Motion for Attorney's Fees in Texas

What Is a Motion for Attorney's Fees?

Background

“Attorney's fees may not be recovered unless provided for by statute or by contract between the parties.” (Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd. (2009) 287 S.W.3d 877, 884 citing Dallas Cent. Appraisal Dist. v. Seven Inv. Co. (1992) 835 S.W.2d 75, 77.)

“Absent a mandatory statute, a trial court's jurisdiction to render a judgment for attorney's fees must be invoked by pleadings, and a judgment not supported by pleadings requesting an award of attorney's fees is a nullity.” (Good v. Baker (2011) 339 S.W.3d 260, 266 citing Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd. (2009) 287 S.W.3d 877, 884 quoting State v. Estate of Brown (1991) 802 S.W.2d 898, 900.)

How to Structure the Motion

“A party may bring a motion for attorney's fees under Texas Civil Practice and Remedies Code Section 51.015 and Texas Rule of Appellate Procedure 45. (See Tex. Civ. Prac. Rem. Code Ann. § 51.015 (Vernon 1997); TEX. R. APP. P. 45. Importantly, however, this statute and rule provide for fees for prevailing parties.” (Lucas v. Burleson Pub. (2004) No. 10-01-00228-CV, at *1 [denying motion for attorney fees where movant was not a prevailing party.])

“[W]hen a party pleads a specific ground for recovery of attorney's fees, the party is limited to that ground and cannot recover attorney's fees on another, unpleaded ground.” (Kreighbaum v. Lester (2007) No. 05-06-01333-CV, at *1 citing Edlund v. Bounds (1992) 842 S.W.2d 719, 731 n. 5 (Tex.App.-Dallas 1992, writ denied).

Sufficiency of Pleading for Attorney's Fees

“In order to be entitled to a discretionary award of attorney's fees, however, the movant must affirmatively plead for them unless the issue is waived or tried by consent.” (In re Pecht (1994) 874 S.W.2d 797, 803.)

A general prayer for relief will not support an award of attorney's fees because it is a request for affirmative relief that must be supported by the pleadings. (Varner v. Howe (1993) 860 S.W.2d 458, 466.)

Motion for Attorney's Fees and Nonsuit

A nonsuit does not affect a pending claim for affirmative relief or motion for attorney's fees. (Tex.R.Civ.P. 162; Lentino v. Frost Nat'l Bank (2003) 159 S.W.3d 651, 654 citing BHP Petroleum Co. v. Millard (1990) 800 S.W.2d 838, 840, 842.)

“A claim for attorney's fees constitutes a claim for affirmative relief that is not disturbed by a nonsuit.” (Bacon Tomsons, Ltd. v. Chrisjo Energy, Inc. (2016) No. 01-15-00305-CV [mem. op.] 2016 WL 4217254, at *10 [holding that “a plaintiff's nonsuit cannot extinguish a defendant's counterclaim for costs and attorney's fees.”)

Standard of Review

Whether attorney's fees are available under a particular statute is a question of law that we review de novo. (Holland v. Wal–Mart Stores, Inc. (1999) 1 S.W.3d 91, 94.) The appellate division reviews a trial court's award of attorney's fees for an abuse of discretion. (See Polansky v. Berenji (2012) 393 S.W.3d 362, 367.)

Award of Attorney's Fees and Breach of Contract

“[The Appellate division] review[s] an award of attorney's fees on the basis of breach of contract for an abuse of discretion.” (North Star Water Logic, LLC v. Ecolotron, Inc. (2016) 486 S.W.3d 102, 104-05 quoting Cajun Constructors, Inc. v. Velasco Drainage Dist. (2012) 380 S.W.3d 819, 826.) There is some uncertainty, however, as to the standard of review [applied] when reviewing a trial court's decision to grant or deny attorney's fees under a “prevailing party” clause in a contract when the plaintiff has nonsuited its claims. (North Star Water Logic, supra, citing Bhatia v. Woodlands N. Houston Heart Ctr., PLLC (2013) 396 S.W.3d 658, 670 n.14.)

The Court’s Decision

In deciding whether the request for affirmative relief was sufficient, a claim for attorney's fees that was included in defendant's answer was considered to be counterclaim seeking affirmative relief. (Nolte v. Flournoy (2011) 348 S.W.3d 262, 267 ); see also, In re C.A.S. (2003) 128 S.W.3d 681, 686; In re Frost Nat'l Bank (2003) 103 S.W.3d 647, 650.)

In deciding whether dismissal under Tex.R.Civ.P. 162 affects a claim for attorney's fees, "[a] dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees, or other costs, pending at the time of dismissal, as determined by the court.” (In re N.M.B. (2018) No. 14-17-00317-CV, at *2.)

Documents for Motion for Attorney's Fees in Texas

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TERESO ALMARAZ, et al vs. CHRISTOPHER SCOTT, et al document preview

MOTION FOR DEFAULT JUDGMENT - Motion - Default Judgment

4 pages

FILED 3/21/2024 1:37 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS …

Case Name TERESO ALMARAZ, et al vs. CHRISTOPHER SCOTT, et al