An issue that frequently arises in our commercial litigation and collection lawsuits in Texas is the question of entitlement to repayment of attorneys’ fees by the losing party. Sometimes there is no mention of attorneys’ fees in the contract, or even no written contract at all. The reality here in our Texas collection cases is that no written contract is needed to prevail on a claim for attorneys’ fees in a breach of contract action. Even in the absence of entitlement to attorneys’ fees under the contract, a Plaintiff can still recover attorneys’ fees as a prevailing party under the Texas Civil Practice and Remedy Code.
Section 38.001 of the Texas Civil Practice and Remedy Code provides that a person may recover reasonable attorney’s fees, in addition to the amount of a valid claim and costs, if the claim is for rendered services, performed labor, furnished materials, a suit on a sworn account or . . . an oral or written contract. Tex. Civ. Prac. & Rem. Code 38.001.
A party must (1) prevail on a cause of action for which attorney’s fees are recoverable, and (2) recover damages. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997).
The claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party and payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented. See Tex. Civ. Prac. & Rem. Code Ann. 38.002.
The prevailing party is the one vindicated by the judgment rendered. See Taylor Elec. Servs., Inc. v. Armstrong Elec. Supply Co., 167 S.W.3d 522, 532 (Tex. App.-Fort Worth 2005, no pet.). In determining the prevailing party, the focus is the successful party on the merits of the case. Id. A party can be the prevailing party entitled to attorney’s fees even where the amount recovered is offset by an amount awarded to the opposing party. Id. at 533 (citing Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 806 (Tex. App.-Dallas 1988, no writ)).
So, it makes sense for a lot of reasons to hire attorneys experienced in debt collection and breach of contract litigation in Texas cases. Recovery of attorneys’ fees is a win-win for the client too, and the right approach to attorney fee recovery can make all the difference.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas contract law attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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