Breach of Contract: Are Attorney’s Fees Recoverable?

by Jennifer Tatum Lee on January 20, 2012

Clients who have been damaged by a breach of contract want to be made whole.  However, if a client has to pay a lawyer to recover contract amounts that should have been paid without legal action, then the cleint is left less than whole.  But, what if the party who breaches a contract has to pay not only the owed money on the contract, but attorney’s fees, as well?  Certain statutes provide for just such a result.

The general rule in Texas is that each party pays its own attorney’s fees.  Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964).  However, attorney’s fees are recoverable under Tex. Civ. Prac. & Rem. Code § 38.001 in lawsuits for (1) rendered services; performed labor; (3) furnished material; (4) freight or express overcharges; (5) lost or damaged freight or express; (6) killed or injured stock; (7) a sworn account; or (8) an oral or written contract.  The most common lawsuits where this section is invoked by litigators are suits on sworn accounts, oral or written contracts and lawsuits for rendered services or performed labor.

This statute can be a useful avenue to obtain attorney’s fees from your opponent because it is not a discretionary statute.  In other words, the judge (provided that proof and pleading and other requirements are met) does not have discretion in awarding fees to the prevailing party.  D. F. W. Christian Television, Inc. v. Thorton, 933 S.W.2d 488, 490 (Tex. 1996).  Attorney’s fees are recoverable for work before and during trial.  Further, the general rule is that a trial court’s award of attorney’s fees may include appellate attorney’s fees.  Neal v. SMC Corp., 99 S.W.3d 813, 818 (Tex. App. — Dallas, 2003, no pet).  Attorney’s fees can also be recovered in cases where the attorney is working on a contingent fee (e.g. 33% of the recovery).  As a litigator I often try to invoke § 38.001  in breach of contract lawsuits, where applicable, to create a path for the recovery of attorney’s fees and the opportunity to make my client whole.

 

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