim, has presented a legal barrier to any recovery. See Tana, 104 S.W.3d at 82 (damages described in terms of "value of time spent" and "costs incurred" in defending lawsuit were non-recoverable, even if party seeking such damages could have proven all other elements of claim for tortious interference); Eberts v. Businesspeople Personnel Servs., Inc., 620 S.W.2d 861, 863 (Tex. Civ. App.-Dallas 1981, no writ) ("[e]xpenses of litigation are not recoverable as damages unless expressly provided by statute or contract," and "[t]his rule applies to a litigant's loss of time"); Phillips v. Latham, 523 S.W.2d 19, 27 (Tex. Civ. App.-Dallas 1975, writ ref'd n.r.e.) ("the only time lost from work by either of the plaintiffs . . . was time lost because of the pendency of the lawsuit, such as that required for depositions and attendance at the two trials in this case. This loss is an expense of litigation. We know of no authority supporting recovery of actual damages for such a loss . . . ."); see also Haden v. David J. Sacks, P.C., 222 S.W.3d 580, 597 (Tex. App.-Houston [1st Dist.] 2007 (op. on reh'g), rev'd on other grounds, 266 S.W.3d 447 (Tex. 2008) (per curiam). This is true even if all other elements of the party's claim are proven. See Tana, 104 S.W.3d at 82; Consumer Portfolio Servs, Inc. v. Obregon, No. 13-09-00548-CV, 2010 WL 4361765, at *9 (Tex. App.-Corpus Christi Nov. 4, 2010, no pet.) (mem. op.).

SOURCE: DALLAS COURT OF APPEALS - 05-11-01718-CV - 1/30/2014.
CASE STYLE: Woodhaven Partners Ltd v. Shamoun & Norman LLP

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