In a civil lawsuit you may recover attorney’s fees in limited circumstances. Texas follows the American rule in which attorney’s fees are recoverable if authorized by contract or statute. This article will discuss the situations where you may be awarded attorney’s fees under a contract or statute in civil litigation.
If you have an oral or written agreement that allows for the recovery of attorney’s fees, the terms of the agreement will control in a lawsuit. For example, a construction contractor suing a homeowner who failed to pay in a breach of contract suit may recover attorney’s fees. Likewise, a farmer who has an oral agreement to provide produce to a local grocery store may recoup attorney’s fees in a suit for nonpayment. The law requires that you first present the opposing party with an opportunity to pay the debt or settle the claim within 30 days in order to recover attorney’s fees. The request for payment may be done in writing or orally, so long as you can show that payment of a just debt was demanded and the opposing party refused to pay. This rule was put into place to encourage legitimate claims against an individual who refuses to pay a debt owed and to discourage unnecessary lawsuits.
There are numerous Texas statutes that authorize the recovery of attorney’s fees in civil litigation. Examples of statutes that allow for the recovery of attorney’s fees are the Deceptive Trade Practices Act (DTPA), Section 38.001 of the Civil Practice and Remedies Code, statutory fraud, and violation of the Theft Liability Act. While there are numerous other statutes that provide for attorney’s fees, they all have similar requirements to recovery. One such requirement is that you usually must prevail on your claim and be awarded actual damages in order to recover attorney’s fees. Therefore, if you bring a lawsuit with multiple claims, you will only recover attorney’s fees on the claim stemming from the statute (i.e. you win DTPA and common law fraud claims but only awarded attorney’s fees for the DTPA claim). Even if you prevail on the claim, you are limited to reasonable and necessary attorney’s fees, in the eyes of the judge or jury. This means that even if you spend an amount in attorney’s fees, the judge or jury may not find that legal services or the amount were reasonable.
It is important to remember that a defendant who successfully defends against a claim is not entitled to recover attorney’s fees. Attorney’s fees are also not typically recoverable in pure negligence cases, such as auto accidents or slip and fall cases.