Attorneys’ Fees Recovery in Breach of Contract Claims in Texas–Fort Worth, Texas Contracts Law Attorneys

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.

The “venue” of a lawsuit can potentially have a significant impact on insurance and business litigation. Venue is simply concerned with the proper place (which county) to litigate the lawsuit. In Texas state courts, the proper venue can be established in more than one county based on rules regarding venue. Typically, the plaintiff chooses where to file the lawsuit initially, but a defendant might have reasons to transfer the lawsuit to another venue. In some situations, the convenience of the parties might dictate that venue is proper in one particular county. There may also be a strategic advantage in transferring a lawsuit to another venue because some venues are more favorable to a defendant than others. Texas lays out three rules for determining venue: general venue rules, permissive venue rules, and mandatory venue rules. The mandatory venue rules override the general rules in certain suits while the permissive rules provide more venue options than the general rules.

Unless a mandatory or permissive provision applies, the general rules say that a lawsuit should be brought in either the county in which “all or a substantial part or part of the events or omissions giving rise to the claim occurred,” or the county in which the defendant resides (if the defendant is a “natural born person”), or in the county of the defendant’s principal office in Texas, if the defendant is not a natural person. If none of the options are available, however, a plaintiff may file his suit in the county where he resided when the loss occurred. Thus, there are potentially four different counties where a plaintiff can file his lawsuit under Texas’s general venue rule.

Texas affords more flexibility in venue options to a defendant in certain circumstances through its permissive venue rules. The permissive venue rules allow some defendants the choice of being sued in a particular county. Some examples of permissive provisions include: (i) suits involving property coverages disputes against insurance carriers; (ii) suits against an estate; and (iii) suits alleging breach of warranty by a manufacturer of consumer goods.

Under the mandatory venue rules, there is only one place where a lawsuit can be filed. The Texas Codes provide several mandatory venue provisions. Some examples of lawsuits that have mandatory venue provisions include: (i) suits involving uninsured or underinsured motorist coverage; (ii) suits reviewing a workers’ compensation decision; and (iii) suits for the recovery of damages to real property.

A motion to transfer venue is the most common way to obtain a proper or more favorable venue but the timing is critical when moving to transfer venue. A defendant must file its motion before its answer or risk waiving its venue challenge.
If you need help navigating the intricacies of the Texas venue rules, contact Williams, Lacy, McClure & Parmelee. With over 90 years of combined experience, Williams, Lacy, McClure & Parmelee is prepared to discuss the options available to you.

James L. Williams, Jr.
Williams, Lacy, McClure & Parmelee
May, 2012

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth 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.